THE CONSTITUTIONAL COUNCIL – IS IT UNDER THREAT?

by Dr Nihal Jayawickrama

In Parliament, a few weeks ago, the President claimed that the Constitutional Council was an “executive body”. The Leader of the Opposition asserted that it was “part of the legislature”. Now, the President’s Media Division has issued a statement which appears to be in the nature of a threat to the members of the Constitutional Council. It states:

“The President as the head of the executive is duty bound to make certain appointments to high office, including the Inspector General of Police, according to the procedure stipulated by the Constitution and in line with the President’s constitutional duty to exercise powers pertaining to the Defence of the State. Therefore, the President must perform his Constitutional duties, without any impediment or interference. . . . Any restraint placed on the President in the performance of his Constitutional duty would be in contravention of the Constitution. . . . The President is now seeking to refer the matter to Parliament.”

The claims made by the President and the Leader of the Opposition, and the threat issued by the President’s Media Division, all appear to be unfounded. The Constitutional Council is an independent body, not subject to any influence or control by the executive or legislative branches of government. The powers of the Inspector-General of Police do not “pertain to the defence of the State”.

The IGP is a civilian officer concerned with the maintenance of law and order within the country. Moreover, the President’s Media Division appears to be ignorant of the fact that the Constitution does place “restraints” on the President in the performance of his duties and functions. That, surely, is the purpose of the Constitution.

One such restraint is contained in Article 41C of the Constitution. It states that no person shall be appointed to any of the scheduled offices (which includes the office of the IGP) unless such appointment has been approved by the Council upon a recommendation made to the Council by the President. Even an appointment to act in an office for a period exceeding 14 days, or for successive periods not exceeding 14 days, also requires to be approved by the Council. Article 41E (4) requires the nine- member Council to endeavour to reach a unanimous decision, failing which a decision to be valid must be supported by not less than five members.

The President’s Media Division would be well advised to familiarize itself with the Constitution of Sri Lanka so as not to regard the requirement imposed on the President to seek the approval of the Constitutional Council when making the specified appointments as an “impediment or interference”. If, as the statement adds, “the President is now seeking to refer the matter to Parliament”, it would be interesting to know whether what is intended is an amendment of the Constitution to remove what it describes as “restraints”.

If the President’s Media Division was indeed familiar with the provisions of the Constitution, it would have advised the President that he ought not to have sought the approval of the Constitutional Council on every occasion on which he wanted to grant an extension of service to the former Inspector-General of Police. The President is not required to seek the approval of the Constitutional Council to grant an extension of service to a serving public officer. An “extension” is not a new appointment.

The Constitutional Council too appears not to be free of fault. Article 41G (3) requires the Council to make rules relating to the performance and discharge of its duties and functions. Such rules would presumably prescribe the “procedure” to be followed in the transaction of business at meetings of the Council. As far as I am aware, no such Rules have yet been published in the Gazette and placed before Parliament. In the absence of such Rules, how does the Council decide whether a person proposed for appointment is suitable or not for office? Does the Council interview the individual? Does the Council examine his or her previous record of service or employment?

I recall an occasion when I met a member of a previous Constitutional Council immediately after it had approved the nomination of a new Judge of the Court of Appeal. That member did not even recall the name of the Judge. He neither knew him, nor had even seen him. He did not know his previous record of service. It was a simple case of “rubber-stamping”. Perhaps that is how the President’s Media Division expects the Constitutional Council to perform its constitutional duty.

It may be recalled that the Constitutional Council was intended to be the principal achievement of the 2015 Bill for the Nineteenth Amendment to the Constitution. Its duty was to recommend to the President fit and proper persons for appointment to the independent commissions to be established under the Constitution, and to approve or reject persons recommended by the President for appointment to certain important scheduled state offices.

What the Bill promised was a Council consisting of a majority of independent persons of eminence and integrity who were not members of any political party. What came forth, after the amending Bill was mutilated in Parliament, was a Council in which the overwhelming majority were active politicians, and civil society representation was reduced from the proposed six to a mere three.