The making of a Constitutional Council
The 19th Amendment to the constitution introduced the Constitutional
Council to replace the Parliamentary Council thitherto existing.
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-thirdsí majority. The Speaker endorsed
the certificate on the Bill on 15 May 2015.
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
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
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
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.
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
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
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.
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
Where no such provision has been enacted, the President shall remove
such person only on the prior approval of the Constitutional Council.
(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
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
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.
i. Chief Justice and Judges of the Supreme Court
ii. President of the Court of Appeal and Judges of the Court of
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
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
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 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
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
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
Neil Iddawala is Deputy Secretary General of Parliament