Colombo Telegraph

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 .

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