Constitutional Council On The Spotlight

by Camelia Nathaniel

Upul Jayasuriya and Dr. Paikiasothy Sarawanamuttu and Wijeyadasa Rajapakshe and Prof. V. Puthirasigamoney

Since the recent controversy that surrounds the appointment of the Attorney General, many have been questioning as to why there is no public disclosure of the guidelines and criteria under which individuals are appointed to key offices and to constitutional commissions under the 19th Amendment to the Constitution. These bodies include the police, the public service, bribery and corruption, and the human rights commission.

According to the 19th Amendment, appointments to the commissions are made via a distinctly separate procedure. Article 41b stipulates that the Constitutional Council first nominates names of potential members to the President and then the President makes the appointments.

The 17th Amendment is almost the same. However, a clause in the 19th amendment, (Article 41B(3)), quite contrary to the 17th Amendment, allows the CC to suggest three names to the President, when nominating a chair of a particular commission. Now the President makes the decision.

However, the appointment of the AG bypassing the rule of seniority calls for clarification of the process. The AG was appointed through a ‘backdoor’ process going against the 19th Amendment.

The Sunday Leader contacted former Deputy Minister for Justice and Law Reform Prof. V. Puthirasigamoney to get a clarification in this regard. He said that when appointing the new Attorney General, a path of hierarchy which has been the tradition, should be followed. He pointed out that in the governance of a country the judiciary has to be independent.

“For the judiciary to be independent, they must follow the tradition in appointing the AG. They should also have looked into the seniority and also the experience of the nominated person/s. When talking of seniority I do not mean by age, but by their years of experience of holding various positions.


Following the tradition

My opinion is that we should follow the tradition when appointing a new AG and give much weight to the independence of the judiciary. For ordinary people, the President or the executive, parliament, and the judiciary is like a three wheeler. If one wheel collapses, the whole vehicle collapses. Only when all three parts work in unison, the country can move forward,” he added.

He further stated that judicial appointments were also politically-motivated and certain appointments were made on political influence in the past.

“As a result, the independence of the judiciary became questionable. This sort of thing should not be repeated since it will ultimately erode the respect the people have for the judiciary,” he stressed.

He further said the most important thing to do to allow the people to realize themselves that the judiciary is very much independent in any circumstances.

Commenting on the issue, the Immediate Past President of the Bar Association of Sri Lanka (BASL), senior lawyer, Upul Jayasuriya, told The Sunday Leader that the AG is the legal advisor to the government, and the government should be in a position to rely upon his or her advices.

“You cannot get that sort of legal advice from a normal public servant. The chosen person should have been in the AG’s Department for at least three decades. Although people talk of seniority, it does not necessarily mean paper seniority. If a person had been released from the AG’s Department for a long period in order to work as an administrator or as some ministry secretary or officer, during that period, such person does not gain any experience of the AG’s Department work. Hence this cannot be regarded as experience or seniority; this is merely paper seniority. The most important factor that should be taken into account is actual and factual seniority.”

In the appointment of heads of bodies including the police, the public service, bribery and corruption and the human rights commissions, transparency demands that proper guidelines are formulated. These concerns are imperative, particularly if the next contentious appointment coming up may be that of the IGP.

President’s Counsel, MP Dr. Jayampathy Wickramaratne, the chair of a three-member team that prepared the 19th Amendment to the Constitution and head of the Constitution Drafting Committee, opined that it was at the discretion of the President to appoint a person who he thinks is best suited for the position.

“As per the 17th and the 19th Amendments to the Constitution, the President makes nomination/s and forwards the same to the approval of the Constitutional Council. It is the President who decides on the appointment/s, and it is subject to the approval of the Constitutional Council,” he said.

He added that the appointment originates from the President unlike with the other commissions.


Constitutional Council

“With regard to the appointments to the independent commissions, the recommendations come from the Constitutional Council. The Attorney General and the judges etc., are appointed by the President but subject to the approval of the Constitutional Council.

“The President must take into consideration the suitability of the person he wants to appoint because after all, this is the chief legal advisor of the State. For example, when a person needs a legal counsel, he decides who should represent him. The government and the President should decide, by taking into account all the circumstances, the person that they should or could rely on when seeking legal advice. Nobody can tell the President that this or that one should be the legal advisor because the President is the leader of the State and because he has every right to choose his legal advisor. The President and government have to be comfortable with the Attorney General that they appoint. However, if the person nominated by the President has no basis whatsoever to hold the position of the Attorney General, then the Constitutional Council can resist or deny approval. Unless it is completely arbitrary, I don’t think anyone can interfere with the process,” he added.

When asked about maintaining transparency in the appointment of these key positions, Dr. Paikiasothy Sarawanamuttu said that one of the requirements for making it more transparent is to bring the Constitutional Council in to the whole process.

“Of course some will argue that the deliberations of the Constitutional Council should be made public and that procedure would serve the interest of transparency. However, others point out that it will not serve the purpose. One of the ways of doing it, according to public views, the Constitutional Council should lay out the principles they must abide by when making recommendations. But the argument of not reserving it within the purview of a single individual is an argument that says that therefore it is not transparent. That individual is not required to provide explanations as to why he or she makes a particular choice. So bringing in the Constitutional Council in to the process would further enhance transparency,” he said.

A member of the Constitutional Council, who wish to remain anonymous, said, “According to the Constitution, the President nominates the name/s and it is up to the Council to accept or reject the presidential nomination/s. We cannot follow any other system because according to the Constitution, this is the process that has been followed and it has worked for us. According to the 18th amendment, the President has all the powers and this system is working well for us and there is no issue. The list of criteria is acceptable and it has been in use since 2002. This appointment, therefore, was made according to the accepted criteria,” he said.


5 Comments for “Constitutional Council On The Spotlight”

  1. THe appointment of AG to the country to the government and judicial ,and public service. should not interfere in politics,.independent must maintain by the constructional council the president to must not bring politics to the judicial law of land is equal to every citizen , minister of justice sometime unofficial interfere the minister must remove by the parliament, i

  2. Sangaralingham

    Justice and judiciary are matter for independent action by judges and legal experts in the judiciary should not be in association with politicians in interpreting legal monitors of the land and any thing that is motivated manipulated by politicians or any other individuals should not reveal as justice done

  3. president has the right to nomination of the canadate. judicial has right to withdraw the names,judical is independent body, politics must not interfere in justice in country, the minister of justice will not allow the law authority to do there work.

  4. sarath

    I always say that the crucial appointments shall be done by the President alone. AG is the Chief Law officer of the State and Govt. President is the Head os State , Head of the Govt and Head of armed forces.
    We talk about transparency. now take the appointment of new AG. Nobody knows the reasons for omitting Suhada Gamalath who was the most senior. If there is going to transparency they must tell the reason without creating doubts in the minds of the people.
    This CC is not at all independent. Neither Wijedasa nor Champika people who can be impartial. They should not have sit in this meeting for the reason they had personal views on Suhada.

  5. Justin

    What matters now is whether the Constitutional Council is able, willing and doing a good job or not.

    Are they addressing the basic issues is the question.

    The roots of the conflict are language and Land. The experience of past 68 years is that the Sinhalese were greedy for the land in the North and East, in spite of plenty of land available in the South

    The intent was racist, to marginalise the Tamil speaking people in their traditional homeland.

    It is political like the Apartheiod regime of SA, chasing away “Blacks” to make them “Whites” areas

    For the Tamil speaking people, because of the past experience, not controlling their own land is something they cannot live with in the future They are not interested in the land in the South..The Sinhalese can keep them instead of giving to the Chinese.

Comments are closed

CG Colombo Gazette

Photo Gallery