Political crisis brews over Constitutional Council’s legal position

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  • President claims it comes under the executive branch but opposition say, it is part of the legislature
  • Ranil wants question time limited to one hour in parliament to give more time for parliamentary business
  • Disputes arise over CJ’s nominations to Supreme Court and appointment of Appeal Court president
  • Sumanthiran says his party has right to appoint member to CC and questions President’s commitment to solve the Tamil national issue

By Our Political Editor

President Ranil Wickremesinghe has triggered a political debate with his declaration in Parliament that the “Constitutional Council is part of the executive” and not the legislature as widely believed.

The statement, for the first time, came when he spoke on Thursday about the delay in the filling of vacancies at the Supreme Court and at the Court of Appeal. He revealed that Chief Justice Jayantha Jayasuriya had proposed the appointment of Justice Nissanka Bandula Karunaratne to the Supreme Court. He is now the President of the Court of Appeal. He also said that the Appellate Commission had proposed that Justice Sobitha Rajakaruna, currently a member of the Court of Appeal, be its president.

He disclosed that Speaker Mahinda Yapa Abeywardena had informed him in writing that the Constitutional Council was unable to decide with three members in favour and three others opposed. The discussion, the Sunday Times learned, was held last Monday during a lengthy session. Two remaining members had abstained. Noting that by whatever name the Constitutional Council is called, be it Parliamentary Council or simply CC, President Wickremesinghe asserted that it is also part of the executive.

The stalemate over the appointments by the CC came almost in the wake of it rejecting the nomination of an Inspector General of Police. Resultantly the present incumbent Chandana Wickremeratne, who has passed the retirement age, is having his term of office extended every three weeks by President Wickremesinghe. “The IGP is not there. The judges are not there,” the President lamented. He charged that there were moves to sabotage his efforts. He was prompted to announce the appointment of a Parliamentary Select Committee (SC) “to determine future procedures” since the current situation has created a backlog in courts.

He noted, “We introduced the Anti-Corruption Commission Act, and I’ve been awaiting the names of the Commissioners for three months now. Despite our discussions on combating corruption, the appointment of the Commission members is delayed due to concerns raised by a few individuals. We sought the advice of the Attorney General, emphasising that even if there is a minor issue, they should send the names for appointments. I am willing to face any legal challenges, and if we were truly committed to eradicating corruption, we could have proceeded with these appointments. The delay in this process hampers the effective functioning of the legislative assembly.”

Presidential focus on main legislative work

President Wickremesinghe declared that “the primary purpose of this assembly is to pass laws.” He declared that “we often begin work late, and people do not pay us to merely perform; they expect us to pass legislation. Therefore, I recommend discussing with the cabinet the introduction of a new amendment, suggesting that we shift to the main agenda after the first hour. Many new laws are anticipated next year, and further delays are impractical.” He added: “Considering that MPs will need to return to their constituencies for development work next year, it is crucial not to get stuck here. Therefore, my suggestion is to prioritize the main legislative work after the first hour. I wanted to clarify these points, and if the opposition wishes to provide additional insights on this matter, it can be appropriately addressed.” Opposition sources said this was a veiled reference to the daily question time which Opposition Leader Sajith Premadasa utilized to raise queries over different issues. On Thursday, Premadasa defended his role and pointed out that raising queries were necessary to expose corruption and other irregularities.

President Ranil Wickremesinghe tells Parliament that CC is part of the executive branch of the government

At present there are nine members in the Constitutional Council. They are the Speaker, the Leader of the Opposition (Sajith Premadasa) , a nominee of the President (Minister Nimal Siripala de Silva), Prime Minister (Dinesh Gunawardena), a nominee of the Sri Lanka Podujana Peramuna (|SLPP), a nominee of the Leader of the Opposition (Kabeer Hashim MP), Dr Pratap Ramanujam (representing civil society), Dr Dilkushi Anula Wijesundera, (representing civil society) and Dinesha Samararatne (representing civil society). A slot meant for one representing minority political parties is now vacant.

