Kamalika Pieris
In
the 19th Amendment, the main blow to the powers of the President came with the
Constitutional Council. The Constitutional Council was first
established in 2001 in the 17th Amendment. The idea was imitated by the
civil society, led by the Organization of Professional Associations (OPA). The 17 Amendment was certified on 3rd October
2001. The Constitutional Council was removed in 2010 by the 18th Amendment and replaced in the 19th
Amendment.
Under the 1978 Constitution, the President
made the appointments to every
important office of the State, from Prime Minister, Cabinet Ministers, and
Deputy Ministers to Judges of the Supreme Court and the Court of Appeal, from
the Attorney General and the Secretary-General of Parliament to the Auditor
General and the Commissioner of Elections, the Public Service Commission, the
Judicial Service Commission, and the Parliamentary Commissioner for Administration.
19th Amendment took this away from the
President and gave it back to the Constitutional Council. The unfettered power
of the President to appoint persons of his sole choice to critical judicial and
government posts was brought under control by the 19th Amendment declared jubilant Yahapalana supporters.
Composition of Constitutional Council
19th
Amendment said “There
shall be a Constitutional Council which shall consist of the Prime
Minister, the Speaker, the Leader of the Opposition, one person appointed by
the President, five persons appointed by the President on the nomination of
both the Prime Minister and the Leader of the Opposition,of whom two persons shall be Members of Parliament and one person
nominated upon agreement by the majority of Members of Parliament belonging to
political parties or independent groups other than the respective political
parties or independent groups to which the Prime Minister and the Leader of theOpposition belongs and appointed by
the President. The Speaker shall be the Chairman of the Council.
The
Constitutional Council consists of ten members with the Speaker as its
Chairman. Of the ten members in the Constitutional Council, seven are members
of Parliament and three are outsiders nominated by the Prime Minister and the
Leader of the Opposition. The persons
who are not Members of Parliament shall be persons of eminence and integrity
who have distinguished themselves in public or professional life. Three of them must represent the minorities,
to reflect the pluralistic character of Sri Lankan society.
When
the 17th Amendment was debated in Parliament, some members said that the
interests of the minorities were not adequately safeguarded. It was agreed, at
the last moment in 2001 to provide that 3
of the 5 nominated members would represent minority interests, Members of
Parliament who belong to the respective Minority Communities would be consulted
for this purpose. This was the only provision that was
hurriedly made, said Elmore Perera, who was a member of the OPA team that
helped draft the Amendment.
The original plan when the 19th
Amendment was drafted was to have three lawmakers and seven outsiders. This was
opposed and it was decided to have seven lawmakers and three outsiders, said
Jayampathy Wickremeratne.
The Constitutional Council speaking in
2019, said that its members
are also of the view that the civil society representation must get the
majority share in the Constitutional Council. That was the original proposal
in the 19th Amendment Bill, but that had to be revised at the committee stage
due to objections by the MPs. However, we are of the view that the current
composition represents all party views at the Constitutional Council,” they
said.
This was also included in the Draft Constitution
prepared by Yahapalana. in this draft, the Constitutional Council is supposed
to be made up of the following persons – the Prime Minister; the Speaker of
Parliament; the Leader of the Opposition; the Speaker of the Second Chamber;
one person appointed by the President; five persons appointed on nomination by
both the Prime Minister and the Leader of the Opposition; and one person
nominated by agreement among the majority of the Members of Parliament
belonging to political parties or independent groups, other than the political
parties to which the Prime Minister and the Leader of the Opposition belong
reported Chandraprema.
We see that the number of persons on
the Constitutional Council is to go up from ten to eleven with the addition of
the Speaker of the Second chamber, commented Chandraprema. The composition is
also to change from having seven parliamentarians and three non-politicians at
present to just four parliamentarians and seven non-politicians This is
obviously in keeping with the idea that non-politicians were somehow more
exalted, more independent, more upright and less likely to do the wrong thing
than a politician, continued Chandraprema.
The draft constitution specifically
says, that other than the Speaker, Prime Minister, Leader of the Opposition and
the Speaker of the proposed second chamber, none of the other members of the CC
should be Members of Parliament, Members of the proposed Second Chamber,
Members of a Provincial Council, or members of any political party. However in
selecting their supposedly non-political nominees, the Prime Minister and the
Leader of the Opposition are mandatorily required to consult the leaders of
political parties represented in Parliament ‘so as to ensure that the
Constitutional Council reflects the pluralistic character of Sri Lankan
society, including professional and social diversity’, concluded Chandraprema.
