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Statements on Sri Lanka’s 17th Amendment
Compendium
SRI LANKA: Will Sri Lanka's new president obstruct the functioning of public authorities through non-implementation of constitutional provisions?
FOR IMMEDIATE RELEASE
AS-131-2005
December 22, 2005
A Statement by the Asian Human Rights Commission (AHRC)
Will Sri Lanka's new president obstruct the functioning of public authorities through non-implementation of constitutional provisions?
Former presidents of Sri Lanka, JR Jayawardene, R Premadasa and C Kumaratunga are well known for their authoritarian operation of the executive presidency, therein crippling the country’s most vital public authorities. Jayawardene and Premadasa aimed for direct control over all public authorities. Kumaratunga, who came to power with promises of change, continued this tradition even after the enactment of the 17th Amendment to the Constitution, which was a deliberate attempt to obstruct executive interference into the functioning of public institutions. The Asian Human Rights Commission (AHRC) now questions the path President Rajapakse will take: will he continue the tradition of authoritarian control, or will he enable the effective functioning of vital public institutions?
The 17th Amendment, in 2001, gave powers of appointment, transfer, dismissal and disciplinary control of public authorities to independent commissions, whose members were to be appointed by the Constitutional Council. Several of these commissions however, were never appointed, such as the Election Commission. Two that were appointed, are no longer functioning as the term of office of the commissioners has expired--on November 24, 2005 for the National Police Commission and December 1, 2005 for the Public Service Commission--and new commissioners cannot be appointed as the term of the former members of the Constitutional Council expired in March 2005.
The delay in appointing the Constitutional Council as well as comments made by government spokespersons have resulted in suspicions regarding the government's commitment to protecting public interest. The question being asked is whether political control will be enhanced and the authenticity of the commissions diminished, or whether the commissions will be able to perform their independent role as envisaged in the 17th Amendment. The spokespersons have mentioned the need for constitutional reform, in particular regarding the 17th Amendment, but there have been no clarifications regarding the nature of this reform. The general feeling among the people is that the proposed amendments would curtail the independence of the commissions and bring them under political control.
The pretext for such reform is that provisions to remove commissioners do not exist, even though such provisions are available with regard to Supreme Court judges. This argument has little credence however, given that the term of office of a commissioner is only three years. No legal procedure removing any person from office--including a Supreme Court judge--can be concluded in Sri Lanka within a period of three years or less. Two impeachment motions against the present Chief Justice have been pending for several years in fact, without any result. Therefore, it must be concluded that the aim of reform is the easy dismissal of those commissioners who cannot be brought under political control.
Until an amendment is passed in parliament, the Sri Lankan president or any other authority is not empowered to suspend any parts of the constitution. It is therefore the duty of the president and the government to ensure the implementation of the constitution as it exists. Any failure to do so will not only bring the relevant public institutions to a halt, but also set in motion many dangerous trends regarding public order and security. Everyone will watch what the new president will do on this matter; his path will be made clear by whether the Constitutional Council members are promptly appointed or not.
SRI LANKA: Constitutional Council scandal: Opposition may be at fault but responsibility lies with president
FOR IMMEDIATE RELEASE
July 21, 2005
AS-83-2005
A Statement by the Asian Human Rights Commission (AHRC)
Constitutional Council scandal: Opposition may be at fault but responsibility lies with president
In responding to the current dysfunctional status of the Constitutional Council, the Government of Sri Lanka has stated--by way of a communique published in the media--that this is a result of the opposition leader failing to make his nomination, as required constitutionally. With the Council having ceased to function over a year ago, public administration has become erratic. Senior posts are unable to be filled, and there is a concern that even the post of the Inspector General of Police may be affected, as the incumbent will reach retirement age in October.
The government has claimed that the opposition leader was given direct reminders to make his nomination, but did not comply. This error by the opposition leader in no way absolves the Sri Lankan President's failure to ensure that constitutional bodies are not hindered from performing their functions. This responsibility lies with the head of the government and there can be no excuse for negligence.
The 1978 Constitution of Sri Lanka is claimed to be modeled after the 1958 Constitution of France, which originated with Charles de Gaulle; this claim is made repeatedly by the government as well as the opposition. Under the 1978 Constitution the head of state is the president and the holder of this office is the chief executive. According to article 5 of the French constitution, the responsibility to ensure the observance of the constitution is with the president:
The President of the Republic shall see that the Constitution is observed. He shall ensure, by his arbitration, the proper functioning of the public authorities and the continuity of the State.
He shall be the guarantor of national independence, territorial integrity and observance of treaties.
This article suggests that the president's primary obligations are to ensure that the Constitution is observed and that public authorities are properly functioning. Thus, in France, sole responsibility for the non-functioning of the Constitutional Council would be placed on the French president. If the country's chief executive cannot discharge the obligations of her office, the people must hold her alone responsible for this failure.
In Sri Lanka however, it can be argued that no provision similar to article 5 of the French Constitution exists. This can be stated as a major defect of the Sri Lanka Constitution. It only defines presidential powers, but does not define the obligations of the president. For what objectives should such powers be used? What responsibility does the president have towards public authorities as well as the people in upholding the constitution? Unless the answers to these questions imply the president's fundamental obligation to the constitution, there is no basis upon which to claim that the Sri Lankan Constitution is modeled on the French one. In fact, it would not be based on any constitutional tradition at all.
A well-known constitutional authority of his time, the late Dr Calvin R Silva claimed that the 1978 Constitution was modeled upon Jean-Bedel Bokassa of the Central African Republic. If this is indeed the case, Sri Lanka is facing a much larger problem than a failure to ensure the functioning of the Constitutional Council. If the executive president is not responsible for the observance of the constitution and the proper functioning of the public authorities, then Sri Lanka has no constitutional authority to perform these duties. With no authority legally obliged to perform such duties, the very concept of constitutionalism becomes redundant. It is this issue that civil society, including judges, lawyers and public officials should seriously review. Those lobbying for good governance and peace while ignoring this central issue are ignoring a fundamental problem of Sri Lankan politics, which will only frustrate their efforts.
Under the 17th Amendment to the Constitution, several constitutional bodies were created to ensure better performance of certain basic public authorities in the country. The most important of these new bodies was the Constitutional Council. By having the Council select appropriate persons to head Sri Lanka's main public authorities, an attempt was made to ensure that highly qualified individuals of the highest integrity would be appointed. However, if this body itself does not function effectively, there is no possibility of other public bodies doing so. For this reason, the president's obligation to ensure the functioning of the Constitutional Council is of great practical importance. Regardless of any failures of the opposition leader, the responsibility for the present non-functioning of the Council is the president's. Sri Lankan citizens must urge the president to discharge this fundamental obligation with relation to upholding the constitution and ensuring the proper performance of public authorities.
SRI LANKA: The language of absolute presidential power
FOR IMMEDIATE RELEASE
June 14, 2006
AS-142-2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: The language of absolute presidential power
Attempts to promote Sri Lanka's executive president as an absolute ruler continued this week through two statements (Daily News June 14, 2006) made by persons very close to the government. First, the illegally appointed Chairperson of Sri Lanka's Human Rights Commission reportedly told the press he would seek a meeting with President Rajapakse, requesting him to issue a "Presidential Mandatory Order" to government agencies regarding non-compliance with orders of the Human Rights Commission. The second was by the Minister for Disaster Management and Human Rights, who is reported to have spoken about the President appointing a Parliamentary Select Committee to look into the lapses of the 17th Amendment to the Constitution.
The phrases "Presidential Mandatory Order" and "the President appointing a Parliamentary Select Committee" need to be closely examined. When the Asian Human Rights Commission (AHRC) asked a senior constitutional lawyer what was meant by a Presidential Mandatory Order, his response was, "What on earth is this? There is nothing in law like that." The coinage of the term by a former Supreme Court judge and current Chairperson of the Human Rights Commission reminds us of the sheer abuse of language for political purposes mentioned by George Orwell.
What is the distinction between mandatory orders of the president and non-mandatory orders of the president? The word mandatory has been added to attach significance to the known "Presidential Orders". What orders can the President make if government agencies do not comply with the orders of the Human Rights Commission? Are Presidential Orders more legally binding than orders of the Human Rights Commission? The Human Rights Commission of Sri Lanka Act (Act No. 21 of 1996) does not refer to any orders by the President. According to section 15 of the act, "The HRC recommend to the appropriate authorities, that prosecution or other proceedings be instituted against the person or persons infringing such fundamental right."
It is the attorney general who has the authority to implement any recommendations to prosecute. The president does not have any power to make orders, mandatory or otherwise, to the attorney general. If the attorney general is not cooperating with the Human Rights Commission, the Commission can inform the Parliament and the public. The Commission can also go before the Court of Appeal by way of a writ to compel the attorney general to act. One of the grounds on which the AHRC objected to the illegal appointment of the Chairperson of the Human Rights Commission was that he is unaware of the modern developments in human rights law. His recent statement regarding the Presidential Mandatory Order confirms his lack of human rights understanding, as well as a lack of serious interest in trying to resolve the problems facing the Human Rights Commission.
The AHRC also sought the view of a former parliamentarian and expert on parliamentary affairs on the idea of the president appointing a Parliamentary Select Committee. The reply was that this is sheer nonsense, followed by "What is happening in this country?"
The appointment of select committees is entirely the privilege of Parliament and is done according to the standing orders of the Parliament. It is the speaker of the house and leaders of political parties who are responsible for appointing such committees. The reference to the president appointing such a committee is an assault on the supremacy of Parliament. (See AHRC AS-141-2006 for more discussion).
The assault on the entire constitutional process by President Rajapakse's appointments to the Court of Appeal, Supreme Court and several public commissions has also been discussed earlier (see AHRC AS-139-2006). Under these circumstances, Presidential Mandatory Orders take on a different meaning: rule by presidential decree instead of by law. In other words, the use of absolute power.
SRI LANKA: President's onslaught on the supremacy of the Parliament
FOR IMMEDIATE RELEASE
AS-141-2006
June 12, 2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: President's onslaught on the supremacy of the Parliament
Although there are not so many supporters anymore for the President's appointments to the courts and several commissions, in contravention of the Constitution, there are still a few apologists.
One such is Dr. Jinadasa Ilangasinghe, who in an article published in the Island on June 11, 2006 entitled Parliamentarians' Mandate and the Constitutional Council, puts up rather a comic argument in defense of the President's actions. According to Dr. Ilangasinghe, if the President appointed the five current nominations to the Constitutional Council (CC) made by the Prime Minister and the leader of the opposition the President would have violated the Constitution, as the one person that should be nominated by the minority parties had not been nominated. "This lacuna has created a sort of dead-lock in the progressive way towards the setting up of this council," he said. However, he thinks that the President's appointments, without the selection done by the CC, which is completely contrary to the Constitution, is still constitutional and legal.
The essence of the 17th Amendment is the separation of the power of selection and the power of appointment into positions mentioned in that Amendment. The Parliament took away from the President the power of selection, which the President had under the 1978 Constitution before it was amended. It was a deliberate act of Parliament based on the consensus of all parties that the President's use of the power of selection had led to "politicisation" and abuse of power. That had been addressed by placing the power of selection in the hands of persons who did not wield the power of the state and, whose impartiality and integrity could be relied upon in making merit the sole basis for selection into these positions.
When the Bill on this Constitutional amendment was taken up before the Supreme Court in September 2001, the court stated that:
"the Bill in its entirety has the objective of altering the legal regime for the appointment regulation of service and disciplinary control of public officers----including judges and judicial officers. It places a restriction on the discretion now vested in the President and the Cabinet of Ministers in relation to these matters and subjects the exercise of this discretion to the recommendation or approval of the new body to be established known as the Constitutional Council."
What the learned apologist for the President's contravention of the Constitution does not explain is as to how the President can get back a power that has been taken away by Parliament quite deliberately. In passing the 17th Amendment the Parliament recognised the politicisation of the important institutions in the country as a source of instability and anarchy. Parliament, using its supremacy curtailed the power of the president.
Therefore the act by the President in making appointments is a direct onslaught on the supremacy of the Parliament. The foundation on which a Constitution rests is the supremacy of the Parliament. If Dr. Ilangasinghe has any doubts on that matter all he needs to do is to read A.V. Dicey. Every first year student of law learns the principles of constitutionalism as enunciated by Dicey. AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, available in any law library, has all the explanations of this principle. The President of Sri Lanka is a creature created by the Parliament of the country and he cannot abuse the very Constitution which has given him this power. He has acted contrary to the supremacy of the Parliament. According to the Constitution, a contravention of the Constitution is a ground on which the President can be impeached.
The Parliament, in placing the duty of selection of persons in the hands of the CC created an advance in the Constitutional setup in Sri Lanka. The aim pursued by the amendment was to make merit the sole basis for higher appointments. Making merit the basis for holding higher posts was needed in order to pull the country back from the situation of institutional collapse that it was facing. Persons appointed on the basis of their own merit were needed in order to ensure that all the persons that they in turn select will also be selected on the same basis of merit. In the same way the CC will scrutinise the background of the persons who will be appointed to these high posts, persons so appointed will in turn scrutinise the background of their subordinates as a precondition before selection.
When the selection process is usurped by the President there is no way for the public to known whether a person selected is suitable to hold such a post. Scrutiny by an independent body may reveal some skeletons in the cupboards of such persons selected to these high offices.
It was just a short while ago that two Supreme Court judges resigned on the basis that on matters of conscience they could not work with the remaining member of the Judicial Service Commission, who is the Chief Justice. The country has reached a point when persons who hold such high posts, as the two judges, are having problems of conscience in dealing with matters of appointment, transfer and disciplinary control of judges of lower courts. How many such problems might there be in other areas of the administration of the county. Indeed, the problems of the police service are admitted by high ranking officers of the force itself.
From the press we also know that the persons nominated to the Constitutional Council are persons of high credibility. These include names such as the former Supreme Court judge, C. Vigneswaran and the former chairman of the National Police Commission, Ranjith Abeysuriya. These and others could have made a contribution to drag the country out of the mess that it has been placed in by the abuse of authority and politicisation. The question then, is as to whether there exists a conspiracy to prevent such persons from making their contributions to pull the country out of its darkest depth. Informed sources do speak about some persons, holding high office, not wanting the re-emergence of the intervention and scrutiny of the Constitutional Council.
Thus, the 17th Amendment crisis involves such issues as an onslaught on the supremacy of the Parliament and the extreme resistance of some powerful persons who do not want the country to be pulled out of its current spiralling descent.
[AHRC Open Letter] SRI LANKA: If the present generation destroys Sri Lanka's legal foundations, what is left for the future
AHRC-OL-017-2006
June 9, 2006
Open letter to the President of Sri Lanka
Mr. Mahinda Rajapakse
President
Socialist Democratic Republic of Sri Lanka
C/- Office of the President
Temple Trees
150, Galle Road
Colombo 3
SRI LANKA
Fax: +94 11 2472100 / +94 11 2446657
Dear President Rajapakse,
Re: If the present generation destroys Sri Lanka's legal foundations, what is left for the future generations?
Your appointment of two judges to the Court of Appeal, the President of the Court of Appeal and one judge to the Supreme Court has been seen with contempt by all civic conscious persons, due to those appointments being in contravention to the 17th Amendment of Sri Lanka's Constitution.
Those who justify your actions claim that the judicial appointments were due, and were done following the seniority of those judges. They also claim that in the absence of the functioning of the Constitutional Council, appointments by the president were the best available action.
The Constitutional Council has been non-functional since March 2005, as former President Bandaranayake made no attempts to appoint new members to the Council after earlier members completed their term of office. It is well known that the former president did not wish an independent body such as the Council to function, which would make non-political appointments to important posts such as the Inspector General of Police and the Elections Commission. Blatantly violating the constitution, President Bandaranayake refused to appoint the Council's nominee to the Elections Commission, as a result of which the Commission never came into existence. President Bandaranayake repeatedly refused the Commissioner of Election's--the constitutional predecessor to the Elections Commission--requests to allow him to retire. Although the Commissioner filed a fundamental rights application before the Supreme Court challenging the holding back of his retirement, alleging medical grounds; having undergone heart surgery, the court rejected his application. You are aware that President Bandaranayake's government continued to hold several elections with this Commissioner as the elections chief. In fact, he was in office during the elections that brought you to office, and continues in the same position today.
As the country's prime minister during the period served by President Bandaranayake, you did not speak out against such grave violations of the constitution. The general consensus is that an independent Elections Commission would have been an obstacle for those who do not want an independent and impartial election. You also raised no objection when President Bandaranayake extended the term of office of several Inspector Generals of Police whom she wished to keep beyond the age of retirement. A few months earlier, you were elected as the successor to President Bandaranayake, after portraying yourself as a visionary who vowed to uphold the country's constitution.
However, even several months after assuming office, you did nothing to establish the Constitutional Council, which was being called for from many areas. Several applications were also filed before the Court of Appeal moving that the Prime Minister and political parties be compelled to finalize the nominees to the Council. The only issue to be resolved was agreeing upon a single nominee by the minor parties; the other nine nominated members posed no problems.
You will be aware that the 17th Amendment has no imperative requirement that all 10 members to the Council be appointed at the same time. You will also be aware that there was no constitutional provision preventing you, as President, to appoint nine members to the Council first, and later appoint the 10th member. In fact, it is a basic rule of constitutional interpretation that all constitutional provisions should be interpreted in a progressive and constructive manner. It would have been prudent to have sought legal opinion regarding such a course of action, particularly from the Attorney General.
