Columns

The recent call by the Ilankai Tamil Arasu Katchi (ITAK) for its parliamentarian, S. Sritharan, to step down from the Constitutional Council raises important constitutional questions that go far beyond internal party discipline. At its heart lies a fundamental question: what is the Constitutional Council for, and how are its members expected to function under Sri Lanka’s Constitution?  

The controversy arose after Sritharan voted in favour of the government’s nominee for the position of Auditor General — a serving military officer attached to the Sri Lanka Army’s Audit Division. This vote was criticised by ITAK leaders and allied voices on the grounds that it contradicted ITAK’s longstanding opposition to the militarisation of civilian institutions. Former Human Rights Commission of Sri Lanka Commissioner Ambika Satkunanathan publicly questioned Sritharan’s vote, stating that if reports were accurate, he owed an explanation to the Tamil people, as endorsing a serving military officer undermined opposition to militarisation and its impact on Tamil civil rights.

Adding to the criticism, ITAK General Secretary M.A. Sumanthiran emphasised that Sritharan was not merely ITAK’s representative but the representative of all opposition parties other than the main opposition. As such, he was expected to act in line with collective opposition positions and agreed party decisions. Allegations have now surfaced that Sritharan has repeatedly voted with the government on eight occasions without regard for opposition consensus, exacerbating tensions within ITAK and among allied opposition groups.

Yet, while these criticisms may resonate within the realm of party politics, they reveal a deeper and more troubling misreading of the constitutional role of the Constitutional Council itself.

The Constitutional Council: purpose and philosophy

The Constitutional Council was not conceived as another political committee of Parliament. Its origins lie in a deliberate constitutional effort to curb the excessive concentration of power in the Executive Presidency and to depoliticise key state appointments. The framers of the relevant constitutional provisions recognised that unchecked executive discretion in appointments to high office — including independent commissions and apex public offices — had contributed to institutional erosion, loss of public trust, and the politicisation of governance.

Accordingly, the Council was envisaged as a buffer institution: a constitutional mechanism standing between raw political power and the permanent institutions of the State. Its function is not to advance party agendas, government or opposition strategies, or ideological signalling, but to ensure that appointments are made on the basis of integrity, competence, independence, and suitability for office.

Equally important is the second, often overlooked, dimension of the Council’s role: by insulating appointments from partisan contestation at the point of entry, the Council creates the space for appointees to function independently once in office. A public officer who knows that their appointment was the product of a constitutionally grounded, cross-partisan process — rather than a narrow political bargain — is far better placed to resist pressure and discharge duties fearlessly.

Composition reflects
diversity, not party whips

The structure of the Constitutional Council itself underscores this philosophy. The Council comprises seven political members, including the Prime Minister and the Leader of the Opposition, reflecting different shades of opinion within Parliament, alongside non-political members drawn from civil society. This hybrid composition is intentional. It recognises political pluralism while counterbalancing it with non-partisan civic voices.

However, this does not mean that the political members of the Constitutional Council are expected to act as delegates bound by party instructions or opposition caucus decisions. On the contrary, when Members of Parliament sit as members of the Constitutional Council, they do so in a distinct constitutional capacity. While they do not shed their political identities, they are expected to suspend partisan lenses and assess nominees purely on constitutional criteria relevant to the office in question.

To argue that a Constitutional Council member must vote strictly in accordance with party policy is to transform the Council into precisely what it was designed to avoid: a site of politicised bargaining and bloc voting.

Collective decision-making,
not adversarial politics

The Constitution goes further in signalling how the Council should function. Article 41E (4) of the Constitution expressly identifies unanimity as the preferred mode of decision-making, resorting to majority decisions only when consensus cannot be achieved. This is a remarkable departure from the adversarial logic that dominates parliamentary politics.

Unanimity, in this context, is not a procedural technicality. It reflects the expectation that members engage in good-faith deliberation, weigh competing concerns, and arrive at decisions that transcend narrow political loyalties. The aim is not to “win” against the Government or the Opposition, but to make appointments that serve the national interest.

Seen in this light, accusations that Sritharan voted “with the government” are constitutionally misplaced. The Council is not designed to have a government side and an opposition side. Once seated at the Council table, members are expected to think as constitutional trustees, not as party combatants.

Militarisation versus
institutional suitability

This is not to dismiss concerns about militarisation, particularly given Sri Lanka’s history and the lived experiences of the Tamil community. But the constitutional question before the Council is narrower and more specific: Is the nominee suitable for office in terms of competence, independence, integrity, and ability to discharge statutory functions?

A blanket rejection of a nominee solely on the basis of their current institutional affiliation — without assessing professional qualifications, past conduct, or safeguards against undue influence — risks substituting ideological rigidity for constitutional judgment. The Constitution does not require Council members to make symbolic political statements; it requires them to make reasoned decisions about individuals.

If a member, after due consideration, concludes that a nominee meets the constitutional threshold for appointment, that decision cannot automatically be characterised as a betrayal of party principles. Indeed, the very purpose of the Council is to allow such independent judgments to be made without fear of political reprisal.

The danger of party recall politics

ITAK’s call for Sritharan to step down raises an additional constitutional concern: the chilling effect of party enforcement on independent constitutional offices. If Council members are threatened with recall or public censure whenever they depart from party positions, the Council’s independence is fatally compromised.

Such a precedent would ensure that future members vote defensively, prioritising political survival over constitutional duty. The result would be a hollowed-out Council — constitutional in form, but political in substance.

Constitutional loyalty
above party loyalty

The Constitutional Council represents one of the most important institutional correctives introduced into Sri Lanka’s constitutional framework. Its success depends not merely on who sits on it, but on how they understand their role.

While political parties are entitled to criticise and even disagree with the decisions of their representatives, they must also respect the constitutional logic that governs institutions like the Council. To demand strict party obedience within a body designed to transcend party politics is to misunderstand its very reason for existence.

The real test of constitutional maturity lies in recognising that there are moments when loyalty to the Constitution must take precedence over loyalty to party. The controversy surrounding S. Sritharan should therefore prompt not merely intra-party recrimination, but a broader national conversation on how constitutional institutions are meant to function — and how easily they can be undermined by the very political impulses they were created to restrain.

(javidyusuf@gmail.com)