Jaffna district parliamentarian Abraham Sumanthiran told Parliament that “one of the institutions under consideration is the Constitutional Council, many things have been said back and forth today. I want to raise a more fundamental issue. There is a vacancy in the Constitutional Council; all ten members have not been appointed; this is a very serious issue for us. Because we were entitled to nominate a member, and such a meeting was held, I proposed senior parliamentarian Dharmalingam Siddharthan to be that member in the Constitutional Council. But to date, he has not been appointed to the Constitutional Council. We have raised this many times; the leader of the opposition has raised in Parliament, at the party leaders’ meeting, and the Speaker has clearly said that it is our right. In fact, others who are claiming to have a right to nominate are all members of the Sri Lanka Podujana Peramuna. The General Secretary of the SLPP has written to the Speaker and said that they are members of the Sri Lanka Podujana Peramuna, if they are not members of the SLPP, they can’t be members of parliament.

“So, they can’t claim to be ones who have the right to nominate this member to the Constitutional Council. But this is not just a technicality, by this, the third largest party in parliament, the second largest party in the opposition, has been deprived of our right to participate in the deliberations of the Constitutional Council. And what has that resulted in? The President says from the time he took over as Prime Minister and then President, that he will resolve the Tamil national question. He had three all-party conferences: one last year, and two this year for that very purpose. But he is unable to or even this House is unable to resolve this one issue. You keep us out of the Constitutional Council, and then you talk about resolving the Tamil national question in a just manner.

“There is a deadlock situation in the Constitutional Council, and everybody knows about this. A deadlock situation, when one seat is still vacant. If that had been filled, there wouldn’t have been a deadlock. So, the country must know, that while you wax eloquent saying all are equal and everyone in this country has equal representation, to a body like the Constitutional Council which is a very important body, you still deprived us of our place. And how can you face anyone and claim that this is governance in the right way. So today I am raising this as a serious issue. Not just filling a vacancy in the Constitutional Council, but as a serious national issue. We have complained for several decades that we have been left out of the national life of this country. Being kept out of the Constitutional Council is another reflection.

“Just last week, Speaker Abeywardena wrote to the Chief Justice seeking his views on the judges nominated regarding: (a) Performance of the Judge concerned in terms of the number of judgments delivered and pending delivery for the last few years; (b)the number of judgments overruled by the Superior Court; (c) any observations by the Superior Court in respect of same, and (d) the conduct of the judge concerned and any notable contribution to the development of legal jurisprudence etc.”

Responding to President Wickremesinghe’s speech, Opposition Leader Sajith Premadasa told Parliament that the Constitutional Council was an instrument to ensure checks and balances in powers of the presidency. He recalled the existence of a Parliamentary Council when Gotabaya Rajapaksa was president and pointed out President Wickremesinghe’s remarks either in Parliament or outside it. That was to say that such a body was a rubber stamp for any decisions made by the former president. At present, there were three centres of power – the legislature, the executive, and the judiciary. “The CC was a mechanism that was to ensure a checks and balances in the powers enjoyed by the presidency,” he pointed out.

Opposition Leader Sajith Premadasa responding to the President’s remarks

Justice Minister Wijeyadasa Rajapakshe, who earlier held the view that that the CC was to ensure checks and balances over presidential powers, now entertained different thoughts. He told the Sunday Times, “The Constitutional Council is a combination of the Executive and the Legislature. It cannot be categorised as belonging to one particular entity. It has representation from the Executive and Parliament. It also has representatives from the public. Therefore, the spirit of the Constitutional Council is that it is a fine balance, and it is in this spirit that the CC should operate.”