However, you chose instead to nominate persons on your own to the independent commissions under the 17th Amendment, namely, the Public Service Commission, the National Police Commission and the Human Rights Commission. You appointed a Buddhist monk, who is an active member of a political party in the government group to the National Police Commission. Even the appointments to the Human Rights Commission are not beyond question. Three of the other members you nominated to the Human Rights Commission declined the appointments on the basis that they are unconstitutional. Similarly, the attorney general publicly stated that the appointments made to the National Police Commission were illegal as they were not appointed by the Constitutional Council.
Your next move resulted in the most damning appointments ever made in Sri Lanka's judicial history--authoritarian and unconstitutional appointments to the higher judiciary. As a lawyer by profession, you cannot fail to understand that it is legally wrong to contravene a statute. It is even worse to contravene the constitution. What can be expected from a country whose first citizen commits such legal wrongs?
It is no secret that Sri Lankan judiciary has been brought under executive control; no president need worry that any court will affect his actions or omissions, official or personal. The country's chief justice makes no apology for it. Instead, the courts have held that if any law is felt to be unjust or unconstitutional, it must be taken to parliament for the law to be changed. The courts will intervene only when the executive president is not involved. When wrongs are committed under the authority of the president, the courts cease to function.
Perhaps the next constitutional violation will be to appoint persons to the Elections Commission disregarding the 17th Amendment. This will ensure that the ruling party has a majority in parliament and the person at the helm will remain in power for many years to come.
In your recent public addresses, you have often stressed that you are but a trustee of governmental power. If that were the case, how can you behave like a despot? To preach one thing and act upon another is to deceive the country's citizens with blatant disregard.
We understand that you are a father of three sons. Perhaps you have political ambitions for them. We cannot know your ambitions, and as long as those ambitions have no adverse impact on society, we are not interested in knowing them. However, there are millions of parents in Sri Lanka with a very humble ambition: to make their country a safe place to live, for their children and the future generations to come.
If you, as President of Sri Lanka, continue to blatantly destroy the rule of law, a complete destruction of the society is inevitable.
Samith De Silva
Senior advisor on judicial matters
Asian Human Rights Commission
SRI LANKA: Implications of Court of Appeal judgment on 17th Amendment of the Constitution
FOR IMMEDIATE RELEASE
June 9, 2006
AS-139-2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Implications of Court of Appeal judgment on 17th Amendment of the Constitution
The judgment of the Court of Appeal on the application of two citizens regarding the recent appointments to the Police and Public Service Commissions by the President of Sri Lanka [CA Application 66/2006] raises some fundamental problems regarding the implementation of the Constitution of Sri Lanka.
The issue raised by the petitioners was that the Commissioners to these two Commissions have been appointed by the President, contrary to the provisions of the Constitution, which requires that the nomination of the candidates to be appointed to these Commissions should be done by the Constitutional Council and the President would thereafter appoint them. In the court this obligation of the President was questioned and the court relied on Article 35 (1) of the Constitution which provides for presidential immunity, from any proceedings in any court for his actions or omissions, whether they are official or private. Article 41 B (1) of the Constitution states as follows: No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council…
These two provisions of the Constitution were examined before the Court of Appeal. The issue then was which Article was to prevail over the other. To answer this the court relied on Article 35 (3) which places only one limitation to Article 35 (1). Article 35 (3) reads as follows: The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article 130 (a) [relating to the election of the President or the validity of a referendum or to proceedings in the Court of Appeal under Article 144 or in the Supreme Court, relating to the election of a Member of Parliament:]. Thus, the essence of the judgment is that the violation of Article 41 B (1) by the President cannot be challenged by any court of law.
Flowing from this judgment is the conclusion that if the President by his act or omission violates any provision of the Constitution other than under three articles mentioned in the above paragraph [Articles 44 (a), 129 (2) and 130 (a)] he will not be liable to be questioned before a court of law. Under the Constitution of Sri Lanka everyone is equal before law. It means that any person who violates the Constitution is liable for action in an appropriate court of law. However, the position as of now is that if a President violates the Constitution then the President is not liable for any action before court. Thus, Article 12 (1) of the Constitution which reads all persons shall be equal before the law and entitled to the equal protection of law has no effect at all as far as the President is concerned. Thus, the President is above the jurisdiction of courts except regarding the three Articles of the Constitution mentioned above. He is thus entitled to remain outside the jurisdiction of courts when he violates the rights enshrined in the Constitution.
Article 19 of the Constitution reads … the national language of Sri Lanka shall be Sinhala and Tamil. If the President by an act or omission violates this provision no action will lie against the President in a court of law. This also applies to other provisions regarding language in Chapter IV of the Constitution.
Chapter V of the Constitution is about citizenship. Under this chapter, the basic provisions of citizenship have been defined. If the President, by any act or omission violates the provisions of this Chapter no action cannot be brought against the President in a court of law. Chapter VI is the Directive Principles of State Policy and Fundamental Duties. If the current President decides to replace Mahindachinthanaya in place of Chapter VI of the Constitution, this too cannot be challenged before a court of law. For example, if a President prefers to deal with welfare in a particular part of the country (for example the President’s home constituency), as against the rest of the country, this too cannot be challenged in a court of law.
Chapter VII of the Constitution is on the subject ‘The President of the Republic’. Suppose the present or a future President decides to confer powers and privileges on the President which are not recognised in this Chapter, again, the same situation will follow. Sri Lanka has had one instance when a former President was awarded a piece of land by the present cabinet and later due to this being questioned in court, the gift was withdrawn. Suppose, the gift was given by the President himself, directly, to the former President, this cannot be challenged in a court of law. Suppose a president gives himself an award of land or any other state property, this too cannot be challenged before a court. In many countries there have been allegations of corruption committed by heads of state while in office, and inquiries have been held into the matter and sometimes actions have been taken in courts. This cannot be done in Sri Lanka in terms of the interpretation of Article 35 of the Constitution taken by the Court of Appeal.
Chapter VIII of the Constitution is on the executive. Under this, the President is responsible to the parliament for due exercise and performance and discharge of his powers, duties and functions under the constitution and other laws including public security laws. Suppose a president decides that he shall not be responsible for the parliament and makes orders directly in any manner he wishes, this too cannot be challenged in a court of law. There are whole series of judgments where immunity of state agents signing documents under the public security law had been given immunity under some laws or emergency regulations, the courts have interpreted such immunities in a very limited way, thus safeguarding the basic rights of the people. However, if any of these orders were directly made and signed by the president himself, then this too cannot be challenged before any court of law. Under the same chapter, there are such matters as cabinet ministers, deputy ministers, the prime minister, secretaries to the ministers and the like. In any of these matters the president can violate any part of the constitution and the consequence as far as actions in courts are concerned is the same as stated above.
Chapter IX of the constitution is on the public service. It deals with such appointments as that of Attorney General, Head of Army, the Navy, the Air Force and the Public Force. Suppose, the president violates any of the provisions in the Constitution or in any other law or the best practices that have been traditionally followed in these matters, even such actions cannot be challenged before a court of law. If a person with no legal qualifications is appointed as the attorney general on the basis of a preference which a president may think is to his advantage, there is nothing that can be done before a court of law on that matter too. In fact, on the issue of public service the president has already contravened the constitution as amended, and the court has held that they do not have jurisdiction to go into the matter.
The next section of the constitution is on legislature. It deals with parliament, official oath or affirmation, speaker, deputy speaker and chairman of committees, secretary general of the parliament, vacation of seats, privileges, immunities and powers of parliamentary members, allowances of members and power of parliament to act upon new vacancies. In any of these matters if the President by any of his acts or omissions violates the provisions of this chapter no action can be brought against him in a court of law. Article XI is on legislature covering subjects as sessions of parliament, adjournment, voting, quorum, standing orders, legislative power, delegation of legislative power, duties of attorney generals in regard to publication of bills and passing of bills of resolutions, certificate of speaker, when bill becomes law, expulsion of members and imposition of civic disability. The legal status of all these provisions is the same as far as action against the president in court in violation of any of these is concerned. Suppose, a president removes the civic abilities of the leader of opposition or for that matter any other member of political party, by his direct action, for example signing a paper directly stating such removal of such civic ability, such actions cannot be challenged before a court of law.
Chapter XII is on amendment of the Constitution. This covers subjects as amendment or repeal of the constitution, which must be expressed for approval of certain bills of a referendum and bills inconsistent with the constitution. In any of these matters the President may violate the constitutional provisions and no court will have power over it. For example, if Article 83 which prohibits the extension of the term of office of the president or duration of the parliament is violated by the president by his direct action or omission, say for example making a written declaration by him that he had extended his time of office, or time of duration of the parliament beyond six years, regarding this matter too no court will have jurisdiction to undo the action of the president.
Chapter XIII is on referendum and chapter XIV is on franchise and election. These are all very fundamental provisions of any constitution. Even on these the court has no jurisdiction if the president violates the constitution. For example if the issue of proportional representation is changed by the president directly through his action, for example a presidential decree, this too is a matter on which the courts will have no jurisdiction. Further if a person who had not been qualified to be elected as a member of parliament in violation of Article 100 of the constitution, with direct approval of a President, this too will be outside the jurisdiction of the court.
Chapter XV is on the judiciary dealing with such matters as establishment of courts, public sittings, independence of judiciary, appointments, removal of judges to the supreme court and the court of appeal, salaries of judges of the supreme court and the court of appeals, acting appointments, performance or discharge of the function of judges, appointment, removal and disciplinary control of judges of the high courts, commissioners of the high courts, judicial service commission, secretary to the commission, fiscal for the whole island, appointment of other judicial officers, interference with the judicial service commission, interference with judiciary and immunity of members of the commission. Suppose a president was to establish courts outside those recognized by the constitution so far, for example starting courts of appeal in places other than Colombo, and the president does so with a presidential decree, this too cannot be challenged in a court of law.
Chapter XVI is on the Supreme Court. It covers such topics as general jurisdiction of supreme court, constitution of the supreme court, constitutional jurisdiction of the supreme court, ordinary exercise of the jurisdiction in respect of bills, special exercise of constitutional jurisdiction in respect of urgent bills, determination of supreme court in respect of bills, validity of bills and legislative process not to be questioned, constitutional jurisdiction in the interpretation of the constitution, fundamental rights jurisdiction and its exercise, appellate jurisdiction, right of appeal, consultative jurisdiction, jurisdiction in election and referendum petitions, in respect of parliamentary privilege, sittings of the supreme court, appointment of ad hoc judges, right to be heard by the supreme court, registry of the supreme court and the office of the registrar, the rules of the supreme court, court of appeal, its jurisdiction, powers of appeal, power to issue writs other than writs of habeas corpus, power to issue writs of habeas corpus, power to bring and remove prisoners, power to grant injunctions, parliamentary election petitions, inspection of records, sittings of the court of appeal, registry of the court of appeal and the office of the registrar. On any of these matters if a president decides to act contrary to the constitution, no court will have jurisdiction to adjudicate on the matter. For example, if the president by a presidential decree grants a magistrate court, the power of writ jurisdiction, there is nothing that can be done to prevent it by way of an action before a court.
Chapter XVII of the constitution is on finance. It covers such important matters such as control of parliament over public finance, consolidated fund, withdrawal of sums from consolidated fund, the contingencies fund, special provisions as to bills affecting revenue, auditor general, duties and functions of auditor general. It is well known that there had been considerable problems created by some agents of the present regime against the auditor general. Suppose a president decides to appoint an auditor general ignoring the provisions of the constitution in the same manner a supreme court judge and two appeal court judges have been appointed ignoring the 17th amendment, this matter too cannot be challenged, in any court of law. If a president decides to remove the control of parliament over public finance and does so by a presidential decree, this too will fall within an action of the president under article 35 (1) of the Constitution.
Chapter XVII A is on provincial councils going into such issues as establishment of provincial council, governor, exercise of powers of the governor, membership of the provincial council, term of office, board of ministers, status of provincial council, assent, public security, failure to comply with directions, failure of administrative machinery, parliamentary confirmation of provincial powers to the president, financial instability, high court, function, powers, election etc. of the provincial council, finance commission, special provision enabling provincial council to exercise powers under this chapter and transitional measures. The legal situation is same if a President act in contrary to this chapter, it shall be no different to acting in contravention to the 17th amendment as far as the jurisdiction of courts are concerned.
Chapter XVIII is on public security. Chapter XIX is on the parliamentary commissioner for administration. Chapter XX is on entitled general, which covers such subjects as international treaties and agreements, prohibition of violation of territorial integrity of Sri Lanka. Article 157 states that no executive or administrative action shall be taken in contravention of the provisions of a treaty or agreement. However, this article is no different to the articles of the 17th amendment and will not be protected specially by the courts, if a president decides to contravene it. Regarding prohibition against violation of territorial integrity, if a president is acting contrary to this provision, again no action shall lie against him.
Chapter XXI is transitional provisions, XXII on interpretation and XXIII on repeal of the earlier constitution, XXIV is the promulgation of the constitution and there are schedules giving names of administrative districts, national flag, national anthem, the affirmations and several other incidental matters. On any of these matters to any action done by a president in contravention any of the constitutional provisions has the same status as violations of the 17th amendment.
There is a further issue arising from the court of appeal judgment. It is that if the appointments to the supreme court, court of appeal and commissions such as public service commission, police commission and the national human rights commission cannot be challenged in a court of law, then, dismissal of any persons of the supreme court, court of appeal and any of the commissions under the 17th amendment or under any other provisions of the constitution is done by the president no action shall lie against such action in a court of law. This should have a chilling effect on anyone who is holding any office in these institutions. For example, a Supreme Court judge can be removed only by way of a resolution, passed in parliament by the 2/3rd majority. However, if a president were to decide to do so and does any action for that purpose, such action will be covered within Article 35 (3) of the Constitution.
SRI LANKA: Challenge to presidential immunity should be pursued before UN Human Rights Committee and other bodies
FOR IMMEDIATE RELEASE
AS-134-2006
June 7, 2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Challenge to presidential immunity should be pursued before UN Human Rights Committee and other bodies
In a recent decision, Sri Lanka's Court of Appeal refused interim relief in a case challenging recent appointments made by President Rajapakse contravening the Constitution. The court also refuted any challenge to presidential immunity.
Among other things, the court held that since the president is not a respondent of the case, the court cannot hear the case. According to the court, the principle of natural justice requires that the party against whose actions the case is being presumed should have an opportunity to answer the allegations.
This decision has created a catch 22 situation regarding the president's powers and his absolute immunity. While article 35 of Sri Lanka's constitution prohibits any actions being filed in any court against the executive president with regard to any act "done or omitted to be done by him either in his official or private capacity", legal principles do not allow courts to hear cases against the president without him being a party.
The implications of such a situation are grave. However unconstitutional and illegal the president's acts may be, and whatever international obligations they may violate, there is no way to pursue the matter before a Sri Lankan court. The Asian Human Rights Commission (AHRC) is of the view that the petitioner to the court of appeal, Dr A C Visvalingam, President of Citizens' Movement for Good Governance, supported by Susil Sirivardana, President of Avadhi Lanka, has now exhausted local remedies and should therefore take the matter before the UN Human Rights Committee.
In dismissing the case the judge noted, "Admittedly, the law sometimes forces an unjust decision. Therefore the injustice, if any, caused to the people as alleged by the petitioner, cannot be cured by this Court as it is for the Legislature to make the necessary amendments to the Constitution." Such injustice also falls within the jurisdiction of the Human Rights Committee. Under article 2 of the International Covenant on Civil and Political Rights (ICCPR),
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 35 (1) of the Sri Lankan constitution is in violation of the ICCPR. As a signatory to the ICCPR as well as its Optional Protocol, Sri Lanka is under obligation to bring all its laws, including its Constitution, into conformity with the provisions of the ICCPR. Any Sri Lankan citizen is entitled to take any violations of the ICCPR to the Human Rights Committee if he cannot find redress to that violation through domestic judicial process.
The matter of presidential immunity as found in article 35 (1) places the president in the same category as absolute monarchs and rulers who are not subjected to the rule of law. This is abhorrent to modern civilisation and incompatible with the rule of law and protection of human rights. To implement the rights guaranteed by the ICCPR is a primary obligation of the state, and it is the head of the state who must take responsibility for carrying out this obligation. The head of state cannot be exempt from the obligations undertaken by the state. Sri Lanka's obligations under the ICCPR and the constitutional immunity given to the president are therefore contradictory. This matter should be resolved through the Human Rights Committee.
Sri Lanka is also a member of the newly created UN Human Rights Council, whose operation is based on the various international law and human rights covenants. A key function during the early stages of the Council's formation is the review of its members. Article 35 (1) of Sri Lanka's constitution should therefore become important grounds for review, together with other human rights issues. The local as well as international human rights lobby should pay serious attention to this issue.
The AHRC has also previously underlined the obligations of the UN High Commissioner for Human Rights, Mrs Louise Arbour, on this important matter (see AHRC OL-016-2006). The AHRC hopes that her office and her advisors in Sri Lanka will stand firm on the side of the Sri Lankan people on this matter. Together with international bodies, civil society in Sri Lanka must persistently draw attention and protest to this issue. Only then can supremacy of the people be asserted against the absolute power claims of the executive president.
