In the 19th Amendment, the main blow to the powers of the President came with the Constitutional Council.  The Constitutional Council was first established in 2001 in the 17th Amendment. The idea was imitated by the civil society, led by the Organization of Professional Associations (OPA). The 17 Amendment was certified on 3rd October 2001. The Constitutional Council was removed in 2010 by the 18th Amendment and replaced in the 19thAmendment. 

Under the 1978 Constitution, the President made   the appointments to every important office of the State, from Prime Minister, Cabinet Ministers, and Deputy Ministers to Judges of the Supreme Court and the Court of Appeal, from the Attorney General and the Secretary-General of Parliament to the Auditor General and the Commissioner of Elections, the Public Service Commission, the Judicial Service Commission, and the Parliamentary Commissioner for Administration.

19th Amendment took this away from the President and gave it back to the Constitutional Council. The unfettered power of the President to appoint persons of his sole choice to critical judicial and government posts was brought under control by the 19th Amendment   declared jubilant Yahapalana supporters.

Composition of Constitutional Council

19th Amendment   said  “There shall be a Constitutional Council which shall consist of the Prime Minister, the Speaker, the Leader of the Opposition, one person appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition,of whom two persons shall be Members of Parliament and one person nominated upon agreement by the majority of 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 theOpposition belongs and appointed by the President. The Speaker shall be the Chairman of the Council.

The Constitutional Council consists of ten members with the Speaker as its Chairman. Of the ten members in the Constitutional Council, seven are members of Parliament and three are outsiders nominated by the Prime Minister and the Leader of the Opposition. The persons who are not Members of Parliament shall be persons of eminence and integrity who have distinguished themselves in public or professional life.   Three of them must represent the minorities, to reflect the pluralistic character of Sri Lankan society.

When the 17th Amendment was debated in Parliament, some members said that the interests of the minorities were not adequately safeguarded. It was agreed, at the last moment in 2001 to provide that 3 of the 5 nominated members would represent minority interests, Members of Parliament who belong to the respective Minority Communities would be consulted for this purpose.  This was the only provision that was hurriedly made, said Elmore Perera, who was a member of the OPA team that helped draft the Amendment.

The original plan when the 19th Amendment was drafted was to have three lawmakers and seven outsiders. This was opposed and it was decided to have seven lawmakers and three outsiders, said Jayampathy Wickremeratne.

The Constitutional Council speaking in 2019, said that its members are also of the view that the civil society representation must get the majority share in the Constitutional Council. That was the original proposal in the 19th Amendment Bill, but that had to be revised at the committee stage due to objections by the MPs. However, we are of the view that the current composition represents all party views at the Constitutional Council,” they said.

This was also included in the Draft Constitution prepared by Yahapalana. in this draft, the Constitutional Council is supposed to be made up of the following persons – the Prime Minister; the Speaker of Parliament; the Leader of the Opposition; the Speaker of the Second Chamber; one person appointed by the President; five persons appointed on nomination by both the Prime Minister and the Leader of the Opposition; and one person nominated by agreement among the majority of the Members of Parliament belonging to political parties or independent groups, other than the political parties to which the Prime Minister and the Leader of the Opposition belong reported Chandraprema.

We see that the number of persons on the Constitutional Council is to go up from ten to eleven with the addition of the Speaker of the Second chamber, commented Chandraprema. The composition is also to change from having seven parliamentarians and three non-politicians at present to just four parliamentarians and seven non-politicians This is obviously in keeping with the idea that non-politicians were somehow more exalted, more independent, more upright and less likely to do the wrong thing than a politician,   continued Chandraprema.

The draft constitution specifically says, that other than the Speaker, Prime Minister, Leader of the Opposition and the Speaker of the proposed second chamber, none of the other members of the CC should be Members of Parliament, Members of the proposed Second Chamber, Members of a Provincial Council, or members of any political party. However in selecting their supposedly non-political nominees, the Prime Minister and the Leader of the Opposition are mandatorily required to consult the leaders of political parties represented in Parliament ‘so as to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society, including professional and social diversity’, concluded Chandraprema.

