IS THE CONSTITUTIONAL COUNCIL IMPARTIAL?
Posted on February 3rd, 2019

Sugath Samarasinghe

According to the main news item of page one of The Island of 29th Saturday, there appears to have been some dissatisfaction expressed by the Opposition on some of the selections made by the Constitutional Council for high posts. The Speaker and the Prime Minister had defended the CC in Parliament saying that the recommendations made by them were above board.

Now the way to determine the rightness or otherwise of the persons recommended by the Constitutional Council is by looking at the quality of persons recommended by them to adorn these positions. It is no secret that many people in this country have reservations about the people recommended by the CC. One consistent feature noticeable in these recommendations is that most senior persons have not been selected. We could still be satisfied if the persons selected by them ignoring seniority and merit have been better than the seniors who were overlooked.

Let us look at them. The first appointment under the CC was that of the Attorney General. Mr. Gamlath was the most senior Solicitor General. There was no short comings  in him that we knew of. But he was not selected but a junior was. We noticed those that were selected appeared to be scared of the Government. His successor was no better. We saw how timidly he cross examined the Prime Minister at the Bond Commission. Then he is alleged to have given some wrong advice to the Speaker in another instance. Prior to this, we never had any doubts about the integrity and ability of the AG. We do not think the same of the persons selected by the CC.

The next was the appointment of the IGP. The less we talk of him the better! The present incumbent was appointed over the head of Mr. S.M. Wickramsinghe Snr. DIG. There was no shortcomings on his part that we know of. Need I waste words describing the present incumbent since it is common knowledge? It is clear that he is obviously immature to hold that post. He has put that celebrated post to disrepute. When we laugh at the individual concerned, we must laugh at the people who selected him too.

Now it is the selection of the Chief Justice. Why was the most senior Judge not considered? If this was done there would not have been room for the present dissatisfaction. The explanation given is that her name was not submitted by the President.  My question is, why did the CC not ask the President why he did not? In defense of this, the Prime Minster had asked in his usual laconic way, why Justice Mark Fernando was not made the CJ. The answer is, as far as we know, it was alleged that he was a card carrying member of the UNP. I hope my information is incorrect. Of course the person appointed instead was a disaster! In the same connection, I might also ask the PM. why was  Justice Wanasundera who was the most senior  not made CJ by his uncle JRJ? Not only Wanasundera, JRJ removed Justice Noel Tittawella and Justice Wilmot Gunasekera also from the Supreme Court under the 1978 Constitution. Why was that? They were reputed to be very honourable men who could not be manipulated or intimidated.

Seniority and merit was the age old criterion for promotion to all positions in the Public Service, Judiciary and Overseas’ Service. So was it in all other Government Departments like the Survey Department, Irrigation or Prisons etc. It was well known in those organizations who was the next man due to get to the top, so there was no dispute and there was order: In fact that was part of rule of law and good governance though there was no fanfare or pretence.. So there was very little back biting, ‘IG’s stakes’ or need for political patronage. As a result, these heads of Services did not have to cow down to politicians to seek their patronage. They had room to hold the scales evenly. Therefore people had confidence in the Administrative systems.  This simple principle was what held the Public Service together. It was fair by the aspirants to those positions in that it was well known what the criterion was. At the same time, it was not easy to survive and come close to the top unless one was really good, well experienced and tested in crisis situations. It was also fair by them because they came to the top by dint of hard work and experience to qualify to finally climb to the pinnacle of his organization. That was the legitimate culmination of his career. That is why those position holders were held in esteem even after they had left those posts.

How did all these good systems become inoperative? Only with the 1972 constitution to a lesser extent, and to the full extent under the 1978 constitution which turned the whole thing topsy turvey. And we are now paying the price for it.

The 17th Amendment and the current provisions under the 19th Amendment have set up the CC as a panacea to all these problems. But who comprises the present CC? Other than the three civil society members who are in a minority, all others are either politicians or nominees of politicians, of whatever shade. We now know that politicians and impartiality are strangers. So we should know that by sowing green gram we cannot reap rice.

So my submission is that we go back to the simple principle of seniority and merit instead of a Constitutional Council for promotion to high posts.

Another suggestion that I would like to make is that, even if it is now not possible to abolish the Constitutional Council, it should be made incumbent on them to inform an officer, when his seniority and merit is ignored, why he was not selected in preference to a junior. After all, the Constitutional Council also must be accountable. That is in fact, transparency.

Whether that decision could be questioned in court is another matter. Also when the aggrieved parson is a Supreme Court judge whom could she appeal to?

That is why I say that simple principle of seniority and merit is best criterion.

When the time honoured principle of seniority and merit is violated by the CC, I am reminded of that famous poem in the Kavyasekeraya:

Maga hondata thibenam

Yanta deasath penenam

Kima bedi wala yanne

Mang mulaa woo kenek se?”

 

When the path is clearly visible

If one’s eyesight is also ok

Why does one have to walk the thicket

Like a man who has lost his way?”   

Sugath Samarasinghe

 

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