President Maithripala Sirisena said that the legitimate child given birth by him named 19th Amendment has been abused.
The President recalled that in keeping with the pledge given to the people in this country through his election manifesto for January 08, 2015 Presidential Election and with the clean and pure determination, the 19th Amendment to the Constitution was introduced and it was passed with the consent of 215 out of 225 Members of the Parliament.
The President made these remarks participating at the debate on the Constitutional Council, at the Parliament, today (21).
According to the 19th amendment, the Constitutional Council and the Independent Commissions were appointed and even though the 19th amendment clearly stated the responsibility, policy and guidance of those institutions, those principles have not fulfilled yet, the President added.
Also, President Sirisena further said that he vehemently reject the allegations leveled against him erroneously interpreting a statement made by him recently in the Parliament regarding Independent Commissions.
The President said that he has no any objections against the judges appointed to the Supreme Court and the Court of Appeal and the issues raised by him were about the reasons for the rejections of the names of the judges presented by him to the Constitutional Council.
If any name of a judge is rejected by the Constitutional Council, that judge has a right to know the reasons for the rejection, the President said that adding even a labourer has a right to question as to why his promotion was rejected.
The President said that he made that interference to create a just and impartial system for the benefit of those rejected judges and for the judges who are waiting for promotions in the future and some section is trying to turn this upside down and to tarnish his image.
If appointing Judges to the Supreme Court and the Court of Appeal is fair and transparent the President has the right to know about it and yet his nomination has been rejected and he is not made being aware of the reasons for the rejection, said the President.
Although he received a report from the Constitutional Council once in 3 months, the reasons were not given in those reports, he said.
The executive, legislature and the judiciary all three are being controlled by the Constitutional Council and that if a constitutional council is to take authority it cannot surpass the powers of the executive presidency, the President pointed out.
The other legitimate children given birth by the 19th constitution are the Independent commissions said the President and if they are led towards the wrong path the expectations of the society which has kept faith on the Yahapalanaya will not be accomplished.
The President pointed out that he is the only leader who has given up his powers after coming power in recent history and that he has done it with pure intentions towards establishing a pure and clean government. He said that whatever the decision of the Parliament regarding abolishing presidency he would agree with it as he has agreed earlier.
Full text of the speech made by President Maithripala Sirisena in Parliament on February 21, 2019
Honourable Prime Minister, just as he did today at the discussion about the activities of the Constitutional Council, in response to my recent statement about the Independent Commissions here at the Parliament, he had also made several statements in the Parliament and outside of it, in press conferences and on stage, and in various ceremonies. The day after I made that statement in this respected house, you had publicly released your response to it. I also got to know that many Parliamentarians of the government and the opposition, during this debate, had made various statements completely misinterpreting my stance on this issue and leveled harsh criticisms of me. I must state now, Mr. Speaker, I came here with your permission not to respond to any of those criticisms. I categorically deny all those interpretations and criticisms about my previous statement.
I understood that the statements by Hon. Prime Minister and some other government and opposition members tried to show that I had some criticism or opposition against the appointments made to the Supreme Court. I must clearly state that I have nothing against the judges appointed to the Supreme Court or the Court of Appeal. I have no allegation against them. I have no objection against them. I could see that some parties were trying to turn the issue upside down and project a completely wrong image about me to the judiciary and the people of this country. Hon. Speaker, just as you and other members of this House know, I am not a member of this August House. I am making this statement today using the provisions for the President to come and address the Parliament. Hon. Speaker, you all presented a manifesto for the presidential election held on January 08, 2015. I believe those in the government and in the opposition remember the signatories to that manifesto at the Viharamahadevi Park.
Forty nine political parties, trade unions and civil organizations came together as signatories to that historic declaration. One of the most fundamental concepts that we included in that declaration was the concept of Good Governance, which is important locally, internationally and at the level of the United Nations. Many statements in that declaration were linked to this key concept of good governance. Hon. Speaker, the passing of the 19th Amendment to the Constitution was a direct outcome of our promise in the manifesto. I know all of you remember that just as I swore in as President, Hon. Ranil Wickremesinghe was to swear in as Prime Minister before me. It was the agreement we had. It was a pact. You may also remember that when Hon. Ranil Wicremesinghe remained as Prime Minister until August 2015, the UNP had only 41 or 47 members in the Parliament. The UPFA on the other hand, led by SLFP, had 142 members in the Parliament. Out of those, 127 were members of the SLFP. Others were members of leftist and progressive parties of the UPFA.
