By Ruwan Laknath Jayakody –

Knowledge does not necessarily always translate to wisdom, and neither does wisdom always transcend the politics of self-aggrandizement in terms of doing the right thing and not doing that which is expedient. It is also observed that the road to hell is paved with good intentions. 

And it is this peculiar cognitive dissonance that can be observed in Parliamentarian and President’s Counsel, Dr. Wijeyadasa Rajapakshe’s two Private Member Bills titled the ‘21^st Amendment to the Constitution’ and the ’22^nd Amendment to the Constitution’, through which he has sought to amend the existing Constitution, specifically certain provisions pertaining to elections, in particular pre-requisites for proportional representation (PR), and the powers of the Constitutional Council (CC), the Executive and the Cabinet of Ministers, and the Independence of the Judiciary. 

21^st Amendment to the Constitution – PR

Substance of the Bill and the Applicable Legal Regime 

Dr. Rajapakshe has sought to amend the existing Constitution via a Private Member Bill titled ‘21^st Amendment to the Constitution’, specifically by amending Article 99 of the Constitution which comes under Chapter XIV of the Constitution on the Franchise and Elections, and in particular concerns PR. 

Article 99(6)(a) holds that every recognized political party/independent group polling less than one 20th of the total votes polled at any election in any electoral district is disqualified from having any candidates elected for the said district. 

The amendment proposed by Dr. Rajapakshe seeks to substitute the words “less than one twentieth of the total votes” (which as a percentage is five per cent) with “less than one eighth of the total votes” (which as a percentage is 12.5%). 

Critical Analysis of the Bill 

The elections monitoring body, the People’s Action for Free and Fair Elections (PAFFREL) opposed the said Amendment on the grounds that raising the PR cutoff point from 5% to an excessively high 12.5% would curtail the democratic right to engage in politics. The polls monitor, the Centre for Monitoring Election Violence (CMEV), too pointed out that the expectation from the raising of the minimum vote to be obtained by parties/groups to 12.5% from the current 5% of the total polled votes is to have a Parliament with a majority representation. 

This is a political strategy which instead of creating appropriate avenues for all communities to actively participate and engage in the democratic process, restricts even the available minimum space for respective communities to ensure their political representation, National Coordinator of the CMEV, Manjula Gajanayake noted. Executive Director of PAFFREL, Rohana Hettiarachchi explained: “While what is being proposed may be a solution to the excesses of democracy such as parties/groups being formed on the basis of race/ethnicity, religion and geographic area, it would result in the curtailment of the democratic right to engage in politics based on a political view, and would result in no representation for certain parties/groups who don’t have an island-wide voter base. This should not be conflated with the issue of too many insincere candidates contesting at the last Presidential Election and the issues it in turn caused the Election Commission,” he added. 

This Amendment simply makes it difficult for minor parties/groups (parties/groups which represent racial/ethnic, religious, cultural minorities or parties/groups which have a voter base scattered across various parts of the country) to have a stab at adequate political representation and as a result run the risk of underrepresentation or worse still, non-representation. 

22^nd Amendment to the Constitution 

Substance of the Bill and the Applicable Legal Regime – The Powers of the CC and the Independence of the Judiciary

Section 2 of the Bill seeks to amend Article 41C of the Constitution. 

Article 41C deals with the power vested with the CC to approve of appointments to be made by the President prior to the appointments being made. 

The appointments in question include those in Schedule Part I of Article 41C, namely, the Chief Justice (CJ) and the Judges of the Supreme Court (SC), the President and Judges of the Court of Appeal (CoA), the Members of the Judicial Service Commission except its Chairperson (JSC which has three Members, who are all SC Judges, including the CJ who is its Chairperson, is Constitutionally tasked with the appointment and transfer of High Court Judges and the lower/minor judiciary and Courts of first instance), and those in Schedule Part II of Article 41C, namely, the Attorney General (AG), the Auditor General, the Inspector General of Police (IGP), the Parliamentary Commissioner for Administration (Ombudsman) and the Secretary General of Parliament. 

Further, Article 41C(3) holds that no one thus appointed can be removed except by the procedure laid down in law. 

Moreover, the CC is, as per Article 41C(4), obliged to obtain the views of the CJ with regard to the approval of Judges of the SC and the CoA including the CoA President. 