Functions of Constitutional Council
The Constitutional Council was given the task
of selecting the Chairmen and members of the following commissions. a) The
Election Commission. (b) The Public Service Commission. (c) The National Police
Commission. (d) The Audit Service Commission. (e) The Human Rights Commission
of Sri Lanka. (f) The Commission to Investigate Allegations of Bribery or
Corruption. (g) The Finance Commission. (h) The Delimitation Commission. (i)
The National Procurement Commission.
It
shall be the duty of the Council to recommend to the President fit and proper
persons for appointment as Chairmen or members of the Commissions specified in
the Schedule to this Article, also the recommendations must reflect the
pluralistic character of Sri Lankan society, including gender, said 19th Amendment.
In the case of the Chairmen of
Commissions, the Council shall recommend three persons for appointment, and the
President shall appoint one of the persons recommended as Chairman.
No person shall be appointed by the President
as the Chairman or a member of any of the above Commissions, said the 19th
Amendment, except on a recommendation of the Council. The appointment had to be
made within 14 days of receiving the recommendation. If the President failed to
do so, the nominees would be deemed to be appointed.
The
Constitutional Council was also to name the following. The Chief Justice and
the Judges of the Supreme Court. (b) The President and the Judges of the Court
of Appeal. (c) The Members of the Judicial Service Commission, other than the
Chairman. The Attorney-General. (b) The Auditor-General. (c) The
Inspector-General of Police. (d) The Parliamentary Commissioner for Administration
(Ombudsman). (e) The Secretary-General of Parliament.
The
19th Amendment stated that in the case of Judges of the Supreme Court and the
President and Judges of the Court of Appeal, the Council must obtain the views
of the Chief Justice. The first draft of
the 19th Amendment had a provision making it mandatory for the Constitutional
Council and the Judicial Services Commission to consult the Bar Association of
Sri Lanka when appointing judges. This was shouted down by the Opposition and
the provision was dropped when the 19th Amendment was finally passed.
The
Constitutional Council of the 19th Amendment had a status that even the President
did not have. 19th Amendment said any decision of the Constitutional Council or
any approval or recommendation made by the Council, shall be final and
conclusive for all purposes. This means that the Constitutional
Council is immune from any sort of legal action by any Court and no person or
institution can question the decision of the Constitutional Council. However, the 19th Amendment makes the
Executive answerable to the Parliament while making the Parliament not answerable
to any authority whatsoever, exclaimed critic.
There is more.
No person appointed under the recommendation of the Constitutional
Council shall be removed except as provided for in the Constitution or in any
written law, and where there is no such provision, the person shall be removed
by the President only with the prior approval of the Council. Savitri Goonesekera pointed out that one of
the limitations in the 19th Amendment is that it has not addressed, very
unfortunately, the critical issue of the removal of judges of the Supreme
Court. I see that this is an omission, she said.
The
first Constitutional Council had Champika
Ranawaka (President’s
nomination), Wijeyadasa Rajapakshe (Prime Minister’s nomination) and Vijitha Herath (Parliament’s nomination), Bimal
Ratnayake (minor party representative) A. T. Ariyaratne, Radhika Coomaraswamy and Shibly Aziz (Appointed members) later Naganathan Selvakumaran, Jayantha Dhanapala and Javed Yusuf .
The Constitutional Council, once appointed,
settled down to the difficult task of making recommendations to a wide range of
offices, regarding which they probably knew much less than the President.
Anyway they muddled through and did their job. They recommended Senior Supreme
Court Justice Nalin Perera and thereafter, Attorney General, Jayantha
Jayasuriya as Chief Justice. Chula Wickramaratne was approved for the position
of Auditor General. Pujitha Jayasundera as Inspector General of Police.
Appointments
made by Constitutional Council to judiciary.
The
Constitutional Council ran into trouble over its appointments, starting with the appointment of the Chief Justice. President
Sirisena’s nomination for this post was rejected because the Chief Justice was
not favor of that name. Constitutional Council however, firmly refused to make
public, the comments made by the Chief Justice. If the CJ says a
particular judge should not be promoted due to adverse judicial behavior, we
will not make that information public, they said.
Why wasn’t the most senior Judge
considered? The government has claimed that the most senior Supreme Court
judges name was not submitted by the President. If so, why did the Constitutional Council not
ask the President why he did not, said a
critic.
