‘President should be questioned, if outsiders appointed’

From Daily Mirror online

The legal expert and respected civil servant Prof. Nihal Jayawickrama said yesterday that according to the 19th Amendment to the Constitution, the Constitutional Council should question the President if outsiders are appointed bypassing the most senior officers to top posts.

The internationally renowned independent legal consultant said a complicated situation had arisen as procedures had not been formulated with regard to the appointments and recommendations made by the newly appointed Constitutional Council. 

Dr. Jayawickreme asked whether, if the President appointed some outsider or a junior officer (instead of the officer who is next in line) to the vacant post, the Constitutional Council should not ask why the President overlooked the person who was next in line. However Dr. Jayawickreme pointed out there is serious question if an outsider or a junior officer is appointed as the Attorney General disregarding the present Solicitor General, as the latter had was twice been appointed by the same Council as the acting AG.

“If he is not suitable why he was appointed as acting AG?”  he asked. 

When asked about a situation where the most senior person in a department (such as the Attorney General’s Department or the Auditor General’s Department) was overlooked, Dr. Jayawickrama said “Without laid down procedures how do they know suitability of a person for a given position?”. At present there is question with regard to the non-appointment of the most senior officer of the Department as the Attorney General, Daily Mirror learns. It is rumoured that attempts are being made to appoint an outsider or junior officer, bypassing the most senior officer -- the Solicitor General -- who is next in line. 

“If the most senior officer is ignored and an outsider or a junior officer from the same department is appointed, the Constitutional Council should explain why the senior officer was overlooked. 

“However, if an outsider or junior officer is to be appointed as the Attorney General, there should be a proper procedure: those eligible should be interviewed and a fair hearing should be given to all of them,” said Dr. Jayawickrema, a  former Permanent Secretary to the Justice Ministry and former Professor of Law at the University of Hong Kong.

“The Constitutional Council must justify its ruling that the most senior officer is unsuitable for the post. There should be a proper procedure,” he said.

“Otherwise the CC would appear to be simply rubberstamping the decisions of the President,” he said.

Meanwhile, another constitutional expert who did not want to be named said:  With the 19th Amendment coming into force, the prerogative powers hitherto exercised by the Executive President are now subject to judicial review under the article 126 of the Constitution, namely, fundamental rights.

“Now the crucial question that comes up for discussion is whether, in exercising its powers, the Constitutional Council could act in an arbitrary manner, violating the principles of natural justice,” he said. 

“For example, once the Executive President makes a recommendation to the Constititional Council to  fill the vacancy of a scheduled officer such as the Auditor General or the Attorney General, and if that person is not acceptable to a majority of the members (or to one or two members) of the council, could that recommendation be rejected without a proper inquiry and without affording an opportunity to the person concerned to meet any allegations made against him in an arbitrary manner?” he asked. 

He further said that, if they could thus resort to such action, it was inevitable that such action would lead to disarray, stultifying the idea of introducing the 19th Amendment.

n the meantime, the Legal Association of the Attorney General’s Department has unanimously decided that they should be given an opportunity to meet President Maithripala Sirisena to discuss the issues relating to the filling of the vacancy in the Attorney General’s Department. At the same time they intend to raise the issue, with both the President and the Prime Minister, of the unfair criticism of the Department (and attacks on the department’s integrity) by certain politicians. (Susitha R. Fernando)