[AHRC Open Letter] SRI LANKA: Will not the UN resist authoritarian actions in Sri Lanka to bypass the Constitutional provisions in order to make appointments to the Supreme Court and Court of Appeal and several vital independent institutions?
AHRC-OL-016-2006
June 5, 2006
Open letter to the High Commissioner for Human Rights
Her Excellency Louise Arbour
High Commissioner for Human Rights
Office of the United Nations
UNOG-OHCHR
1211 Geneva 10,
Switzerland
Re: Will not the UN resist authoritarian actions in Sri Lanka to bypass the Constitutional provisions in order to make appointments to the Supreme Court and Court of Appeal and several vital independent institutions?
The Asian Human Rights Commission has previously informed you about the controversy that started when the Executive President bypassed the constitutional provision requiring the appointments of judges in the Supreme Court and Court of Appeal and members of several important, independent commissions such as the National Police Commission, Public Service Commission and Human Rights Commission of Sri Lanka to be SELECTED ONLY THROUGH THE CONSTITUTIONAL COUNCIL in order to limit the power of the president to make appointments.
The Constitutional provision was created in 2001 as a remedy to the process of politicisation, which had taken place over two decades and which threatened the collapse of all independent institutions. Now this constitutional provision has been bypassed by the president who simply does not have the authority to do so.
Apart from the information which we have sent to you we believe that the UN agencies in the country and in particular, a senior country advisor on human rights matters would have kept you informed about these developments. There is a large amount of literature available from various quarters published in the newspapers protesting such moves and these include the Attorney General of the country giving legal opinion against it and also the European Union objecting to the contravening of this basic constitutional provision.
On such a vital issue as this it is quite normal for people in Sri Lanka and the human rights community in particular, to expect that your office will also make its intervention on this matter.
A lesson that needs to be learned from many countries where human rights movements and UN human rights agencies work towards the improvement of human rights, is that the measures that undermine the rule of law and the independence of the judiciary fundamentally undermines human rights. In your recent visit to Cambodia you spoke on this matter with particularly emphasis also on the situation of the courts.
Sri Lanka before 1978 had an independent system of judiciary and the serious undermining of it started then. However, no negative move went as far as direct appointments by the president in contravention of the Constitution as has happened within the last two weeks. If no resistance is made at the time of threats to judicial institutions, no amount of condemnation later will be able to save the rights of the people and the independence of the institutions. It is due to this fact that we urge you to take up this matter as a primary concern of human rights in Sri Lanka.
We also appreciate your recent statement against the increase of killings in the country. However, the situation of this escalation of violence is also the result, not only of the 'ethnic conflict' but also the undermining of the democratic process in the entire country, over a period of three decades. Besides conflict related killings, Sri Lanka is also known now for the collapse of law and order, which is admitted by the leading police officers as well as the government and opposition. Behind all this is an institutional collapse. This will be much worsened if the bypassing of the Constitution continues in the manner in which it is happening now. We hope your office will exert its influence in order to reverse this tragic situation.
We enclose the seven statements our organisation has published within the last week when we declared seven days of mourning against executive interference in the judiciary and other independent institutions. We also enclose a letter written to the chief of the UNDP and the European Union in Sri Lanka on the occasion of such appointments being made to the Human Rights Commission of Sri Lanka.
Thank you.
Yours sincerely,
Basil Fernando
Executive Director
cc: Rory Mungoven – senior country advisor on human rights, UNDP, Sri Lanka
** For easy reference, following is a compilation of 7 statements issued by the AHRC from 29 May to 4 June, 2006 on the issue of abuse of presidential power regarding the 17th Amendment to the Constitution of Sri Lanka.
SRI LANKA: A call for mourning against executive interference into the judiciary and other independent institutions –
Statements by the Asian Human Rights Commission (AHRC)
With the direct appointment of two Court of Appeal judges, the president of the Court of Appeal and one Supreme Court judge by Sri Lanka's executive president, the judiciary has been dealt an attack more serious than any in the past. Such direct influence following a series of tragic events undermining the constitution would be almost impossible to undo.
These appointments were unconstitutional. The president only has the power to approve nominations to be given to the Constitutional Council, which will make the final selections. These appointments are the latest in a series of unconstitutional appointments made by the president; earlier ones were to the Human Rights Commission, the National Police Commission and the Public Service Commission.
When the issue of appointments to the National Police Commission came up, Sri Lanka's attorney general declared that any appointments made without going through the Constitutional Council, would be unconstitutional. The country's political opposition consisting of the United National Party, has also expressed its disagreement over these unconstitutional appointments. Extensive coverage has been given to this issue in the media for the last few months, and many concerned persons have written letters to various media in response. There are also two writ petitions before the Court of Appeal regarding this matter.
Local protests over the abandonment of the 17th Amendment have been stronger and far more consistent than on any previous issue. Organisations that raised objections include the Civil Rights Movement of Sri Lanka (CRN), Transparency International of Sri Lanka (TISL) and a coalition of NGOs organised under the People Against Torture (PAT). International protestors include the European Union, the Commonwealth Human Rights Initiative, South Asians for Human Rights (SAHR), the Asian Human Rights Commission (AHRC) and many other groups. President Rajapakse and his government however, are ignoring all such protests.
Once the country's constitution is so flagrantly contravened, the judiciary and other legal bodies have no legitimate basis to stand upon. Sri Lankan citizens are now forced to comply with institutions that are in fact, illegal. The present contradiction that has arisen can no longer be resolved on the basis of legal principles such as the constitutional process or the supremacy of the law. This has resulted in a great deal of confusion within society.
The ludicrous situation arising from this will be clearly demonstrated when the attorney general--who has declared the unconstitutionality of any appointments made outside the 17th Amendment--makes the welcoming speech at the ceremonial sittings of the un-ceremonially appointed judges. The attorney general will have to suffer humiliation and blatant disregard for his own authority if he opts to make these speeches. This will worsen when he and members of his department have to go before the highest courts to speak on the constitutionality of bills as well as other constitutional matters. The unconstitutional appointments to the highest courts create a contradiction to the attorney general, to all lawyers and citizens who approach these courts in order to canvass the issues relating to the constitution, including human rights recognised under the constitution. Although there is the opinion that the Chief Justice of Sri Lanka will not hesitate to justify these appointments on the basis of necessity, it is important that a petition is filed with the Supreme Court challenging the legality of the appointments.
When a constitution is flouted in this way, there is no basis on which any of the contracts in various areas of social life may stand. Agreements made between conflicting parties in the country, business contracts, or any other personal contracts can no longer rely on legal enforcement when the fabric of the law itself is thus damaged.
2. Some basic stages in the undermining of the judiciary
In the following extract from a recently published book, Disorder in Sri Lanka, by a former Supreme Court judge, K.M.M.B. Kulatunga, which helps us to understand the action of undermining the judiciary, the author traces a series of interferences by the executive over the years which resulted in the politicisation of the system of justice. (Disorder in Sri Lanka, published in Sri Lanka in August 2005).
We are also reproducing a section from an article "Constitution for Dictatorship" written by the late Colvin R. De Silva, from a collection of his essays written between 1977 and 1988. You will find these essays at:
http://www.srilankahr.net/modules.php?name=Content&pa=list_pages_categories&cid=75
From Disorder in Sri Lanka
Soulbury Commissioners in recommending the establishment of the Justice ministry said that this was without prejudice to the performance of the duties of the Attorney General and the Solicitor General. There was no interference of the functioning of the duties of the judges; and the Judicial Service Commission consisting of the Chief Justice and the next two most senior most judges were in charge of the appointment and the disciplinary control of Original Court Judges. However, during a period of over 50 years of independence, there has occurred a decline in the administration of justice mainly due to the progressive and total politicisation of the life of the community. Illustrations of this situation follows:
In 1947 Sir Alan Rose (Legal Secretary under the Donoughmore Constitution) was made Attorney General on the recommendation of Prime Minister D.S. Senanayake. At the same time the Attorney General was placed next to the Chief Justice. In 1948 Basnayake who was in the Attorney General's Department was appointed to the Supreme Court from where he returned to the Department as Attorney General.
In 1955 Basanyake was appointed Chief Justice on Prime Minister Sir John Kotalawala's recommendation. The same year Sir John Kotalawala overlooked T.S. Fernando Q.C. who was Solicitor General and procured the appointment of H.N.G. Fernando Legal Draftsman to the Supreme Court during the Bandaranaike Government.
In 1966 A.C.M. Ameer was appointed as Attorney General overlooking Victor Tennakoon Q.C. Solicitor General. It is said that this was a decision influenced by J.R. Jayawardena. Tennekoon was appointed to the Supreme Court, a position below the Attorney General on the precedence table. The new Government in 1970 appointed Tennekoon as Attorney General overlooking the claims of L.B.T. Premaratna Q.C. Solicitor General, Acting Attorney General.
From 1972 - 1974 several persons who were associated with pro-government political parties were appointed to the Supreme Court. Appointment of judicial officers and public officers was vested in the cabinet of ministers and its delegates. Appointments of Crown Counsels and the Solicitor General were taken over by the Secretary Justice. I was a crown Counsel in 1970, when Felix Bandaranayake Justice Minister visited the Department and directed that henceforth law officers should assist in implementing government policy. While other officers were silent. I remarked that our duty had always been to assist in implementing the policy of the law.
The new Government elected in 1978 established a Supreme Court and a Court of Appeal and reappointed some of the then judges to the Supreme Court, demoted some to the Court of Appeal. Some were retired. New judges were appointed to the Supreme Court from different sources including conservative judges. Samarakoon Q.C. was appointed Chief Justice over the most senior judge Samara Arickrema Acting Chief Justice. As Mario Gomis comments in his book "In The Public Interest" judges were generally pro executive and conservative.
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From "Constitution for Dictatorship" (m An Article written by Dr. Colvin R. De Silva)
President is a Dictator
The fulcrum of state-power under the new constitution is the President. Under the 1972 Constitution, it was the National State Assembly. Incidentally, both the NSA and the Republic of Sri Lanka itself disappear in the new constitution. There will be the Democratic Socialist Republic 6f Sri Lanka and there will be a Parliament. Whatever may be said of the Parliament, the new name and title of the Republic is a misnomer. Though many or most of the trappings of democracy are there, in essence the President is a dictator over all. As for socialism, the whole design is to obstruct and prevent the march of the people to socialism. The description of the so-called democratic socialist society in the new Directive Principles of State Policy and Fundamental Duties makes it clear that the new constitution is an instrument for the preservation and development of a capitalist Society.
In the new constitution, the President is made both king-pin and motor of the state. He exercises, directly and untrammeled, the executive power of the people, including the defence of Sri Lanka. He does so from outside Parliament, of which he is not a member although he has the right of audience in Parliament at any time.
Parliament is declared to exercise the legislative power of the people. But, the President is ensured both control of Parliament and of the legislative process by several devices. He, while being head of State, is also head of the Cabinet and also a Cabinet Minister, though he has no seat in Parliament. He determines the size of the cabinet, the personnel of the cabinet, and the allocation of Subjects to ministers, whether of cabinet or district rank. He appoints and dismisses the Prime Minister and all ministers and deputy ministers, and he, though outside Parliament, can keep or take over any number of ministerial portfolios to himself although cabinet is, according to his constitution too, collectively responsible and answerable to Parliament. The cabinet can fall; the Government can fall; but he does not and cannot fall; he continues in all positions. The true meaning of it all can be seen if it is remembered that all legislation originates in .the Cabinet and therefore in him, since nothing can pass Cabinet without his consent as head of Cabinet.
The President's power over the judiciary is not inconsiderable although it is declared that the judicial power of the people shall be exercised by Parliament through courts and tribunals created and established, or recognized by the constitution, or created or established by other written law. The appointments to the Supreme Court, the Court of Appeal and the High Court are in his exclusive hands. So also, the creation and establishment of courts by other written law is in his control as head of Cabinet.
There is more to be added to the tale. In a whole range of matters the President can frustrate and supersede Parliament in the exercise of its legislative power. Bills not passed by Parliament, and even bills for the amendment or repeal of the constitution which have received less than the necessary two-thirds majority but not less than half the votes, may in his discretion be submitted by him to the people by referendum for acceptance and passage into law. Such acceptance can be by a simple majority of the valid votes cast.
Finally, public security, with its emergency system of rule through police and military and by emergency regulations, is firmly in the President's hands. The plenitude of his power will then stand naked and unbarred; whereas ordinarily it will be clothed in constitutional trappings All told, and front any point of view, it is an enormous concentration of power in the President's hands: and virtually unchallengeable power at that. All the provisions for applying to the Supreme Court in respect of the infringement or imminent infringement by executive or administrative action of any fundamental right are not available against him, except in his ministerial capacity, for he is immune from suit. As for parliamentary challenges by a hostile House, it is a good way to examine the ambit of his remarkable powers.
3. Inability and unwillingness of lawyers to challenge legal wrongs
With the subjugation of the courts to the dictates of the executive since the 1978 Constitution, Sri Lankan lawyers have been facing tremendous angst. Over the past 28 years they have endured significant pressure, which has forced them to withdraw from undertaking their duties professionally. A frame of mind has developed whereby they feel unable to discharge basic duties for their clients, particularly in disputes against the state. As well as unable, lawyers are equally unwilling to undertake such pursuits. This has led to the absence of any will to fight, which is a key trait of the legal profession.
Today's legal profession is one from which persons have withdrawn completely or partially. Those who have withdrawn partially are active only as persons trying to make a living. There is no longer any pride or conviction in belonging to a noble profession. A researcher interviewing lawyers recently was left with the impression that lawyers are willing to adjust to anything and will not protest any inconvenience or humiliation the courts may expose them to, for instance attending a court in which a judge will arbitrarily choose the time of sittings. The official time may be 9:30am but the judge may begin at 1:30pm. Or lawyers may accept without protest when evidence in a case is taken for 15 minutes and thereafter the case is postponed for several months. In fact, lawyers are unwilling to push for speedier hearings for fear that this may cause the case to be postponed for an even longer period. 'Wiser' lawyers may tell their client that his cause is better served by accepting any whims of the judge.
Similarly, most lawyers are unwilling to take on cases of public law, where the judge may be placed in the embarrassing position of making judgments against the state. Pressing for such a judgment may antagonize the judge. Again, 'wiser' lawyers will therefore advise against such assertion; it is seen as futile and even counterproductive.
The prevailing feeling among the legal profession today is that to be too serious over one's obligations to clients or the public is only a trait of someone who does not understand 'reality'. The accepted principles by which most lawyers conduct their duties are cynicism, accepting the various whims of judges and an avoidance of serious social or political issues. For this reason, if lawyers are asked to represent a client challenging the president's recent appointments to the Court of Appeal and the Supreme Court on the grounds of unconstitutionality, the common response would be negative. Lawyers are concerned that they must appear before the same judges on other matters. Another response made by lawyers is that whatever applications are filed, and whatever their validity, the ultimate outcome will be negative for extraneous reasons. Other lawyers respond that the cases will not be resolved speedily and the issues themselves may cease to be relevant by the time a judgment is given.
The attitude of the legal profession has a direct impact on the justice system. At present the courts are unable to maintain the rule of law, and lawyers are not contributing to the revival of confidence in the courts. In fact, there is an overwhelming consensus that neglected courts may better protect the interests of powerful individuals in the state and society. According to a study conducted by the Ministry of Justice in 2004 on court delays, a primary cause of the delays is the non-compliance of state officers, particularly the police, with their obligation to attend court.
President Rajapakse's authoritarian appointments to the senior judiciary, in violation of the 17th Amendment, will reinforce the paralysis of the legal profession. By accepting the state's blatant attempts to dominate the court process, lawyers are demonstrating their extraordinary capacity to adjust and adapt, as well as their lack of professional pride and integrity. In fact, many lawyers may take advantage of the situation for unscrupulous gains, which under normal circumstances would result in disciplinary action. Under the present circumstances however, there can be no such thing as disciplinary action according to the rule of law. This is therefore a time when the unscrupulous can thrive.
4. The government is destroying rather than protecting the judiciary
A judicial system is fragile. It requires care and vigilance to ensure its efficacy and prevent destruction. It also requires a positive mindset among judges, lawyers and litigants, as well as the confidence of ordinary people.
When conditions promoting negative attitudes and habits among members of the judiciary arise, the entire judicial system can rapidly collapse. Such conditions include when judicial authority is in doubt or when judicial independence and integrity cause adverse results. Members of the legal profession, who are closest to judges in the judicial process, will quickly pick up on any negative attitudes. It is up to them to resist such negative behaviour and to redirect the judicial institution to its normative position. The failure of such resistance will hasten the degeneration of the judiciary.
The legal profession, as all professions, will also comprise those willing to use the degeneration for personal gain. These persons manipulate the situation to the extent that the system is no longer perceived as rational or functioning. It is the litigant who is caught in the middle. If he loses faith in the rational outcome of the judicial process, he may be inclined towards extrajudicial means of dealing with his grievances, including corruption and violence. In fact, there are likely to be many persons unwilling to contest legal wrongs in a court of law due to their perception that it is might and not right that determines the ultimate result.
When ordinary people observe the negative behaviour of their fellow citizens who are judges, lawyers or litigants, they will inevitably be affected as well. There will be no public confidence in the judicial process and negative attitudes towards judicial and legal professionals will develop. When these attitudes permeate throughout society, it is an enormous--if not impossible--task to bring back any belief in a rational or logical system.