Constitutional lawyer Manohara de Silva held the view that the Constitutional Council was a part of the legislature. He told the Sunday Times, “The Constitutional Council (CC) is an organ of the legislature though its function is executive in character. As such, when the President sends nominees to certain positions to the CC, it decides whether to accept or reject them. You cannot compartmentalise. Sometimes, a judge engages in the administration of the court. That act is executive in nature, but it does not make the judge a member of the executive. The judge is still a part of the judiciary. The CC is headed by the Speaker, with the President also having a nominee. The Opposition Leader is among the members of the CC along with several other government and opposition MPs and civil society representatives. The President’s argument would mean they are all part of the executive. The whole purpose of the CC is to control the executive and act as a check and balance on presidential power. If the argument is that it is a subordinate body to the executive, there’s no point in having the CC at all.”

President Wickremesinghe’s remarks that the CC is a part of the executive has also drawn a series of comments posted on X, previously known as Twitter. Here is a cross-section of them:

= Jaffna district parliamentarian Abraham Sumanthiran:  The President is wrong when he says the CC is part of the Executive. It is a body that is chaired by the Speaker and is thus part of the legislative structure. It appears under the Chapter on the Executive (in the Constitution) to show that it is a body created to act as a check and balance on the Executive.

= Suren Fernando (Attorney-at-Law): The objective of the Constitutional Council mechanism is to act as a check over the Executive President when making appointments to high public and judicial office. The CC was never intended to be a mere rubber stamp.

= Dr. Asanga Welikala (Academic): If we want a rubber stamp, we can simply revert to Mahinda Rajapaksa’s Parliamentary Council under the Eighteenth Amendment. No one to tell the President he shouldn’t throw hissy fits like this when he thinks he’s thwarted by a constitutional mechanism he has himself supported for 20 years?

= Alan Keenan (Senior Consultant on Sri Lanka) at International Crisis Group posted a poll:

1. The effect of heading a Rajapaksa government

2. The effect of the Executive Presidency?

3. The real Ranil emerging in full?

4. All of the above?

5. Something else?

= Ambika Satkunanathan (Former Commissioner of the Human Rights Commission of Sri Lanka): Purpose of Constitutional Council is to prevent interference/influence of executive in selecting members of certain public institutions and stop politicization of public bodies. At least President is open about his attempt to consolidate power, which is evident in every draft law put forward.

= Luwie Ganeshathasan (Attorney-at-Law and Researcher at Centre for Policy Alternatives): RW wants to argue that the CC is part of the Executive so he can assert himself, as the head of the executive, upon its functions. The CC is NOT part of the executive, it was meant to be a check on executive power, specifically that of the President. It has only been a year since the government he heads pushed through the 21st amendment to the constitution, yet he has violated its provisions several times. Now he wants to push through an interpretation that will make the amendment ineffective.

J.C. Weliamuna, an attorney-at-law and High Commissioner to Australia under the yahapalana government, who quit office before concluding his term and chose to remain in that country, has explained the dynamics between the Constitutional Council, a creation of the 19th Amendment to the 1978 Constitution, and the executive presidency, itself a creation of the 1978 Constitution.

CC and democracy

In an article first published on February 17, 2019, he says: “Both the executive powers of the President and the powers of the Constitutional Council are the laws of the land, set into stone through our country’s cherished democratic process. It is a grave threat to the foundations of our very democracy that several seasoned parliamentarians and lawyers, who should know better, are trying to trick the country into believing otherwise.

“To understand the Constitutional Council and the 19th Amendment to the Constitution that created it, one must understand the dynamic that prevailed between the executive, legislative and judiciary branches of government before the 19th Amendment was signed into law on May 15, 2015 by Speaker Chamal Rajapaksa, after being voted for by nearly every single Member of the 225-strong Parliament, including all but one MP of the UPFA. Before this landmark piece of legislation became law, it was the case that the President of Sri Lanka enjoyed sweeping powers to unilaterally appoint and promote all judges, police officers, prosecutors, and public servants in the country. The so-called Parliamentary Council acted as merely a rubber stamp for Mahinda Rajapaksa, who took control of Parliament, emasculated to the 17th Amendment, and enacted the 18th Amendment with three specific objectives.

