The making of a Constitutional Council

by Neil Iddawala

The 19th Amendment to the constitution introduced the Constitutional Council to replace the Parliamentary Council thitherto existing.

Photo: Parliament.lk

The main objective of introducing a Constitutional Council is the re-establishment of an independent Commission, limiting the powers of the president to a certain extent. The Second Reading debate on this Amendment was held on 27-28 April, 2015 and on the 28th itself, it was taken for the Third Reading and passed with amendments proposed during the Committee Stage with a two-thirds’ majority. The Speaker endorsed the certificate on the Bill on 15 May 2015.

Composition

The composition of the Constitutional Council shall be ten persons. They shall include, as ex- officio members, the Prime Minister, the Speaker and the Leader of the Opposition of Parliament.

The President of the Republic shall have the power to nominate one member to the Constitutional Council and such nominee shall be a Member of Parliament.

The Prime Minister and the Leader of the Opposition shall have the power to nominate five persons, two of whom shall be Members of Parliament and the other three shall be members of the civil society. The five members nominated by the Prime Minister and the Leader of the Opposition shall be appointed by the President.

The power to appoint the 10th member rests with the political parties and groups represented in Parliament, other than the two parties represented by the Prime Minister and the Leader of the Opposition. As such, one Member of Parliament so nominated on the consensus of the majority of the Members of Parliament of the political parties and groups represented in Parliament other than the two parties represented by the Prime Minister and the Leader of the Opposition shall be appointed by the President as a member of the Constitutional Council.

Nomination of five members

Photo: Dailynews.lk

Accordingly, out of the constituent members of the Constitutional Council, seven will be those representing Parliament and only three members will be members of the civil society. Out of the 10 members who are so appointed, Hon. Speaker will become the Chairman. The Prime Minister and the Leader of the Opposition should, in appointing members, ensure that the Constitutional Council reflects the diversified character of the Sri Lankan society. They should consult the leaders of the political parties and independent groups represented in Parliament for this purpose.

Similarly, the members who are not Members of Parliament should be persons of excellence and integrity who have earned recognition in their professional lives and should not be members of any political party. Their names shall be approved by Parliament.

The President shall be specifically informed as to the nominees by the Prime Minister and the Leader of the Opposition and the nominees by the political parties and groups represented in Parliament, other than the two parties represented by the Prime Minister and the Leader of the Opposition. The President shall, before the expiry of 14 days from the receipt of such intimation, make the appointments. If the President fails to appoint such members within the period of 14 days as stipulated in the Constitution, such persons shall be considered to have been duly appointed to the Council with effect from such expiry.

Term of office

The ex- officio members of the Council, i.e. those who hold the offices of Prime Minister, Speaker of Parliament and Leader of the Opposition of Parliament, shall continue to be members as long as they hold such offices and after dissolution of Parliament, until and unless other persons are appointed or elected to such offices.

The terms of office of the other members are limited to three years.

At the same time, the term of office of any such member shall ceases before the expiry of the period of three years if such member tenders his/her resignation from the membership to the President in writing In the opinion of the Prime Minister and the Leader of the Opposition, reaches a state of physical or mental disability that renders him/her unable to perform the functions of his office,

(a)is found guilty of corruption

by a court of law,

(b)is subjected to civil disability, or

(c) fails to attend three consecutive meetings of the Council without prior approval from the Council.

1.1 Occurrence of Vacancies

In an instance where a vacancy occurs in respect of those who become members ex- officio, persons appointed by the President or elected by Parliament shall become members for such vacancy by virtue of their official position.

Apart from that, if a vacancy occurs in respect of the other seven members, the President shall appoint a successor for such vacancy in accordance with the provisions mentioned above within 14 days from the occurrence of such vacancy. The term of office of such successor shall be the period remaining unexpired from the term of office of the member to whom he or she becomes the successor.

At the same time, the term of office of the members other than the ex- officio members is a maximum of three years as mentioned above and they cease to be eligible for re-appointment under the same provisions. All appointments to the Constitutional Council by the President shall be intimated to the Speaker of Parliament forthwith.

Role of Constitutional Council upon dissolution

Notwithstanding any provisions in the Constitution, when Parliament has been dissolved, the Speaker of Parliament as at such dissolution shall continue to be the Chairman of the Constitutional Council until and unless another person is elected by the succeeding Parliament to the post of Speaker of Parliament.

Functions

Similarly, shall continue to hold their memberships until the Prime Minister and the Leader of the Opposition are appointed or elected from among the persons elected as Members of Parliament, in the succeeding Parliament.

The main function of the Constitutional Council is to give its recommendations before the President appoints a person as the Chairman or a member of any of the Commissions specified in the Schedule provided below. The President shall on no account appoint a Chairman or a member of any of the Commissions except on the recommendation of the Council. The above provisions are applicable even in respect of the persons appointed for acting as the Chairman or a member of any of such Commissions.

