{"id":90909,"date":"2019-06-30T16:09:41","date_gmt":"2019-06-30T23:09:41","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=90909"},"modified":"2019-06-30T16:12:44","modified_gmt":"2019-06-30T23:12:44","slug":"the-19th-amendment-part-2","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/06\/30\/the-19th-amendment-part-2\/","title":{"rendered":"THE 19TH AMENDMENT (Part 2)"},"content":{"rendered":"

Kamalika Pieris<\/em><\/span><\/h2>\n\n\n

In\nthe 19th Amendment, the main blow to the powers of the President came with the\nConstitutional Council.  The Constitutional Council was first\nestablished in 2001 in the 17th Amendment. The idea was imitated by the\ncivil society, led by the Organization of Professional Associations (OPA). The 17 Amendment was certified on 3rd October\n2001. The Constitutional Council was removed in 2010 by the 18th<\/sup> Amendment<\/a> and replaced in the 19th<\/sup>\nAmendment.  <\/p>\n\n\n\n

Under the 1978 Constitution, the President\nmade   the appointments to every\nimportant office of the State, from Prime Minister, Cabinet Ministers, and\nDeputy Ministers to Judges of the Supreme Court and the Court of Appeal, from\nthe Attorney General and the Secretary-General of Parliament to the Auditor\nGeneral and the Commissioner of Elections, the Public Service Commission, the\nJudicial Service Commission, and the Parliamentary Commissioner for Administration.<\/p>\n\n\n\n

19th Amendment took this away from the\nPresident and gave it back to the Constitutional Council. The unfettered power\nof the President to appoint persons of his sole choice to critical judicial and\ngovernment posts was brought under control by the 19th Amendment   declared jubilant Yahapalana supporters. <\/em><\/p>\n\n\n\n

Composition of Constitutional Council<\/strong><\/p>\n\n\n\n

19th\nAmendment   said  “There\nshall be a Constitutional Council which shall consist of the Prime\nMinister, the Speaker, the Leader of the Opposition, one person appointed by\nthe President, five persons appointed by the President on the nomination of\nboth the Prime Minister and the Leader of the Opposition,of whom two persons shall be Members of Parliament and one person\nnominated upon agreement by the majority of Members of Parliament belonging to\npolitical parties or independent groups other than the respective political\nparties or independent groups to which the Prime Minister and the Leader of theOpposition belongs and appointed by\nthe President. The Speaker shall be the Chairman of the Council.<\/p>\n\n\n\n

The\nConstitutional Council consists of ten members with the Speaker as its\nChairman. Of the ten members in the Constitutional Council, seven are members\nof Parliament and three are outsiders nominated by the Prime Minister and the\nLeader of the Opposition. The persons\nwho are not Members of Parliament shall be persons of eminence and integrity\nwho have distinguished themselves in public or professional life.   Three of them must represent the minorities,\nto reflect the pluralistic character of Sri Lankan society. <\/p>\n\n\n\n

When\nthe 17th Amendment was debated in Parliament, some members said that the\ninterests of the minorities were not adequately safeguarded. It was agreed, at\nthe last moment in 2001 to provide that 3\nof the 5 nominated members would represent minority interests, Members of\nParliament who belong to the respective Minority Communities would be consulted\nfor this purpose.  This was the only provision that was\nhurriedly made, said Elmore Perera, who was a member of the OPA team that\nhelped draft the Amendment. <\/p>\n\n\n\n

The original plan when the 19th\nAmendment was drafted was to have three lawmakers and seven outsiders. This was\nopposed and it was decided to have seven lawmakers and three outsiders, said\nJayampathy Wickremeratne. <\/p>\n\n\n\n

The Constitutional Council speaking in\n2019, said that its members\nare also of the view that the civil society representation must get the\nmajority share in the Constitutional Council. That was the original proposal\nin the 19th Amendment Bill, but that had to be revised at the committee stage\ndue to objections by the MPs. However, we are of the view that the current\ncomposition represents all party views at the Constitutional Council,\u201d they\nsaid.<\/p>\n\n\n\n