Functions of Constitutional Council

The Constitutional Council was given the task of selecting the Chairmen and members of the following commissions. a) The Election Commission. (b) The Public Service Commission. (c) The National Police Commission. (d) The Audit Service Commission. (e) The Human Rights Commission of Sri Lanka. (f) The Commission to Investigate Allegations of Bribery or Corruption. (g) The Finance Commission. (h) The Delimitation Commission. (i) The National Procurement Commission.

It shall be the duty of the Council to recommend to the President fit and proper persons for appointment as Chairmen or members of the Commissions specified in the Schedule to this Article, also the recommendations must reflect the pluralistic character of Sri Lankan society, including gender, said 19th Amendment.  In the case of the Chairmen of Commissions, the Council shall recommend three persons for appointment, and the President shall appoint one of the persons recommended as Chairman.

 No person shall be appointed by the President as the Chairman or a member of any of the above Commissions, said the 19th Amendment, except on a recommendation of the Council. The appointment had to be made within 14 days of receiving the recommendation. If the President failed to do so, the nominees would be deemed to be appointed.

The Constitutional Council was also to name the following. The Chief Justice and the Judges of the Supreme Court. (b) The President and the Judges of the Court of Appeal. (c) The Members of the Judicial Service Commission, other than the Chairman. The Attorney-General. (b) The Auditor-General. (c) The Inspector-General of Police. (d) The Parliamentary Commissioner for Administration (Ombudsman). (e) The Secretary-General of Parliament. 

The 19th Amendment stated that in the case of Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Council must obtain the views of the Chief Justice.  The first draft of the 19th Amendment had a provision making it mandatory for the Constitutional Council and the Judicial Services Commission to consult the Bar Association of Sri Lanka when appointing judges. This was shouted down by the Opposition and the provision was dropped when the 19th Amendment was finally passed.

The Constitutional Council of the 19th Amendment had a status that even the President did not have. 19th Amendment said any decision of the Constitutional Council or any approval or recommendation made by the Council, shall be final and conclusive for all purposes. This means that the Constitutional Council is immune from any sort of legal action by any Court and no person or institution can question the decision of the Constitutional Council.  However, the 19th Amendment makes the Executive answerable to the Parliament while making the Parliament not answerable to any authority whatsoever, exclaimed critic.

There is more.  No person appointed under the recommendation of the Constitutional Council shall be removed except as provided for in the Constitution or in any written law, and where there is no such provision, the person shall be removed by the President only with the prior approval of the Council.  Savitri Goonesekera pointed out that one of the limitations in the 19th Amendment is that it has not addressed, very unfortunately, the critical issue of the removal of judges of the Supreme Court. I see that this is an omission, she said.

The first Constitutional Council had Champika Ranawaka (President’s nomination), Wijeyadasa Rajapakshe(Prime Minister’s nomination) and Vijitha Herath (Parliament’s nomination), Bimal Ratnayake (minor party representative) A. T. AriyaratneRadhika Coomaraswamy and Shibly Aziz (Appointed members)  later Naganathan SelvakumaranJayantha Dhanapala and Javed Yusuf .

The Constitutional Council, once appointed, settled down to the difficult task of making recommendations to a wide range of offices, regarding which they probably knew much less than the President. Anyway they muddled through and did their job. They recommended Senior Supreme Court Justice Nalin Perera and thereafter, Attorney General, Jayantha Jayasuriya as Chief Justice. Chula Wickramaratne was approved for the position of Auditor General. Pujitha Jayasundera as Inspector General of Police.

Appointments made by Constitutional Council to judiciary.

The Constitutional Council ran into trouble over its appointments, starting with the appointment of the Chief Justice. President Sirisena’s nomination for this post was rejected because the Chief Justice was not favor of that name. Constitutional Council however, firmly refused to make public, the comments made by the Chief Justice. If the CJ says a particular judge should not be promoted due to adverse judicial behavior, we will not make that information public, they said.

Why wasn’t the most senior Judge considered? The government has claimed that the most senior Supreme Court judges name was not submitted by the President. If so, why did the Constitutional Council not ask the President why he did not,  said a critic.

