CC must be like Caesar’s wife, above suspicion

It is very unfortunate that the Constitutional Council (CC) which was once hailed as the biggest achievement of the Yahapalana government has been maligned, challenged and questioned today. This high authority which has powers to appoint/nominate the Supreme Court judges as well as the judges of Court of Appeal and other courts, chairpersons of state institutions as well as the members of the independent Commissions should be ‘above suspicion’ like Caesar’s wife Pompeia.

There are allegations of serious nature that some actions of the CC are beyond its given mandate. Recently, former Justice Minister Wijeydasa Rajapakshe accused the CC of taking bias and negative decisions detrimental to the public administration.

In a letter addressed to the President and the Speaker, Rajapakshe listed out some of the decisions he considered to be bias. The following are some of them:

President’s Counsel Suhada Gamlath was Secretary to the Justice Ministry. He was not appointed as Attorney General despite fulfilling all the requisites. He added that Senior DIG S.M. Wickremesinghe was not appointed as Inspector General of Police. The reason was that he was the Chief Security officer of former President Mahinda Rajapaksa.

The letter stated that Justice Deepali Wijesundara was not appointed as the Chairperson of the Court of Appeal. According to Wijeyadasa Rajapakhe, the verdict given in the “white flag” court case affected this appointment.

Unfair and unethical manner

The letter goes on to say that Justice Kusala Sarojini Weerawardana was not appointed to the Court of Appeal because of her decision to release Lalith Weerathunga and Anusha Palpita, two accused of ‘Sil Redi’ case, on bail.

Further his letter states that A. A. Heiyanthuduwa, Manilal Widyathilake, and Aruna Ranasinghe were not promoted to the Appeal Court. They all had the necessary qualifications. The former Minister notes, that it is clear that the Constitutional Council is functioning in an unfair and unethical manner. He says that it has become an institution committing political persecution. He requested the President to publish a gazette asking for expert advice. He also suggested a set of guidelines for the Constitutional Council.

The CC was first established in 2000 under the 17th Amendment. However it was replaced by a Parliamentary Council under the 18th Amendment. The CC was appointed as a comprehensive democratic appointing authority by the 19th Amendment to the Constitution in 2015.

Although it was established with good intention, the CC ran into problems with the end of Yahapalanaya leading to serious differences between the Executive and the CC on issues pertaining to certain appointments to top post in judiciary and public institutions.

The President’s authority over the CC is well spelt out in the Constitution. The 41G clause of 19th Amendment states that ‘The Council shall, once in every 3 months submit to the President a report of its activities during the preceding 3 months’.

One of the nominations rejected by the CC was the name sent by President Maithripala Sirisena for the post of Chairperson of the Appeal Court. The name proposed by the President was that of the second most senior Judge of Sri Lanka, Justice Deepali Wijesundara. However, it was rejected by the CC. Furthermore, the names of Judges Anura Ranasinghe and Wijesinghe were also rejected for certain promotions.

These rejections have created a controversy on the appointment or rejection criterion adopted by the CC.

It was reported that some names were rejected because the CC had certain reservations about these judges because of some of the judgements given by them in the past. This is a very strange logic. If there are any doubts about a verdict, it is necessary to appeal against the judgement and call for a retrial. It is inappropriate to reject a promotion of a judge to a higher position on grounds of hearsay that some judgements were wrong. Such decisions are arbitrary and also a violation of the judiciary concept that everyone is presumed innocent until proven guilty.

If the recommendations of the President were rejected due to judgements given by these judges, the CC or the Chief Justice should inform about those reasons to the President rather than keeping the Executive in the dark.

Controversial decisions

These controversial decisions of the CC could be due to the fact that there are no standard guidelines to the CC members with regard to the evaluation of nominees to judiciary services or public institutions. This is a legal lacunae in the 19th Amendment.

There should be key performance indicators (KPI) and other guidelines to ensure their impartial performances. Otherwise there could be misjudgements in appointments due to judicial temperament or attitude.

In most of the countries there are checks and balances on such appointing authorities. In the United States there is a Special Council to oversee such appointments.

The composition of the Constitutional Council consists of ten members, of whom three are ex-officio members while the rest are appointed. They are; (a) the Prime Minister, (b) the Speaker of Parliament, (c) the Leader of the Opposition, (d) one person appointed by the President, (e) five persons appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition and (f) one person nominated by agreement of the majority of the Members of Parliament belonging to political parties or independent groups, other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong, and appointed by the President.

The current members are Karu Jayasuriya (Chairman), Ranil Wickremesinghe, Mahinda Rajapaksa, Mahinda Samarasinghe, Thalatha Atukorale, Chamal Rajapaksa, Bimal Rathnayaka, Jayantha Dhanapala, Naganathan Sellvakumaran and Javed Yusuf.

The CC appoints Chairpersons and Members of Election Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission, National Procurement Commission, University Grants Commission and Official Languages Commission.

The CC is responsible of giving their recommendations for high ranking posts of government institutions such as, Chief Justice and Judges of the Supreme Court, President of the Court of Appeal and Judges of the Court of Appeal, Members of the Judicial Service Commission except its Chairman, Attorney General, Auditor General, Inspector General of Police, Parliamentary Commissioner for Administration (Ombudsman) and Secretary General of Parliament.

The Executive and the Parliament should give serious attention to the imperative need for establishment of guidelines for the members of the Constitutional Council in order to prevent such issue disrupting the public institutions of national importance in future.