This was also included in the Draft Constitution\nprepared by Yahapalana. in this draft, the Constitutional Council is supposed\nto be made up of the following persons – the Prime Minister; the Speaker of\nParliament; the Leader of the Opposition; the Speaker of the Second Chamber;\none person appointed by the President; five persons appointed on nomination by\nboth the Prime Minister and the Leader of the Opposition; and one person\nnominated by agreement among the majority of the Members of Parliament\nbelonging to political parties or independent groups, other than the political\nparties to which the Prime Minister and the Leader of the Opposition belong\nreported Chandraprema. <\/p>\n\n\n\n

We see that the number of persons on\nthe Constitutional Council is to go up from ten to eleven with the addition of\nthe Speaker of the Second chamber, commented Chandraprema. The composition is\nalso to change from having seven parliamentarians and three non-politicians at\npresent to just four parliamentarians and seven non-politicians This is\nobviously in keeping with the idea that non-politicians were somehow more\nexalted, more independent, more upright and less likely to do the wrong thing\nthan a politician,   continued Chandraprema. <\/p>\n\n\n\n

The draft constitution specifically\nsays, that other than the Speaker, Prime Minister, Leader of the Opposition and\nthe Speaker of the proposed second chamber, none of the other members of the CC\nshould be Members of Parliament, Members of the proposed Second Chamber,\nMembers of a Provincial Council, or members of any political party. However in\nselecting their supposedly non-political nominees, the Prime Minister and the\nLeader of the Opposition are mandatorily required to consult the leaders of\npolitical parties represented in Parliament \u2018so as to ensure that the\nConstitutional Council reflects the pluralistic character of Sri Lankan\nsociety, including professional and social diversity\u2019, concluded Chandraprema. <\/p>\n\n\n\n

Functions of Constitutional Council<\/strong><\/p>\n\n\n\n

The Constitutional Council was given the task\nof selecting the Chairmen and members of the following commissions. a) The\nElection Commission. (b) The Public Service Commission. (c) The National Police\nCommission. (d) The Audit Service Commission. (e) The Human Rights Commission\nof Sri Lanka. (f) The Commission to Investigate Allegations of Bribery or\nCorruption. (g) The Finance Commission. (h) The Delimitation Commission. (i)\nThe National Procurement Commission.<\/p>\n\n\n\n

It\nshall be the duty of the Council to recommend to the President fit and proper\npersons for appointment as Chairmen or members of the Commissions specified in\nthe Schedule to this Article, also the recommendations must reflect the\npluralistic character of Sri Lankan society, including gender, said 19th Amendment.\n In the case of the Chairmen of\nCommissions, the Council shall recommend three persons for appointment, and the\nPresident shall appoint one of the persons recommended as Chairman. <\/p>\n\n\n\n

 No person shall be appointed by the President\nas the Chairman or a member of any of the above Commissions, said the 19th\nAmendment, except on a recommendation of the Council. The appointment had to be\nmade within 14 days of receiving the recommendation. If the President failed to\ndo so, the nominees would be deemed to be appointed. <\/p>\n\n\n\n

The\nConstitutional Council was also to name the following. The Chief Justice and\nthe Judges of the Supreme Court. (b) The President and the Judges of the Court\nof Appeal. (c) The Members of the Judicial Service Commission, other than the\nChairman. The Attorney-General. (b) The Auditor-General. (c) The\nInspector-General of Police. (d) The Parliamentary Commissioner for Administration\n(Ombudsman). (e) The Secretary-General of Parliament.  <\/p>\n\n\n\n

The\n19th Amendment stated that in the case of Judges of the Supreme Court and the\nPresident and Judges of the Court of Appeal, the Council must obtain the views\nof the Chief Justice.  The first draft of\nthe 19th Amendment had a provision making it mandatory for the Constitutional\nCouncil and the Judicial Services Commission to consult the Bar Association of\nSri Lanka when appointing judges. This was shouted down by the Opposition and\nthe provision was dropped when the 19th Amendment was finally passed. <\/p>\n\n\n\n