“The first was to remove the two-term limit on the executive presidency so that he could effectively become President for life. The second was to abolish all authorities that could have acted as a check on the President’s power to make constitutional appointments. The third and final objective was to bring the entire executive branch of the Government on its knees to the executive president, who with almost royal prerogative had control over their appointments, promotions, transfers, and welfare. The way Mahinda Rajapaksa wielded and abused this power was responsible in no small part for his crushing electoral defeat in January 2015 by Maithripala Sirisena, by a margin of over 400,000 votes. This point was not lost on the new President or his chosen Prime Minister, Ranil Wickremesinghe, whose almost singular focus over the next five months was to reverse and repeal the legislative nuclear warhead planted at the heart of our democracy by Mahinda Rajapaksa.

“The 19th Amendment brought in a new beginning of democratic governance, mooted by the will of the majority of Sri Lankans led by none other than the Ven. Madulwawe Sobhitha Thero. What did the 19th Amendment to the Constitution do when it became law? It brought back a two-term limit on the executive presidency, shortening each presidential term of office to five years from six. Real power was injected into the independent commissions such as the Judicial Services Commission, Police Commission and Public Service Commission to bring independence to the judiciary, police, and public service at large. The powers of the Prime Minister and the Cabinet of Ministers were enhanced in line with other modern parliamentary democracies. Executive actions of the president became subject to judicial review. Most importantly, a critical check and balance – the Constitutional Council – was brought into what was once an unfettered power of the President to appoint persons of his sole choice to critical judicial and government posts.

“Anyone who listened to the fierce criticism of the Constitutional Council by people like Mahinda Rajapaksa and Wijeyadasa Rajapakshe could almost be forgiven for believing that the 19th Amendment and Constitutional Council were the sole creation of the UNP, masterminded by Ranil Wickremesinghe and Karu Jayasuriya in a secret lair at the behest of the Tamil National Alliance. History brings with it many inconvenient truths for those who find solace in such fictions. For truth be told, the 19th Amendment was voted for by 212 Members of the 225 Members of Parliament. These eminent legislators included Wijeyadasa Rajapakshe and ‘Joint Opposition’ heavyweights such as Namal Rajapaksa, Wimal Weerawansa, Dinesh Gunawardena, Nimal Siripala de Silva. Opposition Leader Nimal Siripala de Silva marked the occasion by stating affirmatively that the UPFA, without whose support the bill would have failed, strongly supported the amendment. He commended the leadership given by President Sirisena who, in his words “had succeeded where none of his predecessors could” in delivering landmark reforms to the Constitution.

“Even while the bill was going through motions in Parliament, it was none other than then Justice Minister Wijeyadasa Rajapakshe who steered through the various amendments to the bill at the committee stage. We must ask ourselves the reason and root cause of the sudden propaganda campaign against the Constitutional Council. This is nothing other than a political manoeuvre by a former President, hungry for power, with an extremely transparent scheme in mind……”

A new debate over whether the Constitutional Council is part of the executive or the legislature will continue at least until the latest appointments to the Supreme Court and the Court of Appeal are resolved. The question is how. One way out is the appointment of a tenth person to the Constitutional Council, one that could possibly obviate a tie when decisions are made. Such an appointment, as parliamentarian Sumanthiran has pointed out, is pending though a name has been recommended. On the other hand, President Wickremesinghe has declared that he would appoint a Parliamentary Select Committee to lay down procedures for the Constitutional Council. Of equal importance is his declaration to discuss with the Cabinet of Ministers the introduction of a new amendment to shift the main agenda of Parliament for business to take effect after the first hour. It is not clear how this would be done. This allows limited time for questions so the main business of the House could begin early. With an election year due, the executive and the legislature are at loggerheads.