CC approval of SG as Acting AG proved he was fit and proper for the post
Former Permanent Secretary to the Ministry of Justice (1970–1977) and an expert in Constitutional Law, Dr. Nihal Jayawickrama who strongly believes that the vacant position of the Attorney General should be filled with the senior most officer in the Attorney General’s Department, Suhada Gamalath, wrote to the Daily Mirror viewing his opinion on the issue. Dr. Jayawickrama served as a Professor of Law at the University of Hong Kong (1984–1997), and Executive Director of Transparency International (1997–2000). At present he serves as an independent legal consultant, and has been the Coordinator of the UN-sponsored Judicial Integrity Group since 2000.
Dr. Nihal Jayawickrama
Until the establishment of a Constitutional Council, the power to choose a lawyer to serve in the office of Attorney General (AG) was vested solely in the Head of Government. That made sense since the AG is the Government’s principal legal adviser. A Prime Minister or President would naturally wish to choose the lawyer in whom he/she had confidence. The 19th Amendment limited that power by requiring the President to seek the approval of the Constitutional Council before appointing the AG. A mandatory retirement age of 60 for the AG was also fixed, while retaining 65 years for Judges of the Supreme Court. It ignored the fact that lawyers with whom the AG will have to contend with in Court are likely to be in the age range of 60 to 80 years with much wider experience gathered over a considerably longer period. This ill-advised inflexible Amendment ignored the possibility that the AG may reach the age of 60 years in the middle of an important trial or while arguing a complicated appeal.
Since Independence, with one exception, the vacant office of the AG has been filled by the appointment of either a Judge of the Supreme Court or of the Solicitor General. In the first category were Justice Alan Rose KC (1947), Justice Basnayake KC (1951), Justice Gratiaen KC (1956), Justice Tennekoon QC (1970), and Justice Sarath Silva (1996). In the second category were T. S. Fernando QC (1954), Douglas Jansz QC (1957), L.B.T. Premaratne QC (1968), R.S. Wanasundera (1973), Siva Pasupathi (1975), Sunil de Silva (1988), Tilak Marapona (1992), Shibly Aziz (1994), K.C. Kamalasabayson (1999), C.R de Silva (2007), Eva Wanasundera (2011), Palitha Fernando (2012) and Y. Wijetilleke (2014). The appointment of two members of the Unofficial Bar, A.C.M. Ameer QC (1966) and Mohan Peries PC (2008) were mired in controversy and were quite legitimately viewed as politically motivated. In 1970, after serving for a week as Permanent Secretary to the Ministry of Justice, I was appointed to the office of the AG rendered vacant by the sudden death of L.B.T. Premaratne QC. I held that office only until Justice Tennekoon was able to assume office after concluding his criminal trials and delivering his reserved judgements. There was no Solicitor General at the time.
The astonishing ignorance of how ministries function and an unfortunate lack of institutional memory have led some to describe the office of Permanent Secretary to the Ministry of Justice as purely “administrative” or even “clerical”! When I became the first appointee to that office from the Unofficial Bar, my constitutional duties included the “supervision” of the departments assigned to the Ministry, foremost among them being that of the AG. Regular conferences with the Chief Law Officers are a standard practice. There were numerous occasions when the Prime Minister, Ministers, and other Permanent Secretaries sought my legal advice. My predecessors were drawn from the Judicial Service (usually the most senior District Judge) and the AG’s Department. In the latter category were E.H.T. Gunesekera and G.P.A. Silva, both Senior Crown Counsel (the then highest rank next to the Solicitor General) who moved thereafter from the Ministry to the Supreme Court.
Under the 19th Amendment, the President is free to recommend any lawyer for appointment to the office of AG. That office became vacant in the second week of January. Unlike a sudden vacancy created by resignation or death, the date of retirement of the former AG would have been known to the Minister of Justice for months, if not for an year. There was ample time to give serious consideration to the choice of a successor, and to consult with a potential candidate from an Appellate Court or the Unofficial Bar. It has to be presumed that it was after such consideration that the President recommended to the Constitutional Council the appointment of the Solicitor General. Upon receiving that recommendation, the Council approved the appointment. That approval signified the Council’s agreement with the President that that individual was the fit and proper person to serve in that office.
The question immediately arises as to why the Council approved an “acting” appointment. Did the Council inquire from the President why he did not recommend a permanent appointment? Or was the Council quite content to simply rubber-stamp any recommendation it received? Two weeks later, the Council reportedly received another recommendation from the President for the re-appointment of the same officer, also in an acting capacity. That too was approved, presumably without any question. If the next recommendation from the President is for the permanent appointment of a different person, what will the Council do? Will it interview the recommended candidate together with the one whose appointment it had previously approved? Will the Council inquire from the President why, within the course of less than a month, he recommended two different persons for appointment to the same office? If the Council decides to approve the appointment of a person other than the current Acting AG, will the Council explain to the people of this country why it initially endorsed one whom it now considers to be unsuitable for that office?
The Constitutional Council is required by the Constitution to “determine the procedures to be followed in regard to the recommendation or approval of persons suitable for any appointment”. These “procedures”, in the form of rules, are then required to be published in the Gazette and placed before Parliament within three months of such publication”. As far as I am aware, that has not been done. In the absence of published “procedures”, one is entitled to assume that the Council, acting in secrecy, is simply rubber-stamping executive decisions. That was neither the intention nor the promise. Under the 19th Amendment, an appointment made by the President on the approval of the Constitutional Council can be challenged by way of a fundamental rights application. One ground could be discriminatory treatment in the appointment process. Another could be the failure of the Council to formulate rules relating to the performance of its duties and functions. Any inconsistency by the Council in the performance of its duties will surely raise doubts about its integrity.