The\nConstitutional Council of the 19th Amendment had a status that even the President\ndid not have. 19th Amendment said any decision of the Constitutional Council or\nany approval or recommendation made by the Council, shall be final and\nconclusive for all purposes. This means that the Constitutional\nCouncil is immune from any sort of legal action by any Court and no person or\ninstitution can question the decision of the Constitutional Council.  However, the 19th Amendment makes the\nExecutive answerable to the Parliament while making the Parliament not answerable\nto any authority whatsoever, exclaimed critic. <\/p>\n\n\n\n

There is more. \nNo person appointed under the recommendation of the Constitutional\nCouncil shall be removed except as provided for in the Constitution or in any\nwritten law, and where there is no such provision, the person shall be removed\nby the President only with the prior approval of the Council.  Savitri Goonesekera pointed out that one of\nthe limitations in the 19th Amendment is that it has not addressed, very\nunfortunately, the critical issue of the removal of judges of the Supreme\nCourt. I see that this is an omission, she said. <\/p>\n\n\n\n

The\nfirst Constitutional Council had Champika\nRanawaka<\/a> (President’s\nnomination), Wijeyadasa Rajapakshe<\/a> (Prime Minister’s nomination) and Vijitha Herath<\/a> (Parliament’s nomination), Bimal\nRatnayake (minor party representative) A. T. Ariyaratne<\/a>, Radhika Coomaraswamy<\/a> and Shibly Aziz<\/a> (Appointed members)  later Naganathan Selvakumaran<\/a>, Jayantha Dhanapala<\/a> and Javed Yusuf<\/a> . <\/p>\n\n\n\n

The Constitutional Council, once appointed,\nsettled down to the difficult task of making recommendations to a wide range of\noffices, regarding which they probably knew much less than the President.\nAnyway they muddled through and did their job. They recommended Senior Supreme\nCourt Justice Nalin Perera and thereafter, Attorney General, Jayantha\nJayasuriya as Chief Justice. Chula Wickramaratne was approved for the position\nof Auditor General. Pujitha Jayasundera as Inspector General of Police.<\/p>\n\n\n\n

Appointments\nmade by Constitutional Council to judiciary.<\/strong><\/p>\n\n\n\n

The\nConstitutional Council ran into trouble over its appointments, starting with the appointment of the Chief Justice. President\nSirisena\u2019s nomination for this post was rejected because the Chief Justice was\nnot favor of that name. Constitutional Council however, firmly refused to make\npublic, the comments made by the Chief Justice. If the CJ says a\nparticular judge should not be promoted due to adverse judicial behavior, we\nwill not make that information public, they said.<\/p>\n\n\n\n

Why wasn\u2019t the most senior Judge\nconsidered? The government has claimed that the most senior Supreme Court\njudges name was not submitted by the President. If so, why did the Constitutional Council not\nask the President why he did not,  said a\ncritic.<\/p>\n\n\n\n

The\nConstitutional Council continued to bungle. The Constitutional Council delayed\nto recommend a nominee for President of the Court of Appeal, when the post fell\nvacant in January 2019.  This created a\nproblem. It was not possible to appoint \u2018Acting\u2019 Presidents of the Court of\nAppeal without the permanent President. An acting appointment can be made only\nwhere a sitting President of the Court of Appeal is temporarily unable to  carry out his duties, due to illness, absence\nfrom Sri Lanka or any other cause said \nthe Constitution.  <\/em><\/p>\n\n\n\n

This left the\nappointment of acting Presidents to the Court of Appeal in a legal quandary, observed\nJ.C.Weliamuna,  <\/em>because, that\nmeant that there is, no constitutionally established Court of Appeal. The\nConstitutional Council and the President must work together to decide on a\nsuitable candidate, he said. The\njudiciary, Attorney-General\u2019s Department and private bar have many highly\nqualified and suitable nominees.<\/p>\n\n\n\n

