14 April, 2024


Constitutional Council & Independent Commissions Part Of Transition To Rule Of Law

By Jehan Perera

Jehan Perera

President Maithripala Sirisena has been joined by former president Mahinda Rajapaksa and by other opposition members in denouncing the institution of the Constitutional Council and the independent commissions established under the 19th Amendment. They have attributed many ill effects as flowing from these institutions. These include repeatedly defying the president’s wishes, being corrupt, creating chaos, being partial to members of minority religions and even of being culpable for the death of Sri Lankan soldiers on a peacekeeping mission on behalf of the UN. Underlying these criticisms is their frustration that the power of elected politicians is being restricted.

The Constitutional Council is a relatively new institution in Sri Lanka. It was first established in 2000 under the 17th Amendment to the Constitution of Sri Lanka. It was passed unanimously in a parliament that included President Sirisena and former president Rajapaksa. Presently it is a 10-member body tasked with appointing members to independent commissions and monitoring their affairs. The Constitutional Council is primarily aimed at depoliticizing the state and public service. The background to its establishment in 2000 was the growing recognition, and need perceived at that time, to curb the immense powers of the executive presidency and to strengthen other institutions of governance. This followed the negative experiences of abuse of power by successive government leaders and the need to set up a system of checks and balances to curb that power.

The Constitutional Council first functioned during the period of President Chandrika Kumaratunga. It functioned smoothly at the start but after three years, when the terms of the appointed members ended, and new members had to be appointed, the president balked at making some appointments. As a result the Constitutional Council became dysfunctional. Former president Rajapaksa went a step further to abolish the Constitutional Council in 2010 when his government passed the 18th Amendment to the constitution and replaced it with a Parliamentary Council with powers only to recommend persons to the independent committees. The sole authority of appointing members of the independent committees was re-vested with the President.

President’s Ire

The resurrection of the Constitutional Council took place after the defeat of President Mahinda Rajapaksa at the presidential election of 2015. The coalition of political parties that came to power espoused a platform of good governance. This included the depoliticisation of the public service and reducing the power of the elected politicians to interfere into the judiciary, police, elections commission, and investigations into bribery and corruption to mention some of them. Presidential candidate Sirisena was at that time a champion of the cause of good governance and its many virtues. One of the first achievements of the new government was the passage of the 19th Amendment in 2015, which brought with it an improved version of the Constitutional Council.

The 19th Amendment not only set up the Constitutional Council, it also reduced the term and powers of the presidency, and increased the independence of state institutions. Although President Sirisena took great pride at the beginning of his term of office in 2015 that he led the campaign to pass the 19th Amendment, his later actions indicate a regret on his part at what he gave up. For instance, he made a polite inquiry from the Supreme Court whether his term was really reduced to five years rather than the six years to which he was elected. Now it appears that the president is also having second thoughts about the powers of appointment of judges and members of the other independent commissions that has been taken away from the president under the 19th Amendment.

The immediate cause of the president’s ire with the Constitutional Council appears to be that his choice of a judge for the higher courts has not been supported by the Constitutional Council which has rejected the president’s nominee on repeated occasions. The president seems to feel that having obtained the votes of 6.2 million voters his choice should prevail over that of the Constitutional Council. The problem is that the president has not been able to make a convincing enough case for the judge in question, whose promotion does not have the support of the majority in the Constitutional Council who have been appointed by the Prime Minister and Leader of the Opposition and in which the president too has a nominee. It is better that the views of 10 persons from a wider spectrum of opinion prevail over the views of one person.

Inadequately Informed 

Some of the president’s criticisms of the Constitutional Council and the independent commissions, such as the Human Rights Commission, have no basis in fact or logic. For instance, the president blamed the Human Rights Commission for the delay in the return of Sri Lankan peacekeepers from Mali and said that this led to their deaths. The Human Rights Commission in its reply explained that “it is absolutely incorrect to state that bringing back the Sri Lankan troops from Mali was delayed because of delays on the part of the Human Rights Commission. The vetting process was suspended until a Standard Operating Procedure (SOP) was drafted, which was an unanimous decision made by all stakeholders (the military, the police, Ministry of Foreign Affairs, Ministry of Defence, Human Rights Commission of Sri Lanka and the United Nations).”

The Speaker of Parliament who is the chairperson of the Constitutional Council said that “Although it is stated by H E the President that 12 names had been rejected by the Constitutional Council, it is an erroneous statement. Only one name was selected by us in the instances where 3 to 4 names had been proposed for one vacancy. Depicting such incidents as rejections of names is an injustice incurred on the constitutional Council…We would like to point out that levelling severe criticism against independent commissions without such clarifications causes long-term damage to the country.” This is clearly a strong statement by a responsible person about a very unfortunate situation where the president appears to have been inadequately debriefed on what is happening in the country in terms of governance issues.