Dr. Rajapakshe has proposed the repeal of the entirety of Article 41C and to thereby remove the role of the CC and to replace such with the JSC in the case of the positions listed in Schedule Part I, and to remove the role of the CC and to replace such with the Prime Minister (PM) in the case of the posts listed in Schedule Part II. Dr. Rajapakshe, through Section 6 of the Bill, has also sought to amend Article 107, the result of which would be entirely taking the CC out of the picture with regard to any involvement in deciding on the appointments of Judges to the apex, superior Courts, namely, the SC and the CoA including the CJ and the President of the CoA.

Section 7 of the Bill seeks to amend Article 111E which deals with meetings of the JSC. Article 111E(6) notes that the President may, with CC approval, and for the cause assigned, remove any JSC Member. Dr. Rajapakshe has proposed the removal of the need for CC approval in the latter instance.   

Critical Analysis of the Bill 

Judicial Appointments 

The administration of justice should be in the public’s best interests. This includes the appointment and transfer of Judges. 

Different legal jurisdictions have adopted different methods for making higher judicial appointments. They range from: appointment by the President after nomination by the President and confirmation by the Senate (United States of America); appointment by the President upon proposal by the Superior Council of the Magistrature (France); appointment by election by the Executive and the Legislature (Germany); selection by a Parliamentary panel (made up of five MPs from the Government and Opposition) and appointment by the relevant Governor in Council (Canada); appointment by an independent commission (South Africa has a JSC); and appointment by the Queen on the advice of the PM and the recommendation of a selection commission (United Kingdom – where the said commission includes the SC President, the Deputy SC President, one member each appointed by the Judicial Appointments Commissions of England, Scotland and Northern Ireland – and interestingly, these JACs comprise of among others such as judicial officers/Tribunal Judges, professionals – barrister or solicitor or Fellow of the Chartered Institute of Legal Executives, lay folk and a non-legally qualified judicial officer, and they make lower Court appointments in England, Wales, Scotland, and Northern Ireland).

India’s Collegium System 

What Dr. Rajapakshe is proposing, to a degree, has its antecedents in the collegium system procedure as practiced by the SC and HCs of India with regard to the appointment and transfer of Judges other than the CJ of India (CJI) to the higher judiciary. 

India shifted from a strictly, ‘appointment by Executive (President) fiat’ as per the Constitution (the President consults with relevant Judges as he/she deems necessary while the CJI is always consulted), to a collegium system. It must be noted that neither the Indian Constitution nor any other statute makes any reference to the entity of the collegium but that it came to be through SC jurisprudence in the Three Judges Cases – S.P. Gupta v. President Of India And Others, SC Advocates-on-Record Association and Another v. Union of India and In Re: Special Reference Under Article 143(1) Of The Constitution of India v. Unknown. This collegium system can simply be explained as a case of Judges appointing Judges. There are separate collegiums for the SC and HCs, and the CJI and four senior most SC Judges constitute the SC collegium while appointments to the Courts below the HC level are made by the respective HC collegium. 

In the case of the selection of the CJI, the predecessor in the said office recommends the successor on the basis of seniority, which recommendation is in turn forwarded by the Union Law and Justice Minister to the PM who then advices the President. In the case of SC Judges other than the CJI, the collegium led by the CJI consults among itself and also with the senior most Judge of the relevant HC to which the Judge recommended for elevation to the SC is attached, if it is a Judge and not a lawyer who is considered for elevation. All consultees must make their recommendations in writing which forms part of the record. 

The collegium makes recommendations of Judges/lawyers which are sent to the Central Government and vice versa (Government also makes recommendations to the collegium). In the case of nominees, even though there is no separate committee to screen and vet candidates, character verification and national security clearance is done by the Government. While the Government may send a recommendation sent by the collegium back to the CJI and the collegium, either in objection to the recommended nominee or in seeking a clarification on the recommended nominee, the CJI and the collegium can reject the objection, and when it is sent back to the Government re-approved by the collegium for the second time, it is legally binding and has to be signed off on by the President who authorizes the appointment by way of a warrant of appointment, which notice is in turn gazetted. In essence, the collegium and the CJI have the unfettered final say on whether or not to approve or reject a recommendation, and thereby effectively call the shots. 

With the collegium system in place, the SC once again upheld it in a 4-1 decision when they quashed a Constitutional Amendment passed by the Parliament to establish an independent National Judicial Appointments Commission (NJAC) to appoint Judges, as being unconstitutional due to the violation of the separation of powers between the Executive and the Judiciary (which is part of the basic structure doctrine), and because it did not ensure the primacy of the judiciary in the matter of selecting and appointing Judges to the higher judiciary. 