 The Constitutional Council ran into trouble\nover the appointments to the superior courts. President\nSirisena had nominated a single candidate each for the two superior courts,\nDeepali Wijesundera for the Supreme Court and Kusala Sarojini Weerawardena for\nthe Court of Appeal. If she made it\ninto Supreme Court, Deepali Wijesundera would then have been next in line for\nChief Justice on the grounds of seniority. Both were knocked out, since civil\nsociety groups were against these two names and\nSirisena sent in 12 more names. <\/p>\n\n\n\n

In February\n2019 the President complained to Parliament that 14 names of judges had been\nrejected by the Constitutional Council .without any reasons given. The Speaker has sent me a four-page letter\nstating that the seniority would not be counted as the sole criterion when\nmaking the appointments by the Constitutional Council, he grumbled.” It is\nsaid that the Constitutional Council rejects the names of the judges on the\nbasis of judgments they have given in the past. Those who get their names\nrejected think that I am responsible for that. “ <\/strong><\/p>\n\n\n\n

Analysts pointed out that the one\nconsistent feature noticeable in these recommendations is that most senior\npersons have not been selected. For instance, Constitutional Council did not\napprove former Solicitor General Suhadha Gamlath as Attorney-General.  Mr. Gamlath was the most senior Solicitor\nGeneral. He was not selected but a junior was, said a critic.\n <\/p>\n\n\n\n

The\nConstitutional Council replied its critics. The CC only\napproves or disapproves the nominations sent by the President, it said. Also,\nthere are three parties, namely the President, Chief Justice and the\nConstitutional Council, involved in the matter. The CJ\u2019s reasoning in approving\nor disapproving the nominations were given special consideration by the\nConstitutional Council. <\/p>\n\n\n\n

The\nConstitutional Council thereafter announced in March 2019 that it has decided\nto seek the Attorney General\u2019s opinion to draft the modalities and criteria for\nthe appointment of judges and other members of the commissions.<\/p>\n\n\n\n

Appointments\nmade by Constitutional Council in the Police department.<\/strong><\/p>\n\n\n\n

In 2016, the\nConstitutional Council selected Pujitha Jayasundera for the post of Inspector General\nof Police.  He was appointed over the\nhead of Snr. DIG S.M. Wickramasinghe. Constitutional Council nominated Pujitha\nJayasundera   overlooking the most\neligible candidate nominated by the President, comment critics.  \u2018There were no shortcomings on Wickramasinghe\u2018s\npart that we know of, said an analyst. \u2019 Jayasundera\u2018s\nappointment was objected to at the time. \nAt the time the IGP was appointed, I told them to appoint someone else.\nBut they did not heed my advice said Sarath Fonseka. <\/p>\n\n\n\n

This\nappointment has been heavily condemned. \nTelevision news showed IGP Pujitha Jayasundera speaking to a bigwig, calling\nhim \u2018Sir\u2019 and assuring him that \u2018Nilame\u2019 would not be arrested. Here was the\nhead of police himself assuring the caller that the law could be somehow\nadjusted to suit the circumstance, said a critic.<\/p>\n\n\n\n

Junior ranks of the Police Department\ncomplain that the recent promotions effected by the National Police Commission\non the recommendation of IGP Pujith Jayasundara have overlooked many deserving\nofficers. Not even the person adjudged the best policeman in the country in\n2017 has been considered for promotion. <\/p>\n\n\n\n

 The best policeman of the year was selected in\na competition among 440 stations countrywide. The person who scored the highest\nmark too has been overlooked among many other deserving cases.<\/p>\n\n\n\n

Priority had been given to the\npolicemen who were working for the Ministers and politicians in the Ministerial\nSecurity Division for promotions while those who served difficult areas had\nbeen overlooked,..<\/p>\n\n\n\n

The NPC, on the recommendation of IGP\nJayasundara, granted promotions to 2891 police officers of various ranks\nfollowing interviews. The policemen who attended the interviews with the\nrecommendations of their senior officers were given 10 marks at the interview\nwhile those who did not have such recommendations were given only five marks.<\/p>\n\n\n\n

