by Dr Nihal Jayawickrama Courtesy The Island

February 20, 2016, 7:23 pm
The Prime Minister stated on the floor of Parliament that the Constitutional Council had not yet been able to determine the “procedures” for the performance of its duties and functions as required by Article 41E (6) of the Constitution. He attributed the delay to the urgency with which the Council had to proceed to make appointments to the independent commissions. He explained that, as an interim measure, the Council was utilising the procedures that had been adopted in 2002 by the Constitutional Council established under the 17th Amendment. However, nearly five months have elapsed since those appointments were made, and the Council appears to have overlooked the fact that, unlike under the 17th Amendment, it has to “make rules relating to the performance and discharge of its duties and functions” and to publish them in the Gazette and then place them before Parliament.

by Dr Nihal Jayawickrama

It is interesting to examine whether the Constitutional Council did, in fact, act according to the 2002 procedures when it proceeded to “approve” the President’s several recommendations on the appointment of the Attorney General. The 2002 procedures state that, in respect of the office of Attorney General, the Council “deems the following persons eligible for appointment”: (i) a judge of the Supreme Court; (ii) the Solicitor-General; (iii) Additional Solicitors-General (normally in order of seniority); and (iv) a practitioner at the unofficial bar of at least 30 years’ standing who has a successful practice and is held in high esteem by the judges and the legal profession.

The 2002 procedures also state that the Council shall not approve for appointment a person who, inter alia, (i) is not impartial and independent or is apparently biased or prejudiced; (ii) is actively engaged in partisan activities; (iii) has been charged with ethical misconduct in his private life; (iv) has at any time associated with persons involved in inappropriate activities such as gambling; or (v) owes debts to the Department of Inland Revenue. It adds that the Council shall only approve the appointment of a person (a) of ability with appropriate training, experience and qualifications; (b) of integrity; and (c) who has demonstrated soundness of moral principle in his behaviour, is free of moral wrong or guilt, and is upright, veracious, honest and straightforward.

The application of such comprehensive criteria to a recommendation made by the President will require an exhaustive investigation into the credentials of a recommended candidate. It must be presumed that when the Constitutional Council twice approved the President’s recommendation that the Solicitor General be appointed to act in the vacant office of Attorney General, it applied these criteria and was satisfied that he fulfilled all of them. It has been reported that on the third occasion, the President recommended three persons as being qualified and suitable for appointment in a permanent capacity to the office of Attorney General. These three were the Solicitor General and two Additional Solicitors General. It has also been reported (and not denied) that a majority of five members of the Council were in favour of approving the appointment of the Solicitor General, whereupon the Chairman of the Council had ruled that the President should have recommended only one person. As reported, the reason for the Chairman’s decision to abort the meeting and request the President to forward only one name, was that if the Council approved one of three names recommended to it, the Council would, in effect, be making the appointment, instead of the President. That reason, if in fact it was stated, is beyond comprehension.

What the Constitution requires is that no person shall be appointed by the President to the office of Attorney General “unless such appointment has been approved by the Council upon a recommendation made to the Council by the President”. Nowhere is the President required to submit only one name. Indeed, if the objective of establishing the Constitutional Council was to bring to an end the arbitrary manner in which successive Presidents made appointments to the scheduled offices, often ignoring seniority, competence and integrity, and guided principally by political considerations, the fact that the current President submitted three names for the consideration of the Council was an initiative to be welcomed, rather than repudiated, as the Chairman reportedly did. Indeed, if the President, in full knowledge of the prescribed criteria, were to submit only one name, then, the role of the Constitutional Council, meeting in closed session, would be reduced to that of a cipher, mechanically stamping its approval on every recommendation it receives.

What the President did next, and what is reported to have happened at the next meeting of the Constitutional Council, is even more disturbing. Why did the President, in full knowledge of the criteria, recommend the Solicitor General on three occasions within one month, and then change his recommendation to that of an Additional Solicitor General on the fourth occasion? In the 48 hours that elapsed between his third and fourth recommendations, what events, if any, occurred that impelled the President to change his mind on the suitability of the person he had thrice recommended? In the absence of any explanation for this startling transformation, given that transparency is an essential element of good governance, it would appear that we are now beginning to sail too close to the rejected corrupt, autocratic and tyrannical regime of yesteryear.

Equally bewildering is the amazing speed with which the Constitutional Council reportedly approved the fourth recommendation of the President, namely that of an Additional Solicitor General. Did the Council inquire from the President which of its criteria the Solicitor General whom he had thrice recommended had now failed to satisfy? Did the Council provide an opportunity to the Solicitor General to respond to any allegation made against him, whether within or outside the Council? The principles of natural justice surely apply when procedures are prescribed and criteria are established. Did the Council summon the Acting Attorney General and the newly recommended candidate for that office and interview them both before approving the latter? How else did the Council satisfy itself that one was more suitable than the other? With what consummate ease did the five members who reportedly favoured one candidate at the previous meeting now express their enthusiastic support for the other (if indeed they did)? In the absence of good and credible answers to these questions, one is left with little option but to compare the much hyped Constitutional Council to the tale of the Emperor’s New Clothes.