There is common consensus that Sri Lanka reached this stage some time ago. The only attempt made to undo the situation was the adoption of the 17th Amendment to the Constitution in 2001. While the attempt was inadequate to deal with the gravity of the situation, it was the first step towards restoring society to a logical and rational way of functioning, and as such, it was deserving of public support. Together with the 17th Amendment, other measures to improve the behaviour and attitudes of the judiciary, lawyers, litigants, civil servants and all citizens should also have been initiated. Instead, as of March 2005--when members of the Constitutional Council finished their term of office--the ruling government abandoned even this small towards positive change.
To worsen the situation, President Mahinda Rajapakse subsequently decided to ignore the Constitutional Council and make presidential appointments to the commissions under the 17th Amendment, in violation of constitutional provisions. This has finally culminated in President Rajapakse making direct appointments to the Court of Appeal and Supreme Court. This clearly demonstrates that the Sri Lankan state is unable to provide the care and vigilance needed to keep the judicial system functioning effectively. Unless the people of Sri Lanka mourn their loss of a rational society and reorient their attitude towards building strong and capable institutions, their lives are likely to be even bleaker than at present.
5. The AHRC mourns the loss of the authority of the Attorney General
When the Executive President made appointments to the Court of Appeal and the Supreme Court, ignoring the constitutional requirements that the selections be made by the Constitutional Council, he clearly ignored the advice of the Attorney General.
The Attorney General had advised, months ahead, that all appointments that come under the 17th Amendment must be done through the Constitutional Council. The Attorney General advice to the government on this matter has been well publicised and is known to the whole nation. The President has neither reputed this advice nor explained why he chose not to follow it. The highest legal officer in the country has been ignored and humiliated.
Neither the rule of law nor the independence of the judiciary can survive when this type of neglect and bypassing takes place. The Attorney General is the Chief Legal Advisor to the government and ranks in precedence in the legal sphere to the Chief Judge of the Highest Appellate Court. He may communicate directly with the president, ministers and head of departments. He is the head of the Bar and has precedence over all Presidents' Counsel. The Attorney General's Department was established in 1884 and it is the boast of this department that it has long established traditions of playing a pivotal role within the legal system of Sri Lanka.
However, the President's action of completely ignoring the Attorney General has been preceded by other actions that have brought down the authority and the prestige of this important institution. We quote below from the book, Disorder in Sri Lanka, by former Supreme Court judge K.M.M.B. Kulatunga, who was also a long time member of the Attorney General's Department and who rose to the post of Acting Attorney General:
No Government will lightly disregard the opinion of the Attorney-General and advise itself wrongfully. If it did so, that would lead to wrong decisions which would in turn discredit it in the public eye. It may thus be true to say that in a particular situation the stability of the Government may itself depend on the correctness of the opinion tendered by the Attorney-General. As such he will not rest his advice on mere expediency.
(Attorney General as advisor to the government and as guardian of public interests)
The role of the Attorney General
It has been our experience that every administration wishes the judgements of the court to be in its favour. Perhaps we cannot fault politicians for this, But the Attorney General should be able to advise the Executive and explain the legal basis of most judgements which have gone against the State. When I was Acting Attorney General I was asked by the President whether the Supreme Court could review a Cabinet decision and whether a particular judgement was right. I sent him a letter defending the Supreme Court Judgement, in the context it was given. Perhaps the Attorney General is no longer free or strong enough to advise the Executive. But this will not give a licence to Executive or Members of Parliament to make insinuations against the judgements of the court or to offer advice to judges at public functions as to how they' may discharge their duty.
(Independence and dignity of the judiciary)
I have observed a gradual decline in the independence of the officers of the Attorney General's Department. They are unable to tender correct advice to the State for fear of incurring the displeasure of the executive. State officers do not appear to accept Attorney General's advice. The cause of this situation is the fear psychosis created by politicisation. Police officers are subject to political interference. They are not being trained in scientific methods of criminal investigation. Some of them are skilled in unlawfully detaining suspects and torturing them. Recently the police applied to be given the power to detain a suspect for 72 hours. To my knowledge no police officer who has been ordered by the Supreme Court to pay compensation for torture has been punished. On the other hand, a recent judgment of the Supreme Court has approved promotion of such officers.
(Functioning of the judicial system (administration of justice) in Sri Lanka)
The damage done to the Attorney General's Department by the persistent ignoring of the Attorney General's advice on the all-important issue of the 17th Amendment to the Constitution is irreparable. While society at large will see that the department has been thoroughly ignored by the all-powerful Executive President, the demoralisation that will follow to the members of the department will also be enormous. The unscrupulous ones will look forward to making compromises with the powerful politicians to enhance their own personal situations.
However, under these circumstances the Asian Human Rights Commission congratulates the Attorney General for offering the correct advice to the government and parliament on this matter and hopes that the department will fight to retain its integrity as the highest legal office in the country.
6. Sri Lanka is ceasing to be a law based society
The numerous appointments to key national commissions by the executive president, contravening constitutional requirements, are a very clear indication of Sri Lanka's drift from a law-based society to one in which the law plays a significantly reduced role.
While criticism against presidential actions has pointed to matters including the fact that no person is above the law, that the Constitution is the highest law in the land and that no immunity can be claimed for unconstitutional and blatantly illegal acts, this criticism has not deterred the executive president from making such appointments. People who are supposed to be of some standing and knowledge, including a few former Supreme Court judges and Appeals Court judges, have accepted such appointments regardless. This motion away from the law into a state of rule by presidential and other decrees became manifest when the executive president and another minister, took upon themselves the task of censoring and banning two films.
The displacement of law as the foundation upon which society is based did not begin with the incumbent president. Looking back into the 28 years of rule under the 1978 Constitution we note two phases in which the law has been displaced to achieve the ambitions of the executive, through the ignoring of laws and legal norms and standards. In the first phase, which began in 1978 and lasted up until recent months, this was performed through modifications to the law and now, in the second phase, this is being achieved by directly contravening the most basic laws.
In the first phase, the fundamental principles of any rule of law system were displaced by the making of new 'laws' through the use of the majority power in parliament. The 1978 Constitution removed the judicial review that had been part of the Sri Lankan legal system under both the first and second Constitutions. Under the new Constitution, Supreme Court power was limited to the review of bills before they are passed by parliament.
The first phase of displacement of the law was typified by the use of emergency and anti-terrorism laws. During the period, which is popularly referred to as the period of terror, one of the most notorious police officers of the time, DIG Udugampala, stated in many interviews to the foreign and local press that everything had been done according to the law. The disappearances of over 30,000 people are well known, as are the maintenance of interrogation centres where the use of torture ending in extrajudicial killings was perpetrated on a massive scale. The most cruel forms of inhuman treatment, the disappearance and torture in military camps, as demonstrated by the case of the disappearance of the Ambilipitiya school children, and the disposal of bodies, either by way of road side cremations or by dumping in rivers, were all carried out 'within the framework of the law.'
Similar violations were perpetrated in the North and the East of the country, and the consequences of this are continuing to the present day. Massive international and local protests, and even a change of government, have displaced some of these 'laws' which themselves displaced the normal laws of the country. However, the damage done to the fabric of the law is now a major impediment to the reconstruction of a law-based society.
In the second phase of the displacement of the law, we now see the executive president resorting to direct orders that are in violation of the Constitution. A period has been ushered in, in which the law appears to be becoming less and less relevant. There are many countries under military or other forms of authoritarian regime, where the country is run by orders made by the leaders without having to go through any legal process. The change in Sri Lanka from the first phase to the second phase may have resulted from the fact that the incumbent president does not enjoy the absolute majority that the first president benefited from, which permitted the latter to easily pass new laws through parliament.
Once the executive can openly act against the Constitution, any other acts the executive might carry out that contravene other laws will likely find less resistance. Such considerations are no longer exaggerations. The issue of the banning of films showed how easily societal acceptance adjustments are now being made to enable blatantly illegal acts.
The consequence is that any challenge on the basis of illegality will likely prove more difficult under this current phase of displacement of the law. The general complaint around the country is that nobody can do anything to change a situation, regardless of whether they are dealing with horrendous crimes, corruption, the flouting of labour laws or other similar matters. The belief in the resort to law is diminishing in the country. Widespread depression of society is frequently expressed by persons claiming to ‘have no way out.’ Both lawyers and possible litigants share this sentiment in growing numbers.
Such a situation can only result in corruption becoming so rampant that almost nothing will be capable of being achieved, except through the medium of powerful politicians and their powerful allies, including powerful criminal elements. The recent killing of a Police Inspector and his wife, the former of which was alleged to have been investigating drug offenses, is a clear demonstration of the ultimate outcome of a society that is not based on law. In this case, as in many other cases, there are allegations that high ranking police officers are involved in this crime.
The Asian Human Rights Commission has drawn attention to this situation as it has been developing in the country for almost ten years. During these years, the situation has steadily become worse and there is no indication of the presence at present of any force within the country that is willing and capable of resisting this drift away from a law-based society.
7. Good faith and necessity no defence for President's flouting of constitution
When the 17th Amendment was referred to the Supreme Court prior to ascertaining its constitutionality before the parliament, the Supreme Court observed that
...The Bill in its entirety has the objective of altering the legal regime for the appointment, regulation of service and disciplinary control of public officers--including judges and judicial officers. It places a restriction on the discretion now vested in the President and the Cabinet of Ministers in relation to these matters and subjects the exercise of this discretion to the recommendation or approval of the new body to be established known as the Constitutional Council.
A spurious argument being used as a defence of the president's current actions is that he has violated the constitution in good faith. While this claim cannot stand up under close scrutiny, even at face value it is hollow. Saying that the constitution can be violated in good faith is no different to saying that murder can be committed in good faith. In fact it is worse: if a president can convince himself that he can unconstitutionally act in good faith, then the country is in very serious danger. If the country's constitution can be violated in 'good faith', there is little that cannot be violated in the same manner.
It must be asked whether a public officer can exercise power that the constitution, or any other law, has taken away from him. The Supreme Court has clearly noted that the 17th Amendment took away certain powers of appointment and disciplinary control from the president and his cabinet, and gave it to another body. President Rajapakse acts as if no such deprivation of his power ever took place. Can such action invoke good faith as its defence? This is like a constitutional monarch claiming back powers taken away from him through a constitutional process. If this were to happen in the United Kingdom or even neighbouring Thailand, it would be considered as gross interference of the legal process and would result in serious consequences. Nepal's former King Gyanendra attempted this in February 2005 and within a little over a year the people rose against him and parliament vowed to take away all his powers.
Another argument used to justify President Rajapakse's actions is that of necessity. This argument is based on the delay of a nomination to the Constitutional Council by the minority parties. If this was in fact the issue at stake--and there is much evidence to show it was not--the president should have found a credible way to conduct the selection process before making appointments to the various commissions. Such an act would have been in good faith; the essence of the 17th Amendment is to separate the selection process from that of making appointments. However, when the president exercises the power of selection that has been taken away from him by a constitutional process, the argument of necessity has no validity. As the proverbial Mahadanamuttha story goes, this way of looking at necessity is like cutting the neck of a goat to free its head stuck in a clay pot.
These arguments of good faith and necessity were used as defences by absolute monarchs, during times of 'benevolent dictatorship'. These arguments are in effect saying that Sri Lanka's president must be allowed to do what he thinks is necessary for the good of the people, without the impediments of law. The two architects of the present constitution, J R Jayawardena and R Premadasa, were also aiming for positions similar to that of ancient kings. It was even argued by a Solicitor General before the Supreme Court that President Jayawardena claimed lineage to the ancient kings, which was rejected in court. After President Premadasa's assassination, a throne-like chair was found in his residence, prompting public ridicule; he was referred to Premadasa Rajjuruwo (King Premadasa).
The removal of the 17th Amendment raises the president to the position of an absolute ruler. In the words of President Jayawardena, he can then do everything "other than making a man a woman, or vice versa".
There are no easy solutions to these enormous problems. Ignoring this crisis however, can only lead to graver implications for the entire system of law and rational governance. The Asian Human Rights Commission is in no position to suggest any solutions, but it calls on all concerned persons in the country and outside to reflect deeply on this catastrophe. The AHRC calls for mourning to address the need for such collective thought. Without serious collective effort to consider the danger that the people are in, it is not possible to fathom the depths of this crisis.
SRI LANKA: The President of Sri Lanka is more powerful than the supreme law of the country and makes appointments to courts contravening the Constitution
FOR IMMEDIATE RELEASE
AS-121-2006
May 27, 2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: The President of Sri Lanka is more powerful than the supreme law of the country and makes appointments to courts contravening the Constitution.
The rule of law in Sri Lanka which is in abysmal decay, suffered a further major set back when the President of Sri Lanka acted as if he is more supreme than the Constitution, by making three appointments to the highest courts ignoring the Constitutional provisions which must have prevented him from doing so. This follows three similar appointments to The Public Service Commission, The National Police Commission and The Human Rights Commission of Sri Lanka. The appointments to the Court of Appeal and the Supreme Court were made yesterday on, May 26, 2006.
The President violated the supreme law of the country, which is the Constitution, by making direct appointments superceding The Judicial Service Commission by arbitrarily appointing a judge to the Supreme Court and two judges to the Court of Appeal. Earlier this year, two members of the Judicial Service Commission had resigned from the Commission, and the vacancies are yet to be filled. The Constitution of Sri Lanka requires that the members to the Judicial Service Commission be selected by the Constitutional Council. According to the Constitution of Sri Lanka, it is for the Judicial Service Commission to make the selection of judges to these courts and for the President to appoint only on the basis of such selections.
The present appointments will further deteriorate the public confidence in the judiciary and this seems to be an objective that the Executive President is pursuing deliberately. In many previous statements the Asian Human Rights Commission (AHRC) has pointed out that the concept of power of the Executive President as practiced in Sri Lanka is absolute and is incompatible with the recognition of a truly independent judiciary. As of to day, the power of the President is supreme and there is no other branch of the state that is allowed to challenge it.
The AHRC is neither surprised nor shocked by such absolute abuse of power by the Executive President but only worries for the future of the people of Sri Lanka under these circumstances. To the regret of the AHRC all its predictions on this issue have come to pass.
Diminishing the value of courts before the people and to reduce their power has been one of the strategies to sustain an authoritarian system ever since the Executive Presidency was created in 1978. Since then, the judiciary was undermined so thoroughly that it remains a crumbled institution under this authoritarianism. However, this is the first occasion in which the Executive President has acted completely outside his Constitutional power to make appointments.
The non-constitutional appointments to the highest courts creates a serious contradiction to the citizens and the lawyers who are to approach these courts in order to canvas issues relating to the Constitution, including human rights recognized under the Constitution.
SRI LANKA: Punchihwewa denies prior knowledge of appointment to HRCSL and refuses to accept the position
FOR IMMEDIATE RELEASE
AS-113-2006
May 23, 2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Punchihwewa denies prior knowledge of appointment to HRCSL and refuses to accept the position
In what amounts to a scandal concerning the manner in which President Mahinda Rajapaske has made appointments to the Human Rights Commission of Sri Lanka, one of the nominees and well known human rights activist, Mr. S.G.Punchihewa, revealed that he was unaware of being nominated until he saw a news item mentioning his name, following which he immediately informed the President that he declined to accept the position.
Earlier, two former commissioners also declined to accept new appointments. They reportedly did this because the appointments made by the President, without prior selection by the Constitutional Council, were unconstitutional.
Although for months now it has been clearly pointed out to the President that appointments to any of the commissions falling within the 17th Amendment, where the sole authority for selection of commissioners is the Constitutional Council, he has proceeded to make the selections himself and to make unconstitutional appointments.
Heavy local and international pressure has been ignored by the President. However, some persons now being nominated by the President are declining to accept these positions.
The case of Mr. Punchihewa's nomination raises many questions as to how such selections are being made. The fact that the nominee has not even been consulted on the issue, points to the fact that the list was handed over to the President by some source or another without even properly informing him of the process of selection. This means that the place of Constitutional Council has been taken by some private individuals who arbitrarily make lists and have them published. The President should inquire as to how his signature had been obtained for a nomination without even the nominee's consent.
The Sri Lankan government in its pledges to the UN Human Rights Council and before UN treaty monitoring bodies has repeatedly spoken about its commitment to promote the Human Rights Commission of Sri Lanka and also to strengthen it. In the past there has been nothing by way of action to back these words. Now, in the manner of dealing with these appointments, the government has demonstrated complete disregard for this institution. Human rights organisations including the Asian Human Rights Commission have constantly pointed out that there is no real commitment by the government to promote this institution and in fact it is being used only to create a false impression about Sri Lanka's commitment to human rights.
The HRCSL has had a short period from the appointment of Dr. Radhika Coomaraswamy as the Chairperson where some attempt was made to raise the standards of the organisation. Prior to that there was a period in which the former commissioners had shown very little understanding of the mandate of the HRCSL and had done nothing positive to build a credible institution in terms of its mandate. Internal audits into the organisation have shown both financial irregularities as well as extreme defects in terms of staff quality. Last year, while some investigations were underway there was an arson attempt on the HRCSL headquarters. The police inquiries claimed that the arson attempt involved some persons from within the organisation itself. Some drivers were questioned but no action was brought in court. Sources close to the HRCSL revealed that there was an internal attempt to discourage the criminal prosecutions.