The\nConstitutional Council  in March 2019\ndecided to postpone naming a permanent Chairman to the National Police\nCommission (NPC) and let its members decide on a protem Chairman at its each\nsitting to continue its functions. <\/p>\n\n\n\n

The Constitutional Council  was created to curb the arbitrariness of\nexecutive action. Therefore, if such an institution is to fulfill the purposes\nfor which it was created, it has to gazette and place before Parliament the\nparameters that guide its operations. Else, it amounts to replacing the\narbitrariness of an individual with that of an institution whose decisions are\nfinal and cannot be challenged. <\/p>\n\n\n\n

If the Constitutional Council  had assigned weightage to the qualities they\nwere looking for, when they developed guidelines, this would have been a\nnon-issue. The lack of such procedures has made the guidelines for selection\nopen to question said analyst.<\/p>\n\n\n\n

Analysts\nwere highly critical of the Constitutional Council recommendations. We could\naccept their selection, ignoring seniority and merit if the\npersons selected by them, , have been better than the seniors who were\noverlooked. But those who\nwere nominated were not better than those \noverlooked. It is no secret that many people in this\ncountry have reservations about the\npeople recommended by the Constitutional Council, said critics. It should be made\nincumbent on its members inform an officer, when his seniority and merit are\nignored, why he was not selected . After all, the Constitutional Council also\nmust be accountable.<\/p>\n\n\n\n

Seniority and merit were the age old\ncriteria for promotion to all positions in the Public Service, Judiciary and\nOverseas\u2019 Service. We should get rid of the Constitutional\nCouncil and revert to the simple principle of seniority and merit\nfor promotion to high posts, they concluded. <\/p>\n\n\n\n

Criteria  for appointments\n<\/strong><\/p>\n\n\n\n

There\nwas criticism that the CC lacks a set of criteria in approving the appointments\nreferred to it. The 19th Amendment  said that \nConstitutional Council  \u2018has the\npower\u2019 to make rules relating to the performance and discharge of its duties and\nfunctions. All such rules shall be published in the Gazette and be placed\nbefore Parliament within three months of such publication”.<\/p>\n\n\n\n

The CC was created to curb the\narbitrariness of executive action. Therefore, if such an institution is to fulfill\nthe purposes for which it was created, it has to gazette and place before\nParliament the parameters that guide its operations. Else, it amounts to\nreplacing the arbitrariness of an individual with that of an institution whose\ndecisions are final and cannot be challenged, said critics. <\/p>\n\n\n\n

The\nConstitutional Council contested this. They issued a statement in March 2019, saying\nthat it was using same  criteria followed\nby the then Constitutional Council of 2002. The Constitutional Council  has informed the President and all MPs on this\nset of criteria and requested suggestions if any revisions are needed. <\/p>\n\n\n\n

Constitutional\nCouncil said that the Council called for applications for vacancies in the\nindependent commissions and only considered for nomination persons who had\napplied. The Council examined the requirements for each Commission as spelled\nout in the Constitution or the appropriate legislation\u201d, and placed priority on\nintegrity, independence and non-partisanship.\u201d It looked for professional\nexperience that was relevant to the work\u201d of the respective commission, and\noutstanding qualities and leadership in important institutions or positions.\u201d <\/p>\n\n\n\n

The Council also weighed\nmaturity\u201d against the benefits of younger candidates\u201d who could bring new\nideas\u201d to the workings of particular commissions. Diversity, in terms of\nethnicity and gender in particular\u201d was another factor considered by the\nCouncil in recommending nominees to the independent commissions. <\/p>\n\n\n\n

When it came to judicial and other\nappointments under Article 41C of the Constitution, the Council was not\nrequired to call for or evaluate applications for vacancies, but only to evaluate\nand approve persons nominated by the President. <\/p>\n\n\n\n

