29 November, 2020

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The Constitutional Council Fiasco

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Dr. Nihal Jayawickrama

The Constitutional Council was hailed as the principal and singular achievement of the Nineteenth Amendment to the Constitution. Its duty was to recommend to the President fit and proper persons for appointment to the independent commissions established under the Constitution, and to approve or reject persons recommended by the President for appointment to certain important scheduled state offices. What the Government promised was a Council consisting predominantly of independent persons of eminence and integrity who were not members of any political party. What came forth, after the amending bill was mutilated in Parliament, was a Council in which the overwhelming majority were active politicians. This was compounded by the appointment of two Ministers to the Council, thereby creating an obvious conflict of interests. Be that as it may, several questions now arise in regard to the performance of the Council so far.

Duty to formulate procedures

The first task of the Constitutional Council, as prescribed by the Constitution, is to “determine the procedures to be followed in regard to the recommendations or approval of persons suitable for any appointment”. These “procedures”, in the form of rules, are then required to be published in the Gazette and placed before Parliament within three months of such publication”. In other words, these “procedures” are required to be made public and then approved by Parliament. As far as I am aware, that has not been done. In the absence of published “procedures”, one is entitled to assume that the Council, acting in secrecy, is simply rubber-stamping executive decisions. That was neither the intention nor the promise.

“Procedures” are a requirement in any institution, and a mandatory constitutional requirement in the case of the Constitutional Council. For example, in the absence of such “procedures” how did the Council select and recommend “fit and proper” persons for appointment to the independent commissions? Anecdotal evidence suggests that nominations were sought by a parliamentary official from certain professional bodies. Other such evidence suggests that certain ministers and high parliamentary officials sought curriculum vitae from favoured individuals. How did the Council process this plethora of applicants? Did it interview all of them, or any of them? Did it even interview the individuals it ultimately recommended to the President? If it did not, how did it satisfy itself that the persons it recommended were “fit and proper” for the relevant commissions?

Attorney General’s appointment

The absurdity of this situation becomes evident when one reflects on the impending appointment of the Attorney General. That office became vacant in the second week of January. Upon receiving the recommendation of the President, the Council approved the appointment of the incumbent Solicitor General as Acting Attorney General. That approval signified the Council’s agreement with the President that that individual was the fit and proper person to serve in that office. The question immediately arises why the Council approved an “acting” appointment. Unlike a vacancy created by resignation or death, the date of retirement of an officer is known months or years in advance. Did the Council inquire from the President why he did not recommend a permanent appointment? Or was the Council quite content to simply rubber-stamp any recommendation it received?

The situation then becomes even more hilarious. The Minister of Justice, himself a member of the Constitutional Council, was reported to have named his personal choice. The Prime Minister, also a member of the Constitutional Council, informed Parliament that he would personally consult the Bar Association of Sri Lanka concerning a suitable person for appointment. The Cabinet spokesman, the Minister of Health, finally announced that the new Attorney General had been chosen. Presumably, all these politicians will now make known to the President who their preferred candidates are. When the President eventually conveys his recommendation to the Council, how will the Council proceed in the absence of the mandatory “procedures”? Will the two members of the Council who have already made public pronouncements on the subject also participate in the decision-making process?

Appointment may be challenged in court

If the recommended candidate is a member of the Unofficial Bar, or an officer of the Attorney General’s Department other than its most senior officer whose appointment as Acting Attorney General had already been approved by the Council, what will the Council do? Will it interview the recommended candidate together with the one whose appointment it had previously approved? Will the Council inquire from the President why, within the course of less than a month, he recommended two different persons for appointment to that office? If the Council decides to approve the appointment of a person other than the current Acting Attorney General, will the Council explain to the people of this country why it initially endorsed one whom it now considers to be unsuitable for that office?

The failure of the Constitutional Council to perform its initial function, namely, to determine the procedures for the performance of its duties, has eroded its legitimacy. Any inconsistency in the performance of its duties will raise doubts about its integrity. While any recommendation or approval of the Council cannot be questioned in court even on the ground of procedural irregularity, the Constitution now enables an appointment made by the President, based on such recommendation or approval, to be challenged by way of a fundamental rights application on the ground, for example, of discriminatory treatment in the appointment process. Therefore, it is imperative that the rules relating to the performance of its duties and functions are formulated and published in the Gazette for public scrutiny, and placed before Parliament. Transparency and accountability demand that this be forthwith done.

