Appointing Sri Lanka's 29th AG
The twists and turns that saw Suhada Gamalath losing
out to Jayantha Jayasuriya:
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.
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
The responsibility of the AG is to deliver justice, not just
prosecute, requiring the office to be fully independent of political
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
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
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
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
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.
"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,"
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.