This institution depends on external assistance. In recent times many of the donors have been very concerned about the HRCSL. There has, in particular, been pressure from many sources from around the world to have proper appointments made to ensure that persons committed to human rights and capable of dealing with these matters should be appointed as commissioners. Much pressure has also been exerted on the government to ensure that the appointments are made in conformity with the constitution and in conformity with the Constitutional Council.
The Asian Human Rights Commission calls for a thorough inquiry into the manner in which the selections were made to the HRCSL and also calls upon all other nominated members to follow the good example set by Mr. S.G.Punchihewa, who was the only one in the list who had a credible record of involvement in human rights. Meanwhile the Asian Human Rights Commission also reiterates the following request made in an earlier statement (AS-109-2006):
1. All Sri Lankans should reject this commission and indicate its lack of legitimacy.
2. The UN and all other international bodies should denounce these appointments and call for a properly appointed commission consisting of persons who have a proven track record in the protection and promotion of human rights.
3. Funding agencies must not support such a fake commission, which will only contribute to the denial of human rights.
4. The UN Human Rights Council must seriously examine Sri Lanka's human rights track record and denounce practices destructive to the development of an authentic national institution under the Paris Principles.
SRI LANKA: Authoritarian appointment of Commissioners must be rejected
FOR IMMEDIATE RELEASE
May 19, 2006
AS-109-2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Authoritarian appointment of Commissioners must be rejected
Under the Constitution of Sri Lanka, the executive president has not been given the power to select members of any of the commissions established or supervised by the 17th Amendment. The power of selection lies with the Constitutional Council and the president can only make appointments based on the Council's selections. The Asian Human Rights Commission (AHRC) therefore denounces President Rajapakse's recent appointment of Commissioners to the Human Rights Commission.
A human rights commission appointed in breach of the country's constitution is incongruous. It lacks credibility and objectivity, which are essential for any public institution. Without these elements, the Human Rights Commission of Sri Lanka cannot fulfill its mandate of human rights promotion and protection, and will instead serve to protect and promote the president and his government from accusations of human rights violations. The Nepalese Human Rights Commission suffered similar appointments by former King Gyanendra in 2005. For this very reason, the Commission won no support, domestically or internationally. In the same way, the present Human Rights Commission of Sri Lanka also cannot win any local or international cooperation.
The chairperson appointed by the president for this Commission is seriously ill and unable to perform even simple functions. He is popularly known as a 'political survivor', who has never shown any interest in human rights affairs. Among the appointments, the only human rights figure is Mr S G Punchihewa, who has a long and credible record of being involved in the Sri Lankan human rights movement. The AHRC hopes that on the basis of his record he will refuse to accept this nomination until it has been approved through a constitutional process. The AHRC also understands that several others have been approached to take up the post, but have categorically refused due to the unconstitutional manner of appointment. The rest of the appointed commissioners are all persons without any known record of positive involvement in human rights. Being a former Supreme Court or Appeals Court judge in no way qualifies a person to be a member, let alone the head, of a human rights commission functioning under the Paris Principles.?
It is internationally accepted that persons working in national institutions such as the Human Rights Commission of Sri Lanka should have a credible track record of involvement and contribution to the human rights field. In fact, the Commission's first Chairperson was a former Supreme Court judge who negatively contributed to the protection and promotion of human rights within the country as he had no understanding of the conceptual basis on which the human rights movement and organisations are based. His appointment was made prior to the establishment of the Constitutional Council, therefore precluding any opportunity for the human rights movement to raise questions and objections his appointment. There can be no further excuse for such appointments however; it is crucial that the constitutional process of selecting persons on merit alone be the process through which appointments are made.
This authoritarian and unconstitutional appointment is also in violation of Sri Lanka's pledge made before its election to the new UN Human Rights Council. While Sri Lanka pledged to build the "capacity of the Human Rights Commission of Sri Lanka and other independent statutory bodies established as a part of a national human rights protection system," its first act after becoming a member to the UN body has been to destroy the independent character of the Human Rights Commission.
In response to the question raised by the UN Committee against Torture's periodic country review in November 2005 regarding the problems arising from the non appointment of commissioners under the 17th Amendment, the Sri Lankan delegation stated:
"Our reply is that it is only the three year term of office of the present Commissioners will come to an end by March 2006, and that the Commission is a body corporate having perpetual succession vide Section 2 of Act No. 21 of 1996, and will continue to function in terms of the Act."
A similar reply was given regarding the appointments to the National Police Commission. Both of these undertakings have been blatantly violated. For either commission to function in a legitimate manner and have perpetual succession, it is essential they be appointed within the framework of the Constitution. What is unconstitutional cannot have the right of succession.
In recent months the Sri Lankan government has come under heavy pressure regarding the 17th Amendment. Apart from local pressure, there was significant international pressure coming from UN bodies, the European Union and other groups. In particular, funding agencies informed the government that resources will not be given to the Human Rights Commission until commissioners were appointed. In response to all this pressure, the Sri Lankan government has in effect created a fake commission through authoritarian appointments.
The AHRC warns that this fake commission will have a disastrous impact on Sri Lanka's already poor human rights situation. While victims will face even more obstacles and harassment, their perpetrators will be guaranteed impunity. The AHRC therefore calls for the following:
1. All Sri Lankans to reject this commission and indicate its lack of legitimacy.
2. The UN and all other international bodies to denounce these appointments and call for a properly appointed commission consisting of persons who have a proven track record in the protection and promotion of human rights.
3. Funding agencies must not support such a fake commission, which will only contribute to the denial of human rights.
4. The UN Human Rights Council must seriously examine Sri Lanka's human rights track record and denounce practices destructive to the development of an authentic national institution under the Paris Principles.
SRI LANKA: Presidential immunity an expression of legalised tyranny guaranteed by 1978 Constitution
FOR IMMEDIATE RELEASE
AS-102-2006
May 10, 2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Presidential immunity an expression of legalised tyranny guaranteed by 1978 Constitution
The electoral victory of Sri Lanka's United National Party (UNP) in 1977 created what is now commonly known as 'elective dictatorship'. This dictatorship was made permanent through the legal structure arising from the 1978 Constitution. Additionally, the transformation of democratic rule into tyrannical rule was approved by a vast majority in the parliament. Most of the UNP members of parliament were coerced into signing undated resignation letters, ensuring their cooperation with the president's wishes. Only a very few members refused. To subsequently keep the UNP's parliamentary majority, in 1982--one year before parliamentary elections were due--the parliament's term of office was extended for a further six years. In this way, the parliament was used to pass absurd laws, through which a system of tyranny was legalised.
Such legalised tyranny is well described in a recent lecture given by Lord Johan Steyn, a British Law Lord from 1995 to 2005, part of which is reproduced below.
History has shown that majority rule and strict adherence to legality is no guarantee against tyranny. Hitler came to power by democratic vote. Moreover, in Nazi Germany, amid the Holocaust, pockets of the principle of legality (for what it was worth) sometimes survived. In Nazi Germany defendants sentenced to periods of imprisonment before the Second World War were left alone during the terms of their sentences. Only when their sentences expired did the Gestapo wait for them at the gates of the prisons and transport them to the death camps. So even in Nazi Germany an impoverished concept of legality played some role. The role of judges in this period is, of course, part of the Nuremberg story. But at or after Nuremberg nobody had any doubt what is torture. That at the highest levels the United States Administration has recently persistently tried to water down what is torture is deeply depressing for our times.
In the apartheid era millions of black people in South Africa were subjected to institutionalised tyranny and cruelty in the richest and most developed country in Africa. What is not always sufficiently appreciated is that by and large the Nationalist Government achieved its oppressive purposes by a scrupulous observance of legality. If the judges applied the oppressive laws, the Nationalist Government attained all it set out to do. That is, however, not the whole picture. In the 1980s during successive emergencies, under Chief Justice Rabie, almost every case before the highest court was heard by a so called 'emergency team' which in the result decided nearly every case in favour of the government. Safe hands were the motto. In the result the highest court determinedly recast South African jurisprudence so as to grant the greatest possible latitude to the executive to act outside conventional legal controls.
Another example is Chile. Following the coup d'etat in September 1973, thousands were arrested, tortured and murdered on the orders of General Pinochet. The civilised and constitutionally based legal system of that country had not been formally altered. It was not necessary to do so. The police state created by General Pinochet intimidated and compromised the judiciary and deprived citizens and residents of all meaningful redress to law. Fortunately, despite failings, our legal system helped restore the authority of the rule of law.
Here I pause to summarise why I regard these examples of some of the great tyrannies of the twentieth century as containing important lessons. They demonstrate that majority rule by itself, and legality on its own, are insufficient to guarantee a civil and just society. Even totalitarian states mostly act according to the laws of their countries. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state [Guardian Weekly, April 28-May 4, 2006].
In Sri Lanka, an important component of the legalisation of tyranny was the absolute immunity granted to the president. The first executive president, J R Jayawardene, as well as his prime minister, J Premadasa, were well aware that judicial independence was still a valid concept within the country in 1978. For this reason, it was quite possible that judicial challenges would be made against the system of legalised tyranny, and in fact, it did on many occasions. Even the chief justice, who was appointed by the president, opposed him within a few years. However, the president had one last resort with which to attack his opponents: the constitutional provision of absolute immunity.
Absolute immunity is incompatible with the rule of law; the very essence of rule of law is that no one is above the law. As a result, the law limits immunity to the minimum level required in the performance of official duties by state officers. In its complete sense however, absolute immunity means to be bound by no law. Neither the American nor the French presidents, nor any head of a democratic country has such power. In Sri Lanka though, the executive president has this power.
Sri Lanka is therefore an example of not just a country where the president has absolute power, but also of many instances in which this power has been abused. In fact, the massive political violence that has beset the country--the South, North and East--was a result of this abuse of power. The most recent abuse of this power was by the incumbent executive president on the issue of the 17th Amendment. By appointing members to the Public Service Commission and the National Police Commission without the approval of the Constitutional Council, he blatantly violated the constitution. The government's argument that the members of the Constitutional Council are not yet appointed and therefore the president is acting out of necessity, is the typical argument of all tyrants.
What is being covered up here is that the selection of commissioners has been taken over by the president, which is exactly what the 17th Amendment was meant to prevent. The attorney general initially advised the government against making any appointments, as they would be illegal unless made through the Constitutional Council. Now, after the appointments have been made illegally, the attorney general is arguing that since the appointments were made by the president, they cannot be challenged in a court of law.
The absolute immunity of the president therefore results in legitimating illegal and unconstitutional acts. Constitutionality becomes a matter of no consequence. And when the Constitution is a matter of no consequence, then the law itself becomes absurd. Since 1978 Sri Lanka has remained in this state of absurdity and legalised tyranny. The Jayawardene-Premadasa chinthanaya (ideology) is now continued by the incumbent president as his own chinthanaya.
In days when there is talk of creating a new Constitution, the Asian Human Rights Commission (AHRC) would like to point out that any document that does not undo the legalised tyranny of the 1978 Constitution is only another farce which will create further problems for the people.
SRI LANKA: Chief Justice cursing the corrupt without taking legal action indicates justice system failure
FOR IMMEDIATE RELEASE
May 8, 2006
AS-098-2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Chief Justice cursing the corrupt without taking legal action indicates justice system failure
A statement made by Sri Lanka's Chief Justice, Sarath N. Silva at a recent public meeting is causing many comments, both public and private, on the state of the judiciary and rule of law in the country.
In his statement the Chief Justice is reported to have cursed the Sri Lankan police as being highly corrupt and that he had no faith in them, saying that "they would die after prolonged agony" (Sunday Times, April 23, 2006). He went on to say that their children would also face the consequences. He is further quoted to have said, "The police ask whether I want their protection but I say no. I have to be protected from them. That is why I don't get their security. I know them very well as I have been in my profession for 38 years."
Coming from the Chief Justice this is a tremendous indictment against the country's prime law enforcement agency. The Chief Justice went on to say that other officers such as Customs Officers and Motor Vehicle Officers as well as some lawyers fall into the same category.
No one would disagree that corruption has seeped into all areas of life in the country, and is most manifest in the country's law enforcement agency. Many will go further and attribute the corruption and the collapse of standards to the judiciary also. Two senior most judges of the Supreme Court, who were members of the three-member Judicial Service Commission (JSC), the third member of which is the Chief Justice himself, resigned recently, mentioning objections on the basis of conscience as the reason for their resignation. In short, these two senior judges were of the view that in their working relationship with the Chief Justice, matters of conscience of a serious nature had arisen, due to which they did not want to continue in office.
For an ignorant citizen, unable to cope with life due to massive corruption and violence, to curse is no surprise. In fact, a chorus of such curses can be heard throughout the country. In all areas of the prevailing political, social and legal systems in the country, large numbers of victims are created everyday. Unable to find any form of redress or relief they are compelled to curse society and their misfortune. The Chief Justice, however, is not an ordinary citizen. He holds the highest judicial office in the country. Furthermore, as the Chairperson of the JSC, he is responsible for the discipline of all judicial officers. The Chief Justice is therefore--both legally and morally--the leader of the judiciary and should be the symbol of justice in any country.
The purpose of the Chief Justice is not to curse, but to promote and enforce the rule of law by means of effective judicial action. In all systems based on the rule of law, the assurance of a functioning society is in the hands of the judiciary; the judiciary is therefore expected to defeat corruption and all other lapses of law. The judiciary is a central aspect of the way the state keeps its authority over the lawless and the corrupt. A society where the judiciary is incapable or unwilling to exercise its authority is doomed.
The very fact that the Chief Justice's statements about the police and other authorities is true and represents the common perception of the people makes his attitude even worse. When ordinary Sri Lankans want to curse their enemies and those responsible for their misfortunes, they go to local 'priests' popularly known as 'katadiyas'. These persons turn people's misery into profits by becoming professional cursers. Such a person however, is usually regarded in a derogatory manner by society, viewed as a social evil.
Being the country's Chief Justice requires that he take far more effective action that offering curses at society's ills. When a physician, whose job it is to cure illness, begins instead only to curse the illness, what can be the fate of the patients? It is time for the more enlightened sections of society and responsible institutions to seriously examine how judicial authority can be re-established, as well as the authority of other state institutions such as the police.
Sri Lankan society, or at least the major political parties of Sri Lankan society, considered this issue to a limited extent in 2001, which was when the 17th Amendment to the Constitution was discussed and adopted in Parliament. The central issue then was how basic public authorities in the country could be revitalised by the creation of independent agencies to supervise them. However, even this limited intervention was given up during the last year when the appointment of the Constitutional Council was abandoned. This abandonment will worsen the situation that the Chief Justice himself is cursing.
The last resort in the protection of a society is the president. The president should listen to the curses of his Chief Justice and ask himself whether or not the society of which he is the leader is in serious trouble. However, perhaps in such circumstances it is the people themselves who must make intervene. Ultimately, people do not profit from a cursing Chief Justice, but they still need a judiciary, particularly a higher judiciary that is capable of reasserting judicial authority. A cursing Chief Justice may be a reflection of a society that is seriously demoralised. Each day lost without people's intervention will remain a day that the country can only curse about. The first intervention should consist of the implementation of the 17th Amendment: the proper appointment of the Constitutional Council. This may be a small step, but it is a thousand times better than mere cursing.
[AHRC Open Letter] SRI LANKA: Open letter to the Minister of Constitutional Affairs and the Ministry of Law Reforms on proposed Bill of Rights
AHRC-OL-012-2006
May 3, 2006
Open letter to the Minister of Constitutional Affairs and the Chairperson of the Law Reform Commission
Dear Sir & Madam,
Re: Proposed bill of rights
The Asian Human Rights Commission (AHRC) has learned from newspapers that the Ministry of Constitutional Affairs is to organise workshops, one of which will be held on the subject of a new bill of rights, on May 6, 2006.
The Asian Human Rights Commission hastens to join this discussion for fear that--given the recent history of constitutional affairs in the country--this effort may lead towards even more restrictions on rights and make the whole discussion on constitutional affairs meaningless to ordinary Sri Lankans and anyone who is watching the matter from the outside.
At a time when the 17th Amendment to the Constitution has been completely flouted despite local and international outrage, whether the government can conduct a credible dialogue on constitutional amendments is doubtful. Even the Human Rights Commission of Sri Lanka is without Commissioners at present, while the president of Sri Lanka has usurped the powers of selection of members to the 17th Amendment based commissions, thus abandoning the concept of checks and balances in the constitution. However, the AHRC and its affiliated organisations wish to participate in this debate vigorously to bring to light the areas that must necessarily be addressed if a meaningful bill of rights is to be enshrined in Sri Lanka.
The preliminary observations of some issues given below are some of the AHRC's initial reactions and this will be followed with further submissions in the future.
The bill of rights must be set in opposition to the concept of absolute power contained in the idea of the executive presidency central to the 1978 Constitution.
A Bill of Rights and the concept of absolute power of the executive president enshrined in the 1978 Constitution are incompatible. The very purpose of a Bill of Rights is to prevent the use of absolute power and to enable the functioning of democratic institutions. As long as the executive president is not answerable to the parliament and judiciary, the fundamental framework for the protection of rights will remain nullified. Just having a bill of rights by name while having an authoritarian governance structure in place, is only a propaganda ploy and does not in any way help the people of a country to have their rights protected from repressive forms of governance. Rather, the government structure must first be held accountable to the parliament and judiciary. The absolute impunity presently available to the executive president must also be abolished. The president must be held accountable for criminal, civil and other forms of legal liability, including fundamental rights violations. The principles enshrined in many other democratic countries would be useful regarding this matter.