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Latest comments

  • 13
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    This guy Nihal jayawickrema [Edited out]

    Now Nihal Jayawickrema is talking about the constitutional council and various rules as if he is a great respecter of rules , traditions and good form.

    but we cannot forget what the same Nihal Jayawickrema did when he was secretary justice ministry. He broke every rule !In fact a presidential commission of inquiry removed his civic rights as a punishment after inquiring into Jayawicrema’s abuse of power( 1970-77).Among his misdeeeds was appointing politicized persons as judges( Jaya pathirana, Frack Wijesundera, TS Rajaratnam) and attempting to politicize the attorney general’s department.

    Now Jayawickrema is supporting a guy who was a another politicized secretary of the justice ministry for the post of attorney general. Who appointed Mr. Gamalath as secretary Justice ? It was MR and Sarth Silva.

    Come on Jayawickrema we are not all fools.

    • 6
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      Brilliant analysis H H

      Would like Nihal to answer your observations

      • 0
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        Now 3:11 pm 8th Jan,now clarification from Nihal jayawickrema why? Those allegation are true and correct.

  • 6
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    If I remember right,Felix Dias also appointed Nihal.J.as Actg.Attorney General,for a couple of months.

    In the Bandaranaike Assasination case the Attorney General was by-passed.
    George Chitty Q.C.from the unofficial Bar led the Prosecution team.
    That Great Judge Justice T.S.Fernando,Nihal Js.uncle was the Trial Judge.
    Secretary to a Ministry is essentially a Political appointment.

    If the country had followed the earlier system of Permanent Secretaries, Independent Judiciary,and non political Public Services,most of the politicos would not have been able to throw their weight about!

  • 2
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    Nihal J. has pinpointed perhaps the chief reason that has caused the collapse of standards of efficiency and ethical practices in Govt. Services and appointments…the lack of proper procedure in promotions and appointments. There were all sorts of abuses even WITH procedures in place.
    For example, the case of a CCS batch (‘cadets’ as they were called) recruited at the same time who were told by the only Tamil in the group scheduled to sit a deptl. exam that he had to go abroad, so could they all await his return and sit together? …and our Sinhala lads agreed it would only be fair and obliged him, but to find that when the next exam came around, our Tamil lad had actually sat the earlier exam by himself, thus making himself senior to the others!
    This example shows that corrupt practices went on in various devious ways, even in times when procedures had been set in place.
    However, with current information availability I doubt that such crude and deceitful practices can be gotten away with today.

  • 4
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    CountryFirst

    It’s you again discussing the finer points of constitution.

    Sinhala and Tamil are still the national languages of this country whatever you may think. .

    • 1
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      Yes, Native Vedda: ‘Tis me again, and you seem to have a big personal problem with my baring the facts of “what was reality” in this country, and which was the lead factor in the run up to today’s ethnic discord.
      The “nice and tolerant” Sinhalas have been let down badly by their own kind, and the hands that fed the minorities are being bitten badly.

  • 1
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    Native Vedda:

    And as for the finer points of the Constitution which have been surreptitiously meddled with in the Hansard…of which there are many examples.
    But the point at issue was that Article 7 leads to Schedule #3 which sets out the details of music and lyrics specifically, together with it being an entrenched Clause which needs an Amendment and a Referendum in order for it to be LEGIT.
    So, singing of the Tamil version of the National Anthem in order to accommodate reconciliation at a State function was unconstitutional. Period.

  • 0
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    I am an avid reader of your very valuable contributions on matter of national and public interest. But your suggestion to appoint Suhada Gamlath as the next Attorney General is not acceptable. He is a good friend of Rajapakse cronies such as former mediocre judge Nihal Jayasinghe who was later sent to London as our High Commissioner.

  • 0
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    A reading of the entire article will clearly indicate that I am not advocating the appointment of any particular individual to this office. I have no personal interest whatsoever in this matter. It does not concern me personally. I am only interested in the constitutional aspect of it. I refer to the fact that the President has recommended, and the Constitutional Council has approved, the appointment, in an acting capacity, of the incumbent Solicitor General. I have asked (a) why the President did not recommend a permanent appointment, considering the fact that he knew one year ago when that office would fall vacant; (b) why the Constitutional Council did not request the President to recommend a permanent appointee even at the end of the first fortnight; and (c) why the Constitution Council has so far failed to “determine the procedures” (as explicitly required by the Constitution)for dealing with recommendations; and (d) how, in the absence of such procedures, it would proceed if it now received yet another recommendation from the President to approve the appointment of a different person who is also described as being “fit and proper” for the office?

