As President Maithripala Sirisena and the Constitutional Council (CC) played a virtual game of ‘catch the ball if you can’ with each other over the appointment of Sri Lanka’s 29th Attorney General (AG) this week, the Rajapaksa-led section of the opposition engaged in raucous antics over not being allowed to sit as a separate group [...]


Why these displays of acute legal incompetence?


As President Maithripala Sirisena and the Constitutional Council (CC) played a virtual game of ‘catch the ball if you can’ with each other over the appointment of Sri Lanka’s 29th Attorney General (AG) this week, the Rajapaksa-led section of the opposition engaged in raucous antics over not being allowed to sit as a separate group in Parliament.

Perversely, this fracas took place precisely when a shamefully overdue amendment increasing female representation to local government bodies was being passed in the House. In a sense, both developments indicate the atrocious degeneration of the country’s institutional culture. As Sri Lankans are fast realizing, two euphoric election victories seems the easier part of this oftentimes seemingly hopeless journey to recapture democratic balance.

Credibility of the process
Quite apart from the grotesque romps of the Rajapaksa-faction, serious constitutional questions emerge over the confusion regarding the AG’s appointment. Several months ago, it was questioned in these column spaces as to why there is no public disclosure of the guidelines and criteria under which individuals are appointed to key offices as well to constitutional commissions under the 19th Amendment. These bodies include the police, the public service, bribery and corruption and the human rights commission

The credibility of that process was a primary challenge mounted to the 18th Amendment under the Rajapaksa Presidency. This resulted in public uproar which brought in a different government last year. The matter cannot therefore be cursorily left to the sole wisdom (or the considerable lack thereof) of the political authority.

But let alone public disclosure, it appears now that the Head of State is himself unaware of the conditions precedent in regard to which his power of appointment must be exercised.

Sneakily smuggling in constitutional changes
The 19th Amendment lays out distinctly separate procedures in two different situations. Where appointments to the commissions are concerned, Article 41b stipulates that the CC first nominates names of potential members to the President after which the appointment is made.

This was the same under the 17th Amendment. However a little realized fact is that the 19th Amendment has sneakily smuggled in a clause (Article 41B(3)) which significantly departs from the 17th Amendment. When it comes to nominating the Chair of a particular Commission, It allows the CC to suggest three names to the President.

This was different to the 17th Amendment under which the CC recommended only one name as Chair for appointment by the President. This was no academic clause as evidenced when former President Chandrika Kumaratunga refused to appoint retired Supreme Court justice Ranjith Dheeraratne nominated by the CC as Chair of the Elections Commission. In turn, the CC declined to change its nomination in the absence of justifiable reasons. Consequently the Elections Commission never came into being under the 17th Amendment. The then CC was a formidable body having a majority of non-political members unlike its more flawed successor created by the 19th Amendment.

Incredulity in the public mind
Now, it is the executive which effectively chooses the Chair. This carries attendant problems as was seen recently when one retired public servant of repute resigned after his initial appointment as Chair was demoted to ‘member’ shortly thereafter by the Presidential Secretariat in a letter following hot on the heels of the first notification, reportedly after ‘pressure’ was exerted by a powerful hand behind the throne.

This process is somewhat in the reverse regarding appointments to specified offices including that of the AG. Here, the initial onus is on the President whose ‘recommendation’ therein must be approved by the CC (Article 41c). It is only then that the appointment can be made. There is no similar constitutional leeway given to the President to recommend three names when sending his ‘recommendation’ to the CC. Regardless it is probably this somewhat discomfiting allowance given to the CC to nominate three names for a commission Chair which led President Sirisena to go constitutionally astray in following on the same path.

When some Council members nervously if not justifiably jibbed at the idea of making the choice between the three state law officers named in order of seniority in the Department by President Sirisena, the President withdrew his first recommendation, sending back one recommendation of the second most senior officer which was duly approved by the CC.

Need to clarify the process
That such confusion is evidenced at the highest levels of State is largely due to panjandrums who are limpet-like in their anxiety to manipulate the process. This allows the social media to play favourites between the names recommended, indulging thereto in vicious personal slandering. This is unpardonable regardless of whether failures had occurred in the prosecutorial role or not.
Further serious questions arise. The bypassing of the rule of seniority in the AG’s appointment calls for appropriate clarification of the process. The law in this regard has already been settled by authoritative judicial precedent. Responding to a plethora of cases when Sri Lanka’s Supreme Court was free of the unprepossessing controversy which dogged it in later decades, the Court’s consistent rule has been that proper weightage must be given to seniority and merit-based performance.

Transparency demands that proper guidelines are formulated. These concerns are imperative, particularly if the next contentious appointment coming up may (reportedly) be that of the IGP.

More care must be demonstrated
But legal incoherence is not limited to weighty constitutional matters. This week also saw the Supreme Court’s ruling that certain clauses of the Theravada Kathikavatha Bill contravened the Constitution. Should not more care be observed in formulating such drafts? In the pre-Rajapaksa decade, when asked to consider similar issues in relation to the discipline of the Buddhist clergy, the Law Commission of Sri Lanka responded in an excellently reasoned policy paper pointing out the dangers of haphazard law reform. Do we learn nothing from the past?

These are not issues on which political points should be scored. It is also no answer to say that the judiciary now has the independence to decide. The Presidency and the Government must pull its act together in regard to its legal competence. Otherwise, this bodes ill for the so-called constitutional reform process which involves vastly complex questions of constitutional law.

It must not go the way of the 19th Amendment, plagued as that was with ambiguities and contradictions.

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