Constitutional\nCouncil  gave a detailed statement to Parliament\nas to the criteria it was using. This report tabled by the Speaker set\nout the different criteria used by the Council in evaluating candidates\nsubmitted by the President. <\/p>\n\n\n\n

In evaluating potential Chief\nJustices, the Council gave preference to senior Justices of the Supreme Court,\nserving Attorneys-General, and private lawyers with a successful practice and\nat least 30 years of legal experience who are held in high regard\u201d by the\njudiciary and the legal profession. With the exception of sitting Justices of\nthe Supreme Court, other candidates for Chief Justice were expected to be below\n62 years. <\/p>\n\n\n\n

Persons nominated to fill\nvacancies on the Supreme Court were expected by the Council to be attorneys of\noutstanding ability\u201d with at least 25 years of legal experience. They must be\nserving on the Court of Appeal, a Solicitor General level officer or higher of\nthe Attorney-General\u2019s Department, a private lawyer with a successful practice\nheld in high regard\u201d by the judiciary and the bar, Secretary to the Justice\nMinistry, Legal Drafts person, or a jurist or person of high academic\nattainments in the field of law.\u201d<\/p>\n\n\n\n

In the case of Justice\nSecretaries, Legal Drafts persons or other jurists\u201d, the Council also requires\nthat they have made a significant contribution to the development and\nadvancement of the law\u201d and that they are held in high regard by Judges and\nthe legal profession.\u201d Except for sitting Justices of the Court of Appeal, all\nother candidates are required to be under 62 years. <\/p>\n\n\n\n

Potential Presidents of the Court\nof Appeal must be senior Justices serving on that court or be practicing,  with a successful career spanning at least 25\nyears either in the private bar with a successful practice or in the Attorney\nGeneral\u2019s Department serving in a Solicitor General-level post or above.\nNon-judicial applicants for this post are also required to be held in high\nregard\u201d by the legal profession and the judiciary. Except for sitting Court of\nAppeal Judges, other candidates must be under 60 years. <\/p>\n\n\n\n

Justices of the Court of Appeal\nare expected to be persons of outstanding ability\u201d with at least 20 years of\nexperience of practicing law. They may be senior High Court judges, a Deputy\nSolicitor General or higher grade officer of the Attorney General\u2019s Department,\na private practitioner held in high regard by the legal profession and\njudiciary, Justice Ministry Secretary, Legal Draftsperson, or a jurist of high\nacademic attainments in the field of law.\u201d<\/p>\n\n\n\n

Candidates in the latter four\ncategories are also required to have made a significant contribution to the development\nand advancement of the law\u201d and to be held in high regard by the Judges and\nthe legal profession.\u201d Except for sitting High Court judges, other candidates\nmust be below 60 years old. <\/p>\n\n\n\n

Regarding candidates to the\nJudicial Services Commission, the two most senior judges of the Supreme Court\nare approved. However, in the event where both the Chairman and the most senior\nJustice are not career Judicial Officers, the most senior career Judge will be\napproved to be appointed as a member\u201d of the Judicial Services Commission. <\/p>\n\n\n\n

Candidates for Attorney General\nmust be either a serving Justice of the Supreme Court, the Solicitor General or\na senior Additional Solicitor General, or a private practitioner attorney with\nat least 30 years of legal experience who is held in high regard by the\njudiciary and the legal profession. <\/p>\n\n\n\n

A prospective Auditor-General from\nthe Auditor General\u2019s Department must be a Deputy Auditor General with either\n25 years or more experience in the Department or a degree in Economics, Law,\nMathematics or other subject with membership of the Institute of Chartered\nAccountants and at least five years in an executive grade position in the\npublic sector. <\/p>\n\n\n\n

Candidates from outside of the\nAuditor-General\u2019s Department must possess a degree, preferably in Economics,\nLaw or Mathematics, be a member of the Institute of Chartered Accountants, and\nhave at least 15 years of post-qualification experience in an executive grade\nposition in accounting, auditing, finance control or monitoring, including at least\nten years of public sector experience. <\/p>\n\n\n\n