The Constitutional Council continued to bungle. The Constitutional Council delayed to recommend a nominee for President of the Court of Appeal, when the post fell vacant in January 2019.  This created a problem. It was not possible to appoint ‘Acting’ Presidents of the Court of Appeal without the permanent President. An acting appointment can be made only where a sitting President of the Court of Appeal is temporarily unable to  carry out his duties, due to illness, absence from Sri Lanka or any other cause said  the Constitution. 

This left the appointment of acting Presidents to the Court of Appeal in a legal quandary, observed J.C.Weliamuna, because, that meant that there is, no constitutionally established Court of Appeal. The Constitutional Council and the President must work together to decide on a suitable candidate, he said. The judiciary, Attorney-General’s Department and private bar have many highly qualified and suitable nominees.

 The Constitutional Council ran into trouble over the appointments to the superior courts. President Sirisena had nominated a single candidate each for the two superior courts, Deepali Wijesundera for the Supreme Court and Kusala Sarojini Weerawardena for the Court of Appeal. If she made it into Supreme Court, Deepali Wijesundera would then have been next in line for Chief Justice on the grounds of seniority. Both were knocked out, since civil society groups were against these two names and Sirisena sent in 12 more names.

In February 2019 the President complained to Parliament that 14 names of judges had been rejected by the Constitutional Council .without any reasons given. The Speaker has sent me a four-page letter stating that the seniority would not be counted as the sole criterion when making the appointments by the Constitutional Council, he grumbled.” It is said that the Constitutional Council rejects the names of the judges on the basis of judgments they have given in the past. Those who get their names rejected think that I am responsible for that. “

Analysts pointed out that the one consistent feature noticeable in these recommendations is that most senior persons have not been selected. For instance, Constitutional Council did not approve former Solicitor General Suhadha Gamlath as Attorney-General.  Mr. Gamlath was the most senior Solicitor General. He was not selected but a junior was, said a critic.  

The Constitutional Council replied its critics. The CC only approves or disapproves the nominations sent by the President, it said. Also, there are three parties, namely the President, Chief Justice and the Constitutional Council, involved in the matter. The CJ’s reasoning in approving or disapproving the nominations were given special consideration by the Constitutional Council.

The Constitutional Council thereafter announced in March 2019 that it has decided to seek the Attorney General’s opinion to draft the modalities and criteria for the appointment of judges and other members of the commissions.

Appointments made by Constitutional Council in the Police department.

In 2016, the Constitutional Council selected Pujitha Jayasundera for the post of Inspector General of Police.  He was appointed over the head of Snr. DIG S.M. Wickramasinghe. Constitutional Council nominated Pujitha Jayasundera   overlooking the most eligible candidate nominated by the President, comment critics.  ‘There were no shortcomings on Wickramasinghe‘s part that we know of, said an analyst. ’ Jayasundera‘s appointment was objected to at the time.  At the time the IGP was appointed, I told them to appoint someone else. But they did not heed my advice said Sarath Fonseka.

This appointment has been heavily condemned.  Television news showed IGP Pujitha Jayasundera speaking to a bigwig, calling him ‘Sir’ and assuring him that ‘Nilame’ would not be arrested. Here was the head of police himself assuring the caller that the law could be somehow adjusted to suit the circumstance, said a critic.

Junior ranks of the Police Department complain that the recent promotions effected by the National Police Commission on the recommendation of IGP Pujith Jayasundara have overlooked many deserving officers. Not even the person adjudged the best policeman in the country in 2017 has been considered for promotion.

 The best policeman of the year was selected in a competition among 440 stations countrywide. The person who scored the highest mark too has been overlooked among many other deserving cases.

Priority had been given to the policemen who were working for the Ministers and politicians in the Ministerial Security Division for promotions while those who served difficult areas had been overlooked,..

The NPC, on the recommendation of IGP Jayasundara, granted promotions to 2891 police officers of various ranks following interviews. The policemen who attended the interviews with the recommendations of their senior officers were given 10 marks at the interview while those who did not have such recommendations were given only five marks.

The Constitutional Council  in March 2019 decided to postpone naming a permanent Chairman to the National Police Commission (NPC) and let its members decide on a protem Chairman at its each sitting to continue its functions.

The Constitutional Council  was created to curb the arbitrariness of executive action. Therefore, if such an institution is to fulfill the purposes for which it was created, it has to gazette and place before Parliament the parameters that guide its operations. Else, it amounts to replacing the arbitrariness of an individual with that of an institution whose decisions are final and cannot be challenged.

