1 December, 2020

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The Original Sin Of Selection

By Malinda Seneviratne –

Malinda Seneviratne

The fate of the Chief Justice is now officially in the hands of the Parliament and thereafter the President, in the event that Parliament recommends removal from office. The fate of the dignity of her post, parliamentary procedures, impeachment processes and the nature of power separation between the executive, judicial and legislative arms of the state will remain a matter for constitutional amendment, interpretation and the extent to which the primacy of public will and public trust congeal within these institutions and processes. Time will tell.

For the last several weeks the rhetoricians have ruled. The law and due process have been overshadowed by a preference for emotional outburst. The nation Is used to parliamentarians behaving like hooligans, so their outbursts don’t surprise any more. However, when lawyers (individuals who are supposed to ponder words spelled out in black and white) resort to smashing coconuts and appealing to astral entities whose existence is fictional, only those motivated by narrow political objectives can cheer.

All things in this world are subject to the timeless truths of birth, decay and death. People come and go. Institutions are more resilient but are themselves subject to alteration. Individuals can resign or be sacked, but the posts they hold survive them. One can impeach a Chief Justice or a President, but one cannot retire the post of Chief Justice or sack the Presidency without risking anarchy unless alternative structures of justice-determination and executive authority, respectively, are legislated.

While political circles have been busy pontificating on the legality of process, pointing fingers about vindictiveness and high-handedness, the manufacture of guilt and so on, there’s been a conspicuous silence about the genesis of the current tension between executive and judiciary, which has translated into a legislative-judiciary battle.

The Constitution provides for appointment and removal. The current debate focuses on ‘removal’. The point is that ‘removal’ is consequent to appointment. The public service does have recognized and established procedures of appointment. Over the years, these rules have been bent for reasons of political convenience. On certain occasions even laws have been changed to facilitate appointment and promotion of favorites and the politically and administratively pliant.

If the CJ is found to have been out of order, then the question that needs to be asked is ‘was she not properly screened?’ It goes for other ‘high posts’ too, including diplomatic postings. Whatever the confusion regarding propriety of impeachment process may be, there is absolutely no doubt that this country woefully lacks a process of screening candidates to important positions in the administrative service and of course the senior most position in the judicial system.

For all its many flaws, the system in the USA is far more stringent when it comes to screening candidates. There are congressional and senate committees where candidates are grilled not just on track record, but decisions made and all manner of affiliation, official, semi-official and private. In Sri Lanka, the notices for submission of public query come late, in small print and are largely ignored. The signature of the process, if there be one, is rubber-stamping.
In the case of CJ-appointments, especially since 1978, we have seen ‘friends’ being favored over seniority and competence. This has led to an erosion of trust in both appointer and appointee. The current tensions make for an ideal situation to revisit the appointing-moment and correct the obvious flaws which have at least in part snowballed into what some have called a constitutional crisis or worse a crisis of the state.

Individuals come and go; systems are more sustainable. Flaw in system naturally lead to error in selection and exacerbate the ill effects of a flawed appointee. The entire script then has to be revised. From scratch. ‘Scratch’ here would be ‘appointment moment’.

If one positive is to emerge from what has turned out to be a bitter and invective-filled process that is unhealthy to society as a whole, then it is a firm decision by all concerned to correct the relevant statutes on selection. If we get it right at the proverbial ‘Square One’, future generations will be spared the hooliganism from all quarters as such we are witnessing today.

*Malinda Seneviratne is the Chief Editor of ‘The Nation and his articles can be found at www.malindawords.blogspot.com .

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Latest comments

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    Malinga’s comments are balanced.Yet something deplorable is the head of state shamelessly hiding behind goons and getting an office desecrated and PRETENDING TO BE IGNORANT.WHAT A COWARD WHEREAS THE LADY IS OF STEEL WHO DID NOT CAVE IN TO AN UNSCRUPULOUS THUG.He insults all by saying all are equal before the law,even the biggest gona in this country knows well that Kudu Raja Mervin and many others are above the law AND THAT IS FAR FROM THAT.
    Malinga is right when he said that all the rot started after 1970,to be more precise its after 1956 and went at break neck speed to ruin after 1977.I doubt that man JR who bequeathed a monstrous system without adequate checks and balances resting in peace after making the lives of millions unsafe paving the way for uneducated thugs.
    Hooligans like Dilan a womaniser of repute many times married and a nondescript Berawaya Buruwansa who tilts at wind mills but is a millionaire did not behave in the way they did without authority.They were detailed to humiliate and break her and she showed her mettle.The vast majority of men and womewn of all levels of society do not know the CJ from adam, but are behind her as she was denied a fair deal on bogus charges.Have those puppets declared their assets,at least one known as CEMENTI KOTTE who ran naked when the wife hammmered him in the Health Ministry will look at the mirror and say I have not. CAN WE EXPECT FROM THIS THUG ANY BETTER WHO IS ROLLING ON THE WAR VICTORY.If divine action is a truth we may be able to see this man and family who are billionaires all suffering before they die for the acts unjust and unfair done and misleading gullible masses.Buddha Dhamma which he uses to bluff as he dwell miles away from that clearly spells out that the thoughts have to be good for any deed to be good,so time will tell till then lets grin and bear.

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      Malinda is a Rajapakse lackey obsessed with enemies of Sri lanka always out there to get Sri lanka. Balance and Malinda cannot go in one sentence.

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      Until 1956 the country was ruled by the English educated one percent of the population – The Sinhalese and Tamil ‘aristocracy’, the ‘Colombians’ who spoke only English and the Vellalahs from Jaffna. Those who were educated in English in reputed schools in Colombo and Jaffna got the ‘plums’ from the Public Service. The rest of the Sinhalese and Tamils picked up the crumbs which fell from the table. It was only after 1956 that the Sinhala educated got a place in the country. SWRD was killed because of that. And followed by a Coup in 1962. So people like Premasiri may say the rot started after 1956 which will not go with the majority of the people in the country.

      P.A.Samaraweera
      Melbourne

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        Adey Samaraweera:
        The fact that you continue to mouth your platitudes from Melbourne, Australia is indicative of what a bloody hypocrite you are. The obvious question is: If Mahinda Rajapaksa and, in fact, all the Sinhala chauvinists who have driven this country into international disrepute have done such a wonderful job what are you doing in the antipodes and not helping your buddies. Or are you in the Southern Hemisphere taking the gospel according to your murderous friends to those stupid white people? They must be lining up to participate in the Australian version of Emergency 58 and Black July I suppose!
        Why don’t you just keep sending your inanities to your pal, Welgama’s Island rather than inflict them on readers of CT?

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    Malinda, if you accused of [Edited out], if you are given 1000 pages to be read and 12 hours and file answers, without having to cross examine the accused and not even knowing your witnesses and having no say in the process, finally convicted of [Edited out], would you write the same? How not emotional will you then..

    I am sure the resilient nation will still survive, but will you?

  • 0
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    Going back to square one is only after the dust has cleared. It seems we are still at the begining of the prime matter to be resolved, the executive presidiency, the root of all this evil.

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