The main function of the Constitutional Council is to recommend suitable persons whenever called upon to do so when the occasion arises to appoint a Chairperson or Chairpersons and/or a member or members to any of the Commissions mentioned in the Schedule. In making their recommendations, gender balance and the multi-ethnic character of the society shall be reflected. In recommending a Chairman, names of three persons shall be presented. The President shall appoint one of the three persons so recommended as the Chairman of the relevant Commission.

Chairpersons or members to Commissions should be appointed within 14 days from the receipt of the recommendations by the President.

If the President fails to make the appointments within the stipulated 14 days, such persons as have been recommended by the Constitutional Council for membership shall be considered to have been duly appointed to such Commissions at the end of such period. In the same way, the person whose name appears first in the list of three persons recommended by the Constitutional Council for appointment as Chairman of a Commission shall be considered to have been appointed as the Chairperson of such Commission.

Removal

Where provisions have been made in the Constitution or any other written law for the removal of a Chairperson or a member of a Commission who has been appointed on the recommendation by the Constitutional Council, no removal shall be effected except as provided in such provision.

Where no such provision has been enacted, the President shall remove such person only on the prior approval of the Constitutional Council.

Schedule

(a) Election Commission
(b) Public Service Commission
(c) National Police Commission
(d) Auditing Service Commission
(e) Human Rights Commission of Sri Lanka
(f) Commission to Investigate Allegations of Bribery or Corruption
(g) Finance Commission
(h) Delimitation Commission
(i) National Procurement

Commission

Appointing Persons to High Posts

The second main function of the Constitutional Council is to grant its approval for the appointment of persons to the posts given in the Schedule mentioned below. When the President performs his or her functions, he or she nominates persons to posts in various institutions.

However, in appointing persons to the posts mentioned in the following Schedule, the approval of the Constitutional Council should be obtained. The President should not make the appointment to such posts without the approval of the Constitutional Council. This provision shall be applicable in respect of an acting appointment that is made for a period not exceeding 14 days in any of the posts specified in the Schedule.

Similarly, approval of the Constitutional Council shall be obtained for acting in any such post for successive periods not exceeding 14 days and no person shall be appointed unless recommendations have been obtained as stated. The provision of the Constitution or any other written law shall be followed for the removal of any of the persons holding office or has been appointed to act in any of the posts specified in the Schedule.

In granting approval for the posts of Judges of the Supreme Court, President of the Court of Appeal and Judges of the Court of Appeal, the Chief Justice shall be consulted.

Schedule

i. Chief Justice and Judges of the Supreme Court

ii. President of the Court of Appeal and Judges of the Court of Appeal

iii. Members of the Judicial Service Commission except its Chairman

iv. Attorney General

v. Auditor General

vi. Inspector General of Police

vii. Parliamentary Commissioner for Administration (Ombudsman)

viii. Secretary General of Parliament

Meetings and Quorum

The Secretary General of the Constitutional Council shall, upon the directions of the Chairman of the Constitutional Council, convene the meetings of the Constitutional Council. The Constitutional Council shall meet at least twice a month or as frequently as possible when necessary for the performance of its functions.

The Chairman shall take the chair of the Constitutional Council and in his/her absence, the Prime Minister and in the absence of the both the Chairman and the Prime Minister, the Leader of the Opposition shall take the chair.

The quorum of the meeting of the Constitutional Council shall be five members.

Decisions

Every effort should be made to get the recommendations, approvals and decisions made by the Constitutional Council unanimously. However, when such unanimity is not possible, they shall be supported by not less than five members present at the relevant meeting. If this requirement is not fulfilled, such decision, recommendation or, approval shall have no effect. Although the Chairman, or any other person chairing the meeting, does not have a vote initially, where the votes on each side are equal in a division on any issue, the person holding the chair shall have a casting vote.

Manner of Functioning

The manner in which the functions of the Constitutional Council are conducted and the procedure for recommending persons suitable for the Commissions and for the approval of appointment of persons for certain posts, and the procedure for conducting its meetings should be decided by the Constitutional Council.

The Constitutional Council shall have the power to make rules necessary in implementing the duties and functions of the Constitutional Council and such rules shall be published in the Gazette and shall also be submitted to Parliament within three months from such publication in the Gazette.

The Constitutional Council shall have the power to function despite its being constituted or established fully or any vacancies in its membership and similarly no move, work or decision of the Constitutional Council shall be ineffective or shall be deemed ineffective owing to its not being fully constituted or due to any vacancies that may have occurred.

The Constitutional Council shall, during every quarter, submit to the President a report on its functioning for the preceding quarter.

Finality of decisions

No court shall have the jurisdiction to entertain a submission to examine or make a determination on or to question in any way for any reason whatsoever any decision, approval or recommendation made by the Constitutional Council.

Nevertheless, this shall not be understood or construed to pose restrictions on Article 126 of the Constitution.

Staff and finance

There shall be a Secretary General to the Constitutional Council, who shall be appointed by the Constitutional Council for a period of five years. Such person shall be eligible for re-appointment. The Constitutional Council shall appoint such officers it deems necessary for its functioning upon such terms and conditions as it may determine.All expenditure of the Council shall be charged on the Consolidated Fund.

Neil Iddawala is Deputy Secretary General of Parliament