The
Constitutional Council continued to bungle. The Constitutional Council delayed
to recommend a nominee for President of the Court of Appeal, when the post fell
vacant in January 2019. This created a
problem. It was not possible to appoint ‘Acting’ Presidents of the Court of
Appeal without the permanent President. An acting appointment can be made only
where a sitting President of the Court of Appeal is temporarily unable to carry out his duties, due to illness, absence
from Sri Lanka or any other cause said
the Constitution.
This left the
appointment of acting Presidents to the Court of Appeal in a legal quandary, observed
J.C.Weliamuna, because, that
meant that there is, no constitutionally established Court of Appeal. The
Constitutional Council and the President must work together to decide on a
suitable candidate, he said. The
judiciary, Attorney-General’s Department and private bar have many highly
qualified and suitable nominees.
The Constitutional Council ran into trouble
over the appointments to the superior courts. President
Sirisena had nominated a single candidate each for the two superior courts,
Deepali Wijesundera for the Supreme Court and Kusala Sarojini Weerawardena for
the Court of Appeal. If she made it
into Supreme Court, Deepali Wijesundera would then have been next in line for
Chief Justice on the grounds of seniority. Both were knocked out, since civil
society groups were against these two names and
Sirisena sent in 12 more names.
In February
2019 the President complained to Parliament that 14 names of judges had been
rejected by the Constitutional Council .without any reasons given. The Speaker has sent me a four-page letter
stating that the seniority would not be counted as the sole criterion when
making the appointments by the Constitutional Council, he grumbled.” It is
said that the Constitutional Council rejects the names of the judges on the
basis of judgments they have given in the past. Those who get their names
rejected think that I am responsible for that. “
Analysts pointed out that the one
consistent feature noticeable in these recommendations is that most senior
persons have not been selected. For instance, Constitutional Council did not
approve former Solicitor General Suhadha Gamlath as Attorney-General. Mr. Gamlath was the most senior Solicitor
General. He was not selected but a junior was, said a critic.
The
Constitutional Council replied its critics. The CC only
approves or disapproves the nominations sent by the President, it said. Also,
there are three parties, namely the President, Chief Justice and the
Constitutional Council, involved in the matter. The CJ’s reasoning in approving
or disapproving the nominations were given special consideration by the
Constitutional Council.
The
Constitutional Council thereafter announced in March 2019 that it has decided
to seek the Attorney General’s opinion to draft the modalities and criteria for
the appointment of judges and other members of the commissions.
Appointments
made by Constitutional Council in the Police department.
In 2016, the
Constitutional Council selected Pujitha Jayasundera for the post of Inspector General
of Police. He was appointed over the
head of Snr. DIG S.M. Wickramasinghe. Constitutional Council nominated Pujitha
Jayasundera overlooking the most
eligible candidate nominated by the President, comment critics. ‘There were no shortcomings on Wickramasinghe‘s
part that we know of, said an analyst. ’ Jayasundera‘s
appointment was objected to at the time.
At the time the IGP was appointed, I told them to appoint someone else.
But they did not heed my advice said Sarath Fonseka.
This
appointment has been heavily condemned.
Television news showed IGP Pujitha Jayasundera speaking to a bigwig, calling
him ‘Sir’ and assuring him that ‘Nilame’ would not be arrested. Here was the
head of police himself assuring the caller that the law could be somehow
adjusted to suit the circumstance, said a critic.
Junior ranks of the Police Department
complain that the recent promotions effected by the National Police Commission
on the recommendation of IGP Pujith Jayasundara have overlooked many deserving
officers. Not even the person adjudged the best policeman in the country in
2017 has been considered for promotion.
The best policeman of the year was selected in
a competition among 440 stations countrywide. The person who scored the highest
mark too has been overlooked among many other deserving cases.
Priority had been given to the
policemen who were working for the Ministers and politicians in the Ministerial
Security Division for promotions while those who served difficult areas had
been overlooked,..
The NPC, on the recommendation of IGP
Jayasundara, granted promotions to 2891 police officers of various ranks
following interviews. The policemen who attended the interviews with the
recommendations of their senior officers were given 10 marks at the interview
while those who did not have such recommendations were given only five marks.
The
Constitutional Council in March 2019
decided to postpone naming a permanent Chairman to the National Police
Commission (NPC) and let its members decide on a protem Chairman at its each
sitting to continue its functions.
