By Kamani Jayasuriya –
The 19th Amendment gave us hope. Even those people who lived in remote villages and did not have a proper roof over their heads believed that the continuous legacy of contriving to win elections had ended. Other than the many other political reforms that the 19th Amendment brought forward, it was the formation of a Constitutional Council, an Independent Council; specially engaged in the appointments to high offices, including the appointment of Judges to the Supreme Court and the Court of Appeal, was the highlight. The judges who have no independent voices, cried foul as they worked very hard to come to the High Court and then, irrespective of their seniority and competence, other political consideration held sway for the selections of Judges to the Court of Appeal and the Supreme Court. Judges were made to appear as people without any rights and what did happen if they by accident or by chance, they acquitted or convicted PIP (Politically Important Persons), depending on which side of the divide the accused fell and which Government was in power; one would be promoted or promotions denied. The judges suffered in silence. No one complained. They retired at the end of their High Court career.
But today, after two years of experimenting, the present Constitutional Council has become a farce and much worse than the appointments that were being made by one person, the President of the Republic. The very composition of the Constitutional Council with politicians in it, especially the Prime Minister, the Leader of the Opposition and Leaders of other minor parties, is an open testimony for politicization of the appointments. This curse of political hegemony gave room to worse politicization in the history of the appointment of judges and other high officials.
Though there were legal luminaries like Shibley Azis PC, a Member of the UNP Executive Committee and a former President of the Bar Association, he has not even turned a pebble to formulate rules as provided in the 19th Amendment.
Nearly two years have passed after the adoption of the 19th Amendment and no one has ever seen such gazette notification. So, the noble intentions, which were publicly proclaimed, have been flouted by the very Constitutional Council headed by the Speaker.
It is not surprising that there came into existence the worst form of canvassing. To quote one example, for the post of IGP the nominee of the President was DIG Wickramasinghe, head of the PSD, who was from Polonnaruwa. But the UNP managed to shoot down this nomination and instead of which Pujith Jayasundara was appointed. When they found their mistake it was too late. UNP’s Sagala Ratnayaka warned the IGP several times but he continues with his eccentricities. Sometimes his jocularity could be equated to Peter O’Toole in the film ‘Becket’ portraying the debauch King, Henry II.
But what happened recently is almost unbelievable and unforgivable. Piyadasa Ranasinghe, High Court Judge Colombo, who retired on the 12th November 2017, did something unimaginable to get himself promoted to the Court of Appeal. He worked round the clock to get his name nominated by the President, to the Constitutional Council. When even Ministers complained that they could not have access to President Maithripala Sirisena, he maneuvered his way through to the Presidential Secretariat and got his name recommended by the President himself and it was hand delivered to the Constitutional Council.
Mr. Piyasena Ranasinghe was the former Commissioner General of the Bribery Commission. Before that, he was a junior Magistrate. When he was appointed to this very senior position, the then Chief Justice Mr. Sarath N. Silva asked the then appointing authority, Chandrika, what made her to appoint such a junior magistrate as the Commissioner General of Bribery? The answer was typical of Chandrika Bandaranaike or CBK. The manner in which she treated the country and the people is reminiscent of what she said. “This fellow is from our village. He belongs to the ‘R……. caste’. You know Sarath, we can get anything done through him as he is obliged to the Walauwwa”. Sarath Silva fell out with Chandrika and supported Mahinda’s bid to become the President. Mahinda became the President. Piyasena Ranasinghe, after the advent of Mahinda Rajapaksa, was removed as the Commissioner General and he had to appeal to his old adversary Sarath N. Silva. Sarath N. Silva, considered Piyasena Ranasinghe’s application and approved it on one condition, that he would not claim seniority. He is the 24th in the list of High Court Judges, on seniority.
People wonder how Piyasena Ranasinghe managed to get his nominations when the Chief Justice and the Attorney General were out of the island. But there was one snag for his elevation to the Court of Appeal. The snag was that there was no vacancy in the Court of Appeal. Our Messiah, was destined to deliver justice with the help of a previous mentor, Madam Chandrika who decided to create the vacancy by promoting M. S. Gaffoor to the Supreme Court. Everything was arranged in double quick time before the date of retirement. Another letter of recommendation from the President’s Office was delivered to the Constitutional Council, recommending the promotion of M.S. Gaffoor to the vacancy that arose when Upali Abeyrathna retired.
Gaffoor was the 4th in the Seniority List in the Court of Appeal. The manner in which M.S. Gaffoor got his promotion cannot be spelt out in a short article like this. It is another sordid saga. The Presidential Secretariat, worked overtime to ensure that his name was submitted to the Constitutional Council even without any recommendation from the Chief Justice Priyasath Dep, or Jayantha Jayasuriya the Attorney General, or the present Minister of Justice, Ms. Thalatha Athukorala.
The Constitutional Council and its Chairman Karu Jayasuriya, were beholden to Piyasena Ranasinghe and Gihan Kulatunga, High Court Judge, son of one of the most honourable judges of the Supreme Court, late Justice K. M. M. B. Kulatunga. The late Justice would have turned in his grave if he knew that his son Gihan Kulatunga, together with Piyasena Ranasinghe, met the Speaker, Karu Jayasuriya and submitted a petition making allegations against their colleague, Manilal Waidyathilaka, who was the automatic choice to be promoted to the Court of Appeal some time ago.
The Constitutional Council was summoned hurriedly for a meeting to decide on the nominations of Piyasena Ranasinghe and M.S. Gaffoor. For the want of a quorum, this meeting was postponed till 5 O’ clock. It was sad to see that even people like Shibly Azis, being in the UNP Executive Committee, whose nomination to the Constitutional Council was objected to by the JVP on the basis that a practicing lawyer should not decide on the fate of other judges, did not take a stand against the nomination of Piyasena Ranasinghe.
Shibly’s appointment was ratified on the firm undertaking given by Ranil Wickremesinghe that Shibley Azis would give up his practice, if he is appointed to the Constitutional Council. Shibley Azis, as of today, is practicing with great vigor expecting judges to consider his application favourably as he would be judging the judges in the future.
If not for the strong protest by one member of the SLFP, former Minister of Justice John Seneviratne, this whole episode and the conspiracy to oust 14 other judges from the High Court and 03 others from the Court of Appeal would have succeeded. It must also be stated that though not in the Constitutional Council, the present Minister of Justice Ms. Thalatha Athukorala strongly protested against this shady manner of appointing a junior High Court Judge overlooking 23 other judges who were senior to him.