The NJAC was to comprise of the CJ as the Chair, two senior most SC Judges, the Union Law and Justice Minister, and two eminent persons nominated by the PM, the CJI and the Opposition Leader of the Lok Sabha or if the latter is not there, the Leader of single largest Opposition Party in the Lok Sabha (also, one of the said eminent persons should be from the scheduled castes or scheduled tribes or other backward class castes which are castes that are educationally or socially disadvantaged or minority communities or a woman). 

Over the years, suggestions have been put forward to have the said Commission composed of: the CJI, the Vice-President as the Chair, the PM, the Law Minister, the Speaker of the Lok Sabha and the Leaders of the Opposition from both Houses of Parliament; have the same latter composition with the exception of allowing a nominee of the PM instead of the PM; the CJI, two senior most SC Judges, the Union Law Minister and an eminent person; and the CJI as the Chair, three senior most SC Judges, the immediate predecessor of the CJI, three senior most CJs of HCs, the Law Minister, the AG and a legal academic. 

In fact, retired SC Justice Jasti Chelameswar, the sole dissenter in the aforesaid SC decision to declare the proposed NJAC unconstitutional, ventured that the said NJAC’s composition could have acted “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between the Judicial and Executive branches”.

“Who judges the Judges?” was a questioned posed by this author in an article titled ‘Legislative Excess v. Judicial In-Activism: An Analysis of Weerawansa v. Attorney General and Others‘.

Democracy is founded to a degree upon a system of checks and balances between the Executive, the Legislature/Parliament and the Judiciary. But the collegium operates almost as a noumenon – the antithesis of phenomenon; let alone as a body with checks on it either by way of Executive/Legislative oversight or otherwise. This closed door system, to put it mildly is akin to a mysterious locked room whodunit, except that instead of understanding how decisions were made and what was factored in during the decision making process, all one is left is with red herrings thrown up by the press and public commentators on how the collegium did what. Retired SC Justice Ruma Pal was quoted as saying: “The mystique of the process, the small base from which the selections were made and the secrecy and confidentiality ensured that the process may on occasions, make wrong appointments and, worse still, lend itself to nepotism”.

Rightfully, the collegium system has come under fire where critics have pointed to a host of issues plaguing the system, ranging from: being anti-democratic in that there is a near complete lack of oversight which adversely impacts on the autonomy and independence of the judiciary; the lack of concern for merit (suitability in terms of knowledge, talent, conduct, ability and professional competence, integrity including impartiality/neutrality/non-partisanship), diversity (gender and other), and accountability and transparency; the absence or opaqueness/vague nature of the published rules (for example, one rule could be that no person be recommended for appointment if two members disagree with such) and specified regulations, eligibility criteria and selection procedures (e.g. could be having to pass a rigourous examination); the reasonings behind the collegium’s resolutions not being known; the absence of an appeals process or independent review of appointments and transfers; there being no mechanism such as a secretariat to receive and objectively deal with complaints; the narrowing of the career path to the judiciary; favouritism/nepotism/family bandyism/oligopoly of families/patronage (as acknowledged by the Law Commission); bureaucratization (imperfect standards and friendship and enmity play a role); and delays in judicial appointments (which could be mitigated by setting out time prescriptions), etc. 

The judicial branch of Government has never been devoid of politics. Therefore, when Judges appoint Judges sans any stringent methodology, instead of familiarity breeding contempt, au contraire, it is likely to breed obsequious, fawning sycophancy and judicial brown nosing and bootlicking.

CC – Ill Conceived 

A prima facie case can be made simply based on the composition of the CC which has seven MPs and three non-MPs (nominated by the PM and Opposition Leader for appointment by the President) that it is a highly politicized body. But the fact of the matter is that having the involvement of the CC in the appointment of Judges to the apex, superior Courts is certainly better than having the Executive President alone making the call, particular because the Judiciary, which is one of the pillars, alongside the Executive and the Legislature/Parliament, upholding our democratic system, must remain as an organ of governance, independent from the others, yet bounden to them by checks and balances. The CC was originally envisaged to have a majority of non-MPs over MPs. Therein lies the rub. The mere influx of more non-MPs does not necessarily guarantee independence as the civil society can and happens to be one of the most politicized and polarized entities. An ideal CC should have an equal ‘MPs to non-MPs’ ratio of 50:50. 