If the Constitutional Council  had assigned weightage to the qualities they were looking for, when they developed guidelines, this would have been a non-issue. The lack of such procedures has made the guidelines for selection open to question said analyst.

Analysts were highly critical of the Constitutional Council recommendations. We could accept their selection, ignoring seniority and merit if the persons selected by them, , have been better than the seniors who were overlooked. But those who were nominated were not better than those  overlooked. It is no secret that many people in this country have reservations about the people recommended by the Constitutional Council, said critics. It should be made incumbent on its members inform an officer, when his seniority and merit are ignored, why he was not selected . After all, the Constitutional Council also must be accountable.

Seniority and merit were the age old criteria for promotion to all positions in the Public Service, Judiciary and Overseas’ Service. We should get rid of the Constitutional Council and revert to the simple principle of seniority and merit for promotion to high posts, they concluded. 

Criteria  for appointments

There was criticism that the CC lacks a set of criteria in approving the appointments referred to it. The 19th Amendment  said that  Constitutional Council  ‘has the power’ to make rules relating to the performance and discharge of its duties and functions. All such rules shall be published in the Gazette and be placed before Parliament within three months of such publication”.

The CC was created to curb the arbitrariness of executive action. Therefore, if such an institution is to fulfill the purposes for which it was created, it has to gazette and place before Parliament the parameters that guide its operations. Else, it amounts to replacing the arbitrariness of an individual with that of an institution whose decisions are final and cannot be challenged, said critics.

The Constitutional Council contested this. They issued a statement in March 2019, saying that it was using same  criteria followed by the then Constitutional Council of 2002. The Constitutional Council  has informed the President and all MPs on this set of criteria and requested suggestions if any revisions are needed.

Constitutional Council said that the Council called for applications for vacancies in the independent commissions and only considered for nomination persons who had applied. The Council examined the requirements for each Commission as spelled out in the Constitution or the appropriate legislation”, and placed priority on integrity, independence and non-partisanship.” It looked for professional experience that was relevant to the work” of the respective commission, and outstanding qualities and leadership in important institutions or positions.”

The Council also weighed maturity” against the benefits of younger candidates” who could bring new ideas” to the workings of particular commissions. Diversity, in terms of ethnicity and gender in particular” was another factor considered by the Council in recommending nominees to the independent commissions. 

When it came to judicial and other appointments under Article 41C of the Constitution, the Council was not required to call for or evaluate applications for vacancies, but only to evaluate and approve persons nominated by the President.

Constitutional Council  gave a detailed statement to Parliament as to the criteria it was using. This report tabled by the Speaker set out the different criteria used by the Council in evaluating candidates submitted by the President.

In evaluating potential Chief Justices, the Council gave preference to senior Justices of the Supreme Court, serving Attorneys-General, and private lawyers with a successful practice and at least 30 years of legal experience who are held in high regard” by the judiciary and the legal profession. With the exception of sitting Justices of the Supreme Court, other candidates for Chief Justice were expected to be below 62 years.

Persons nominated to fill vacancies on the Supreme Court were expected by the Council to be attorneys of outstanding ability” with at least 25 years of legal experience. They must be serving on the Court of Appeal, a Solicitor General level officer or higher of the Attorney-General’s Department, a private lawyer with a successful practice held in high regard” by the judiciary and the bar, Secretary to the Justice Ministry, Legal Drafts person, or a jurist or person of high academic attainments in the field of law.”

In the case of Justice Secretaries, Legal Drafts persons or other jurists”, the Council also requires that they have made a significant contribution to the development and advancement of the law” and that they are held in high regard by Judges and the legal profession.” Except for sitting Justices of the Court of Appeal, all other candidates are required to be under 62 years.

Potential Presidents of the Court of Appeal must be senior Justices serving on that court or be practicing,  with a successful career spanning at least 25 years either in the private bar with a successful practice or in the Attorney General’s Department serving in a Solicitor General-level post or above. Non-judicial applicants for this post are also required to be held in high regard” by the legal profession and the judiciary. Except for sitting Court of Appeal Judges, other candidates must be under 60 years.

