In the afterglow of yesterday’s Independence Day and the reiteration of principles of good governance and democracy, serious questions have arisen about the government’s main promise to restore the Rule of Law. The independence of the judiciary, the police and the Attorney General’s Department are key factors in this process. While progress has been made in the restoration of judicial independence, a crisis has arisen over the appointment of the State’s main legal officer, who is the Attorney General. In the highest traditions of the legal process, the Attorney General is allowed to act independently and is the chief legal officer of the State, not the government in office.
Amid reports that some sections are pushing for the senior-most officer in the Attorney General’s Department to be bypassed in the appointment to replace the Attorney General Yuwanjana Wijetillake who retired on January 9 this year, questions are being raised about the role of the Constitutional Council in this issue.
The senior most officer is Solicitor General Suhada Gamalath who according to most legal analysts has a good record of being efficient and is known to be beyond corruption which had spread like a cancer during the former regime. However, some influential sections are reported to be trying to prevent his appointment and instead bring in an outsider or someone junior to the Solicitor General.
This has created a major dilemma for the independent, all party Constitutional Council headed by Speaker Karu Jayasuriya. When it was set up last year in terms of the 19th Amendment, the people had high expectations that it would take steps for the appointment of an Independent Elections Commission, an Independent Police Commission and an Independent Public Services commission among others. According to 19A provisions the President has to recommend the person to be appointed as the AG and the Constitutional Council must approve it. But some other process appears to be going on now.
During the Rajapaksa regime and even during other administrations, political patronage played a key role in appointments to key posts such as that of the Attorney General. Under the 19th Amendment serious questions of law and a constitutional crisis could arise if the senior officer was bypassed.
The internationally known legal expert Dr. Nihal Jayawickrama has pointed out that the Constitutional Council would become a rubber stamp if it does not question the recommendation made by the President in a situation where the Attorney General’s Department’s senior-most officer is bypassed. He says proper procedures have not been laid down regarding the role and powers of the Constitutional Council in relation to making important appointments.
The senior legal expert says that even the President should justify his nomination if he wants to appoint an outsider or a junior as the Attorney General bypassing the officer who is next in line. This would be the ideal reflection of democracy and Yahapalanaya or good governance.
Dr. Jayawickrama says the Constitutional Council, a supreme independent body should question the President and ask for reasons why the officer next in line is being bypassed. Valid reasons should be given as to why this is being done. The Solicitor General was twice appointed as acting Attorney General and there is apparently no major reasons why he should not get the post except that some ministers and pro-government lawyers are not in favour for personal or other reasons.
Additionally in terms of the 19th Amendment the powers exercised by the Executive President are now subjected to judicial review. This could be done under the Constitution’s Article 126 -- fundamental rights jurisdiction.
Another question is whether the Constitutional Council can act in an arbitrary manner, violating the principles of natural justice. For example when the Executive President nominates an officer for the post of Attorney General or Auditor General and if that nomination is not acceptable to the majority of CC members, they could reject the nomination if a proper inquiry is not held or if the officer is not given the opportunity to respond to any allegation against him or her.
This would lead to conflicts or disarray and undermine the 19A. It seems that those who drafted 19A do not appear to have realized that this procedural lacuna could cause serious problems. The law is not an ass and certainly cannot be a politician’s ass.