The Constitutional Council was created to curb the arbitrariness of
executive action. Therefore, if such an institution is to fulfill the purposes
for which it was created, it has to gazette and place before Parliament the
parameters that guide its operations. Else, it amounts to replacing the
arbitrariness of an individual with that of an institution whose decisions are
final and cannot be challenged.
If the Constitutional Council had assigned weightage to the qualities they
were looking for, when they developed guidelines, this would have been a
non-issue. The lack of such procedures has made the guidelines for selection
open to question said analyst.
Analysts
were highly critical of the Constitutional Council recommendations. We could
accept their selection, ignoring seniority and merit if the
persons selected by them, , have been better than the seniors who were
overlooked. But those who
were nominated were not better than those
overlooked. It is no secret that many people in this
country have reservations about the
people recommended by the Constitutional Council, said critics. It should be made
incumbent on its members inform an officer, when his seniority and merit are
ignored, why he was not selected . After all, the Constitutional Council also
must be accountable.
Seniority and merit were the age old
criteria for promotion to all positions in the Public Service, Judiciary and
Overseas’ Service. We should get rid of the Constitutional
Council and revert to the simple principle of seniority and merit
for promotion to high posts, they concluded.
Criteria for appointments
There
was criticism that the CC lacks a set of criteria in approving the appointments
referred to it. The 19th Amendment said that
Constitutional Council ‘has the
power’ to make rules relating to the performance and discharge of its duties and
functions. All such rules shall be published in the Gazette and be placed
before Parliament within three months of such publication”.
The CC was created to curb the
arbitrariness of executive action. Therefore, if such an institution is to fulfill
the purposes for which it was created, it has to gazette and place before
Parliament the parameters that guide its operations. Else, it amounts to
replacing the arbitrariness of an individual with that of an institution whose
decisions are final and cannot be challenged, said critics.
The
Constitutional Council contested this. They issued a statement in March 2019, saying
that it was using same criteria followed
by the then Constitutional Council of 2002. The Constitutional Council has informed the President and all MPs on this
set of criteria and requested suggestions if any revisions are needed.
Constitutional
Council said that the Council called for applications for vacancies in the
independent commissions and only considered for nomination persons who had
applied. The Council examined the requirements for each Commission as spelled
out in the Constitution or the appropriate legislation”, and placed priority on
integrity, independence and non-partisanship.” It looked for professional
experience that was relevant to the work” of the respective commission, and
outstanding qualities and leadership in important institutions or positions.”
The Council also weighed
maturity” against the benefits of younger candidates” who could bring new
ideas” to the workings of particular commissions. Diversity, in terms of
ethnicity and gender in particular” was another factor considered by the
Council in recommending nominees to the independent commissions.
When it came to judicial and other
appointments under Article 41C of the Constitution, the Council was not
required to call for or evaluate applications for vacancies, but only to evaluate
and approve persons nominated by the President.
Constitutional
Council gave a detailed statement to Parliament
as to the criteria it was using. This report tabled by the Speaker set
out the different criteria used by the Council in evaluating candidates
submitted by the President.
In evaluating potential Chief
Justices, the Council gave preference to senior Justices of the Supreme Court,
serving Attorneys-General, and private lawyers with a successful practice and
at least 30 years of legal experience who are held in high regard” by the
judiciary and the legal profession. With the exception of sitting Justices of
the Supreme Court, other candidates for Chief Justice were expected to be below
62 years.
Persons nominated to fill
vacancies on the Supreme Court were expected by the Council to be attorneys of
outstanding ability” with at least 25 years of legal experience. They must be
serving on the Court of Appeal, a Solicitor General level officer or higher of
the Attorney-General’s Department, a private lawyer with a successful practice
held in high regard” by the judiciary and the bar, Secretary to the Justice
Ministry, Legal Drafts person, or a jurist or person of high academic
attainments in the field of law.”
In the case of Justice
Secretaries, Legal Drafts persons or other jurists”, the Council also requires
that they have made a significant contribution to the development and
advancement of the law” and that they are held in high regard by Judges and
the legal profession.” Except for sitting Justices of the Court of Appeal, all
other candidates are required to be under 62 years.
Potential Presidents of the Court
of Appeal must be senior Justices serving on that court or be practicing, with a successful career spanning at least 25
years either in the private bar with a successful practice or in the Attorney
General’s Department serving in a Solicitor General-level post or above.
Non-judicial applicants for this post are also required to be held in high
regard” by the legal profession and the judiciary. Except for sitting Court of
Appeal Judges, other candidates must be under 60 years.
