• Focus on re-establishing the Constitutional Council, procedure for making apex appointments, size and appointment of Cabinet, and instituting an Audit Service Commission    

BY Sumudu Chamara At a time when the country is discussing the 21st and 22nd Amendments to the Constitution, this week, the draft of the 22nd Amendment to the Constitution Bill was approved by the Cabinet of Ministers, with a number of changes to the existing Constitution, especially those pertaining to appointments to and functions of commissions and various public offices. It had also paid attention to re-establishing a Constitutional Council. The Gazette Notification for the draft of the said Bill was issued on Tuesday (2).  Constitutional Council  According to the Bill, a Constitutional Council will be established with the Prime Minister, the Speaker of Parliament, the Opposition Leader, one MP appointed by the President, and one MP nominated by agreement of the MPs other than those representing the Government and those belonging to the political party or independent group to which the Opposition Leader belongs and appointed by the President.  In addition, five persons appointed by the President will also be members of the Constitutional Council. For these five appointments, one MP will be nominated by agreement of the majority of the MPs representing the Government, one MP will be nominated by agreement of the majority of the MPs of the political party or independent group to which the Opposition Leader belongs, and three non-MPs will be nominated by the Speaker in consultation with the Prime Minister and the Opposition Leader by agreement of the majority of the MPs.  The Bill reads that when nominating these five persons, MPs should ensure that the Constitutional Council reflects the pluralistic character of the Sri Lankan society, including its professional and social diversity. At the same time, the Bill states that these persons, who are not MPs, should be 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 Speaker will act as the Chairman of the Constitutional Council.  The Chairman shall preside at all meetings of the Constitutional Council and in the absence of the Chairman, the Prime Minister, and in the absence of the Prime Minister, the Opposition Leader shall preside at the meetings.  The Constitutional Council will meet at least twice every month, and as often as may be necessary to discharge its functions, and meetings will be summoned by the Secretary-General to the Constitutional Council on the direction of the Chairman. The quorum for any meeting of the Constitutional Council shall be five members. The Constitutional Council shall, once in every three months, submit to the President and the Parliament, a report of its activities during the preceding three months. Appointments by the Constitutional Council  With regard to commissions, the Bill said that other than the Election Commission, all commissions mentioned below shall be responsible and answerable to Parliament. These commissions are the Public Service Commission (PSC), the National Police Commission, the Audit Service Commission, the Human Rights Commission of Sri Lanka, the Commission to Investigate Allegations of Bribery or Corruption, the Finance Commission, the Delimitation Commission, and the National Procurement Commission. “It shall be the duty of the Constitutional Council to recommend to the President fit and proper persons for appointment as Chairmen or members of the commissions, whenever the occasion for such appointments arises, and such recommendations shall endeavour to ensure that such recommendations reflect the pluralistic character of Sri Lankan society, including gender. In the case of the Chairpersons of such commissions, the Constitutional Council shall recommend three persons for appointment, and the President shall appoint one of the persons recommended as the Chairperson,” according to the Bill.  Per the Bill, no person appointed under the relevant provisions of the Amendment or a person appointed to act as the Chairperson or a member of any such Commission should be removed except as provided for in the Constitution or in any written law, and where there is no such provision, such person should be removed by the President only with the prior approval of the Constitutional Council. Important appointments such as the Chief Justice (CJ) and the judges of the Supreme Court (SC), the President and the judges of the Court of Appeal (CoA), the members of the Judicial Service Commission other than the Chairperson, the Attorney General, the Governor of the Central Bank of Sri Lanka (CBSL), the Auditor General, the Inspector General of Police (IGP), the Parliamentary Commissioner for Administration (Ombudsman), and the Secretary General of Parliament will be made by the Constitutional Council. In regard to appointing persons to these offices, the Bill stated that no person should be appointed by the President to any of these offices, unless such appointment has been approved by the Constitutional Council upon a recommendation made to the Constitutional Council by the President.  