By Dr. Jehan Perera
The appointment of the Senior Deputy Auditor General (AG) Samudika Jayarathna as the AG brings to a close a prolonged period of uncertainty surrounding one of Sri Lanka’s most important constitutional offices. The unanimous decision of the Constitutional Council (CC), reached after nearly 10 months of vacancy following the retirement of the previous incumbent in April 2025, restores continuity to the National Audit Office (NAO) and provides an opportunity to reflect on how Sri Lanka’s system of constitutional governance operates in practice.
The manner in which this appointment was ultimately agreed upon is as significant as the appointment itself. After months of disagreement and public debate, the members of the CC arrived at a consensual outcome that balanced the President’s democratic mandate with the CC’s responsibility to exercise independent judgment. In doing so, they demonstrated the importance of collegiality, restraint and consensus in constitutional decision making.
The CC stands out as one of Sri Lanka’s most important governance mechanisms, particularly at a time when even long established democracies are struggling with the dangers of Executive overreach. Sri Lanka’s attempt to balance the democratic mandate with independent oversight places it within a small but important group of constitutional arrangements that seek to protect the integrity of key State institutions without paralysing elected Governments. Democratic power must be exercised, it must also be restrained by institutions that command broad public confidence. Performance across such systems has been uneven, but, the underlying principle remains widely shared. Comparable mechanisms exist in a number of democracies.
In the UK, independent appointments-related commissions for the judiciary and civil service operate alongside Ministerial authority, constraining, but not eliminating, political discretion. In Canada, Parliamentary committees scrutinise appointments to oversight institutions such as the AG, whose independence is regarded as essential to democratic accountability. In India, the collegium system for judicial appointments, in which senior Judges of the Supreme Court (SC) play the decisive role in recommending appointments, emerged from a similar concern to insulate the judiciary from excessive political influence.
The JVP’s role
The CC was developed to ensure the highest-level appointments to the most important institutions of the State would be the best possible under the circumstances. The objective was not to deny the Executive its authority, but to ensure those appointed would be independent, suitably qualified and not politically partisan. The CC is entrusted with the oversight of appointments in seven critical areas of governance. These include the Judiciary through appointments to the SC and Court of Appeal, the independent commissions overseeing elections, the public service, the Police, human rights, bribery and corruption, and the office of the AG.
The most outstanding feature of the CC is its composition. Its 10 members are drawn from the Government, the main Opposition, smaller political parties and the civil society. This plural composition was designed to reflect the diversity of political opinion in the Parliament while also bringing in voices that are not directly tied to electoral competition. It reflects a belief that legitimacy in sensitive appointments comes not only from legal authority but also from inclusion and balance. The unanimous decision on the appointment of the AG underscores the collective responsibility borne by all members of the CC.
The idea of the CC was strongly promoted around the year 2000, during a period of intense debate about the concentration of power in the Executive Presidency. Civil society organisations, professional bodies and sections of the legal community argued that unchecked Executive authority had contributed to the abuse of power and declining public trust. The JVP, which today forms the core of the National People’s Power Government, was among the political actors advocating this position and joined the Government of President Chandrika Bandaranaike Kumaratunga on a platform that included constitutional reform. The first version of the CC came into being in 2001 with the 17th Amendment to the Constitution. It functioned with varying degrees of effectiveness.
On several occasions, Kumaratunga, under whom the system came into operation, disagreed on occasion with the views of the CC, leading to deadlock and delays in appointments. Since its inception, the CC has been weakened or strengthened by successive constitutional amendments depending on how willing the governing leaders were to tolerate constraints on their own power. The 18th Amendment to the Constitution significantly reduced its authority by restoring much of the appointment power to the Executive. The 19th Amendment to the Constitution reversed that trend and strengthened the CC. The 20th Amendment to the Constitution curtailed its role once again, while the 21st Amendment to the Constitution restored a measure of balance. At present, the CC operates under the framework of the 21st Amendment, reflecting a renewed commitment to shared decision making in key appointments.
The President’s preference
The office of the AG is a constitutionally protected one, reflecting the central role played by the NAO in monitoring public spending and safeguarding public resources. Without a credible and fearless audit institution, Parliamentary oversight risks becoming superficial and corruption can flourish unchecked. The role of the AG’s Department has assumed even greater importance in the present context, when rooting out corruption is a stated priority of the Government and a central element of the mandate that it received from the electorate at the Presidential and Parliamentary Elections held in 2024.
Over 10 months, the CC wrestled with issue, declining to approve four nominees proposed by the President including that of Jayarathna. These decisions generated significant public debate and concern about the prolonged vacancy in such a critical institution, particularly following the controversial nomination of a serving military officer. At the same time, they reflected the
CC’s determination to exercise independent judgment rather than simply endorse Executive preference.
The President’s decision to resubmit the name of Jayarathna indicated a clear preference while also inviting reconsideration in the light of the changed circumstances. Her eventual approval suggests that the CC was satisfied that the required standards of competence, integrity and independence had been met. The change in the composition of the CC, including new civil society representatives, also allowed for a fresh and collective assessment. The position demands professional expertise, moral courage and institutional independence, particularly in a climate where investigations into the past misuse of public resources are politically sensitive. By reaching a unanimous decision, the members of the CC collectively assumed responsibility for ensuring that the office commands authority and public trust.
A consensual and collegial approach to appointments strengthens institutions and enhances public confidence. The President and the Government hold the people’s democratic mandate, a mandate that carries both authority and responsibility. The CC’s legitimacy lies not in electoral endorsement, but in balanced and principled decision making. Sri Lanka’s experience shows that institutions function best when guided by restraint, mutual respect and a shared commitment to the public good. In the case of the AG, consensus has enabled democratic authority and constitutional oversight to be reconciled. That balance is difficult to achieve, but, it remains essential if constitutional governance is to endure and command public confidence.
(The writer is the Executive Director of the National Peace Council organization)
Source: The Morning
Disclaimer: The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication.
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