After I was offered the leadership of SLFP within three weeks of my appointment as President, all members of this Parliament helped me work as the President and us to continue as a new government, without a distinction as government or opposition. During those months, the UNP, SLFP, UPFA, JVP and TNA cooperated with the new government with a friendly attitude. It was thanks to that cooperation, Hon. Speaker, that we were able to pass the 19th Amendment to the Constitution. The 19th Amendment was passed with the approval of 215 members out of 225 members in the Parliament. Even many of those who are in the Opposition today, voted in favour of the 19th Amendment as members of the previous Parliament. The 19th Amendment was a fact clearly mentioned in the manifesto. It was a promise and an agreement.
It was debated for two days, on 27th and 28th April 2015. There was an agreement at the party leaders meeting, and the Speaker Hon. Chamal Rajapaksa had decided to debate it for one and half days and call for a vote. Hon. Speaker, yesterday and today, I read the Hanzard records well. Although the debate was planned to be finalized by 28th noon, voting was postponed till 5.00 p.m. with the agreement of the party leaders. It was due to many serious changes that surfaced during the committee stages that the planned voting had to be postponed till 5.00 p.m. However, the situation got heated that the voting could not be held even by 5.00 p.m.
Therefore, party leaders agreed for the voting at 7.00 p.m. I spent these whole two days in the parliamentary complex. It was for no other reason Hon. Speaker, as Hon. Mangala Samaraweera just happened to mention, the 19th Amendment was my child. I gave birth to a legitimate child. The purpose of that exercise was to bring about virtuous governance in this country. I must thank Hon. Wijayadasa Rajapakshe, who doesn’t seem to be present here today, for his role as a Minister on behalf of the government during those critical last hours prior to passing of the 19th Amendment. He faced most of the criticism on behalf of the government. There were serious discussion about the Constitutional Council, its composition, about the number of representatives from the parliament, civil society and professionals during and after the passing of this amendment. Although it was meant to be a legitimate child that encapsulated noble principles of good governance, as the journalist Kusal Perera had written in Lankadeepa Newspaper today, the 19th Amendment has been a disabled or deformed child at birth. Kusal Perera, as you know Hon. Speaker, is a respected journalist known for his independent opinion. I accept his view 90 per cent. And I accept his opinion in today’s Lankadeepa newspaper 99 per cent. It is not me who holds this view of the 19 A, but a respected journalist. Kusal Perera has clearly shown how the increase of the number of politicians in the Constitutional Council has completely failed its purpose by shutting the door for civil society representatives, professionals, and the learned, as politicians outnumber them.
As you see in this context, what the 19A achieved was to curtail the unlimited powers of the executive presidency and transfer those powers to the Parliament, to the Constitutional Council and from it to the Independent Commissions. Hon. Speaker, as you know we are a nation known for our giving. We like to donate, Buddhists and believers Christianity, Hinduism or Islam. We donate like no other nation. No other country hosts as many Dansalas as our country. We donate food, clothing, blood, organs and many more. When we come to think of it, during the war, our soldiers sacrificed their lives for the country, they jumped on enemy tankers. I have also donated food and clothing. And when I was young, I have donated blood too. However, Hon. Speaker, there are very few occasions when people have actually sacrificed their power. I am one of those persons who gave away my powers as Executive President, when I was chosen by the people of this country. I don’t know how many in the world has actually done that. It is something that no other recent leader in the world has done. But I gave away my powers. That it how I supported the government to achieve those noble goals.
However, I am sorry to say that, Hon. Speaker, the legitimate child I mentioned seems to have been abused. We, as someone who has given away one’s powers, I helped the formation of the Constitutional Council and independent commissions with utmost good faith. 19A has elaborated on the functions, responsibilities and guidelines for those institutes. But we have not done anything in 19A. It is now over thirty years since the 13th Amendment to the Constitution was passed and Provincial Councils have been established. Yet, we have still not done a review of them to understand if they are successful or not, if we should strengthen them or not, how to strengthen them if we should etc. No government has done that. Not even us. I have not done that either. As such, we are not able to say precisely how much of the expected outcomes have been achieved by establishing Provincial Councils. Today, 85% of the allocations for Provincial Councils are spent just to maintain them. Only 15% goes for development. There are thousands of officers who do not have a proper duty at present, as now it is one and half years since Provincial Councils have been dissolved. Therefore, none of us have done our duty towards the Provincial Council system, to review and strengthen them.