Seniority should not be the only criterion
Former President of the Bar Association of Sri Lanka (BASL), Upul Jayasuriya argues that seniority should not be the only criterion to appoint the Attorney General. Mr. Jayasuriya who was appointed as the Chairman of the Board of Investment (BOI) by the present government views that if seniority is the only criterion there is no purpose in establishing the Constitutional Council.
By Upul Jayasuriya
Just after completing one year in Office, the President is faced with the challenge in making a suitable recommendation to the Constitutional Council as the first step towards appointing a New Attorney-General whose functions are quasi-judicial. Three weeks have passed since making an acting appointment, this matter has once been raised in Parliament and different views have been expressed on the delay as well as the process that would take place in making a final decision in this regard. Concerns have been raised on selecting a suitable person from the unofficial Bar as well as taking the ‘seniority’ as the sole criteria in selecting a suitable person. It is reasonable to assume these are the few reasons for the delay in reaching a decision. If seniority is the sole criteria, why should there be a Constitutional Council to decide on it? Then it should be a mechanical decision! What importance should Integrity, Competency and Honesty bear in making a proper selection OR should they play no role at all and give way to the ‘seniority’ as the sole consideration in this regard as stated by Former secretary to the Ministry of Justice Nihal Jayawickrama.
Probably Dr. Jayawickrema’s long stay oversea would have made him forget the appalling conditions of the Ministry of Justice during the time when he held office in the Justice Ministry. Dr. Jayawickrema forced himself as the Acting AG whilst holding office as the Secretary to the ministry of Justice. That was the first and the last time a Secretary to the ministry of Justice became the Acting AG totally ignoring the seniority and the professional integrity and experience. In such a context, how he speaks of seniority is incomprehensible? The infamous Criminal Justice Commission that was vested with punitive powers to punish those of the JVP insurrection and the foreign exchange violators is fresh in the minds among those who were at the Bar at that time.
On the contrary, seniority should not be limited to a piece of paper. It should be coupled with actual experience with the number of years spent in the AG’s Department. If a person is released from the work of the AG’s Department and assigned a clerical job which otherwise could have been held by an administrative officer, can such experience be counted for the ‘Seniority’? Is it fair to count such experience gathered from a political appointment as against those who have been toiling hard with the day-to-day work of the AG’s department?
In any event, what about the ‘professional conduct’? It is imperative that professional conduct of the person who is to be appointed as the Country’s Chief Law Officer; the Attorney General should be exquisite, unblemished and impeccable. When applying such standard, the yard stick cannot be merely of the mechanical nature of ‘seniority’.
Difficult times our society passed in the recent past due to various instances of threat to law and order by criminals as well as the criminal conduct of politicians and the others who received their blessings are too numerous to forget. Their victims were not only helpless villagers but were foreign nationals as well as politicians belonging to opposite camp. Has the law enforcement and legal agencies that have the responsibility to bring culprits before justice acted with due diligence. If not, was is it due to their incompetency or the reluctance? What role has the officer who had to give the leadership and guidance to the junior officers at the time in question played ? How much difficulties we faced as a country due to the manner in which the local politicians were brought to justice with much reluctance over riding the line of supervision even in a situation where a foreign national was killed when he attempted to rescue his fiancée from being sexually abused by a prominent politician in the south.
The role that was played by the AG was much to be desired. Should these questions be never raised as the country has been able to sail through stormy weather and reach calmness with the passage of time. The manner in which the Opposition politicians were dealt with during the previous regime, in some instances indictment drafted burning midnight oil and in other instances think of the charges after the arrests were made, can never be forgotten or forgiven.
The President or the Members of the Constitutional Council should most certainly consider that ‘Seniority’ is not the only criteria whereas other factors such as Integrity, Honesty and or Competency take precedence well above seniority.
There is no doubt that Competency as well as Impartiality are two essential qualities a person should possess to be qualified to hold the post of AG. The professional training an officer in the AG’s Department had received while gaining seniority is certainly a factor that will count in his favour. Sacrifices such officer had made while continuing in the public service and the past experience the profession, society and country went through when an ‘outsider’ was entrusted with the task of carrying out duties as the AG are valid factors to consider in making a final decision in this regard. When much has been done and achieved by the President and the new government in setting the path right in creating a new era maintaining the independence of the judiciary and professional integrity of the legal profession the Constitutional Council should be sensitive and shall not turn a blind eye to the ground realities in making its decisions under the 19th Amendment which was enacted with the hope of restoring democracy and good governance.
We the legal profession hope that the new AG shall be a person with an unimpeachable character who is able to give leadership to a department with a treasured past, a glorified history of more than 150 years which reputation has been dwindling in the recent past.
An affront to the entire Govt. service: SG
We contacted Mr. Gamalath to find out as to what his response is about the comments made by Upul Jayasuriya and certain sections of the media in the recent past. Mr. Gamalath throwing down the gauntlet stated that a disgruntled lawyer and misguided professor have teamed up together to carry out a vicious, vituperative campaign against him based on unfounded false allegations.
“And this is very unfortunate and I am deeply saddened by this because after having been employed in government service with an impeccable record for well over 32 years, a campaign of this nature has been launched to discredit me and this is an affront to the entire government service.” He further stated these people seemed to be acting with hidden agendas. “This so- called professor for instance does not know me from Adam.
I have never met him in my entire life nor there was any occasion for me to interact with him officially or otherwise. Simply speaking I don’t know him nor that I have any desire to know him for it is very clear these are people who while presenting themselves as paragons of virtue act with malice slinging mud at innocent people, causing irreparable damage to individuals and this is what you call character assassination.
The only way out as now can be seen is bring to them to justice through a court process so that their nakedness will be exposed. After all, we have a duty to protect our country and its people from this miserable people. And then only will a true Just Society dawn in this country”.