Justices of the Court of Appeal
are expected to be persons of outstanding ability” with at least 20 years of
experience of practicing law. They may be senior High Court judges, a Deputy
Solicitor General or higher grade officer of the Attorney General’s Department,
a private practitioner held in high regard by the legal profession and
judiciary, Justice Ministry Secretary, Legal Draftsperson, or a jurist of high
academic attainments in the field of law.”
Candidates in the latter four
categories are also required to have made a significant contribution to the development
and advancement of the law” and to be held in high regard by the Judges and
the legal profession.” Except for sitting High Court judges, other candidates
must be below 60 years old.
Regarding candidates to the
Judicial Services Commission, the two most senior judges of the Supreme Court
are approved. However, in the event where both the Chairman and the most senior
Justice are not career Judicial Officers, the most senior career Judge will be
approved to be appointed as a member” of the Judicial Services Commission.
Candidates for Attorney General
must be either a serving Justice of the Supreme Court, the Solicitor General or
a senior Additional Solicitor General, or a private practitioner attorney with
at least 30 years of legal experience who is held in high regard by the
judiciary and the legal profession.
A prospective Auditor-General from
the Auditor General’s Department must be a Deputy Auditor General with either
25 years or more experience in the Department or a degree in Economics, Law,
Mathematics or other subject with membership of the Institute of Chartered
Accountants and at least five years in an executive grade position in the
public sector.
Candidates from outside of the
Auditor-General’s Department must possess a degree, preferably in Economics,
Law or Mathematics, be a member of the Institute of Chartered Accountants, and
have at least 15 years of post-qualification experience in an executive grade
position in accounting, auditing, finance control or monitoring, including at least
ten years of public sector experience.
When evaluating candidates to serve as
Inspectors General of Police (IGP), the Council rules only allow the selection
of a serving Senior Deputy Inspector General from the Sri Lanka Police, who
must have uninterrupted service in the police force, at least ten years of
service in operational areas including at least one year in charge of a police
division in such an area, at least five years in a gazetted post in a special
duty division such as the Criminal Investigation Department (CID), Field Force
Headquarters or Administration of Supplies and Services Headquarters, and five
years of service at a Deputy Inspector General or Senior Deputy Inspector
General including at least one year in charge of a police range. Potential IGP
candidates who have completed a service period in a gazetted post in the field
of Intelligence are given additional consideration, concluded the statement.
Criticism
The Constitutional Council was heavily
criticized. The very
existence of the Constitutional Council has
been questioned. The concept of an ‘independent’ Constitutional was
flawed said analysts. The creation of such a Council
amounts to a violation of the Constitution based on the Court’s determination
that “…as long as the President remains the head of the Executive, the
exercise of his powers remain supreme or sovereign in the executive field”. The
transfer of key appointments from the President to a Constitutional Council
should have required a referendum since it amounts to transfer or removal of
executive power from the President to another body – the Constitutional Council.
The first Constitutional Council appointed under the 19th Amendment was a 100%
Yahapalana outfit, said Chandraprema. With
the Prime Minister and Opposition Leader representing opposing sides, the only
practical way an agreement can be reached on making nominations to the Constitutional
Council will be if the two sides divide
up the slots among themselves, taking
turns to appoint the remaining member.
I’ll scratch your back, you scratch my
back’ kind of cooperation soon evolved with the political parties sharing out
the slots among themselves. The President appointed his catcher, PM appointing
two of his catchers, the Leader of the Opposition appointing two of his, and
the smaller parties took turns appointing their catchers to the Constitutional
Council in turn.
The Prime Minister was a Yahapalanite,
the leader of the opposition was a Yahapalanite, the Speaker was a Yahapalanite,
the five nominees to be appointed by the Prime Minister and leader of the
opposition were all Yahapalanites, the President’s nominee to the CC was a Yahapalanite
and the nominee of the political parties to whom neither the Prime Minister nor
the leader of the opposition belongs was a Yahapalanite. The three ostensible non-politicians on the
CC are all Yahapalanites.
Every person elected to high office in
the past four years was also Yahapalanite.
The former Solicitor General, Srinath Perera admitted in an interview, that
top positions were being given to political fellow travelers of the
government, said Chandraprema.
Apologists of the
scheme forget that the Constitutional Council only shifted the decision-making powers from
the President-led Cabinet to another group of people, who were all political
nominees.