    In regard to the reference to my own appointment in 1970 to the office of Attorney General: Following the sudden death of Mr L.B.T. Premaratne, Justice Victor Tennekoon accepted the invitation to be Attorney General. However, he was unable to assume that office immediately since he was presiding over the Assizes in Galle and had several reserved judgments to deliver. It was on his suggestion that the Prime Minister recommended my appointment to that office for that interim period. Mr Felix Dias Bandaranaike had absolutely nothing to do with it; he was Minister of Public Administration, Home Affairs and Local Government at the time. I am aware that the only Minister that the Prime Minister consulted before recommending my appointment was Dr N.M.Perera.

    • 0
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      And now that we have your attention in this forum Nihal J, what do you have to say about the manner in which that fine academic, teacher of teachers and gentleman, Mr R K W Goonesekere, was hounded out of the Law College, where he had served with distinction, causing him so much strife and pain?

    • 0
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      //A reading of the entire article will clearly indicate that I am not advocating the appointment of any particular individual to this office//

      You are playing with words, NJ! We all are still wondering – scratching our heads – why the acting Attorney General Suhada Gamlath withdrew the senior state counsel Dileepa Peiris from the Ekneliyagoda case and brought in a junior trainee state counsel.

  • 0
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    Nihal I have four questions for you[Edited out]

  • 0
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    Nihal J….. has to realized that since MS has been to President of Island 2015 January 9th, that UNP act on more violent and become lackey of US and Indian big-bourgeoisies, their colour has change the Democracy has turn into autocracy by US and Indian the Rule of Governances..

    Ranil W…of UNP has change into political power of tyrannies to replace of democracy, that inevitable UNP that band basic rights Rule of Law People’s Sovereignty of land ,which breaks all accepts norms of Rule of Parliamentary Democracy that minority rule by governed.

    1 Minority Party leader /TNA become Leader of Opposition of Parliament

    2 JVP-terrorist has been appointment organization of Parliament.

    3 Large number of Parliament members lost to be an appointment their Real leader of Opposition by counting majority votes.
    They lost their right to be being majority voice and choice in Parliament to as far as Democracy is concern become dead voice, in First time inside Sri Lankan Parliament since 1948?

    The crux of matter is not that “Constitutional Council” UNP led regime back by CBK and MS government is garnering the last President election results of infamous political crime which committed against to People’s sovereignty and Democracy on 9th January 2015.

    The malaparatice of elections laws which for benefit of handful US, UK Norway and Indian big powers and local comprador bourgeoisies of led by UNP completely distort the majority WILL not only nation as whole, but even of the enfranchised minority -Tamil and Muslims has yielded the fruits that by USA, UK, Norway and Indian hegemonies hankered for.
    None of UNP and their these groups by itself has No absolute majority to rule the nation or country by Parliament Norms.

    I believed that there no New Sri Lankan Parliamentary fully meet expectations of those who inspired and drafted the New Constitution ?

    This ruling junta of UNP-Ranil, CBK, MS and Sarath Fonseka supporting US and Indian big power autocracy like Louis XVIII reactionary Parliament of Chamber in France 1815.

    The interest of ‘Constitutional Parliament capitalism’ grossly predatory and parasitic as it is US and Indian vital interest ,which cannot be reconciled with the undivided sway of their big-power domination of Politics and Economy of Sri lanka.

    The task of democratic and progressive forces must exposed UNP-Ranil CBK and MS and S. Fonseka this crime of democracy of cause not only the Neo-liberal stand-point of a formal breach of propose constitution undermined unitary character; but as a gross and brazen violation of interest of Country, Nation and People of broad masses as shameless and outrageous falsification of majority people representation in the Parliament.

    In fact we want explaining to majority people the utter failure of ongoing current Parliament and their leadership of UNP-Ranil.W… and MS to meet the interest and demands of Majority people of all Sri lanan.

    • 1
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      Hello Saman Hitler (Adikari)

      Do not know from which planet you are from so you wont know the real meaning and difference of what is democracy and dictatorship so is your language.

      Come to reality otherwise you will end up in taking high dose of Lithium, Haloparadol, Olanzapine and Clozapine forever in a place called Angoda or Mulleriyawa

  • 1
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    Nihal J says that he is merely trying to point out procedural short comings/ non conformity, in the appointment of the AG and that he is NOT supporting or recommending any appointment…. BUT reading in between the lines it is pretty obvious to all where his line of argumentative thinking leads to. Like HH says ‘ we are not all fools’.

    Further, a person who held public office and sullied his position through downright crooked activity, tarnishing the position he held, should not now endeavor to come out of the skeletal cupboard pretending to be a paragon of virtue and imagining he is spewing forth ‘pearls before swine’. Far better for him to lie lossed in the pages of the Country’s dark history and not resurrect those black deeds in the minds of the people.

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