30 November, 2020

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The Constitutional Council & The Tale Of The Emperor’s Clothes 

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Dr. Nihal Jayawickrama

The Prime Minister stated on the floor of Parliament that the Constitutional Council had not yet been able to determine the “procedures” for the performance of its duties and functions as required by Article 41E (6) of the Constitution. He attributed the delay to the urgency with which the Council had to proceed to make appointments to the independent commissions. He explained that, as an interim measure, the Council was utilising the procedures that had been adopted in 2002 by the Constitutional Council established under the 17th Amendment. However, nearly five months have elapsed since those appointments were made, and the Council appears to have overlooked the fact that, unlike under the 17th Amendment, it has to “make rules relating to the performance and discharge of its duties and functions” and to publish them in the Gazette and then place them before Parliament.

It is interesting to examine whether the Constitutional Council did, in fact, act according to the 2002 procedures when it proceeded to “approve” the President’s several recommendations on the appointment of the Attorney General. The 2002 procedures state that, in respect of the office of Attorney General, the Council “deems the following persons eligible for appointment”: (i) a judge of the Supreme Court; (ii) the Solicitor-General; (iii) Additional Solicitors-General (normally in order of seniority); and (iv) a practitioner at the unofficial bar of at least 30 years’ standing who has a successful practice and is held in high esteem by the judges and the legal profession.

The 2002 procedures also state that the Council shall not approve for appointment a person who, inter alia, (i) is not impartial and independent or is apparently biased or prejudiced; (ii) is actively engaged in partisan activities; (iii) has been charged with ethical misconduct in his private life; (iv) has at any time associated with persons involved in inappropriate activities such as gambling; or (v) owes debts to the Department of Inland Revenue. It adds that the Council shall only approve the appointment of a person (a) of ability with appropriate training, experience and qualifications; (b) of integrity; and (c) who has demonstrated soundness of moral principle in his behaviour, is free of moral wrong or guilt, and is upright, veracious, honest and straightforward.
The application of such comprehensive criteria to a recommendation made by the President will require an exhaustive investigation into the credentials of a recommended candidate. It must be presumed that when the Constitutional Council twice approved the President’s recommendation that the Solicitor General be appointed to act in the vacant office of Attorney General, it applied these criteria and was satisfied that he fulfilled all of them. It has been reported that on the third occasion, the President recommended three persons as being qualified and suitable for appointment in a permanent capacity to the office of Attorney General. These three were the Solicitor General and two Additional Solicitors General. It has also been reported (and not denied) that a majority of five members of the Council were in favour of approving the appointment of the Solicitor General, whereupon the Chairman of the Council had ruled that the President should have recommended only one person. As reported, the reason for the Chairman’s decision to abort the meeting and request the President to forward only one name, was that if the Council approved one of three names recommended to it, the Council would, in effect, be making the appointment, instead of the President. That reason, if in fact it was stated, is beyond comprehension.

What the Constitution requires is that no person shall be appointed by the President to the office of Attorney General “unless such appointment has been approved by the Council upon a recommendation made to the Council by the President”. Nowhere is the President required to submit only one name. Indeed, if the objective of establishing the Constitutional Council was to bring to an end the arbitrary manner in which successive Presidents made appointments to the scheduled offices, often ignoring seniority, competence and integrity, and guided principally by political considerations, the fact that the current President submitted three names for the consideration of the Council was an initiative to be welcomed, rather than repudiated, as the Chairman reportedly did. Indeed, if the President, in full knowledge of the prescribed criteria, were to submit only one name, then, the role of the Constitutional Council, meeting in closed session, would be reduced to that of a cipher, mechanically stamping its approval on every recommendation it receives.

What the President did next, and what is reported to have happened at the next meeting of the Constitutional Council, is even more disturbing. Why did the President, in full knowledge of the criteria, recommend the Solicitor General on three occasions within one month, and then change his recommendation to that of an Additional Solicitor General on the fourth occasion? In the 48 hours that elapsed between his third and fourth recommendations, what events, if any, occurred that impelled the President to change his mind on the suitability of the person he had thrice recommended? In the absence of any explanation for this startling transformation, given that transparency is an essential element of good governance, it would appear that we are now beginning to sail too close to the rejected corrupt, autocratic and tyrannical regime of yesteryear.

