What is all this fuss about the Constitutional Council, then?
No less a person than the first citizen of the country, President Maithripala Sirisena, has complained time and again that the Constitutional Council has been ‘politicised’ and has been rejecting the names of judges recommended by him to the higher courts.
The President renewed his complaint in Parliament on Thursday claiming that the Council had rejected the names of 14 judicial officers he sent to be appointed to the Supreme Court and the Court of Appeal, without giving any reasons. The President also alleged that the procedure followed in appointing the Inspector General of Police was not ‘ethical’ and complained that the Council did not divulge the criteria by which it made its selections.
Previously, when the President had made similar complaints, Speaker Karu Jayasuriya, who is the head of the Council, responded, making a statement in Parliament. Speaker Jayasuriya made a few pertinent points in his reply.
Firstly, Speaker Jayasuriya observed that when three or four names are nominated by the President for one position and only one person is appointed, it is an insult to one’s intelligence- and to the Council- to label the others as being ‘rejected.’. Secondly, if seniority was the only criteria by which selections were made, that would not require a Council- all one had to do was calculate the seniority of each applicant and appoint the senior most!
Speaker Jayasuriya also reminded the President that the Council did not select nominees on its own- it only selected persons from recommendations made by the President. Therefore, if the President is dissatisfied with any appointment that has been made, he is then aggrieved about one of his own nominees!
To assess President Sirisena’s complaints and the workings of the Constitutional Council, the creation of the Council must be viewed in the context of the political landscape that existed prior to its creation. That was the pre-19th Amendment era under the previous Government and the previous President.
Within that political infrastructure, all appointments were made by the President. Persons were hired and fired to the highest positions in the land at the whims and fancies of one person, the Executive President of the country. It had been so for nearly forty years, since 1978, when J. R. Jayewardene set up the executive presidential system of government.
Different Presidents used the powers with different degrees of discretion. Jayewardene himself set the precedent, choosing Neville Samarakoon, a lawyer from the private bar as his Chief Justice, ignoring all the sitting judges of the Supreme Court. Jayewardene should have been more careful about what he wished for because Samarakoon refused to be politically influenced and was nearly impeached by the Jayewardene Government.
More recently, we saw a Chief Justice eventually being impeached under the tenure of President Mahinda Rajapaksa. Chief Justice Shirani Bandaranayake was removed unceremoniously and replaced by another, seemingly because she chose to make a judgment that was perceived as unfavourable to the Government.
Such blots on our democratic copybook were possible only because one person, the Executive President of the country had the sole authority in making such appointments to high office. Now, after the enactment of the 19th Amendment, that authority has been devolved and delegated to a Constitutional Council, comprising ten members of which three are civil society members and the other seven derived from several political parties in Parliament. As Speaker Jayasuriya has noted, no one party commands a majority in the Council.
Has this system worked, one might query? One would expect the effect of the Constitutional Council to be that judges, for instance, secure in the knowledge that their appointments and promotions are not made by one person but by a Council drawn from diverse sources, would act impartially without fear or favour.
Has this really happened? There are signs that this has indeed become a reality. A Member of Parliament has been sentenced to death. A Secretary to the President has been sent to jail. Most importantly, when the country’s democratic system was at a crossroads late last year with the Executive President arbitrarily deciding to dissolve Parliament, the Supreme Court stood tall, informing the nation by a unanimous verdict that it was a violation of the Constitution.
One must then ask the obvious question: would that have been possible, if the Supreme Court was appointed by the President and the President alone? The answer is equally obvious. If the nation was fortunate to have such a robust Supreme Court, it is equally fortunate that the Constitutional Council has as its head, a man of unimpeachable integrity. Karu Jayasuriya staunchly weathered not only insult but also potential injury when some parliamentarians, believing they had suddenly formed the government, began behaving like hooligans. His strong resistance and insistence on summoning Parliament and having sittings at the height of the constitutional crisis, also helped save the day.
Those with short memories- and convenient memory lapses- should be reminded that when the idea of a Constitutional Council was mooted and debated four years ago in the lead up to the formulation of the 19th Amendment, the opposition wanted all ten members to be parliamentarians. It took a lot of work from civil society advocates- and the late Maduluwave Sobhitha Thera- to argue for and retain at least three civil society members.
Lest we forget, it must be noted that President Sirisena himself put in a massive effort to push through the 19th Amendment with a resounding majority in Parliament, remaining in the House until the late hours and coaxing, cajoling and persuading parliamentarians, particularly those who were aligned with the Rajapaksa camp and, therefore, reluctant to signify their assent. So, it is ironical that President Sirisena is now complaining about the Constitutional Council which was, in some way, his own creation.
In fact, in what has been a turbulent and controversial Presidency into which President Maithripala Sirisena was thrust in January 2015, the 19th Amendment and the Constitutional Council will probably be his most enduring legacy. He really shouldn’t complain about what he himself fathered!