While no person appointed to any of these offices or to act in any such office should be removed from such office except as provided for in the Constitution or in any law, according to the Bill, in the discharge of its function relating to the appointment of judges of the SC and the President and judges of the CoA, the Constitutional Council will obtain the views of the CJ. The Executive and the Cabinet of Ministers  The Bill reads that the President shall appoint as Prime Minister, the MP who, in the former’s opinion, is most likely to command the confidence of Parliament. The President shall, in consultation with the Prime Minister where he/she considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries, and also the assignment of subjects and functions to such Ministers. Deputy Ministers will also be appointed through a similar process. The total number of Ministers of the Cabinet of Ministers shall not exceed 30, and Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not exceed 40, the draft Amendment said, adding that the Prime Minister will continue to hold office throughout the period during which the Cabinet continues to function under the provisions of the Constitution unless he/she resigns or ceases to be an MP. “Where the recognised political party or the independent group which obtains the highest number of seats in the Parliament forms a national Government, the number of Ministers in the Cabinet, the number of Ministers who are not Cabinet Ministers, and the number of Deputy Ministers shall be determined by the Parliament,” it was further stated. Other amendments Moreover, the Bill seeks to amend Article 54 of the Constitution, which relates to the PSC. Paragraph 1 of the Article is to be substituted with: “There shall be a PSC, which shall consist of nine members appointed by the President on the recommendation of the Constitutional Council, of whom not less than three members shall be persons who have had over 15 years’ experience as public officers. The President, on the recommendation of the Constitutional Council, shall appoint one member as its Chairperson.”  Paragraph 4 of the Article is to be substituted with: “Every member of the Commission shall hold office for a period of three years from the date of appointment, unless the member becomes subject to any disqualification under Paragraph 2 (which says that no person should be appointed as a member of the Commission or continue to hold office as such member if he/she is or becomes a Member of Parliament, a Provincial Council or a Local Authority) or earlier resigns from his/her office by a writing addressed to the President or is removed from office by the President with the approval of the Constitutional Council or is convicted by a court of law of any offence involving moral turpitude or if a resolution for the imposition of civic disability upon the member has been passed in terms of Article 81 or is deemed to have vacated his/her office under Paragraph 6 (which refers to members leaving the Commission without prior leave). In addition, the Bill proposes to substitute Sub-Paragraph (a) of Paragraph 5 of Article 104B, which refers to the powers, functions, and duties of the Election Commission with: “The Commission shall have the power to issue, from time to time, in respect of the holding of any election or the conduct of a referendum, such guidelines as the Commission may consider appropriate, to any broadcasting or telecasting operator or any proprietor or any publisher of a newspaper, as the case may be, as the Commission may consider necessary to ensure a free and fair election.” Furthermore, several provisions that were subject to provisions of Article 41A (which refers to the Parliamentary Council and appointments made by the President to Commissions and offices) are proposed to be amended on the recommendation or approval of the Constitutional Council. Additions The Bill proposed to insert several new Articles immediately after Article 153, which will be referred to as Articles 153A, 153B, 153C, 153D, 153E, 153F, 153G, and 153H. Article 153A will read that there shall be an Audit Service Commission, which shall consist of the Auditor General who shall be the Chairperson of the commission, and the following members appointed by the President on the recommendation of the Constitutional Council. These members will be two retired officers of the Auditor General’s Department, who have held office as a Deputy Auditor General or above, a retired judge of the SC, the CoA, or a High Court, and a retired Class One officer of the Sri Lanka Administrative Service. It will further read that a person appointed as a member of the commission shall hold office for three years, unless he/she resigns early from his/her office, by letter addressed to the President, or is removed from office as provided, or becomes an MP or a member of a Provincial Council or a Local Authority. This is in addition to several other additions under the same Article. Other newly included Articles refer to meetings of the commission, powers and functions of the commission, influencing or attempting to influence decisions of the commission or any officer of the Sri Lanka State Audit Service, to be an offence, and appeals to the Administrative Appeals Tribunal, among others. With regard to immunity from legal proceedings, Article 153E says that subject to the jurisdiction conferred on the SC under Article 126 (which refers to the fundamental rights jurisdiction and its exercise) and to the powers granted to the Administrative Appeals Tribunal under Article 153G, no court or tribunal shall have the power or jurisdiction to inquire into, pronounce upon, or in any manner whatsoever call into question any order or decision made by the commission, in pursuance of any function assigned to such commission under this chapter or under any law. The draft of the 22nd Amendment to the Constitution Bill came in a context where constitutional changes are being demanded by a number of parties as part of the reform process that the country needs. While many want the country to reenact certain provisions of the 19th Amendment to the Constitution, some want newer, stronger provisions. What matters most, however, is paving the way for a better Constitution that shares powers in a more democratic manner and strengthens public institutions, the lack of which has resulted in some of the issues the country is facing at present.