Appointing Sri Lanka's 29th AG

The twists and turns that saw Suhada Gamalath losing out to Jayantha Jayasuriya:

by Chathuri Dissanayake

The appointment of the twenty ninth Attorney General has been the centre of much discussion and debate in the political arena, for some months. Speculations on who was to succeed Yuwanjan Wijethilake when he retired in early January were rampant from last year.

Jayantha Jayasuriya

One of the main concerns regarding the pending appointment was how to restore public confidence in the role of the AG, which has significantly eroded throughout the past decade. The other was to ensure that the appointment made would not undermine the confidence of the officers within the Department, assuring that career prospects are secure devoid of political patronage.

With the new constitutional amendments and promotion of practice of good governance, much of the discussion weighed in on seniority in the Department being a strong eligibility criterion.

Unlike in some countries where the appointment of Attorney General is political, in Sri Lanka, traditionally, the appointment is a non-political one. The role of AG is to act as the chief legal advisor to the government. As highlighted by former AG, Shibly Aziz, it is the duty of the AG to keep the government and its actions within the legal framework. The office is responsible for vetting all legal documents, including agreements, and legislations and contracts that the government is party to. The role of AG is dual in nature in Sri Lanka as "the Attorney-General has very broad power over the investigation and prosecution of criminal offences" in the country, as explained by Aziz. The responsibly of the AG spans over directing and controlling criminal investigations carried out by police and magistrates while decision indict or not in cases of serious offences and the precise framing of charges and consequent prosecution also lie fully within the Attorney-General's control.

Controversial appointment

The responsibility of the AG is to deliver justice, not just prosecute, requiring the office to be fully independent of political influence.

New Attorney General Jayantha Jayasuriya assumes duties

However, in the recent time, this public perception regarding the apolitical nature of the office of AG has been questioned. Controversial appointments, which were made solely at the discretion of the Executive and some of the decisions made by the AG's Department, have raised serious concerns over the independence of the role of the AG. The 19th Amendment however deems that the President's nomination for the appointment should be approved by the Constitution Council (CC).

Since the discussion of the appointment surfaced a few months ago, the debate on whose name would be forwarded became a guessing game in many political and legal circles. The appointment of Solicitor General Suhada Gamalath as the Acting AG in January further intensified the debate, prompting the Bar Association of Sri Lanka (BASL) to issue a statement that the senior most officer in the AG's Department should be appointed as the next AG. However, they were careful to qualify the statement by saying that this should be done unless there was 'credible reasons not do so'.

Minister of Justice, Wijeyadasa Rajapakshe too reiterated this fact. Speaking on the matter to our sister paper Daily News, he said "The senior-most is usually appointed as the AG...If we deviate from the norm the lawyers working there will be frustrated,"- an indication of the possible choice. Elaborating his stance further, he said although there are allegations against Gamalath, none has been supported, and added "Unless there is a serious allegation, which has to be proven, there is no reason to ignore the seniority."

However, the appointment took d-tour before Senior Additional Solicitor General Jayantha Jayasuriya was finally appointed as the new AG.

Three names

Last Monday, a meeting of the CC was convened, to discuss the matter. President Maithripala Sirisena had forwarded his recommendations for the position. But the recommendation included three names, not one. According to the constitution, only one name should be forwarded to the CC. The top three officers of the AG's Department at the time, Acting AG and Solicitor General Suhada Gamalath, Senior additional solicitors general Jayantha Jayasuriya and Kapila Waidyaratne. Following discussion the CC deemed the move 'unconstitutional' as the there were three names forwarded instead of one, as per the 19th Amendment. The Council asked for a 'clarification' from on the matter requesting the President to send in a single nomination for the position instead of three.

On Wednesday, the President forwarded the name of Senior Additional Solicitor General Jayantha Jayasuriya, by passing the senior most officer in the Department, and Acting AG and Solicitor General Suhada Gamalath. This prompted debate in the CC, two members, Civil Society representatives, A. T. Ariayarathne and SLFP representative John Seneviratne, initially opposed the nomination. Ariayarathne raised the issue of seniority, while Seneviratne said the SLFP group supports the nomination of Suhada Gamalath, and on this basis he is opposed to the nomination.

However, other members debated that seniority should not be the criterion to decide on the appointment. Public confidence in the person appointment should be another key element, they argued. Neither recorded their objections and the nomination of Jayasuriya was approved unanimously.

The debate about the new appointment has not died yet. Questions on why Gamalath was overlooked for the job still float as allegations of his political affiliations and bias have not been supported with evidence.

Defending the decision of the CC, a senior parliamentarian explained that the discussion centred on the suitability of the candidate who was nominated by the President.

Public confidence

"The role of AG is to act as the legal advisor to the government. The government should have the confidence in the person who is appointed as the AG. Gamalath's name has been marred by controversy," the MP explained, adding that public confidence of the individual was also taken into account in the decision making.

Meanwhile, President of BASL, Geoffrey Alagaratnam, stated that Association agreed with the appointment, although the senior most officer was by-passed in the selection process. "Our position was that the senior most officer should be appointed unless there was a good reason to do otherwise," he explained, but added that the Bar has not been informed of the specific reasons yet.

"The appointment is made at the prerogative the President. The reason for overlooking the senior most may be too sensitive to disclose," Alagaratnam said.

A former Attorney General and current Member of Parliament Tilak Marapana agreed, adding that if the qualifications of the two are not 'miles apart' except for seniority.

"This has been done before. During J. R. Jayawardene's time Sunil De Silva was appointed in a similar manner. It is not like a person was brought in from outside for the appointment", he said. In this context there is an important task that lies before the new Attorney General. To be impartial and help restore the rule of law in the country, which took a severe beating during the last decade due to political interference.