Subordination of the judiciary to the executive president and the ruling regime as expected under the 1978 Constitution should be abolished. Though the 1978 Constitution mentions the independence of the judiciary, such a concept is incompatible with the concept of absolute power as contained in the same Constitution. The experience since 1978 has also shown how the executive president and his regime can bring the judiciary to its knees. This structural problem has given rise to the problems of the judiciary that are currently bemoaned. Without addressing this structural issue and enabling the actual independence of the judiciary, it is not possible to overcome the present problems. Without a truly independent judiciary, a Bill of Rights has very little meaning.
Effective remedies for violations of rights need to be ensured. The notion of rights without redress is meaningless, even hypocritical. Sri Lanka's most pressing problem today is that no redress is available for the violations of any rights. Even in the case of murder--a violation of the right to life--there is often no effective remedy, since investigations into crimes are ineffective, the prosecution system under the Attorney General's Department is beset with confusion and inefficiency, and the judiciary is beset with enormous delays. The net result is a four per cent convictions rate, while many complainants give up their pursuit of justice due to various obstacles. The citizens of Sri Lanka are largely living in fear, aware that the state is unable to protect them. The failure to protect people and the lack of effective remedies for human rights violations are two sides of the same coin.
The right to have a speedy trial must be raised to the status of a fundamental right.
Although the right for a speedy trial is enshrined in the ICCPR, which Sri Lanka has ratified, it is not recognised as a fundamental right under the 1978 Constitution. Sri Lanka suffers from extraordinary delays in all forms of adjudication. In fact, the speeding up of court processes would be the primary measure to deal with the state of insecurity prevalent in the country at present. Judicial reluctance to bring this issue to the forefront may be due to notions of 'culture'. However, unless this 'culture' is addressed, nothing will change for the better in the country. If the issue of delays in adjudication cannot be addressed effectively, there is no point in discussing a new bill of rights.
The scope of fundamental rights must be enlarged to include violations of rights through judicial actions, not only executive or administrative actions. The international obligations of Sri Lanka under the ICCPR also make the judiciary subject to respecting rights under the ICCPR. Therefore there is no basis to exclude violations of rights by judicial officers from the jurisdiction of courts in determining questions relating to the infringement or imminent infringement of rights.
A Bill of Rights needs to lay down a procedure for the enforcement of judgments (views) of the Human Rights Committee in cases the Committee determines that any state agency has violated the rights of a citizen. In two cases taken up by the Committee (Singarase and Tony Fernando) the government of Sri Lanka has taken the position that it cannot implement the Committee's decisions as these are against the orders given by Sri Lankan courts. According to the government's position, decisions made by Sri Lankan courts are excluded from the obligations of the state to implement the ICCPR. This view has been rejected by international jurists as incompatible with the protection and promotion of human rights. In other cases, (including those of Victor Ivan and Lalith Rajapakse) the state has also not taken action to implement the Committee's views. Citizens are unable to get these orders implemented as the law has not laid down a procedure for doing so. Other countries include such procedures in their Constitutions and Bills of Rights. Until this is done, Sri Lanka being a signatory to the optional protocol of the ICCPR has little meaning.
The implications of court decisions in fundamental rights cases on the state officers involved must be clearly laid down in the Bill of Rights implementation section. At present the decisions of the Supreme Court are treated trivially by state departments such as the police. Some Supreme Court judgments themselves make light of the finding that a state officer has violated fundamental rights. A clear provision of the significance of a fundamental rights decision needs to be reflected in the Bill of Rights.
The issue of quantum in human rights awards should be treated as a substantive matter. Many of the Supreme Court judgments in recent times have awarded low amounts of compensation for serious human rights abuses, such as acts of torture and illegal arrest and detention. There is also no set criterion in awarding such damages. In particular, it is the poor who become victims of torture and similar violations and have the greatest difficulty in pursuing cases in courts, who get the lowest awards. In fact, at one session of the Committee against Torture, one senior international expert observed that such low awards are an insult to the victims. The international norms and standards on effective awards have now been well developed. These must be brought in to the bill of rights so that violations of rights will not end up being treated in a trivial manner. Low awards in these cases serve to lower the standards of justice and contribute to a state of demoralisation in society. This encourages violence and anarchy.
The recommendations regarding the period for filing fundamental rights cases as well as other recommendations made by the Human Rights Committee, CAT Committee and other UN bodies should be incorporated into the Bill of Rights. There has been a long protest against the 30-days time limit imposed on the filing of fundamental rights cases. The Human Rights Committee recommendations regarding this, which the Sri Lankan government has agreed to be bound by, have not been respected. Furthermore, the recent Supreme Court practice of postponing the hearings of fundamental rights cases until the end of related criminal cases needs to be discontinued.
These are but a few aspects the Asian Human Rights Commission is submitting for discussion at this initial stage. We shall pursue these suggestions and make others during the course of the discussion. We hope that a genuine debate on a bill of rights may be able to alter the impression that is now prevalent in the country; that all talk of human rights is nothing but a farce.
Thank you.
Yours sincerely,
Basil Fernando
Executive Director
Asian Human Rights Commission
SRI LANKA: 17th Amendment crisis – immediate appointment of the nine members of the Constitutional Council is the way out
FOR IMMEDIATE RELEASE
AS-073-2006
April 24, 2006
A Statement by the Asian Human Rights Commission
SRI LANKA: 17th Amendment crisis – immediate appointment of the nine members of the Constitutional Council is the way out
The issues of the non appointment of the Constitutional Council (CC) members and the resultant collapse of all the relevant independent commissions remain unresolved despite unprecedented public protests arising from all sectors of Sri Lankan society and also from international sources. The government remains stubborn in its refusal to appoint the nine members who have already been nominated, on the illegitimate basis that the tenth member has not yet been named. However, a consensus has been arrived at amongst many sources that there is no excuse for the non appointment of the existing nine members by the president. The president's move instead to appoint members of two commissions, the National Police Commission and Public Service Commission, using a list of persons that he has personally selected, has added further confusion to this situation. The only excuse that the government spokesman has made with regard to the widespread criticism that the president has violated the Constitution has been to claim that the president has done so in good faith.
The breaching of the Constitution, which is the paramount law of the country, is not a matter of good faith on the part of anyone, much less on the part of the president. The simple issue is that if the president himself openly and blatantly violates the country's paramount law, how is it possible to maintain respect for law and order in the country? The very fact that law and order is at its lowest ebb at present should have been a very cogent reason for the president and the government to have been careful to convey their respect for the constitutional order and for the rule of law.
If it is the position of the government that an error has been made by the president, then the way out is to recall the appointments to these two commissions and stop any further moves in that direction. Together with this, the already nominated nine members should be appointed to the CC and they should be left to sort out the matter of the one remaining member that needs to be appointed. It has been pointed out that the quorum needed for the CC to function is only six members.
What is at stake here is the constitutional order. Disturbance of this order is an attack on the basic foundations of the rule of law. In a conflict ridden society, within which very little room is left for the furtherance of legal modes of settlements of disputes, more attention should have been paid to avoiding giving the impression of inviting any further acts that may lead to chaos. The Asian Human Rights Commission has repeatedly pointed out that chaos is now a way of life in Sri Lanka and that it is the responsibility of the government and civil society to end such chaos as a prerequisite for survival. We once again urge the government to take the constitutionally valid path, which is the appointment of the members of the CC. We also urge civil society not to cooperate with any other move which falls short of adherence to the Constitution. Resistance to the destruction of the constitutional order is not only legitimate but also imperative under the circumstances faced by the people in Sri Lanka at this moment. The ultimate defenders of the Constitution are the people. If the legal guardians of the Constitution are disregarding it, only the people can save the constitutional order.
SRI LANKA: From independent commissions to presidential playthings
FOR IMMEDIATE RELEASE
April 13, 2006
AS-065-2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: From independent commissions to presidential playthings
The Sri Lankan president's direct appointment of commissioners to the National Police Commission and Public Service Commission is a serious setback to the little constitutionalism remaining in the country. These appointments have perverted the independent character of the commissions as established under the 17th Amendment to the Sri Lankan constitution.
The root of the commissions' independence lies in the selection process of the commissioners. Under the 17th Amendment, the process is entrusted to an independent group of persons thought to be impartial and with integrity--the Constitutional Council. The selection of commissioners on the basis of objective criteria laid down by the council and made known to the public was seen as a prevention of politically driven appointments. The selected commissioners would themselves have to set out and follow objective criteria regarding the appointments, promotions, transfers and disciplinary control of public officials supervised by the respective commissions.
The recent appointments have abandoned this process in favour of direct selections by the executive. This is a prescription for undue influence and corruption within public institutions.
For any system to function rationally, its institutions must be protected from undue political interference through the implementation of objective criteria.
The selection through the Constitutional Council allows for the screening of persons to be appointed to any commission. This screening is done not only through the council members themselves, who will look into the qualifications and background of the proposed persons, but also through the public, who are given the opportunity to make objections. Certain individuals may have information regarding proposed persons not known to the rest of society. This information can then be given to the council for its assessment.
When this process is bypassed, and commissioners are selected in contravention of the constitution, can they exercise power under the constitution? It is the 17th Amendment that sets out the power, obligations and procedures of the police, public service and other commissions as well as the selection process of the commissioners. Being selected in violation of the 17th Amendment, the appointed persons cannot legitimately exercise the authority given to the commissioners under the same amendment.
The appointments to the police and public service commissions by the president are contrary to the constitution, legally ludicrous and disastrous to society. The Asian Human Rights Commission supports the call made by many other groups and individuals requesting the president to call off the appointments. It also supports the request made of the appointed commissioners not to accept such appointments, which merely discredits the commissions they were appointed to as well as themselves.
SRI LANKA: President blatantly violates constitution by appointing members to 17th Amendment commissions
FOR IMMEDIATE RELEASE
April 11, 2006
AS-063-2006
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: President blatantly violates constitution by appointing members to 17th Amendment commissions
In blatant violation of Sri Lanka's constitution, President Mahinda Rajapakse took it upon himself to appoint members to the National Police Commission and the Public Service Commission. These appointments bypassed the constitutional process, which requires the appointments to be approved by the Constitutional Council. Before granting approval, the council is to examine the merits of the proposed persons, as well as take into account any public objections, thereby preventing arbitrary or political appointments. By making appointments to these commissions himself, the president is moving towards absolute power without safeguards.
In the days preceding these appointments, a drama was enacted to give the impression that the president was concerned with the delay of the appointments to the Constitutional Council. The delay comes with the lack of agreement on which minority party should appoint the third member to the council. The drama involved the president writing to the speaker of parliament to promptly resolve the problems deterring the functioning of the Constitutional Council. The very next day, the president announced appointments to the National Police Commission and Public Service Commission. These names could not have been gathered on that day; the appointments were clearly planned. It will never be known whether these appointments would have been approved by the Constitutional Council or whether any public interventions would have been made.
If the president genuinely wanted to resolve the delay in appointing the Constitutional Council and other commissions, he should have intervened with the minority parties, particularly the JVP, TNA and JHU, to get the third member appointed. As a European Union representative suggested, if these parties cannot agree on a single member, they could agree to share the time period of three years. It is clear however, that the president was not concerned with expediting the appointment to the Constitutional Council, which would then select commissioners for the various commissions under the 17th Amendment on merit. The president's action has in fact preempted the Constitutional Council.
The Asian Human Rights Commission calls upon President Rajapakse to withdraw these appointments forthwith, and urges the appointed members to desist from accepting these appointments. The damage caused by the appointments and their acceptance will be greater than any good the commissioners contemplate doing through the commissions. Neither the commissions nor the appointments are at present legitimate. By functioning illegitimately, the significance of the commissions--which are vital to the defence of basic freedoms--will be lost.
For this reason, the AHRC impresses the need for everyone, including the international community, to unequivocally condemn these appointments and work towards the reversal of these decisions. Within the past few months the AHRC has several times noted that the Sri Lankan government is on its way to becoming a dictatorship. The present manipulation of all public institutions is a move by the executive to gain absolute power and instill fear into all areas of life. Bypassing the constitutional process in this instance can only lead to further unconstitutional and illegal acts. The reversal of these appointments is therefore crucial.
[AHRC Papers] SRI LANKA: A commentary on the recent case of the prime minister's fundamental rights violation
FOR IMMEDIATE RELEASE
April 10, 2006
AP-002-2006
A Paper by the Asian Human Rights Commission (AHRC)
SRI LANKA: A commentary on the recent case of the prime minister's fundamental rights violation
Recently, a fundamental rights application was made to the Supreme Court of Sri Lanka by former prime minister and now president, Mahinda Rajapakse, in which he cited the inspector general of police and other government officials as having violated his basic human rights, as protected under article 12(1) of the country's constitution. On March 27, 2006 the Supreme Court ruled in favour of Rajapakse. The court also awarded him Rs. 500,000 as compensation; Rs. 200,000 was to be paid by the government and Rs. 100,000 each by the first, second and fourth respondents. This case has received wide publicity within the country, and the court judgment has been published in the Daily News.
The case and subsequent judgment raise several important questions, a few of which the Asian Human Rights Commission (AHRC) reflects upon below.
a. Does a prime minister, president, or even a minister have the legal capacity to file a fundamental rights application in their official position?
This question arises from the manner in which the application was treated by the court; it was seen not as an application by an ordinary citizen, but by Prime Minister Rajapakse. According to the court judgment,
The case is unique since the Petitioner being the then Prime Minister and second only to the President in the hierarchy of the Executive Government, alleged an abuse of the legal process of criminal investigation at the highest level of the Police, carried out at the behest of the UNP being a political party in opposition.
Under article 126 of the Sri Lankan constitution,
Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this Chapter.
What is envisaged under the constitution is the violation of the rights of ordinary people by the executive, which comprises the president, prime minister and the cabinet. The executive and the bureaucracy through which its work is carried out represents the state. The policing system works under the ministry of defence and is a part of this bureaucracy.
The problem presented by this fundamental rights application is that the executive has been attacked by the chief of police at the instigation of an opposition party. In other words, a member of the executive's bureaucracy has acted against the executive. In such a situation, the executive must take appropriate action against the errant officer, however, under no circumstances does this fall within the scope of article 126. If those representing the state brought their various frictions with the state to the courts in this manner, the very nature of article 126 would be distorted.
b. How does this case come under article 12(1) of the constitution?
Under article 12(1), all persons are equal before the law and are entitled to equal protection of the law. Violations of this article would therefore include acts of discrimination or unfair treatment. The application filed by Rajapakse involves no discrimination on the basis of race, gender, language or religion. So what are the grounds for discrimination? That the news of a criminal inquiry into official misconduct by him as prime minister would have influence the SLFB (Sri Lanka Freedom Party)'s decision on whether he should stand as their candidate for the post of president. The fundamental rights application also conjectures that the purpose of the inquiry was to enhance the chances of the opposition party candidate in the presidential elections.
If indeed there was an unfair initiation of inquiry, the matter could have been taken up at the magistrate's court where a report had been filed by the police, and subsequently at the appeals court. It was also possible to seek a writ at the appeals court prohibiting the criminal inquiry. However, if the matter was to be brought under article 12(1) of the constitution, the petitioner has the burden to establish that the matter falls under this article, which in this case has not been done.
c. In awarding compensation in a fundamental rights case should the fact that the complainant is the prime minister matter in the quantum of compensation?
The compensation awarded in this case is Rs. 500,000, for the initiation of illegal investigations, which allegedly is in violation of rights protected under article 12(1) of the constitution. In almost all recent awards on human rights cases, the average amount of compensation has been between Rs. 15,000 to 25,000. These cases have involved illegal arrest, detention or torture, all of which are abuses violating rights under articles 13(1), 13(2) and 11 of the constitution. Oftentimes in awarding such compensation, the court has found all three rights to have been violated.
The difference in the compensation awarded in these cases is significant, and there has been no explanation for the higher award. Compared to the present case, the compensation in the cases of torture, illegal arrest and detention should have been much higher. Article 12(1) states that there should be equality before law; this equality should also find expression in compensation awarded by courts.
d. In the hierarchy of rights, is illegal investigation worse than illegal arrest, detention and torture?
International law considers torture among the most heinous of crimes. Its prohibition is one of the four non-derogable human rights. Illegal arrest and detention are also serious fundamental rights violations. Sri Lankan courts however, have in many cases awarded paltry sums of compensation for torture, even when grave injuries have been inflicted. A few cases in the past were awarded higher sums, but recent awards average between Rs. 15,000 to 25,000, as mentioned above.
How then, is the awarding of Rs. 500,000 for an alleged illegal initiation of inquiry to be understood? Perhaps the explanation is that the inquiry was followed by publicity, which may have adversely affected the petitioner in his candidacy for the post of president. Such a matter relating to defamation should have been resolved in a civil court. Damage to reputation is not recognised as a fundamental right protected under the constitution, the infringement of which can be redressed by article 126.
e. If a complainant gives information in bad faith, is the inquiry that follows also in bad faith?
The court has concluded that being a member of an opposition political party, the fourth respondent--the complainant who initiated the inquiry--acted in bad faith. In other words, he deliberately made a false complaint in order to sabotage the petitioner's candidacy.