Justices of the Court of Appeal are expected to be persons of outstanding ability” with at least 20 years of experience of practicing law. They may be senior High Court judges, a Deputy Solicitor General or higher grade officer of the Attorney General’s Department, a private practitioner held in high regard by the legal profession and judiciary, Justice Ministry Secretary, Legal Draftsperson, or a jurist of high academic attainments in the field of law.”

Candidates in the latter four categories are also required to have made a significant contribution to the development and advancement of the law” and to be held in high regard by the Judges and the legal profession.” Except for sitting High Court judges, other candidates must be below 60 years old.

Regarding candidates to the Judicial Services Commission, the two most senior judges of the Supreme Court are approved. However, in the event where both the Chairman and the most senior Justice are not career Judicial Officers, the most senior career Judge will be approved to be appointed as a member” of the Judicial Services Commission.

Candidates for Attorney General must be either a serving Justice of the Supreme Court, the Solicitor General or a senior Additional Solicitor General, or a private practitioner attorney with at least 30 years of legal experience who is held in high regard by the judiciary and the legal profession.

A prospective Auditor-General from the Auditor General’s Department must be a Deputy Auditor General with either 25 years or more experience in the Department or a degree in Economics, Law, Mathematics or other subject with membership of the Institute of Chartered Accountants and at least five years in an executive grade position in the public sector.

Candidates from outside of the Auditor-General’s Department must possess a degree, preferably in Economics, Law or Mathematics, be a member of the Institute of Chartered Accountants, and have at least 15 years of post-qualification experience in an executive grade position in accounting, auditing, finance control or monitoring, including at least ten years of public sector experience.

 When evaluating candidates to serve as Inspectors General of Police (IGP), the Council rules only allow the selection of a serving Senior Deputy Inspector General from the Sri Lanka Police, who must have uninterrupted service in the police force, at least ten years of service in operational areas including at least one year in charge of a police division in such an area, at least five years in a gazetted post in a special duty division such as the Criminal Investigation Department (CID), Field Force Headquarters or Administration of Supplies and Services Headquarters, and five years of service at a Deputy Inspector General or Senior Deputy Inspector General including at least one year in charge of a police range. Potential IGP candidates who have completed a service period in a gazetted post in the field of Intelligence are given additional consideration, concluded the statement.

Criticism

The Constitutional Council was heavily criticized. The very existence of the Constitutional Council has  been questioned. The concept of an ‘independent’ Constitutional was flawed said analysts. The creation of such a Council amounts to a violation of the Constitution based on the Court’s determination that “…as long as the President remains the head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field”. The transfer of key appointments from the President to a Constitutional Council should have required a referendum since it amounts to transfer or removal of executive power from the President to another body – the Constitutional Council.

The first Constitutional Council  appointed under the 19th Amendment was a 100% Yahapalana outfit,   said Chandraprema. With the Prime Minister and Opposition Leader representing opposing sides, the only practical way an agreement can be reached on making nominations to the Constitutional Council  will be if the two sides divide up the slots among themselves,  taking turns to appoint the remaining member.

I’ll scratch your back, you scratch my back’ kind of cooperation soon evolved with the political parties sharing out the slots among themselves. The President appointed his catcher, PM appointing two of his catchers, the Leader of the Opposition appointing two of his, and the smaller parties took turns appointing their catchers to the Constitutional Council  in turn.

The Prime Minister was a Yahapalanite, the leader of the opposition was a Yahapalanite, the Speaker was a Yahapalanite, the five nominees to be appointed by the Prime Minister and leader of the opposition were all Yahapalanites, the President’s nominee to the CC was a Yahapalanite and the nominee of the political parties to whom neither the Prime Minister nor the leader of the opposition belongs was a Yahapalanite. The three ostensible non-politicians on the CC are all Yahapalanites.

Every person elected to high office in the past four years was also Yahapalanite.  The former Solicitor General,  Srinath Perera admitted in an interview, that top positions were being given to political fellow travelers of the government,  said Chandraprema.

Apologists of the scheme  forget that  the Constitutional Council  only shifted the decision-making powers from the President-led Cabinet to another group of people, who were all political nominees.

