FR petition seeks that SC regularise Constitutional Council’s process

By S.S. Selvanayagam

A Fundamental Rights petition was filed yesterday (30) seeking the Supreme Court to rectify and regularise certain processes of the members of the Constitutional Council.

The petition is also seeking to ensure that the procedures laid down at the infant stages are lawful and/or constitutional and prevent any abuse in the given the true spirit of the Constitutional and the 19th Amendment.

Sarath Kumara Weragoda (former High Commissioner) and Sumudu Sandurwan, both lawyers, cited Karu Jayasuriya (Chairman), Prime Minister Ranil Wickremesinghe, Opposition Party leader R. Sampanthan, Dr. Wijeyadasa Rajapakshe, Patali Champika Ranawaka, W.D. John Seneviratne, Vijitha Herath, Tudor Ariyaratne, Shibly Aziz, Radhika Coomaraswamy (all members of the Constitutional Council), Secretary General of Constitutional Council Dhammika Dissanayake and the Attorney General as Respondents.

They plead in 2015, following a presidential election and the formation of a new Government, a Bill for the 19th Amendment of the Constitution was introduced in Parliament. The said Bill sought, inter alia, to restore the Constitutional Council as provided for in the 17th Amendment.

However, in the course of the committee stage debate on the Bill, an amendment was adopted that resulted in the composition of the Council being altered by reducing the number of “persons of eminence and integrity who have distinguished themselves in public or professional life and who are not members of any political party” from seven to three, and the remaining seven members of the Council being Members of Parliament.

The Petitioners plead that, on or about 28 May 2015, the Legislature enacted the said 19th Amendment to the Constitution whereby several key features of the executive presidency were curtailed and accountability to the office of the executive presidency was introduced.

The Petitioners plead that in the 19th Amendment to the Constitution inter alia, Article 14A recognised the Right to Information; Article 35 provided that actions and inactions of the President in his official capacity are subject to a challenge under and in terms of Article 126, Chapter VIIA of the Constitution was repealed and replaced by the chapter on the Constitutional Council.

The Petitioners plead that the purpose and intent of the 19th Amendment was to introduce transparency, integrity and accountability into the governance of Sri Lanka. In particular, the re-introduction of the Constitutional Council was intended to ensure that appointments to independent commissions and to the scheduled offices would be removed from the political domain, and would be made in a fair and transparent manner that would enjoy the confidence of the general public.

The Petitioners plead that the effect of Articles 41E(6) and 41G(3) was to require the procedure in regard to meetings of the Council and the transaction of business at such meetings, including procedures to be followed in regard to the recommendation or approval of persons suitable for any appointment, to be determined by the Constitutional Council in the form of rules, and for such rules to be published in the Gazette for the information of the public and thereafter placed before Parliament.

The Petitioners state that the 1st to 10th Respondents acting as the Constitutional Council has failed and/or neglected to determine the procedures for the performance and discharge of its duties and functions, and has thereby violated the mandatory provisions of Article 41E(6) of the Constitution.

The Petitioners submit that in the absence of such enactment procedures and/or publication thereof and/or placing before Parliament as mandated by the Constitution, the Constitutional Council would, necessarily be acting arbitrarily, in an ad hoc manner, in violation of the mandatory constitutional requirement and therefore ultra vires the powers of the Constitutional Council and not in the spirit of the 19th Amendment to the Constitution.