Many criminal complaints are lodged by individuals seeking legal or other action against those they are complaining about. When such an individual makes a complaint, the investigator cannot know the validity of the complaint until preliminary investigations have been conducted. Investigation officers are therefore obliged to investigate all complaints. If it was left to the discretion of investigators to look into complaints, it could lead to many complaints being ignored. The defence that in the investigator's opinion the complainant was acting in bad faith cannot excuse an absence of criminal investigations.
f. Is being politically motivated in making a complaint the same as acting in bad faith?
Proving that a complainant was acting in bad faith requires proving that at the time of making the complaint he was certain the complaint was false. This has not been proven in this case. In fact, the attorney general himself believed that there was a need for investigation into the complaint.
There is no dispute that the complaint was politically motivated. The complainant was a political opponent of the petitioner and his complaint was based on a news item published in a newspaper supporting his political party. None of these motives make his complaint in bad faith if he believed that his allegations were correct. That he did not pursue his complaint later does not in itself prove the complaint was made in bad faith. Numerous complainants do not pursue their complaints beyond a certain point, of which Sri Lanka's four per cent conviction rate is clear evidence.
g. Is there proof that the making of the complaint and the beginning of the investigation were a conspiracy?
The court judgment in this case does not refer to any evidence of conspiracy between either the complainant and the police, or the inspector general of police and his subordinate, the deputy inspector general, the first and second respondents. The judgment only mentions that the two officers acted upon the complaint very quickly, within the same day in fact.
Is such quick investigation not expected in accordance with Sri Lanka's criminal procedure code? The premise that the police do not often act urgently cannot by itself prove bad faith in this instance. The Supreme Court has also dealt with this case quite speedily compared to other pending fundamental rights cases: it is not uncommon for fundamental rights application to go on for several years; some are pending even after six years. Would it be fair to infer any motive, let alone bad faith on this basis? Rather, the Supreme Court should be lauded for its speedy disposal of the case and urged to follow the same sense of urgency in other fundamental rights applications. This case proves that the delay in hearing fundamental rights cases is not due to the excessive workload of the court.
h. With the Supreme Court ruling that a state officer has acted in bad faith, should he continue to hold office?
The Supreme Court of Sri Lanka, the country's highest court has found the inspector general to have violated the rights of then prime minister, Mahindra Rajapakse, by pursuing an investigation in bad faith to politically sabotage him. The court has further decreed upon him the highest compensation sum to be paid by an individual officer so far. Under these circumstances, it is not possible for him to hold the confidence of the public or the executive. Furthermore, such an officer cannot hold the respect of the police department of which he is head.
Additionally, the Supreme Court found that the two police respondents had presented fabricated documents to the court. This is one of the most serious offenses that could be committed by any police officer, particularly a senior ranking officer. It immediately undermines their credibility, integrity and professionalism. Previous judgments on fundamental rights cases have also noted the submission of fabricated documents by police. This seems to be a common occurrence in Sri Lanka, as the following comments reveal.
In a case in which I pronounced judgment a few days ago too, I found that the B.C.I.B. had been altered, and therefore it appears that, that was not an isolated instance. Thus, the police force appears to be full of such errant officers. The question is what is the 5th Respondent Inspector General of Police doing about it? In my view, it is unsafe for a Court to accept a certified copy of any statement or notes recorded by the police without comparing it with the original. It is a lamentable fact that the police who are supposed to protect the ordinary citizens of this country have become violators of the law. We may ask with Juvenal, quis custodiet ipsos custodies? Who is to guard the guards themselves? [SC (FR) Application No. 343/99 - Case of Kemasiri Kumara Caldera]
i. The Sri Lankan government has suggested that the 17th Amendment should be modified to allow for the inspector general of police to become a member of the National Police Commission. How will this case affect such a decision?
One of the main objections to the now defunct National Police Commission, as made by government officials including ministers, was that the inspector general was not a member. Now that the Supreme Court has held that the inspector general acted in bad faith with political motives, this point of view must be reviewed. The very purpose of the National Police Commission is to have independent persons to supervise the policing system and ensure it is not used as a political tool. Those who advocated the inclusion of the inspector general within the Commission need now to candidly express their position on this issue.
This case raises various other issues of legal and constitutional concern, which should be taken up for study and discussion within the country.
SRI LANKA: Proposal to destroy independence of Sri Lankan HRC must be vehemently opposed
FOR IMMEDIATE RELEASE
April 3, 2006
AS-059-2006
A Statement by the Asian Human Rights Commission
SRI LANKA: Proposal to destroy independence of Sri Lankan HRC must be vehemently opposed
A report in today’s Daily Mirror newspaper of April 3 states that Sri Lankan President Mahinda Rajapaksa "is exploring the possibility of setting up independent commissions under the 17th Amendment, bypassing the now defunct Constitutional Council..." The president is also quoted as having said that he was looking into the possibility of an appointed parliamentary select committee to replace the Constitutional Council, as it has not yet been possible for the minority parties in parliament to together nominate one person to be a member to the council, as required by law.
Although the persistent failure to re-establish the Constitutional Council is a debacle, it does not warrant or justify the president violating the Constitution of Sri Lanka. It would take him far less time and effort to negotiate and agree on a candidate than to go down the long and arduous path of circumventing the constitution and creating a substitute body that would lack credibility and legitimacy. To date there is nothing on record to show that either the president or his government has sought to negotiate and break the impasse. This is despite the fact that the president is the custodian of the constitution, obliged to intervene personally on any occasion where public authorities and constitutional bodies are having problems in functioning.
The very purpose of the 17th Amendment to the Constitution was to limit the draconian powers that the 1978 Constitution handed to the executive president. By 2001 these powers had resulted in an authoritarian system which was destroying all the basic checks and balances in the national system of governance. The institutions established by the 17th Amendment, including the Constitutional Council and commissions appointed through nominations approved by it, were meant to restrict the ability of the president to interfere unnecessarily in the national administration.
Any changes to the institutional arrangements brought about through the 17th Amendment will defeat its purpose. New bodies installed with similar-sounding names and similar-sounding mandates could in fact be substantially different and far weaker institutions than those envisaged by the amendment.
Any new appointments made by a parliamentary select committee would of course be subject to the committee's control and supervision. The committee would presumably have the right to remove appointees and nominate new ones whenever it saw fit. This is in stark contrast to the provisions of the 17th Amendment, which allow for appointments and removals to be made only through constitutionally-approved avenues. These avenues are what give the Constitutional Council and related commissions their independence: removing these means removing this independence, thereby rendering these bodies worthless.
For its part, while the Human Rights Commission of Sri Lanka was created by normal legislation it was strengthened through the 17th Amendment, with its appointments being made through the Constitutional Council. The persistent demand from the commission, together with other concerned persons in the country and international agencies abroad--including UN human rights bodies--has been for the commission to be incorporated into the constitution itself. In many countries this is the status that national human rights institutions enjoy.
By contrast, the effect of having Sri Lankan human rights commissioners appointed through a parliamentary select committee would be to deprive the Human Rights Commission of Sri Lanka of its independence. This would make it a worthless body, incapable of carrying out its mandate. The Asian Human Rights Commission urges all parties to resist this proposal. If the government of Sri Lanka persists in following this line, it recommends that all support and cooperation be withdrawn from the Human Rights Commission of Sri Lanka--whether financial or otherwise--until such a time as the decision is reversed and the body's independence restored.
[AHRC Open Letter] SRI LANKA: Government attempts to continue Human Rights Commission by means other than compliance with 17th Amendment
AHRC-OL-005-2006
April 4, 2006
An open letter to Dr Radhika Coomaraswamy, former chairperson of the Human Rights Commission of Sri Lanka
Human Rights Commission of Sri Lanka
No 36, Kynsey Road
Colombo 8
SRI LANKA
Fax: +94 11 2 694 924 / 696 470
Dear Dr Coomaraswamy,
SRI LANKA: Government attempts to continue Human Rights Commission by means other than compliance with 17th Amendment
The Asian Human Rights Commission (AHRC) has been following the developments regarding the Human Rights Commission of Sri Lanka (HRC) after its Commissioners' terms of office ended on April 3, 2006.?We are aware of the interview you gave on this issue, where you pointed out that the government may find it difficult to defend its position before UN treaty bodies and international agencies, as well as the condition of funding agencies to continue their commitments only if the Commissioners are appointed constitutionally. The real issue however, is that Sri Lankan citizens are deprived of the services of a human rights institution that has legal credibility.
The AHRC is aware that moves are underway to circumvent the problems relating to appointments under the 17th Amendment. With regard to the Human Rights Commission, these moves include legal amendments to the HRC Act or the making of appointments through select committees. Any of these moves involve bypassing the constitutional process established to provide credibility for all commissions under the 17th Amendment. While you have repeatedly asked for the enhancement of the HRC's powers and position, what seems to be occurring however, is a political maneuver to further undermine the Commission.
In the case that the former commissioners are reappointed by legal amendments rather than though the constitutional process, we request that these positions not be accepted, as it will diminish the value of the HRC as well as the authority of the commissioners themselves. You will concur that the strength of a commission lies in its independence, as well as the perception of its independence. Appointments by means other than the constitutional process will not contribute to such independence, real or perceived.
Given your public statements on the issue of human rights and the importance of the HRC of Sri Lanka, we are sure you will continue to assist with the protection and promotion of human rights in the country by desisting from any cooperation with schemes other than the implementation of the 17th Amendment.
The seeming difficulties of the appointment of the Constitutional Council are merely artificial and can easily be resolved by the government. The AHRC requests you and the former commissioners to appeal to all political parties to ensure the speedy implementation of the processes enshrined in the 17th Amendment.
Yours sincerely,
Basil Fernando
Executive Director
Asian Human Rights Commission (AHRC)
SRI LANKA: Human Rights Commission will cease to function from April
FOR IMMEDIATE RELEASE
March 30, 2006
AS-053-2006
A Statement by the Asian Human Rights Commission
SRI LANKA: Human Rights Commission will cease to function from April
In a news item published in the Island on March 29, 2006 outgoing chairperson of the Human Rights Commission of Sri Lanka, Radhika Coomaraswamy, confirmed that the terms of office of the Commission members would expire on April 3, 2006. Like the other commissions created under the 17th Amendment to the Constitution, the Human Rights Commission of Sri Lanka will be without commissioners because the Constitutional Council, which has the power to appoint the commission members, is defunct due to a failure to appoint Constitutional Council members. Like the National Police Commission, Public Service Commission, Judicial Service Commission and the Election Commission, the Human Rights Commission will be without independent leadership and will come under the direct control of the government. The very purpose of the Human Rights Commission of Sri Lanka was to create an independent body to monitor the state agencies in their performance of human rights, to investigate violations of rights by using its own mechanisms, to recommend corrective action for individual rights violations, and to make recommendations for the improvement of human rights within the country.
From April 3 there will be no legally empowered body to perform these tasks.
There are a large number of cases before the Human Rights Commission of Sri Lanka which are pending in lieu of inquiries. These cases relate to torture, disappearances, extrajudicial killings, undocumented migrant workers and other human rights violations. In recent months, retired judges and other persons of seniority have been recruited to ensure that inquiries are conducted with greater competence and independence. Dr Coomaraswamy, in her interview, has stated that the funding bodies have informed the Commission that they will not provide finances for its activities until the new commissioners are appointed. The work of many of the departments of the Commission is dependent on funding from outside sources and if this funding is stopped, there will be serious problems regarding the employment contracts of the employees and consultants of the Commission.
Dr Coomaraswamy is also reported to have warned President Rajapakse "that Sri Lanka will find it increasingly difficult to defend itself before international treaty bodies if the country does not speedily reactivate the Commission once its members leave on April 3."
The Asian Human Rights Commission (AHRC) is of the opinion that the real problem facing the Human Rights Commission of Sri Lanka, as well as other commissions that are now without commissioners, is the government’s deliberate attempts to place the commissions under its direct control and to discourage the monitoring of government agencies in any form.
This is a concerted attempt to introduce a degree of authoritarianism such as that incorporated by the 1978 Constitution. The origin of the Human Rights Commission can be traced to the enormous local and international pressure surrounding the gross human rights abuses of the 1980s, when the executive president was created by the 1978 Constitution to prevent independent control. The creation of the Human Rights Commission of Sri Lanka in the early 1990s and the passing of the 17th Amendment to the Constitution in 2001 were attempts to introduce some semblance of accountability into the system. However, these have now been removed. The AHRC reiterates that the result of this action will be to greatly increase the prevalence of corruption, to enhance the capacity of human rights abusers by creating an environment of impunity and to make the lives of ordinary people increasingly difficult. We urge the public to take up this matter, despite any disappointment regarding the performance of the Human Rights Commission, because the removal of the services that the Commission provides, no matter how limited, will only make the situation worse.
In recent years the Human Rights Commission has embarked on ambitious ventures to promote a serious stance on the prevention of torture. In recent months the Commission's senior officers conducted inquiries into torture cases and made recommendations to the Attorney General for the prosecution of officers under the CAT Act (Act No. 22 of 1994). This move resulted in a lot of resentment and Dr Coomaraswamy was quoted last year in REDRESS, an international magazine, as saying "the police don't like us [Human Rights Commission]". It is clear that certain sections of the government do not favour investigations into the policing system either by the Human Rights Commission or the National Police Commission.
It is only strong public intervention aimed at the reactivation of the Constitutional Council that will restore the minimum mechanisms available within the Sri Lankan system, to protect basic rights.
SRI LANKA: Bypassing the 17th Amendment is a move towards the return to absolute power
FOR IMMEDIATE RELEASE
AS-024-2006
February 14, 2006
A Statement by the Asian Human Rights Commission (AHRC)
Sri Lanka: Bypassing the 17th Amendment is a move towards the return to absolute power
Recent reports speak of significant reorganisation within Sri Lanka's police department, bringing it under the control of the Secretary of Defence (SD), who will now attend to all police appointments, transfers, promotions and disciplinary control. In this way the Secretary of Defence seems to be taking the place of the National Police Commission. He is assisted by the Advisor to the Defence on Policing while his orders are carried out by the Inspector General of Police (IGP).
The reorganisation includes the transfer of senior officers instrumental in successfully carrying out anti-crime drives. Some reports state that these senior officers are being transferred for offending powerful figures through their strict enforcement of the law. This is contrary to the initial expectation that those within the police force collaborating with drug lords or otherwise involved in organised crime would be brought under stricter control by officers who had nothing to fear in doing their duty, and the improved crime control would lead to the arrest of drug lords. In fact, a key contribution made by the National Police Commission was to create the impression among law abiding police officers that they would have the protection of the commission in enforcing the law. Now however, the message is that no such protection is available and more powerful persons may regain their strength in negating the drive to control crime. Ironically, it was Sri Lanka's IGP himself, who not so long ago stated that the primary obstacles to eliminating drug related crimes were the persons within the police force who collaborated with criminals.
Apart from the transfer of these senior officers, a reported 350 officers and Officers-in-Charge of 401 stations are also being transferred. This rapid and large scale transfer is seen as an attempt to politically manipulate the police for electoral and other purposes. The result will be further chaos within the police department, and the impression that officers-in-charge and their subordinates are expected to enforce the will of the politicians, not the rule of law.
The reorganisation of the police force is occurring while the 17th Amendment is being bypassed through the government's refusal to appoint the Constitutional Council. This refusal has in no way been affected by massive local protests and international criticism against the non-appointment of the council.
Bypassing the 17th Amendment will take Sri Lanka back to its position in 2001, at which time the amendment was unanimously introduced as a way out of the debilitating politicisation of key public institutions. This politicisation began from 1978, when an attempt was made to concentrate all power with the individual holding the post of Executive President, by way of the 1978 Constitution, which removed all checks and balances against absolute power. In fact, under this constitution, the Executive President of Sri Lanka, like Louis XVI, could easily say "I am the State". Under this constitutional structure, chaos and violence spread into all areas of public life. It was this absurd situation that the 17th Amendment was meant to change. It was to take away the arbitrary power of the Executive President and to subject him, in the exercise of his power, to a constitutional process where appointments, transfers, promotions and the disciplinary control of officers of key public institutions were to be placed under the authority of independent bodies.
Without these independent agencies, power will once again be placed in the hands of the Executive President. This will make it possible for him, together with others, to manipulate the political system and public institutions without any respect for the norms and standards required for good governance. Under these circumstances the Ministry of Defence among others acquires enormous powers, which it grossly abused prior to the enactment of the 17th Amendment. One area in which this was most noticeable was the holding of elections. There was hardly any protection for government dissidents or opponents. These persons had no defence against assassinations, death threats or other forms of harassment. The manipulation of power created a fear psychosis that paralysed all attempts to struggle for democracy and human rights.
The Asian Human Rights Commission (AHRC), which has closely followed Sri Lanka's political and legal developments, therefore sees the need to issue an early warning--the bypassing of the 17th Amendment is an attempt to return to the days of the Executive President exercising absolute power. Sri Lanka is on the verge of a period of intense repression, as experienced during the first two decades of the 1978 Constitution.
To prevent the return to repression and absolute power, the AHRC urges all freedom minded people to consider the bypassing of the 17th Amendment as a matter of the utmost importance. While this amendment may not be a complete solution, it has been a partial measure in obstructing the absolute power concept contained in the 1978 Constitution. While it may need to be further improved, at this moment the amendment needs to be preserved from the serious attack being made against it.
