The independent Constitutional Council (CC), which was hailed as one of the biggest achievements of the Yahapalana Government in 2015, today, faces vehement criticism from the highest authority in the country, none other than President Maithripala Sirisena, who went to great lengths to ensure the smooth sailing of the 19th Amendment to the Constitution, in April 2015.

The controversy was due to the arbitrary decision of the CC, to reject 12 Judges, who were nominated for promotion, by the President. According to the President, promotions should be based on seniority, giving due consideration to the merits and commitment of the respective Judges. The Chief Justice sends me the suitable names and I send those names to the Constitutional Council. For the first time in history, the Constitutional Council has rejected Judges. Reason for rejection is not informed to either the respective Judges or me,” the President told Parliament.

The following day, Parliament was plunged into chaos when Speaker Karu Jayasuriya, who is the Chairman of the CC, dismissed several claims of President Sirisena. Chief Opposition Whip Mahinda Amaraweera said the remarks made by the Speaker about the President were not acceptable.

The Speaker said the CC did not approve the names of nominees who had allegations of bribery or any other allegations against them. The CC also rejected nominations when the Chief Justice’s recommendation was not given.
The President asked a pertinent question about the yardstick used by the Constitutional Council to assess the capability and commitment of Judges.

Touching on the role of the independent committees appointed as per the provisions of the 19th Amendment to the Constitution, the President said that none of the commissions have standard operating procedures.

The Judiciary of this country will be marred if the promotions are refused based on judgements of these Judges. If we are to protect the independence of the Judiciary, as expected by the country and the world, we should be reasonable.

The Chief Justice or I should be informed in case a person is not suitable for the promotion with the reason. In the absence of such notification, all those who got rejected catch me. They are unable to access the Chief Justice or the Constitutional Council, but I am available, even on the road. They bring their grievances to my attention. So, I get them to appeal. Sometimes, I forward these appeals to the Constitutional Council a few times. I have no personal reason to forward these appeals, but I am left with no option but to forward them again and again for reconsideration,” the President said.

The Constitutional Council was first set up in 2000 under the 17th Amendment. However, it was replaced by a Parliamentary Council under the 18th Amendment. The independent commissions were established under the Constitutional Council, fulfilling one of the major promises of the UNP-backed candidate Maithripala Sirisena during the 2015 Presidential Election.

Good intention

Although it was set up with a good intention, the CC ran into problems from the very beginning. The first issue was whether the composition of the CC was democratic. The issue arose when R. Sampanthan became a member of the CC, as Opposition Leader, when his party, the TNA, had only 16 members in Parliament. The Joint Opposition, with 70 MPs, did not get a place in the CC.
With Yahapalanaya coming to an end last year, serious differences between the Executive and the CC on issues pertaining to certain appointments to top posts in the Judiciary and public institutions arose.

The CC rejected some names because there were certain reservations about these Judges, due to 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.” None of the Judges, whose names were proposed, were convicted on charges of corruption or other malpractices, nor were their findings labelled as perverted. These decisions of the CC could be due to the fact that there are no standard guidelines for CC members with regard to the evaluation of nominees to judiciary services or public institutions. This is a legal lacuna in the 19th Amendment.

There should be key performance indicators (KPIs) and other guidelines to ensure impartiality. Otherwise, there could be misjudgements in appointments due to judicial temperament or attitude.

In most countries, there are checks and balances on such appointing authorities. In the United States, there is a Special Council to oversee such appointments.
The Executive and Parliament should pay serious attention to the imperative need for establishment of guidelines for the members of the Constitution Council, in order to prevent such issues from disrupting public institutions of national importance in the future.

The Constitutional Council is made up 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 people 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.

Current members

The current members are Karu Jayasuriya (Chairman), Prime Minister Ranil Wickremesinghe, Opposition Leader Mahinda Rajapaksa, Mahinda Samarasinghe, Thalatha Atukorale, Chamal Rajapaksa, Bimal Rathnayake, Jayantha Dhanapala, Naganathan Selvakumaran, and Javid Yusuf.

The CC appoints Chairpersons and Members of the 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 recommends people for high-ranking government posts 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.