In the same manner, Hon. Speaker, I must state, according to my conscience that if something is not right, we must fix it. I am not speaking against you, the Prime Minister or those who criticized me here today. If the vehicle we are driving goes off the road, we must immediately take it back on track before it hits a telephone or an electricity post, or fall into a drain.
I am talking about the issue of the Constitutional Council and Independent Commissions. My statement about three or four weeks earlier was also given a completely wrong interpretation by many who talked about it. My statement was not against Independent Commissions. I said that, just like it is the case with the Constitutional Council, what are the limits of the Commissions? What is relevant to them? What is their policy? Where are the guidelines? Independent Commissions have none. That day, Hon. Speaker, I was talking about dangerous criminals, drug dealers, underworld dons. This is what I said that day. As these notorious criminals could not be controlled in Welikada prisons, after discussion and agreement with Minister of Justice, we transferred them to Angunakolapelessa prison. Then the Human Rights Commission has sent a long list of questions to the Chief of STF as to who allowed them to go to Angunakolapellessa, who ordered them to provide protection to the prisoners, on whose advice did they go, how did they carry out activities there, and if they take the responsibility of them etc. I said this then and I am telling this now. Hon. Mangala Samaraweera, is it the duty of the Human Rights Commission stand up for the right of these dangerous criminals and drug dealers? I saw the Chairperson of the Human Rights Commission had held a press conference and said that the President has said so, and that she is discouraged and feels like resigning. Is the Human Rights Commission there to protect the rights of 21 million people of this country or to protect the rights of criminals and drug dealers? What about those countries that always boast about human rights, when they catch a terrorist, drug dealers or the underworld? Do they protect their human rights? But those human rights are given to us. In the same manner, I got to know that a Minister and an Opposition member had severely criticized alleging that I am against the appointment of judges. As I said earlier, my issue is not with those who have been appointed already. My issue is with the kind of responsibility with regard to those whose names are rejected by the Constitutional Council. The Constitutional Council has rejected 14 names of judges so far. I have sent some names three times. Why do I send them? Because they cannot go before the Constitutional Council. They cannot meet the Chief Justice. I am the only person accessible to them. I can be got hold of at least in public spaces. So they express their concern, where they can. They say they have been subjected to injustice. They say, I do not look into their promotions. They first believed that it was me who blocked their names. But they don’t think that way now.
If a name of a judge is rejected by Constitutional Council or a different body, they have a right to know the reason for not giving them a promotion that they believe is rightful, given their service and experience. Even a labourer has a right to know if their legitimate promotion is not given. A judge is not an average person. Because of this matter, judges in primary courts, district courts and high courts are now frustrated. They have lost their hopes. They ask me, if that will happen to them as well? Will it be necessary for them too, to go behind someone to get a promotion? Those judges starting from the primary courts have expectations for future. They work hard for them. Therefore, Hon. Speaker, as far as I know, those whose names have been rejected have a natural right to know why their names have been rejected. Now, Hon. Speaker, let me quote from your speech at the debate over the 19A, on 27th April 2015, as the then Minister of Public Administration, Democratic Governance, and Buddha Sasana:
“I remember how we went from street to street with our Manifesto for Presidential election called a Compassionate Governance to beg for a mandate from the people. We begged for 100 days to build a just society and to depoliticize the country.” Then you said in that debate: “We need decent people in the society to build a depoliticized public service, depoliticized police and to clean the judiciary. This is what we expect today, as that is what we said to the people. Hon. Speaker, Hon. Prime Minister, Hon. Leader of the Opposition, just as politicians like you, I see the importance of having respected personalities here. If, by any chance, we expect to sideline respected people from that and appoint merely politicians to Commissions, there is no point in talking about this legislation any more. There is no point in introducing this. We don’t see the original purpose could be achieved that way”.