Further, on replacing the CC with the PM, and thereby allowing the President and the PM, especially to appoint the IGP, the AG and the Auditor General, is to politicize beyond measure, offices that are tasked with implementing justice, law and order, and public finance, which should be entirely independent from the whims and fancies of political masters. On the other hand, proposing that the Parliamentary Commissioner for Administration (Ombudsman) and the Secretary General of Parliament, which are largely administrative positions, be appointed by the President and the PM as opposed to the CC while unnecessary (as a properly constituted CC is perfectly capable of making such appointments), it may be argued is not entirely wrong in law. 

In the instant case, where it is proposed that the Executive President along with the JSC is to decide on the appointments to the SC, the CoA and the JSC, and the President along with the PM is to decide on the appointments of the IGP, the AG, the Auditor General, the Parliamentary Commissioner for Administration (Ombudsman) and the Secretary General of Parliament, it is hereby argued that an independent national commission or reconstituted CC, which should include representation from the Executive, Legislative and Judicial branches of Government and distinguished civil society professionals among its membership, the exact composition of which should be decided following adequate and relevant consultations, and whose operational and procedural guidelines should be set out precisely, be established instead to recommend such appointments to the President.             

Substance of the Bill and the Applicable Legal Regime – The Executive and the Cabinet of Ministers

Section 3 of the Bill seeks to amend Article 43 which deals with Cabinet Ministers and their subjects and functions. 

As it stands, Article 43 states that the President, where he/she considers such consultation necessary, will consult the PM, and determine the number of Cabinet Ministers and Ministries and assign subjects and functions to such Ministers and on the advice of the PM appoint MPs as Ministers in charge of the said Ministries. Also, as per Article 43, the President can at any time change the assignment of subjects and functions and the Cabinet’s composition so as long as it doesn’t affect the continuity of the Cabinet and its responsibility to the Parliament.

The amendment proposed by Dr. Rajapakshe is an addition which allows for the President to hold the portfolio of the Ministry of Defence and any other Ministries. 

Since Article 30(1) states that the President is also the Commander-in-Chief of the Armed Forces, Article 4(b) allows for the people’s Executive power including the defence of the country, to be wielded, in the exercise of sovereignty, by the President, and Article 33(2)(g) provides the President with the power to declare war and peace, and Article 33A holds the President as being responsible to the Parliament in the exercise of Constitutional and statutory powers, duties and functions including those relating to public security, it makes sense to not object to the President being allowed to hold the Defence Ministry portfolio. However, the President should not be allowed to hold any other Ministerial portfolio, considering the likely excesses resulting from a ‘absolute power corrupts absolutely’ scenario, and mostly because the President already wields substantive power when it comes to which MP to assign which subject and portfolio.    

Sections 4 and 5 of the Bill seek to amend Article 46 which states, among others, that the Cabinet shall have a maximum of 30 Ministers and that the total number of non-Cabinet Ministers and Deputy Ministers shall not in aggregate exceed 40, and that in the case of the formation of a National Government by the recognized political party or independent group that obtains the highest number of Parliament seats together with other recognized political parties or independent groups, the number of Ministers (Cabinet, Non-Cabinet and Deputy) will be determined by the Parliament. Dr. Rajapakshe’s amendment is to limit the total number of non-Cabinet and Deputy Ministers to 30, and to disallow the formation of a National Government. These two suggestions are highly salutary and therefore laudable. 

Conclusion 

In conclusion, while the proposed 21^st Amendment to the Constitution must be thrown out, in limine (at the outset), in toto (as a whole), the proposed 22^nd Amendment to the Constitution which indirectly raises pertinent concerns regarding the body (in this case the malconceived CC), which makes vital apex appointments, its composition and how it operationalizes its functions, and the need for the reform of the CC (in particular its composition from its ‘seven MPs to three non-MPs’ ratio to opting for a more optimal ’five MPs : five non-MPs’ model and the setting down of the rules/regulations/guidelines/procedures on how it should go about making the important decisions it is tasked with), should, whilst retaining the redeemable suggestions to limit the total number of non-Cabinet and Deputy Ministers to 30, and disallow the formation of a National Government, be rejected as it seeks to address the crucial problem of the depoliticisation of the CC through the implantation of the norms of a judicial tyranny. This is not the kind of stare decisis (binding precedent) that Sri Lanka, in this time of grave turmoil within the judicial sector, needs. Fīat jūstitia (Let justice be done).