The need for some kind of a vetting
process in making high state appointments was of course desirable, but not the
way the 19th Amendment did it. To start with, when appointing the three non-parliamentarians the Constitution
requires the Prime Minister and Leader of the Opposition to consult the
political parties in Parliament, making it a political exercise, observed
Chandraprema. Further, there was
heavy canvassing by interested persons and groups .
If the Constitutional Council rejects
the nominee of the President without any valid reason, the President can keep
on sending names and the Constitutional Council can keep on rejecting such
names. The President can also keep on sending names to the Constitutional
Council knowing fully well that it might not approve them. This again creates a
situation where the country becomes ungovernable, speculated an analyst.
Instead the rules for the selection to
posts could have been formulated and given statutorily to the Constitutional
Council. The Constitutional Council could have been directed to call upon
citizens of the country either on their own or for the citizens themselves to
apply to be appointed to these high posts and the selection process could be
done based on the criteria provided statutorily while several names (may be 3)
could have been sent to the President.
The President could have made his
selection from out of those nominated. This would have been a far better method
of getting the best person appointed and a practical one. The Executive power
of the President, like in the American Constitution, could have been given
entirely to the President where he decides on the best individuals to run the
Executive.
The type of Ministries could have been
decided by the Parliament and could have been fixed in terms of the
Constitution itself. The control of Public Finance could have continued to be
with Parliament and the Executive while the Legislative functions could have
been separated creating a more efficient form of Government which would be
conducive for Good Governance rather than what has been created now.
The 19th Amendment also required the CC to forward reports of
their activities to the President every three months. However, so
far no progress review report has been handed over to the President , said the
media in February 2019.
This essay ends with a chorus of support for the Constitutional
Council . The Council applied high standards of
probity and rectitude in considering the nominees for the Supreme Court and the
Court of Appeal sent in by President Maithripala Sirisena, said the supporters
of the Constitutional Council. It is
reliably understood that the two new nominees of the Council to the Supreme
Court are both upright judges currently serving the Court of Appeal. Both have
a track record of being impartial and honest, the support group said.
The
Constitutional Council embodies that essential principle of key state
appointments being independently vetted and approved by a collective
leadership, said Harim Pieris. This has, in fact, led to a renewed Sri Lanka,
where senior police officers are institutionally independent of politicians now,
in their professional work and careers,.
it surely boggles the mind and is
inconceivable that a collective of ten members of the Constitutional Council,
comprising ex officio the Speaker, the Prime Minister and Leader of the
Opposition, their nominees and three eminent non-partisan persons, can make a
bigger mistake and be allegedly partisan, than a single individual, as would be
the case of the executive president
concluded Harim Pieris.
With the
Constitutional Council , the country has seen a remarkable improvement in the
quality of the delivery of justice. The Constitutional Council has a mechanism and guidelines by which
candidates are vetted and filtered. Judges vetted
unanimously by the Council and appointed by the President, have been dignified,
independent, competent and dynamic. This is an achievement discussed among the
judiciary around the world, and none other than our own judges hear this for
themselves when they interact with their counterparts across the globe, said
J.C. Weliamuna.
Who could
argue that such a process does not incentivize distinction, hard work and
independence throughout the judiciary and public service? If public servants,
police officers and judges know that their career prospects at the height of
their careers will depend on scrutiny of their track record by a Council made
up of all political parties and eminent persons from civil society, any
incentive to work according to the whims of a given political master rapidly
evaporates concluded Weliamuna.
Kishali Pinto Jayawardene also sees potential
in the Constitutional Council .We see cleverly managed slings and arrows being
leveled at the Constitutional Council in terms of pointed questions which the
Council has indeed become helpless to answer, such as if there are no credible
disciplinary issues against ‘so-and-so’, why is the promotion not being made? Or
if ‘so-and-so’ is fit to sit in the Court of Appeal, from whence does
the unsuitability to sit as the President of that Court or in the Supreme Court
arise.
These onslaughts are part of a well
orchestrated plot to undermine even the constitutional minimum that we have. In
particular, the CC is being savaged as it has stood firm in the matter of
judicial promotions. This issue is
linked, to a larger question of disciplinary procedures relating to judges of
the appellate courts. If credible allegations exist of behavior unsuitable for
judicial office (viz; acceptance of money by politicians, sexual misconduct or
decisions taken with political bias and conflict of interest), then these must
be formally investigated in a process that is not politically compromised said
Kishali.
( CONCLUDED)