Hon. Speaker, these are your words. Just as you had mentioned that the judiciary, public service and society were politicized, there is an allegation by judges, intellectuals and those holding independent opinion that the Constitutional Council is politicized. Hon. Speaker, there is a saying that goes ”Whom to tell if the fence and the bund eats the paddy!”. You recently sent me a letter regarding the appointment of judges. The mid part of your letter dated February 2nd, 2019 reads “We do not merely rely on seniority; we consider the merit, skill, independence and integrity. Accordingly, incompetent people, those who have allegations of accepting bribes, as well as those who have been reported as not acting independently have been rejected in the past”.
Here you are talking about those who have been rejected. It is not only yours and mine, but also the responsibility of Chief Justice, as I know, to inform a certain judge as to why he or she is not suitable to a promotion. They need to know the reasons. Is it a disciplinary issue, an allegation of bribery, any other issues, or is it inefficiency? There are 14 judges who have informed their grievances to me. In fact, half of them have retired by now. They also complain that had they got promoted, they could continue to serve till they were 65 years old, but now they had to retire by 60 years of age. But they don’t know why they were not promoted. Their children ask them as to what wrong they had committed. As such, why is it impossible to give them an explanation? This issue is a big concern.
Again, your above dated letter says further: “the selection process includes fair and transparent steps that involve the opinion of all members of the Council”. If your transparency is so high, cannot the President who sends you these nominations have a right to know why a certain name was rejected? You have never informed me why any name was rejected. Neither you nor Chief Justice informs me the reasons. Transparency and Fairness are the exact words those who have been rejected also use: “There is no transparency or fairness in rejection of our names”. I must say that one of the pristine goals of enacting the 19A was to uphold rule of law and governance by Constitution. The most important mechanism to achieve this purpose was the establishment of the Constitutional Council. One of the main criticisms that was leveled against the 18th Amendment as we were running the election campaign in 2015 was that the Constitutional Council was subjugated to the Executive Presidency. It was looked down upon as a poor mechanism that enabled the Executive President to exercise arbitrary powers. We all agreed that it was detrimental to the society and was looked down upon as a poor mechanism that enabled the Executive President to exercise arbitrary powers.
In such a context, one of the most important election promises we made to the people was that we would establish a more people-friendly and efficient system of governance by way of enacting an amendment to the Constitution. The purpose of the Constitutional Council that was established under the 19th Amendment is achieving those noble goals. However, the society is now faced with the dilemma if we have been able to achieve those goals during the last three plus years. I regrettably remind you the responsibility I have as the chief incumbent of the executive power of this country. As I was well aware of it, most of you know, I took initiative to include the Clause 33 (d) to the 19th Amendment. As you all know, it is you, Hon. Speaker and the Third Citizen of the Country, who chairs the Constitutional Council.
All of us know that the composition of the Constitutional Council consists of most significant persons, including the Prime Minister and the Leader of Opposition. It is an indisputable fact that during the period of the last four years I had not done any kind of unconstitutional act or any interference or given indirect suggestion regarding the function of this significant and powerful Council.
I have created an environment for the Constitutional Council to act according its discretion, without doing any undemocratic or unconstitutional influence, as I clearly understood the duty and responsibility bestowed upon me under the article 33(d) of the Constitution.
However, in the present context, a circumstance has arisen that it is not possible to maintain this silence any further. There is a severe doubt in the society as to whether the Constitutional Council fulfils its functions constitutionally.
Hence, the responsibilities and tasks vested in me under the constitution, in particular under the article 33(1) (d), I have a moral obligation not only legal obligation to look into the affairs of the Constitutional Council.
When the Constitutional Council fulfill its responsibilities, it should not go against the powers of the Executive President. The reason for this is that the executive power of the People shall be exercised by the President of the country elected by the People, according to the third and the fourth articles of the Constitution.
When initially presented the concept of establishing a Constitutional Council through the 17th Amendment, it is clearly mentioned in the Supreme Court decision regarding its validity in accordance with the Constitution, that the Constitutional Council could not surpass the powers of the President under any circumstance. The Supreme Court has noticeably mentioned that when fulfilling its responsibilities the Constitutional Council should act in association and cooperation with the Executive President.
These principles of law are valid for today as well as for future in a similar way.
