By Nihal Jayawickrama –

Dr. Nihal Jayawickrama

The Constitutional Council was hailed as the principal and singular achievement of the Nineteenth Amendment to the Constitution. Its duty was to recommend to the President fit and proper persons for appointment to the independent commissions established under the Constitution, and to approve or reject persons recommended by the President for appointment to certain important scheduled state offices. What the Government promised was a Council consisting predominantly 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. This was compounded by the appointment of two Ministers to the Council, thereby creating an obvious conflict of interests. Be that as it may, several questions now arise in regard to the performance of the Council so far.

Duty to formulate procedures

The first task of the Constitutional Council, as prescribed by the Constitution, is to “determine the procedures to be followed in regard to the recommendations or approval of persons suitable for any appointment”. These “procedures”, in the form of rules, are then required to be published in the Gazette and placed before Parliament within three months of such publication”. In other words, these “procedures” are required to be made public and then approved by Parliament. As far as I am aware, that has not been done. In the absence of published “procedures”, one is entitled to assume that the Council, acting in secrecy, is simply rubber-stamping executive decisions. That was neither the intention nor the promise.

“Procedures” are a requirement in any institution, and a mandatory constitutional requirement in the case of the Constitutional Council. For example, in the absence of such “procedures” how did the Council select and recommend “fit and proper” persons for appointment to the independent commissions? Anecdotal evidence suggests that nominations were sought by a parliamentary official from certain professional bodies. Other such evidence suggests that certain ministers and high parliamentary officials sought curriculum vitae from favoured individuals. How did the Council process this plethora of applicants? Did it interview all of them, or any of them? Did it even interview the individuals it ultimately recommended to the President? If it did not, how did it satisfy itself that the persons it recommended were “fit and proper” for the relevant commissions?

Attorney General’s appointment

The absurdity of this situation becomes evident when one reflects on the impending appointment of the Attorney General. That office became vacant in the second week of January. Upon receiving the recommendation of the President, the Council approved the appointment of the incumbent Solicitor General as Acting Attorney General. That approval signified the Council’s agreement with the President that that individual was the fit and proper person to serve in that office. The question immediately arises why the Council approved an “acting” appointment. Unlike a vacancy created by resignation or death, the date of retirement of an officer is known months or years in advance. Did the Council inquire from the President why he did not recommend a permanent appointment? Or was the Council quite content to simply rubber-stamp any recommendation it received?

The situation then becomes even more hilarious. The Minister of Justice, himself a member of the Constitutional Council, was reported to have named his personal choice. The Prime Minister, also a member of the Constitutional Council, informed Parliament that he would personally consult the Bar Association of Sri Lanka concerning a suitable person for appointment. The Cabinet spokesman, the Minister of Health, finally announced that the new Attorney General had been chosen. Presumably, all these politicians will now make known to the President who their preferred candidates are. When the President eventually conveys his recommendation to the Council, how will the Council proceed in the absence of the mandatory “procedures”? Will the two members of the Council who have already made public pronouncements on the subject also participate in the decision-making process?

Appointment may be challenged in court

If the recommended candidate is a member of the Unofficial Bar, or an officer of the Attorney General’s Department other than its most senior officer whose appointment as Acting Attorney General had already been approved by the Council, what will the Council do? Will it interview the recommended candidate together with the one whose appointment it had previously approved? Will the Council inquire from the President why, within the course of less than a month, he recommended two different persons for appointment to that office? If the Council decides to approve the appointment of a person other than the current Acting Attorney General, will the Council explain to the people of this country why it initially endorsed one whom it now considers to be unsuitable for that office?

The failure of the Constitutional Council to perform its initial function, namely, to determine the procedures for the performance of its duties, has eroded its legitimacy. Any inconsistency in the performance of its duties will raise doubts about its integrity. While any recommendation or approval of the Council cannot be questioned in court even on the ground of procedural irregularity, the Constitution now enables an appointment made by the President, based on such recommendation or approval, to be challenged by way of a fundamental rights application on the ground, for example, of discriminatory treatment in the appointment process. Therefore, it is imperative that the rules relating to the performance of its duties and functions are formulated and published in the Gazette for public scrutiny, and placed before Parliament. Transparency and accountability demand that this be forthwith done.