A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Monday, October 16, 2017
Attorney General Abused Office To Deny People’s Franchise
Attorney General to act for the people
The law requires the Republic’s Attorney General to
be absolutely independent in performing his statutory duties, which
also includes the constitutional duty of examining Bills for the
contravention of the requirements of the Constitution and expressing his
views as the guardian that protects the sovereign rights of the people.
Unfortunately,
recent experience shows that this is not happening in the Republic of
Sri Lanka, despite Attorney General’s mandate has been clearly defined
by Law, where it stipulates that ‘Attorney General represents and acts for the people of the Republic, who are supreme over all organs of the government‘ (Land Reforms Commission v Grand Central Ltd)
The
most recent and patent let down of the people by the Attorney General
is the passing of the Provincial Council Election Act No 17 of 2017 on
20th Sep
2017 by fraudulent means, absolutely disregarding the entrenched
provisions set out in the Constitution and also with a scant respect to
the authority of the Supreme Court that declared the approval of the
people was required to postpone the provincial council elections.
In
this backdrop the concerned citizens of the country are entitled to
know as to why, the Attorney General acts in this inappropriate manner,
which is an insult to the sovereignty of the people. The compelling reasons for the serious crime committed by the AG are identified as follows.
The flawed appointing process of judges to the Superior Court System
It
is noted that there is no proper guidelines, in the Republican
Constitution now in operation, regarding the process of appointing
judges to the superior court system (Supreme Court and the Court of
Appeal). The system currently in progress is that the Executive President sends
a list of names as he pleased to the ten-member Constitutional Council
for its approval, in which seven are MPs. This list always includes
several names of those who serve in the Attorney General Department and
thus it provides adequate leverage to the Executive President to abuse
the process to ensure those who have protected the interests of the
government to enter the superior court system.
This
flawed practice is never followed in other leading democracies
including the UK, where no person serving in the Crown Prosecution
Service, is considered for any judicial appointment.
Good judges are sidelined
And
this prevailing practice causes a tremendous damage to the independence
of administration of justice in the Republic of Sri Lanka by
effectively disregarding the judges who perform their judicial duties
impartially. For instance, when President Kumaratunga was determined to
install her favorite Sarath N Silva to
the office of the Chief Justice, who was then a very junior judge (not
even a judge in the Supreme Court), she first made him the Attorney
General and paved the way for him to leapfrog to the office of the Chief
Justice, bypassing all the other senior disserving judges in the
Supreme Court. This includes one of the most respected judges of that
time, justice Mark Fernando. The
same fate was meted out to justice Sri Skandarajah, the, then President
of the Court of Appeal who had been overlooked throughout by the
Rajapaksa regime until his sudden demise. Justice Sri Skandarajah had
the courage to declare that the removal of the Chief Justice Shirani Bandaranayake was
patently illegal at a time when Rajapaksa was dictating terms on the
judiciary. President Rajapaksa then appointed his own advisor Mohan
Pieris, a former Attorney General to the office of the Chief Justice,.
Bar Association condemns the prevailing system
This
wrong procedure of appointing judges to the superior court system has
been severely criticized by the Bar Association in many occasions and on
11th Sep 2014 the, then President of the Bar Association Upul Jayasuriya, made his observations on improper judicial appointments as follows.
Upul Jayasuriya, hit out at the appointment of the new President of the Court of Appeal, (ASG Vijith Malalgoda) reiterating
the need for judicial appointments to be made on the basis of merit and
seniority and not on political considerations.
He said that there
should be a set of transparent criteria and a due process for the
appointment and promotion of Appellate Judges, which is not vested
solely in the hands of one appointing authority and further quoted as
follows.
“… What
does the Executive want? A subdued Judiciary! A Judiciary that makes
orders on the will and desires of the Executive? If that be the case,
you don’t need a Judiciary. You can rule with Executive order …”
Dangling the carrot before the Attorney General
This
undesirable system of appointing judges to the superior court system
paves the way for the government to appoint the Attorney General as a
judge or Chief Justice in the Supreme Court whilst the other officers
serving at the AG’s Department too are considered for judicial
appointments in the Supreme Court, Court of Appeal and High Court.