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

Criticism\n<\/strong><\/p>\n\n\n\n

The Constitutional Council was heavily\ncriticized. The very\nexistence of the Constitutional Council has \nbeen questioned. The concept of an \u2018independent\u2019 Constitutional was\nflawed said analysts. The creation of such a Council\namounts to a violation of the Constitution based on the Court\u2019s determination\nthat “\u2026as long as the President remains the head of the Executive, the\nexercise of his powers remain supreme or sovereign in the executive field\u201d. The\ntransfer of key appointments from the President to a Constitutional Council\nshould have required a referendum since it amounts to transfer or removal of\nexecutive power from the President to another body \u2013 the Constitutional Council.\n<\/p>\n\n\n\n

The first Constitutional Council  appointed under the 19th Amendment was a 100%\nYahapalana outfit,   said Chandraprema. With\nthe Prime Minister and Opposition Leader representing opposing sides, the only\npractical way an agreement can be reached on making nominations to the Constitutional\nCouncil  will be if the two sides divide\nup the slots among themselves,  taking\nturns to appoint the remaining member. <\/p>\n\n\n\n

I\u2019ll scratch your back, you scratch my\nback\u2019 kind of cooperation soon evolved with the political parties sharing out\nthe slots among themselves. The President appointed his catcher, PM appointing\ntwo of his catchers, the Leader of the Opposition appointing two of his, and\nthe smaller parties took turns appointing their catchers to the Constitutional\nCouncil  in turn. <\/p>\n\n\n\n

The Prime Minister was a Yahapalanite,\nthe leader of the opposition was a Yahapalanite, the Speaker was a Yahapalanite,\nthe five nominees to be appointed by the Prime Minister and leader of the\nopposition were all Yahapalanites, the President\u2019s nominee to the CC was a Yahapalanite\nand the nominee of the political parties to whom neither the Prime Minister nor\nthe leader of the opposition belongs was a Yahapalanite. The three ostensible non-politicians on the\nCC are all Yahapalanites. <\/p>\n\n\n\n

Every person elected to high office in\nthe past four years was also Yahapalanite. \nThe former Solicitor General,  Srinath Perera admitted in an interview, that\ntop positions were being given to political fellow travelers of the\ngovernment,  said Chandraprema. <\/p>\n\n\n\n

Apologists of the\nscheme  forget that  the Constitutional Council  only shifted the decision-making powers from\nthe President-led Cabinet to another group of people, who were all political\nnominees.<\/p>\n\n\n\n

The need for some kind of a vetting\nprocess in making high state appointments was of course desirable, but not the\nway the 19th Amendment did it. To start with, when appointing the   three non-parliamentarians the Constitution\nrequires the Prime Minister and Leader of the Opposition to consult the\npolitical parties in Parliament, making it a political exercise, observed\nChandraprema. Further, there was\nheavy canvassing by interested persons and groups .<\/p>\n\n\n\n

If the Constitutional Council rejects\nthe nominee of the President without any valid reason, the President can keep\non sending names and the Constitutional Council can keep on rejecting such\nnames. The President can also keep on sending names to the Constitutional\nCouncil knowing fully well that it might not approve them. This again creates a\nsituation where the country becomes ungovernable, speculated an analyst. <\/p>\n\n\n\n

Instead the rules for the selection to\nposts could have been formulated and given statutorily to the Constitutional\nCouncil. The Constitutional Council could have been directed to call upon\ncitizens of the country either on their own or for the citizens themselves to\napply to be appointed to these high posts and the selection process could be\ndone based on the criteria provided statutorily while several names (may be 3)\ncould have been sent to the President. <\/p>\n\n\n\n

The President could have made his\nselection from out of those nominated. This would have been a far better method\nof getting the best person appointed and a practical one. The Executive power\nof the President, like in the American Constitution, could have been given\nentirely to the President where he decides on the best individuals to run the\nExecutive. <\/p>\n\n\n\n

