Public concern has increased in regard to the processes of nomination followed by the Constitutional Council (CC) appointed under the 19th Amendment to the Constitution to nominate members to important commissions and key public service posts.

Controversy arose some weeks back in regard to the Council’s nomination to the Commission on Bribery and Corruption of a senior police officer Neville Guruge, who had been directing investigations in the Commission during the better half of the period when the Commission itself was thoroughly inactive. He is now serving as a Commissioner. In addition, senior retired civil servant and diplomat who once held the Governorship of the North-Eastern Province,Lioanel Fernando reportedly resigned after being served with a letter by President Sirisena withdrawing an earlier letter appointing him as Chairman of another Commission. The second letter had seemingly been sent on the instigation of former President Chandrika Kumaratunga, now a ‘power behind the throne.’

Approached for comments by Colombo Telegraph, a retired judge of the appellate courts agreed that the process whereby the CC nominates people to the President should be made public. There is no reason why such nominations are kept secret. In the US for example, key appointments to the judiciary, the Attorney General and other positions are made public for the people to know, he pointed out. The process in relation to federal judges in specially stringent. All nominations are made by the US president after consulting with White House staff and the attorney general’s office. The Federal Bureau of Investigation (FBI) then conducts a security check. Following the public announcement of the nomination, interested interest groups and individuals may advance their opinions. Further, the American Bar Association examines the nomination. Thereafter the Senate Judiciary Committee investigates the fitness of the nominee to be appointed. It is only after all these processes that the Senate considers and approves or rejects the nomination.

Referring to these requirements, the retired judge said that it may not be practical to observe all these safeguards in Sri Lanka but the minimum transparency must be seen, Adding to the debate, a respected government servant who did not want to be quoted as he is currently in public office asked ‘to what extent is the CC deviating from the 1st Constitutional Council functional under the 17th Amendment where the majority of that Council were independent professionals or judicial officers not connected to political parties, unlike the present body?’

Under the procedures of that 1st Constitutional Council (1st CC), the Council sent one name to the President as a nomination of a Chairman of a Commission upon which the President appointed that person. This was what led to the controversy over the Election Commission when the 1st CC nominated former Supreme Court judge R. Dheeraratne as Chairman and then President Chandrika Kumaratunga refused to appoint him. She sent the name back to the 1st CC for reconsideration. The 1st CC reconsidered and found that her objections had no merit. The 1st CC then sent the name again back to her but she did not appoint. This was the first occasion on which the individual in the office of the President went against the CC, long before Mahinda Rajapaksa made the CC irrelevant.

Under the present procedure, who decides ultimately on the head of a Commission, the CC or the President? Does the current CC follow the practice of the 1st CC or does it deviate from that practice? Now that the Elections Commission etc is about to be appointed, making the nomination process more transparent and accountable is more important than ever, he said.