However, at present when look into the functions, the way it fulfills its responsibilities, its attitudes and the culture display by the Constitutional Council, the aspirations of the society that respects the good governance and democracy had not been considered.
I will explain these facts through a clear example. According to the article 41 (g) 1 of the constitution, the Constitutional Council should submit a report to me once in every three months, I have received that report once in every three months. But Hon. Speaker, in those reports nothing noticeably mentioned about the reasons for rejection of the names or reasons for selecting some names. When considering the present functions of the Constitutional Council, I can say that the Constitutional Council controls the three organs of the government the legislature, the executive and the judiciary. I have adequate facts regarding this. I will not take this opportunity to tell those facts.
According to my point of view not only appointment of these judges, but also when appointing the Attorney General and the IGP the process followed by the Constitutional Council is not ethical. When making appointments for those positions, most of the persons of civil societies were not present. There is that issue whether they were intentionally abstained or they were instructed to not to attend.
The whole country questions regarding those appointments, especially regarding the IGP. This situation severely affected when appointing judges of the superior courts of this country, the Supreme Court and the Court of Appeal.
The most important article is (41) c 04 of the Constitution. It has mentioned that in the discharge of its function relating to the appointment of Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Council shall obtain the views of the Chief Justice.
According to the 19 the Amendment this is a mandatory requirement. This was included in the Constitution because of the importance given to the fundamental principle of delegation of power within the democratic state system we follow.
It is not a secret that the power is not vested in me or on the Constitutional Council to inquire or to come into conclusion regarding the actions of the judges, their honesty, efficiency or any other matter related to their profession. The responsibility regarding these lies on the Chief Justice and the Judicial Service Commission or in an alternative method implemented in accordance with the relevant article in the Constitution.
I have made recommendations to the Constitutional Council to consider seniority of judges of superior courts when giving promotions to them. But, continuously the Constitutional Council has rejected these recommendations without giving any reason. What is the reason for this? I have thoroughly scrutinized the reports sent to me by the Constitutional Council to find out the reasons for this issue. But, with great regret I mention that in none of those reports the reasons were not given. Not only that, the Constitutional Council has not informed me a word regarding what was the view of the Chief Justice regarding these recommendations, what was his recommendations and what was his opinion regarding these recommendations.
I have been informed by reliable sources that the Chief Justice has not shown any objections to the recommendations made by me regarding the appointing judges of the Superior Courts. All of those recommendations have been accepted by the Chief Justice without any objection. Under these circumstances I have a question as to what is the power that the Constitutional Council has vested in itself to reject my recommendations.
Through these acts by the Constitutional Council it demonstrates that the Council fulfill its duties in an arbitrary manner. Not only that, it also shows that the Constitutional Council has no respect for the concept of separation of power and it also works in a manner which will harm the independence of the judiciary.
I studied the reports sent by them in order to understand the process of Constitutional Council. I wish to state regretfully, that the content of those reports had not mentioned a single word about the Chief Justice’s opinion regarding my recommendations.
By this act, the Constitutional Council has ignored the power of the judiciary and the power and sovereignty vested in me as the Executive. In my opinion, this is a violation of the Constitution.
The main reason for this is the fact that the Constitutional Council has failed to adopt the rules and methodology relating to the performance of their duties in the last 4 years.
The constitution of Article 41 (c) 04 and 41 (g) 03 are very important in this regard. Particularly, I wish to explain the provisions in the Constitution.
Article 41 C (4) In the discharge of its functions relating to the appointment of Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Council shall obtain the views of the Chief Justice.
41 (c) 04 In the discharge of its function relating to the appointment of Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Council shall obtain the views of the Chief Justice.
41G. (1) The Council shall, once in every three months, submit to the President a report of its activities during the preceding three months.
(2) The Council shall perform and discharge such other duties and functions as may be imposed or assigned to the Council by the Constitution, or by any other written law.
(3) The Council shall have the power to make rules relating to the performance and discharge of its duties and function. All such rules shall be published in the Gazette and be placed before Parliament within three months of such publication.
This Article says that the Constitutional Council has the power to adopt its own procedures and its regulations. All these regulations should be published in the Gazette and within three months should be presented to the Parliament. Hon. Speaker I do not know whether this fact has been fulfilled or not. I had no opportunity to get to know such a thing.
