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| Friday, 25 June 2004 |
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A Presidential Secretariat press release issued on May, 21 2004 stated eight new President's Counsel have been appointed with effect from May 14, 2004. It was especially stated that for the first time an independent committee had been appointed in that regard. The common belief among the legal fraternity was that the said committee consisted of three senior specialists in the legal field. H. L. de Silva and Lakshman Kadirgamar, both President's Counsel and senior lawyer R. K. W. Goonesekere. However, The Sunday Times of May 23, 2004 reported that upon inquiry Presidential Secretary W. J. S. Karunaratne had mentioned only the names of two members of the said independent committee, H. L. de Silva and Lakshman Kadirgamar. According to the paper, it had made inquiries from Mr. de Silva and what he had stated is that he was not aware of any committee that sat and that the appointments of new President's Counsel had been made by the President. According to the paper, Mr. Kadirgamar had not been available for comment. Powers to appoint President's Counsel It is on March 6, 1984 that constitutional provisions were brought for the first time in regard to the appointment of President's Counsel. This was by way of the 8th amendment to the Constitution of 1978. By the said Amendment Article 33 of the Constitution dealing with the powers and functions of the President was amended. Accordingly, the President derived powers "to appoint as President's Counsel, Attorneys-at-Law who have reached eminence in the profession and have maintained high standards of conduct and professional rectitude. By Section 3 of the said 8th Amendment, Article 136 (i) (g) of the 1978 Constitution was amended and thereby powers of the Supreme Court to make rules in regard to the appointment of Senior Attorneys-at-Law were removed. By Section 4 of the said 8th Amendment a new Article, namely 169 A (2), was introduced and that new constitutional provision repealed the Supreme Court Rules that had been made by the Supreme Court under Article 136 of the Constitution in regard to the appointment of Senior Attorneys-at-Law. What all these factors indicate is that although prior to the 8th Amendment to the Constitution brought in 1984 the power to appoint senior Attorneys-at-Law, the equivalent of the present President's Counsel, was vested in the President, such appointments had to be made in accordance with the Supreme Court Rules in that regard. This was because according to Rule 4 (2) of the applicable Rules (Gazette Extraordinary No. 115/9 dated November 19, 1980) the President could make such an appointment where the Chief Justice makes a recommendation. Under that system for the Chief Justice to make such a recommendation seven criteria stipulated in Rule 2 of the said Rules had to be satisfied. They are (i) having been in practice for not less than 20 years; (ii) such practice having been continuous; (iii) such practice being active practice; (iv) being eminent in the profession; (v) being a person of integrity; (vi) having maintained high standards of conduct and (vii) having maintained high standards of professional rectitude. The Chief Justice could not recommend any persons who did not satisfy the said seven criteria for appointment as senior Attorneys-at-Law. Even if the President wanted to appoint as a senior Attorney-at-Law a person not satisfying those criteria the President could not do that according to the law then applicable, because, in terms of Rule 4 (2) of the said Rules, the President could make such an appointment only where the Chief Justice made a recommendation and the Chief Justice could make such a recommendation only if the Attorney-at-Law concerned had satisfied all seven of the said criteria. The position after the Eighth Amendment It is also to be recalled that sometime prior to the said 8th Amendment brought in March, 1984 that the then Chief Justice Neville Samarakoon and the then President J. R. Jayewardene had strong differences of opinion. Also, the party led by Mr. Jayewardene enjoyed a 2/3rds majority in the then Parliament. It was commonly known at the time Mr. Jayewardene was in power itself that he had obtained undated letters of resignation from Members of Parliament of his Party. By the 8th Amendment brought in 1984, the provision for the appointment of senior Attorneys-at-Law on the recommendation of the Chief Justice was removed entirely. Thereafter, the President acquired power to appoint President's Counsel at his own discretion and without any recommendation of whomsoever. The said Amendment had also the effect of removing four out of the seven said criteria. The three that were retained are (i) having reached eminence in the profession; (ii) having maintained high standards of conduct and (iii) having maintained high standards of professional rectitude. The very important criterion in regard to having been in the practice for not less than 20 years, the criterion that could have been determined by an objective examination, was removed by the said amendment. The criteria relating to integrity, continuous practice and active practice also have been removed by the said Amendment. At least on two occasions during the Presidency of Mr. Jayewardene (1984 and 1988) he appointed two sets of lawyers as President's Counsel. It was commonly known among the legal fraternity that all the persons so appointed had not reached eminence in the legal profession. It was no secret that all such appointees were not in continuous and/or active legal practice. During the terms of office of Presidents R. Premadasa and D.B. Wijetunga who became Presidents after Jayewardena as well as at present it is the same law that is applicable. An independent committee being appointed to make selections of Attorneys-at-Law for appointment as Presidents's Counsel is welcome news to the legal fraternity irrespective of whether it is so to politicians and their henchmen. Thus, the statement in the press release issued by the President Secretariat that an independent committee has been appointed to make recommendations for such appointments should be lauded by all of us in the legal fraternity. It is the hope of the legal fraternity that the new idea that has surfaced to obtain recommendations from an Independent Committee and the attempt made in that regard would contribute at least in some measure to take the legal profession back to its former glory. Appointment of a Committee There is no debate that the system that prevailed before 1984 of recommendations being made by the Supreme Court in terms of the aforesaid Rules is better and more suited than the system of obtaining recommendations from an independent committee. However, it is apparent that the obstacle seems to be the bringing of constitutional amendments with a 2/3rds majority in Parliament. In the first Republican Constitution of 1972 the powers of the President were set out in section 21 thereof. However, the power to appoint President's Counsel or senior Attorneys-at-Law was not expressly stipulated therein. Nonetheless such could have been done in terms of Section 21(g) of that Constitution. However, during the application of that Constitution from 1972 to 1978 no such appointments have been made. In the 1946 Soulbury Constitution that was applicable before 1972 the powers of the Governor General were stipulated in Section 4 thereof. Section 4(2) thereof stipulated that all powers, authorities and functions vested in her Majesty or the Governor General shall...be exercised as far as may be in accordance with the constitutional conventions applicable to the exercise of similar powers, authorities and functions in the United Kingdom by Her Majesty. Thus, the appointment of Queens Counsel was done in terms of the constitutional conventions applicable to the appointment of Queens Counsel in the United Kingdom. According to such constitutional conventions the then prevalent system was to obtain recommendations of the Supreme Court in regard to the appointment of Queens Counsel. In Srl Lanka the set of Rules that had been made by the Supreme Court in terms of Article 136 (1) (g) of the 1978 Constitution was the result of reducing to writing, with the necessary changes, of the Conventions prevalent for several decades prior to that. It cannot be overemphasised that the more suitable system for making such appointments whether as Queens Counsel, senior Attorneys-at-Law or Presidents Counsel would be to make such appointments under and in terms of Rules similar to the aforesaid set of rules. Aravinda R I Athurupane (This is a translation of an Article written in Sinhala at the request of the Silumina editorial and published in the Silumina on June 13, 2004) |
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