Equally bewildering is the amazing speed with which the Constitutional Council reportedly approved the fourth recommendation of the President, namely that of an Additional Solicitor General. Did the Council inquire from the President which of its criteria the Solicitor General whom he had thrice recommended had now failed to satisfy? Did the Council provide an opportunity to the Solicitor General to respond to any allegation made against him, whether within or outside the Council? The principles of natural justice surely apply when procedures are prescribed and criteria are established. Did the Council summon the Acting Attorney General and the newly recommended candidate for that office and interview them both before approving the latter? How else did the Council satisfy itself that one was more suitable than the other? With what consummate ease did the five members who reportedly favoured one candidate at the previous meeting now express their enthusiastic support for the other (if indeed they did)? In the absence of good and credible answers to these questions, one is left with little option but to compare the much hyped Constitutional Council to the tale of the Emperor’s New Clothes.

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Latest comments

  • 1
    2

    Is this Yapalanaya? If acting Attorney General was not suitable why
    was he recommended for acting Attorney General.If he was recommended for an acting appointment that itself shows his suitability
    for such an appointment.This is unclean politics in Sri Lanka.They act
    according to the whim and fancies of some politicians.The most suitable
    officer is never given his due place. Disgusting.God bless Sri Lanka.
    Every appointment to the highest echelon is politicised.

    • 2
      0

      This guy has forgotten what he did when has the power.

  • 2
    0

    The 19th amendment as approved by parliament was full of holes and loose ends because of the need to mobilize numbers in the parliament. However, it was a big improvement on the 18th amendment. We have to live with the damage done by this compromise with the devil, until a proper and principled new constitution is promulgated. The fear to make the right decision yet lingers and the buck is being passed around.

    Dr.Rajasingham Narendran

  • 1
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    To get a Top Job in Sri Lanka, you have to be Seen as a Supporter of the Ruling Party!

  • 9
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    Dear Dr. Jayawicrema,

    “Emperors new cloths”´…… what a way to end up a passage for a learned man like you…

    By the way you were the one time Secretary to the Ministry of Justice. weren’t you ? Is this a reincarnation of that one time infamous Secretary Justice who was deprived of his civic rights for abuse of power?

    Have you forgotten that draconian Commission that was brought in and sent many people to jail some time for petty offences like sending 10 UK pounds for an eye surgery and were even chained to the bed?

    have you forgotten that you were the left hand of that Shit Feliex Dias who together with you did all the dirty Things on earth and was responsible to bring Mrs. Bandaranaike’s government to 7 seats at the 1977 elections making Amirthalingam the Leader of opposition?

    Do you remember that with the 1972 Constitution that was brought in by you had nothing called enforceable Fundamental rights as enshrined in the 1978 Constitution?

    Do you remember that you were responsible to bring in several political cronies with the likes of Jaya Pathirana who had by that time even contested from the SLFP ticket, were appointed to the Supreme Court?

    Do you remember that you were even trying to bring in barefoot lawyers just because your mentor Feliex Dias and you could never build up a practice at the Bar?

    Can you remember that when you sat in a chair that was at the inner bar when Mr. Thiyagalingam had no Chair to sit, you had to be ordered get up and give your chair to Mr. Thiyagalingam by the Presiding Chief Justice Victor Thennakoon at the Ceremonial sitting for Sir Allen Rose. Then you and your Buddy Feliex Dias cancelled all the Ceremonial sittings of the Supreme Court.

    Can’t you remember that you forced your way to be the acting AG whilst being the Secretary Justice some Thing that is unheard of.

    What about the film ‘Sagarayak Meda’ the film that was Directed by renowned film director and the legendary actor Gamini Fonseka was all about the misrule and the abuse of power that was exerciseed by you during that dark era of ‘hath avurudu sapaya’ (the curse of seven years) perpetrated by you and Feliex.

    Dear Nihal though you have forgotten your past don’t think all the others too have forgotten your past particularly those who were at your receiving end. That Generation including the legal fraternity will never Forget it and nor will you be forgotten.

    The Idiom that you used “Emperors cloths” is best suited for you and not for any other.

    Raj

    • 5
      1

      Perhaps all mentioned was true, and the irony is not lost, but not directly relevant to the argument here, which itself can be debated quite differently, as it is merely the logic that was questioned of the appointment, not the suitability of or not of the candidate who finally was rejected for AG.
      Personally the right decision was made but the jokers went about it the wrong way, even a montessori child would have done better!

      • 1
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        raj and pattapal

        Good insight.

        Raj! it is master blasting.

        Nihal likes are in the sidelines and are the paid servants of the state.

        When nutters like Mahinda, Gota and Basil rule, Nihals’ have to sing for their supper. They are their servants.

        Nihal is a bright intellect but a victim of a failing state.

        This is what the making of Sri Lanka.