The 41 G (3) state that the council has the power to accomplish its own procedures and compose its regulations regarding the council of commissions. All these regulations should be published in the Gazette and within three months should be presented to the Parliament. I believe if these regulations were properly composed, and gazetted, and were given approval by the Parliament, the problems would not have arisen in appointing judges.
These Articles are of extreme importance regarding the procedures of the Constitutional Council. Following these constitutional statements properly the procedures of the Constitutional Council will become transparent and that would be a major help in building a free and fair society which offers justice and fairness expected by the public and which will be monitored according to the fundamentals of democracy. Acting in contrary to that results in the loss of dignity of the Constitutional Council. It becomes politicized. It becomes authoritarian.
This Constitutional Council has not yet obtained approval of the Parliament for properly composed set of rules and regulations and policies and publish that in the Gazette. I state this with regret. The Constitutional Council is excusing itself by stating that it still follows the old rules listed in the 17th Amendment to the Constitution. This is not entirely a satisfactory situation. Even if the Constitutional Council has the power to follow the regulations of the 17th Amendment, it is my opinion it should be published in the Gazette within three months following the approval of the Parliament. It is an essential requirement according to the 19th Amendment to the Constitution. This has not being done by the Constitutional Council and it is reflection that the institution is already being politicized, isn’t it?
Not only that, after the 19th Amendment to the Constitution, the powers of the President under the Article 126 of the Constitution has been made subject to the power to file a case in courts regarding the violation of fundamental rights. It is a puzzle to me under such a situation the rules and procedures adopted under the 17th Amendment could be taken as valid procedure for an institution set up under 19th Amendment. Hence, in this confusion, I believe it is essential for the Constitutional Council to adopt proper procedures.
Thus, I explained how the society views these factors. A month after appointing the Attorney General, it was the turn to appoint the Inspector General of Police. Only those members who attended the meeting of the Constitutional Council are aware of what was the procedure of appointing the Inspector General of Police and the Attorney General and how they were selected. The reason behind this is the lack of transparency within the institution, and it being handled by a political hand. None of the reports presented to me in every three months had mentioned a single word of those reasons. I urge all of you, to consider these facts, giving them due importance.
I vehemently reject the opinion expressed in the beginning of this debate by one Honorable Minister and a Member of Parliament that I had objected regarding judges who were appointed. That is deliberately done to make conflicts between me and the judges of the Supreme Court and the Court of Appeal. I have not mentioned something like that at any place. My only question was who was responsible for those who were rejected? Why is it not being answered? Neither of these are my relatives or friends. These people are appealing to me. They tell me about their problem. Hon speaker, I state this since providing an answer to that question, there should be impartial, justifiable and independent method must be followed in appointing judges and granting promotions in the Supreme Court, district courts and lower courts.
Thus while presenting these factors I have no intention to target you. As a government we all are responsible for that. If we take a wrong path we all fall in trouble. The Supreme Court, Independent Commissions, and all these commissions do not have proper procedures and regulations. Their policies and guidelines are not clear.
As an example, the Police Commission deals with the transfers of highest ranking officer of the police to the lowest ranking officer. But the purpose of the Police Commission is different. Its purpose is to create a police service with high quality, a good public service through establishing research sections and enhance intellect and expand the quality and knowledge.
Today there are 16 lacks of public servants in the country. The Public Service Commission does not know its limits now. From the Secretary of the Ministry to the labourer all are managed by the Commission. The head of a department or a secretary of a ministry also have certain responsibilities.
The other legitimate children being born under the 19th amendment are the independent commissions. The situation is worse if these institutions are taking a wrong path. Since these institutions have enormous powers and if they are politicized, the society and the country will face major challenges regarding their independence, impartiality and neutrality. I raised these issues with good intention to explain the reality.
I am not a member of the August House. I explained these facts as the President because some issues have arisen with regard to the matters pertaining to the posers bestowed upon me as the President. I admit in the 2015 election that I come to abolish executive presidency. That abolishment is not something I could do. It is with the Parliament. I respect any of the decisions taken by this prestigious House regarding abolishing presidency. I still stand by that decision.
I kindly request all of you to consider the facts I have brought to your attention.