Speaker Karu Jayasuriya, who also serves as Chairman of the Constitutional Council, on Friday tabled in Parliament a report of the Council setting out its duties, activities and the criteria by which the Council recommends and approves appointments to key positions under the terms of the Constitution.
The Constitutional Council was set up in July 2015 through the 19th Amendment of the Constitution, which introduced Chapter VII A to the Constitution. Prior to the 19th Amendment, the ‘independent’ commissions such as the Elections Commission and National Police Commission were either defunct or hamstrung by political influence. Judicial appointments, and posts such as Attorney-General, Auditor-General and Inspector General of Police were filled unilaterally by the executive President.
After January 2015, President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe lobbied to introduce a mechanism by which the appointments and functions of these critical commissions and positions could be depoliticised. The Constitutional Council was the mechanism finally adopted by Parliament for introduction in the 19th Amendment. Supported by all political parties in Parliament, the UPFA, UNP, TNA and JVP, the 19th Amendment was passed with a resounding majority. Two hundred and twelve MPs, or over 90% of members, voted in favour, with only one, UPFA MP Sarath Weerasekara voting against. Thirteen Members of Parliament abstained from voting.
As set out in the Constitution, the Council would consist of 10 members, of whom seven would be Members of Parliament, and three citizens described as “persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party whose nomination shall be approved by Parliament.”The Chairman of the Council, per the Constitution, would be the Speaker.
The Prime Minister and Leader of the Opposition are also constitutionally required to sit on the Council by virtue of their office. One Member of Parliament is selected to the Council by the President at his discretion. The Prime Minister and Opposition Leader together by consensus nominate two Members of Parliament to the Council.
A final Member of Parliament is nominated by agreement of the majority of the Members of Parliament belonging to parties and groups other than those to which the Prime Minister and Opposition Leader belong.
Commissions
Article 41B of the Constitution vests with the Council the power to nominate or “recommend” persons for appointment by the President to the Elections Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission and National Procurement Commission. Under this Article, it is the role of the Council to recommend persons for the President to appoint to these independent commissions.
Article 41C prescribes a slightly different role for the Council regarding the appointments to the Supreme Court, Court of Appeal, Judicial Services Commission, and of the Attorney-General, Auditor-General, Inspector General of Police, Parliamentary Commissioner for Administration and the Secretary General of Parliament. According to the Constitution, the President must take the initiative to nominate to the Council candidates for these positions. The duty of the Constitutional Council is to vet and ‘approve’ the nominations by the President.
The report tabled by the Speaker last Friday in Parliament laid out the procedure followed by the Council in discharging its duties under Article 41B relating to the independent commissions, and Article 41C relating to judicial and other high-profile appointments.
According to the report, the Council called for applications for vacancies in the independent commissions and only considered for nomination persons who had applied. The Council examined “the requirements for each Commission as spelled out in the Constitution or the appropriate legislation”, and placed priority on “integrity, independence and non-partisanship.”
It looked for “professional experience that was relevant to the work” of the respective commission, and “outstanding qualities and leadership in important institutions or positions.”
The Council also weighed “maturity” against the benefits of “younger candidates” who “could bring new ideas” to the workings of particular commissions. Diversity, “in terms of ethnicity and gender in particular” was another factor considered by the Council in recommending nominees to the independent commissions.
When it came to judicial and other appointments under Article 41C of the Constitution, the Council was not required to call for or evaluate applications for vacancies, but only to evaluate and approve persons nominated by the President. The report tabled by the Speaker set out the different criteria used by the Council in evaluating candidates submitted by the President.
In evaluating potential Chief Justices, the Council gave preference to senior Justices of the Supreme Court, serving Attorneys-General, and private lawyers with a successful practice and at least 30 years of legal experience who are “held in high regard” by the judiciary and the legal profession. With the exception of sitting Justices of the Supreme Court, other candidates for Chief Justice were expected to be below 62 years.
Persons nominated to fill vacancies on the Supreme Court were expected by the Council to be attorneys of “outstanding ability” with at least 25 years of legal experience. They must be serving on the Court of Appeal, a Solicitor General level officer or higher of the Attorney-General’s Department, a private lawyer with a successful practice held in “high regard” by the judiciary and the bar, Secretary to the Justice Ministry, Legal Drafts person, or a “jurist or person of high academic attainments in the field of law.”
In the case of Justice Secretaries, Legal Drafts persons or other “jurists”, the Council also requires that they have “made a significant contribution to the development and advancement of the law” and that they are “held in high regard by Judges and the legal profession.” Except for sitting Justices of the Court of Appeal, all other candidates are required to be under 62 years.
Potential Presidents of the Court of Appeal must be senior Justices serving on that court or be practicing with a successful career spanning at least 25 years either in the private bar with a successful practice or in the Attorney General’s Department serving in a Solicitor General-level post or above. Non-judicial applicants for this post are also required to be held in “high regard” by the legal profession and the judiciary. Except for sitting Court of Appeal Judges, other candidates must be under 60 years.
Justices of the Court of Appeal are expected to be persons “of outstanding ability” with at least 20 years of experience of practicing law. They may be senior High Court judges, a Deputy Solicitor General or higher grade officer of the Attorney General’s Department, a private practitioner held in high regard by the legal profession and judiciary, Justice Ministry Secretary, Legal Draftsperson, or a “jurist of high academic attainments in the field of law.”
Candidates in the latter four categories are also required to have “made a significant contribution to the development and advancement of the law” and to be “held in high regard by the Judges and the legal profession.” Except for sitting High Court judges, other candidates must be below 60 years old.
As per Article 41C (4) of the Constitution, the Constitutional Council is also required to obtain the views of the Chief Justice “in the discharge of its functions relating to the appointment of Judges of the Supreme Court and the President and Judges of the Court of Appeal.”
Regarding candidates to the Judicial Services Commission, “the two most senior judges of the Supreme Court are approved,” the Council criteria says. “However, in the event where both the Chairman and the most senior Justice are not career Judicial Officers, the most senior career Judge will be approved to be appointed as a member” of the Judicial Services Commission.
Candidates for Attorney General must be either a serving Justice of the Supreme Court, the Solicitor General or a senior Additional Solicitor General, or a private practitioner attorney with at least 30 years of legal experience who is held in high regard by the judiciary and the legal profession.
A prospective Auditor-General from the Auditor General’s Department must be a Deputy Auditor General with either 25 years or more experience in the Department or a degree in Economics, Law, Mathematics or other subject with membership of the Institute of Chartered Accountants and at least five years in an executive grade position in the public sector.
Candidates from outside of the Auditor-General’s Department must possess a degree, preferably in Economics, Law or Mathematics, be a member of the Institute of Chartered Accountants, and have at least 15 years of post-qualification experience in an executive grade position in accounting, auditing, finance control or monitoring, including at least ten years of public sector experience. When evaluating candidates to serve as Inspectors General of Police (IGP), the Council rules only allow the selection of a serving Senior Deputy Inspector General from the Sri Lanka Police, who must have uninterrupted service in the police force, at least ten years of service in operational areas including at least one year in charge of a police division in such an area, at least five years in a gazetted post in a special duty division such as the Criminal Investigation Department (CID), Field Force Headquarters or Administration of Supplies and Services Headquarters, and five years of service at a Deputy Inspector General or Senior Deputy Inspector General including at least one year in charge of a police range. Potential IGP candidates who have completed a service period in a gazetted post in the field of Intelligence are given additional consideration.