        Look at what the remote Sri Lankan Desmond De Silva did. He bolstered his wealth from the ashes of the dead in Sri Lanka. The hole he created in the budget of Sri Lanka is not questioned by anyone.

        Desmond proved Sri Lankans are fools to fatten his purse with his compromising super lick.

        Nihal would have done a better job than the big bellied Desmond. But…… Sri Lanka has moved far away from the 1948.

        So long as Sri Lanka produces Rajapakses’ there is room for Desmond to play ping pong on the wall. A fudge like him will have enough room to milk.

    • 8
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      Hopefully Nihal J will respond to these accusations, otherwise his credibility will be shot!

    • 5
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      Thanks for the exposures, Raj.

      It’s gratifying to know the background of critics so we can assess who they REALLY are and what, if any, their agendas are.

  • 3
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    Sri Lankan habit of saying one thing and doing the complete opposite was at work here. We appear incapable of making a criticism and justifying why!

    There was sufficient evidence of conduct (of the one NOT appointed AG) as an additional secretary to the Minister of Justice in the completely corrupt MR administration where the AG’s Department was under the President and they had to merely follow orders. Accordingly his compliance whether wantonly or under duress is not clear, as the decisions were political.

    It is therefore correct if they made this as a reason for non appointment. (as stated as one of the reasons)

    The fact that the President sent the name three times does not mean anyything as the office was thoroughly disorganized and incompetent in such matters of submission and was not done with much forethought.

    This leads to the other disease of lack of forethought, where on my blog I warned months ago of this event and to be ready with replacement as soon as the incumbent retires, as that date was known well in advance.

    Until competent people are appointed to run both the President’s and PM’s office we will continue to see these cock-ups. They are not however out of order, except that those in the Constitutional Council were NOT given the facts pertaining to explain why!

    In short the blind leading the blind at present, and the Country is descending into a farce ripe for cartoons. Mercifully not daylight robbery as in the MR regime. Which is better or worse?

    • 2
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      As for daylight robbery, there are many in this Govt. who are trying to get away with it. So it is the independence and teeth of the Bribery Commission which we hope will be there to catch and prosecute, and in time change this habit once and for all. Civil Society has to continue to pressure to enforce ‘yahapalanaya’. We all want it as a Nation, and we have to put our political house in order, hopefully through a new constitution!

  • 13
    1

    Most senior person Suhada Gamalath is not the most able person. As such, appointing the second in command is acceptable. People like Nihal Jayawickrama and Hemantha Warnakulasuriya want Gamalath to be the AG to save the Rajapaksas.

  • 10
    0

    Hemantha Warnakulasuriya has good diplomatic skills ! MR who appointed him as ambassador should be a certifiable lunatic !

  • 10
    1

    Dear all,

    I will now place before you some hard facts about Suhada who was not appointed for the Top Job and the President averted disaster for Sri Lanka by appointing Jayantha J.

    1. Suhada was appointed as secretary Justice and served in that position for nearly 10 years. During these 10 years of his life (which was in the recent past) he had no experience as a counsel. How he servived for 10 years is another question as the establishment code provides that a person can be released only for a period of 2 years. Therefore it was by a political favour to Suhada he was kept going as the secretary Justice during that period by Chandrika and Mahinda.

    Is this the kind of Attorney General we want?

    2. His conduct in the avant Guard case is appaling.
    He held a conference with 4 Additional Solicitor Generals all of whom are also Presidents Counsel along with two senior Police Officers and decided on advice that there was sufficient evidence against Avant Guard Directors but further investigations have to be conducted against Gotabaya and Damayanthi Jayaratna on the serious offence of possession of firearms.

    Two days later he reversed the decision and determined that there will be no further investigations nor prosecution on possession of Firearms.

    Is this the kind of the Attorney General we want in our country?

    HS

  • 1
    1

    Just to remind:
    ….The 2002 procedures also state that the Council shall not approve for appointment a person who, inter alia, (i) is not impartial and independent or is apparently biased or prejudiced; (ii) is actively engaged in partisan activities; (iii) has been charged with ethical misconduct in his private life; (iv) has at any time associated with persons involved in inappropriate activities such as gambling; or (v) owes debts to the Department of Inland Revenue. It adds that the Council shall only approve the appointment of a person (a) of ability with appropriate training, experience and qualifications; (b) of integrity; and (c) who has demonstrated soundness of moral principle in his behaviour, is free of moral wrong or guilt, and is upright, veracious, honest and straightforward……….

    Will be a very long search in the present set-up.

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