The type of Ministries could have been\ndecided by the Parliament and could have been fixed in terms of the\nConstitution itself. The control of Public Finance could have continued to be\nwith Parliament and the Executive while the Legislative functions could have\nbeen separated creating a more efficient form of Government which would be\nconducive for Good Governance rather than what has been created now. <\/p>\n\n\n\n

The 19th Amendment  also required the CC to forward reports of\ntheir activities to the President every three months. However, so\nfar no progress review report has been handed over to the President , said the\nmedia in February 2019. <\/p>\n\n\n\n

This essay ends with  a chorus of support for the Constitutional\nCouncil . The Council applied high standards of\nprobity and rectitude in considering the nominees for the Supreme Court and the\nCourt of Appeal sent in by President Maithripala Sirisena, said the supporters\nof the Constitutional Council. It is\nreliably understood that the two new nominees of the Council to the Supreme\nCourt are both upright judges currently serving the Court of Appeal. Both have\na track record of being impartial and honest, the support group  said. <\/p>\n\n\n\n

The\nConstitutional Council embodies that essential principle of key state\nappointments being independently vetted and approved by a collective\nleadership, said Harim Pieris. This has, in fact, led to a renewed Sri Lanka,\nwhere senior police officers are institutionally independent of politicians now,\nin their professional work and careers,.<\/p>\n\n\n\n

it surely boggles the mind and is\ninconceivable that a collective of ten members of the Constitutional Council,\ncomprising ex officio the Speaker, the Prime Minister and Leader of the\nOpposition, their nominees and three eminent non-partisan persons, can make a\nbigger mistake and be allegedly partisan, than a single individual, as would be\nthe case of the executive president\nconcluded Harim Pieris.<\/p>\n\n\n\n

With the\nConstitutional Council , the country has seen a remarkable improvement in the\nquality of the delivery of justice. The Constitutional Council  has a mechanism and guidelines by which\ncandidates are vetted and filtered. Judges vetted\nunanimously by the Council and appointed by the President, have been dignified,\nindependent, competent and dynamic. This is an achievement discussed among the\njudiciary around the world, and none other than our own judges hear this for\nthemselves when they interact with their counterparts across the globe, said\nJ.C. Weliamuna.<\/em><\/p>\n\n\n\n

Who could\nargue that such a process does not incentivize distinction, hard work and\nindependence throughout the judiciary and public service? If public servants,\npolice officers and judges know that their career prospects at the height of\ntheir careers will depend on scrutiny of their track record by a Council made\nup of all political parties and eminent persons from civil society, any\nincentive to work according to the whims of a given political master rapidly\nevaporates concluded Weliamuna. <\/p>\n\n\n\n

 Kishali Pinto Jayawardene also sees potential\nin the Constitutional Council .We see cleverly managed slings and arrows being\nleveled at the Constitutional Council in terms of pointed questions which the\nCouncil has indeed become helpless to answer, such as if there are no credible\ndisciplinary issues against \u2018so-and-so\u2019, why is the promotion not being made? Or\nif \u2018so-and-so\u2019 is fit to sit in the Court of Appeal, from whence does\nthe unsuitability to sit as the President of that Court or in the Supreme Court\narise.<\/p>\n\n\n\n

 These onslaughts are part of a well\norchestrated plot to undermine even the constitutional minimum that we have. In\nparticular, the CC is being savaged as it has stood firm in the matter of\njudicial promotions. <\/em>This issue is\nlinked, to a larger question of disciplinary procedures relating to judges of\nthe appellate courts. If credible allegations exist of behavior unsuitable for\njudicial office (viz; acceptance of money by politicians, sexual misconduct or\ndecisions taken with political bias and conflict of interest), then these must\nbe formally investigated in a process that is not politically compromised said\nKishali.\n<\/em>( CONCLUDED) <\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

Kamalika Pieris 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104],"tags":[],"class_list":["post-90909","post","type-post","status-publish","format-standard","hentry","category-kamalika-pieris"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90909","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=90909"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90909\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=90909"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=90909"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=90909"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}