The Lessons Learnt and Reconciliation Commission, which was appointed in 2010 by President Mahinda Rajapaksa in an attempt to ward off an international inquiry into war crimes, comprised some of the most eminent legal professionals, diplomats and administrators in the country. Their conclusion was that the rule of law, and not the rule of men should prevail if there is to be good governance. The judgment of a popularly elected president can be erratic as President Trump has demonstrated in the United States and President Sirisena demonstrated in Sri Lanka when he sacked the prime minister and dissolved parliament only to have his decisions reversed as a result of the Supreme Court’s intervention. The rationale for a Constitutional Council and independent commissions is better governance than a one-man show.

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Latest comments

  • 4

    Though the level of education of people was high in Srilanka, there is a lack of knowledge and skill to make decisions based on facts and analyis. The influence of the so called religious leadership and political leadership is very high in decision making by all including those with high level of education. Further male dominancy/parental dominancy also contribute to decision making whether it is political, social. or personal matters.
    It is not surprise Sirisena & Rajapakse spread lies and create fear to cheat ordinary Sinhalese massess. They will not give up their aim which is get into power enjoy all the benefits of power and take revenge against those who were barrier to their aim. They are not bothered about country, people, justice , rule of law or peace.

  • 3

    Politically motivated Constitutional Council and bias Commissions are clearly NOT part of transition of rule of law.
    For the first time in Sri Lanka’s election history, final result of the 2015 Presidential Election was withheld over 4 hours without any explanation. There was no inquiry about the matter at all.
    He did the same thing at the 2015 August General Election and 2018 LG Elections. Again, there was no inquiry or explanation.
    The same Election Commissioner was appointed as the Chairman, “Independent” Election Commission, an action which is politically motivated.
    It is highly likely a repetition to occur at the next Presidential election too, unless otherwise people use their brains to leave no room for election malpractices to be committed by the Chairman of the Election Company.

    • 4

      2015 Presidential election and August 2015 Parliamentary elections were held under the dictatorship of Mahinda and Gotapaya Rajapakse. They controlled everything including elections. They should answer the questions if there is something wrong.

  • 0

    The Constitutional Council of SL will be redundant of Rule o f Law is established.
    Let us not forget that the present or a future Executive President can overrule it.

  • 3

    Counstitutional council and so called independant commissions are two of the biggest jokes in yahapalana era. They are NOT independant. How does one make sure it is independant? Some people who has no mandate from the public is appointed and given enormous powers. Just scrap this nonsense

  • 0

    President is answerable to the People. but, civil society members are not answerable to the people. Civil society members are answerable to the International community. Party Leaders who come from electoral districts are not answerable even to an electorate. So, Why PResident did not think. both Ranil, Mahinda Rajapakse are for themselves and not for anyone else that includes the country.

  • 1

    As long as human hearts and minds are not changed. There is no hope for Sri Lanka..
    How many times judiciary has been manipulated..
    Poor judges and solicitors Can not do anything against the wishes of political thugs ..
    Today drug dealers roam in Sri Lanka due these people…
    Today; many Sri Lankan government departments are ruined by these thugs .go and see the poor quality of education in our universities..
    These political thugs appointed many academic without qualification..
    Deans/ heads/ VC are appointed like this ..
    Poor Sri Lankan people ..
    Best people and yet

    • 0

      Critical thinking
      What are you saying?
      “Poor judges and solicitors Can not do anything against the wishes of political thugs..”
      Do you think judges who act according to whims and fancies of politicians are innocent?
      That is a gross misinterpretation as judges do so either anticipating future political favourtism, if not, they have already solicited political backing.
      Judges and solicitors have full freedom to be impartial and independent.
      Acting contrary to that to please politicians, is their own choice.

  • 0

    President has to be inside the Constitutional council and every other commission like this in order to represent people. PResident should not trust politicians.

  • 0

    JEhan Perera: what is the story that Edirisinghe Trust and a glomerate of comopanies coverin gJEwellery, Movie distribution and Bank had been sold to Some Indian or american company for $ 75 million. Centrqal bank knows it.

  • 0

    Let us not forget that the present or a future Executive President can overrule the Constitutional Council of SL (CC). It may not take long for the horse-trading creeping in. Back to square one.
    The horse trading started with list MPs and fence jumping. Will the stakeholders ever address this?
    At least, for a start, make this under-arm jumping illegal?
    CC will be redundant if Rule of Law and Order is established.
    Rule of Law and Order cannot be established under the present Executive Presidency system.

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