The need for some kind of a vetting process in making high state appointments was of course desirable, but not the way the 19th Amendment did it. To start with, when appointing the   three non-parliamentarians the Constitution requires the Prime Minister and Leader of the Opposition to consult the political parties in Parliament, making it a political exercise, observed Chandraprema. Further, there was heavy canvassing by interested persons and groups .

If the Constitutional Council rejects the nominee of the President without any valid reason, the President can keep on sending names and the Constitutional Council can keep on rejecting such names. The President can also keep on sending names to the Constitutional Council knowing fully well that it might not approve them. This again creates a situation where the country becomes ungovernable, speculated an analyst.

Instead the rules for the selection to posts could have been formulated and given statutorily to the Constitutional Council. The Constitutional Council could have been directed to call upon citizens of the country either on their own or for the citizens themselves to apply to be appointed to these high posts and the selection process could be done based on the criteria provided statutorily while several names (may be 3) could have been sent to the President.

The President could have made his selection from out of those nominated. This would have been a far better method of getting the best person appointed and a practical one. The Executive power of the President, like in the American Constitution, could have been given entirely to the President where he decides on the best individuals to run the Executive.

The type of Ministries could have been decided by the Parliament and could have been fixed in terms of the Constitution itself. The control of Public Finance could have continued to be with Parliament and the Executive while the Legislative functions could have been separated creating a more efficient form of Government which would be conducive for Good Governance rather than what has been created now.

The 19th Amendment  also required the CC to forward reports of their activities to the President every three months. However, so far no progress review report has been handed over to the President , said the media in February 2019.

This essay ends with  a chorus of support for the Constitutional Council . The Council applied high standards of probity and rectitude in considering the nominees for the Supreme Court and the Court of Appeal sent in by President Maithripala Sirisena, said the supporters of the Constitutional Council. It is reliably understood that the two new nominees of the Council to the Supreme Court are both upright judges currently serving the Court of Appeal. Both have a track record of being impartial and honest, the support group  said.

The Constitutional Council embodies that essential principle of key state appointments being independently vetted and approved by a collective leadership, said Harim Pieris. This has, in fact, led to a renewed Sri Lanka, where senior police officers are institutionally independent of politicians now, in their professional work and careers,.

it surely boggles the mind and is inconceivable that a collective of ten members of the Constitutional Council, comprising ex officio the Speaker, the Prime Minister and Leader of the Opposition, their nominees and three eminent non-partisan persons, can make a bigger mistake and be allegedly partisan, than a single individual, as would be the case of the executive president concluded Harim Pieris.

With the Constitutional Council , the country has seen a remarkable improvement in the quality of the delivery of justice. The Constitutional Council  has a mechanism and guidelines by which candidates are vetted and filtered. Judges vetted unanimously by the Council and appointed by the President, have been dignified, independent, competent and dynamic. This is an achievement discussed among the judiciary around the world, and none other than our own judges hear this for themselves when they interact with their counterparts across the globe, said J.C. Weliamuna.

Who could argue that such a process does not incentivize distinction, hard work and independence throughout the judiciary and public service? If public servants, police officers and judges know that their career prospects at the height of their careers will depend on scrutiny of their track record by a Council made up of all political parties and eminent persons from civil society, any incentive to work according to the whims of a given political master rapidly evaporates concluded Weliamuna.

 Kishali Pinto Jayawardene also sees potential in the Constitutional Council .We see cleverly managed slings and arrows being leveled at the Constitutional Council in terms of pointed questions which the Council has indeed become helpless to answer, such as if there are no credible disciplinary issues against ‘so-and-so’, why is the promotion not being made? Or if ‘so-and-so’ is fit to sit in the Court of Appeal, from whence does the unsuitability to sit as the President of that Court or in the Supreme Court arise.

 These onslaughts are part of a well orchestrated plot to undermine even the constitutional minimum that we have. In particular, the CC is being savaged as it has stood firm in the matter of judicial promotions.This issue is linked, to a larger question of disciplinary procedures relating to judges of the appellate courts. If credible allegations exist of behavior unsuitable for judicial office (viz; acceptance of money by politicians, sexual misconduct or decisions taken with political bias and conflict of interest), then these must be formally investigated in a process that is not politically compromised said Kishali.