The Constitutional council

By Neville Ladduwahetty-January 7, 2019, 9:28 pm 

Continued from last Friday

The Constitutional Council (CC) consists of ten members with the Speaker as its Chairman. Of the ten members in the CC, seven are members of Parliament and three are outsiders nominated by the Prime Minister and the Leader of the Opposition.

Article 41B (1) states: "No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on the recommendation of the Council".

Article 41C (1) states: "No person shall be appointed by the President to any of the Officers specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President".

However, prior to the establishment of the Constitutional Council all appointments of public officers and the judiciary were made by the President in keeping with Articles 54, 55 and 107 of the 1978 Constitution.

Article 54 states: "The President shall appoint all public officers…as well as the Attorney-General and the Heads of the Army, the Navy, the Air Force and the Police Force" and Article 55 states: "Subject to the provisions of the Constitution, the appointment, transfer, dismissal and disciplinary control of public officers is hereby vested in the Cabinet of Ministers and all public officers shall hold office at pleasure". Article 107 states: "the Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and Court of Appeal shall be appointed by the President…".

It is apparent from the foregoing that the President or others to whom power was delegated were responsible for all appointments. However, with the establishment of the Constitutional Council, the powers the President had were removed and transferred to another body – the Constitutional Council. Based on the "first rule" and going by the "ordinary meaning" that "No person shall be appointed by the President…unless approved by the Council" it is clearly apparent that what is attempted is nothing but a brazen attempt to "transfer…or removal of power attributed to one organ of government to another organ or body", the Constitutional Council where seven of its ten members are from Parliament. The very establishment and the functioning of the CC therefore has to be inconsistent with Article 3 read with Article 4 as stated by Court in S. D. No. 04/2015; the implication being that the establishment of Constitutional Councils should have required the approval by the People at a Referendum.

Despite warranting the need for a Referendum the very same Court also stated: "The establishment of the Constitutional Council was considered …in the Seventeenth Amendment to the Constitution (S. C. Determination 6/2001), and held that the establishment of the Constitutional Council would not impinge on Article 3 or 4 of the Constitution, even though the Court noted that there is a restriction in the exercise of the discretion hitherto vested in the President, the said restriction per se would not be an erosion of the Executive power by the President , so as to be inconsistent with Article 3 read with Article 4 (b) of the Constitution".

The fact that one Court considers the transfer and/or removal of power from one organ-the President to another body-the CC to be inconsistent with Article 3 read with 4, in which case a Referendum is required and the same Court citing a previous Court determination (S. C. Determination 6/2001) states that since such a transfer amounts to a "restriction in the exercise of the discretion hitherto vested in the President" a Referendum is NOT required reflects a degree of inconsistency that is unacceptable to the ordinary. Therefore, the legitimacy of Chapter VIIA that establishes Constitutional Council should be revisited.

FORMATION OF A NATIONAL

GOVERNMENT

Article 46 (1) of 19A states: "The total number of (a) Ministers of the Cabinet of Ministers shall not exceed thirty; and (b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate exceed forty".

Notwithstanding this limitation in Article 46 (1), Article 46 (4) and (5) permit Parliament by resolution to exceed the limits set in Article 46 (1) provided a National Government is formed.

According to media reports every possible subterfuge is being explored to increase the Cabinet to thirty two on the pretext that the President and the Prime Minister should not be included in the count of thirty despite both being assigned specific Ministries. Another subterfuge attempted is to claim that the UNF – the political party with the largest majority in Parliament together with one member of the SLMC constitutes a National Government. Notwithstanding the sheer duplicity and corruption associated with such efforts every possible interpretation of Article 46 (5) is being explored to exceed the limit of thirty Cabinet Ministers and forty non- Cabinet Ministers and Deputy Ministers in order to secure the largest possible majority; a practice that was mastered from September 2015 until October 26, 2018.

Article 46 (5) states: a "National Government means, a Government formed by the recognized political party or independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or independent groups".

Using the first rule of giving their ordinary meaning to words in statutes as stated by the 2018 Court a National Government can only be formed by the political party with the largest number of seats in Parliament "TOGETHER WITH THE OTHER RECOGNIZED POLITICAL PARTIES" must mean a government formed by the UNF together with the UPFA, the TNA, the JVP, the one Member each of the SLMC and EPDP since they represent six of the politically recognized parties represented in Parliament. Using the first rule of "ordinary meaning" of the wording "together with other recognized political PARTIES must mean all the parties represented in Parliament and not with one party as it was until October 26 2018.

Based on an "ordinary meaning" of Article 46 (5) the government that functioned from September 2915 until October 26, 2018 was in violation of the Constitution because it was a coalition government and not a National Government. However, judging from numerous interpretations given in Parliament and what is expressed recently, this issue can only be resolved by seeking an interpretation by Supreme Court under provisions of Article 125 as the sole and exclusive authority to determine any question relating to the interpretation of the Constitution.

An attempt was made in 2016 to seek such an interpretation when a Fundamental Rights Petition was filed in the Supreme Court (SC. FR. No. 116/2016) challenging the legitimacy of the so called National Government that was formed between two political parties-the UNF and the UPFA. This formation increased the Cabinet of Ministers to 48 and the rest to 45. The ruling of the Court was that since the matter had been debated in Parliament the Court did not grant permission to proceed. Having failed to secure relief from the Courts in 2916 the need to seek an interpretation from a fresh Court is imperative if abuse associated with expanding the Executive is to be avoided.

CONCLUSION

The material presented above relating to the five issues addressed above demonstrates the urgent need to seek clarification regarding several issues associated with the 19A that have been the source of considerable contestation and challenge over the life of this government. Such an exercise may require the intervention of the President to consult the Supreme Court to bring greater clarity and for the Courts themselves to revisit their own determinations as an exercise in judicial review for the sake of their own credibility.