SRI LANKA: Two senior judges quit the Judicial Service Commission as a matter of conscience
February 3, 2006
AS-018-2006
A Statement by the Asian Human Rights Commission
SRI LANKA: Two senior judges quit the Judicial Service Commission as a matter of conscience
The Asian Human Rights Commission has today learnt that two of the three members of the Judicial Service Commission of Sri Lanka have resigned their posts as continuing to hold them would be incompatible with their consciences. The two are senior Supreme Court judges Shiranee Bandaranayaka and T B Veerasuriya. The third remaining member and chairperson is none other than the Chief Justice, S N de Silva.
The Judicial Service Commission is a constitutional body empowered to transfer judges of the High Court and appoint, promote, transfer, exercise disciplinary control over and dismiss judicial officers and scheduled public officers. Its powers as stipulated by the Constitution of Sri Lanka include that it may make
"Rules regarding training of judges of the High Court, the schemes for recruitment and training, appointment, promotion and public officers; provision for such matters as are necessary or expedient for the exercise, performance and discharge of the powers, duties and functions of the Commission.
"The Chairman of the Commission or any Judge of the Supreme Court or judge of the Court of Appeal as the case may be, authorised by the Commission shall have power and authority to inspect any Court of First Instance, or the records, Registers and other documents maintained in such Court or hold such inquiry as may be necessary.
"The Commission may by Order published in the Gazette delegate to the Secretary to the Commission the power to make transfers in respect of scheduled public officers, other than transfers involving increase of salary, or to make acting appointments in such cases and subject to such limitations as may be specified in the Order."
As these two judges have resigned it is now impossible for the Commission to function, because at least two members must be present to make decisions. According to the 17th Amendment of the Constitution of Sri Lanka, new persons can be appointed to the Commission only after recommendation by the Constitutional Council. However, the Constitutional Council stopped functioning in March 2005 when the terms of its former members expired, as no new members have since been appointed.
As the Judicial Service Commission is among the most senior bodies in the country, the fact that it too can now no longer operate is also a matter of the highest public interest. The public has a right to know the reasons that these two senior judges resigned simultaneously. What are the issues have challenged their consciences and forced such a drastic step? These must surely be matters that will also challenge the conscience of the nation. There have in recent times been reports of judicial officers upset with the handling of certain affairs and possible damage to their profession. But this is by far the most direct evidence to date that something is seriously wrong in Sri Lanka's judiciary. The public has a right to be informed of the full circumstances of these resignations and the consequences that will follow.
SRI LANKA: Presidential immunity does not extend to violations of the Constitution
FOR IMMEDIATE RELEASE
AS-012-2006
January 25, 2005
A Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Presidential immunity does not extend to violations of the Constitution
A strange notion prevails in Sri Lankan legal circles that presidential immunity extends even to constitutional violations. This is despite the fact that one of the grounds for the impeachment of a president is 'intentional violations of the Constitution', as set out in article 38(2) a(i).
A judgment made by the Indian Supreme Court on January 24, 2006 in this regard is quite illuminating. In the writ petition of Rameshwar Prasad and Ors v. Union of India and Anr (Writ Petition (civil) 257 of 2005), the court observed that "this court cannot remain a silent spectator watching the subversion of the Constitution." The court also held:
"While we accept the submission but, at the same time, it is also necessary to note that the immunity granted to the Governor does not affect the power of the Court to judicially scrutinise the attack made to the proclamation issued under Article 356(1) of the Constitution of India on the ground of mala-fides or it being the ultra-vires. It would be for the Government to satisfy the court and adequately meet such ground of challenge. A mala-fide act is wholly outside the scope of the power and has no existence in the eyes of law. Even, the expression "purporting to be done" in Article 361 does not cover acts which are mala-fide or ultra-vires and, thus, the Government supporting the proclamation under Article 356(1) shall have to meet the challenge."
The court also held when it came to an act or order pertaining to the executive power of the Government of India, though that act or order may be expressed in the name of the President "it is for the concerned minister or ministry to whom the function is allocated under the rules of business to defend and justify such action/order." The Court went on to state:
"The constitutionalism or constitutional system of Government abhors absolutism; it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself."
The court also referred to the oath that is prescribed under the Constitution to perform duties of office and to the best of his ability, preserve, protect and defend the Constitution and the laws, further observing that in the exercise of discretion or otherwise it is not permitted to do anything that is prohibited to be done. The court further held that immunity granted by the Constitution does not affect the power of the court to judicially scrutinise the grounds of the mala-fides or ultra-vires, further stating:
"The personal immunity from answerability provided in Article 361 does not bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of mala-fides are required to be defended by Union of India or the State, as the case may be."
The court went on to quote from Aharon Barak, President of the Supreme Court of Israel, from an article he had published in the Harvard Law Review, observing that:
"The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution by contrast, is drafted with an eye to the future. Its function is to legitimate exercise of government power and, when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often imagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind."
All these considerations from this recent Indian judgment have relevance beyond India as the issue of immunity of heads of state is a matter of paramount importance in the region. The case has a direct bearing on the present discussion in Sri Lanka regarding the attempt by the newly elected president and the cabinet to ignore the 17th Amendment to the constitution and not to make appointments required for the Constitutional Council, without which the provisions of the 17th Amendment cannot be made operative. As of now the Constitutional Council, the National Police Commission and Public Service Commission are not functioning and a cabinet decision was made on December 22, 2005 to hand over the powers of these constitutional bodies to the ministers responsible for different areas of administration. This cabinet decision is a clear violation of the Constitution of Sri Lanka. The Indian decision clearly demonstrates that such violations of the constitution are not protected by presidential immunity however that immunity is worded. The Asian Human Rights Commission urges all concerned persons to agitate this matter in courts and lobby at all levels to ensure that basic constitutional provisions for the protection of human rights are not allowed to be violated.
The entire Supreme Court judgment may be found here:
http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=27435
SECOND DOCUMENTS – Forwards
[Forwarded Statement by the AHRC] SRI LANKA: Protestor appointments to HRCSL
Dear friends,
The Asian Human Rights Commission (AHRC) wishes to forward to you the following statement issued by: I K Gujral, Chairperson, Asma Jahangir, Co-Chairperson and SAHR bureau members in Bangladesh, India, Nepal, Pakistan and Sri Lanka (Hameeda Hossain, Mahfuz Anam, Sigma Huda, Sara Zaker, Subrata Chowdury, Kuldip Nayyar, Nirmala Deshpande, Kamla Bhasin, Keshab Mathema, Mohammedi Siddiqui, I. A. Rehman, Fakhruddin G. Ebrahim, Sairah Irshad Khan, Damaris Wickremesekera, Mr. J. C. Weliamuna, Sathivale Balakrishnan and Sithie Tiruchelvam)
Asian Human Rights Commission
Hong Kong
---------------------------
FOR IMMEDIATE RELEASE
May 26, 2006
FS-013-2006
A Forwarded Statement by the Asian Human Rights Commission
A Statement by the South Asians for Human Rights (SAHR)
SRI LANKA: Protestor appointments to HRCSL
Colombo, 23 May 2006
The South Asians for Human Rights (SAHR) has noted that four countries from the region have been elected to the newly formed United Nations Human Rights Council. SAHR is concerned that the human rights records of some countries is abysmal, while others suffer in areas of concern. At the same time SAHR hopes that the member states from South Asia, who are elected, will play a constructive role in the Council and more importantly that the elected member states will uphold the commitments given prior to the elections and improve their human rights record.
In recent months the government of Sri Lanka has come under pressure from the international community for upholding its commitments for the protection of human rights. In this context, SAHR notes with concern that the appointment by Sri Lankan President Mahinda Rajapakse of individuals to the Human Rights Commission of Sri Lanka, is in violation of the provisions of the constitution as well as Paris Principles which calls for the establishment of independent national human rights commissions.
An independent and effective National Human Rights Commission can play a positive role and give a direction to the government in improving the situation. SAHR is mindful of the difficult circumstances in which the government of Sri Lanka has to negotiate peace and confront violence. It is precisely for this very reason that an independent monitoring body is even more essential.
The Sri Lankan constitution has specifically entrusted the Constitutional Council with the task of recommending candidates to the HRC, before their appointment by the President.
However, members to the Constitutional Council itself are yet to be nominated and appointed and SAHR therefore urgently calls for this body to be constituted, so that subsequent recommendations and nominations to public bodies, including the Public Services Commission and the National Police Commission, can also be carried out according to proper and established procedures.
We urgently ask that President Rajapakse take steps to ensure that the selection process is carried out in a democratic, constitutional and transparent manner as called for in the Sri Lankan constitution, and that persons of repute and credibility in the human rights arena are appointed to the HRC.
In this regard, SAHR is pleased to note that Mr. S.G. Punchiheva has declined to accept his appointment, and commends him for his integrity and respect for rule of law. Previously Dr. Deepika Udagama and M. N. Selvakumaran, leading academics had also declined these unconstitutional appointments.
[Forwarded Statement by the AHRC] SRI LANKA: Saving Sri Lanka from Brink of Disaster
Dear friends,
We are reproducing the statement of an independent group who is calling for a discussion on "Saving Sri Lanka from the brink of disaster".
In the paper this group sets the present conflict in Sri Lanka within the context of the collapse of the state and calls for a debate on this issue. The Asian Human Rights Commission in the past has made several calls also for a study of the present conflicts in Sri Lanka within the context of the collapse of the rule of law and the state institutions, kindly see the following: SRI LANKA: Sri Lanka faces a problem far greater than the escalation of violence - April 26, 2006 - AS-082-2006 - and [AHRC Paper] Sri Lanka: Institutional reform: An alternative approach to the resolution of Sri Lanka's continuing anarchy - January 13, 2006 - AP001-2006
Asian Human Rights Commission
Hong Kong
-------
FOR IMMEDIATE RELEASE
FS-012-2006
May 23, 2006
A Forwarded Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Saving Sri Lanka from Brink of Disaster
The Political Parties (the Government or the Opposition) do not have the necessary vision to comprehend the depth of the crisis that the State of Sri Lanka is facing and to overcome or control it.
Sri Lanka has been declared a failed state. That observation has led to much controversy.
The state of Sri Lanka has not been able to preserve its exclusive right to have and maintain armed forces, the right to defend the territorial boundaries, to protect national unity and to ensure law and order, while protecting the human rights of the citizens.
When compared with the conditions that had prevailed earlier, Sri Lanka has not been able to effectively provide the citizens with the fundamental services (like education, health, Public transport energy) which a state must provide uninterruptedly.
The legislature of the state of Sri Lanka lacks debate and has become something like a rubber stamp. The system of institutions that exists for the purpose of ensuring justice to the citizens has come to a State where it is unable to do so. The state bureaucracy is inefficient and is rotten with corruption.
What the experience with unsuccessful reforms down to the 17th amendment shows is the stat is in such a condition that it requires a total transformation rather than a reform.
Whilst the State of Sri Lanka is in absolute crisis, the LTTE which may be considered the opposite number of the Sri Lankan state too, is in complete crisis.
Although the principal objective of the LTTE is to create a separate state, it does not have the capability to create such a separate state. The LTTE and the stat of Sir Lanka are also unable to combine without their changing themselves. The state of Sri Lanka which has become a failed state is also unable to provide and alternative to that choice.
Without overcoming the crisis that exist in and these states, it will not be possible for Sri Lanka to move even one step forward. If the political parties do not have the vision required to overcome this situation, it must at least be introduced to them from outside. Do the knowledgeable and active persons of the civil society have that capability?
Will it be possible for us to prepare a road map for it similar to the 17th amendment and to compel all the parties represented in the parliament to get together and implement it?
We expect to summon a group of selected knowledgeable persons and to discuss this profound subject. The list of invitees includes your name too. The discussions are expected to be held at Round Table Auditorium Hector Kobbekaduwa Agrarian Research and Training Institute, 114, Wijerama Mawatha Colombo -07. on May 27th 2006 the discussion is to start at 4.30.a.m and to end at 4.30 p.m.if you can note down briefly ( Limited to one page) your ideas on the subject and send them to us we shall be able to make them available to the others.
A.C. Visvaligam ( Dr)
Darmasiri Bandaranayake
Elmore Perera
Frederica Janz
Jayantha Senaviratne ( Dr)
Lucky Taldenia
Mohmad Saleem (Dr)
Nimalka Fernando
Rohan Samarajeewa (Dr)
Sunanda Deshapriya
Shanthini Satchittanandan
Waruna Karunatilake
[Forwarded Statement by the AHRC] SRI LANKA: Position paper on Constitutional Council & Independent Commissions in Sri Lanka
FOR IMMEDIATE RELEASE
FS-010-2006
May 19, 2006
A Forwarded Statement by the Asian Human Rights Commission (AHRC)
SRI LANKA: Position paper on Constitutional Council & Independent Commissions in Sri Lanka
May 16th, 2006
Background: Sri Lanka's past history of insulating its public service from political interference has not been admirable.?Framers of both the First Republican Constitution, (The 1972 Constitution) and the Second Republican Constitution (The 1978 Constitution) removed provisions in the Independence Constitution that attempted to provide protection for an independent public service. Direct political influence over the public sector was encouraged through relevant constitutional and statutory provisions. The deleterious consequences of such a disregard of the fundamental principles of an independent public service was increasingly evident in the late nineties and thereafter.
Due to public demand for open governance, the 17th Amendment to the Constitution was introduced with the support of all the political parties mainly for the purpose of depoliticizing the public sector. This Amendment was initiated by civil society and passed in parliament on 24th September 2001, at a time, when the Chandrika Bandaranaike UPFA government had the support of the JVP which period was popularly known as "government under probation" (Official Hanzard dated 24th September 2001).
The 17th Amendment was subject to some criticism due to its inability to effectively guarantee the protection of the democratic process as for instance, its bestowing of only limited authority to the Elections Commission but it was generally understood as a progressive and forward thinking legislation with long term objectives. The basic objective of the Amendment was to prevent the President and political authorities from exercising arbitrary powers in making key public sector appointments without transparency and accountability in the appointment process.
The gravity of the issue cannot be understood without having a basic idea of political behavior in the country. There are no disclosure laws applicable to the candidates or political parties and they are no required to disclose funding sources. Political parties do not practice internal democracy at any stage. To some of the leading political figures, the civil society is not seen as stake holders of the government. Some of the politicians do not believe that the public have a role to play in between the elections and hence participatory governance is not recognized. Once an MP is expelled from the party, he or she ceases to be a member of parliament and they cannot function with conscience against the party whip on sensitive issues. There is no effective system where the President is accountable to the public except at an election.?Only a limited number of MPs have disclosed their assets and liabilities as required by law.
Constitutional Council (CC), Structure & Its Functions
CC consists of the following members:
Speaker (Chairperson)
Prime Minister
Leader of the Opposition
Appointee of the President
Five person nominated jointly by?the Prime Minister and Leader of the Opposition and appointed by the President
One person nominated upon agreement by majority of members belonging to political parties other than the parties to which the PM or Opposition Leader belong and appointed by the President.
Except the ex officio members, the term of office of other members is 3 years. Once they are nominated the President shall make the appointments forthwith.
The functions of the CC are solely to make suitable appointments to the other commissions established under the 17th Amendments and several other key positions.
There are two statutory procedures contemplated in the 17th Amendment for different categories of appointments.
Members to the commissions (National Police Commission etc.) are selected by the CC and then the President is under constitutional obligation to make the appointment.
Other individual appointments such as Auditor General, Inspector General and Judges of the Supreme Court are nominated by President but appointed on the ratification of the CC.
Commissions under the 17th Amendment
The commissions established under the 17th Amendment are as follows:
The Election Commission
The Public Service Commission (PSC)
The National Police Commission (NPC)
The Human Rights Commission (HRC)
The Commission to Investigate Allegations of Bribery or Corruption (CIOBAC)
The Finance Commission
The Delimitation Commission
In addition, the two members of the Judicial Service Commission (with the Chief Justice serving as its Chairman) are required to be appointed by the President only after such appointment has been approved by the CC.
?
Some of these commissions were in fact, in existence, at the time of the 17th Amendment but the 17th Amendment changed the appointment of process of the Members. Consequent to its constitution, the CC selected the members on criteria adopted by them and in all cases after calling for suitable nominations/applications and screening the candidates.
The Crisis
In March 2003, the CC nominated members of the Election Commission to the President Chandrika Bandaranaike; the President rejected the nomination of the Chairman designate as being not capable of acting independently and impartially. Then the CC conducted an inquiry into the allegations made against by the President and after serious inquiry, the Chairman designate was cleared of all allegations. CC thereafter resubmitted the same nominations to the President in Many 2003 but President chose not to proceed with the appointment. A civil society group, 'Public Interest Law Foundation' challenged the decision of the President in courts but the case failed due to "blanket immunity" of the President enjoyed under Article 35 of the Constitution (CA Writ: No.1396/2003).
During this period, some of the political parties that supported the 17th Amendment (i.e. JVP and UPFA) engaged in mounting criticism of the Independent Commissions, particularly the NPC. Primarily, their criticism was based on their being unable to exercise political authority over police officers during elections. In fact, the NPC stopped all politically motivated mass transfers just prior to the 2002 December Elections. Similarly the PSC was seen by the politicians as a stumbling block to exercise their political power in the public sector. In the mean time, state media was used as a tool to justify non appointment of these commissions and to create an adverse opinion against the commissions. No opportunity was granted in the state media for the contrary opinion.
The Government also stated that it was considering amending the 17th Amendment to permit the Inspector General of Police to sit on the NPC. This led to criticism from activists who pointed out that such an amendment will defeat the very purpose of the 17th Amendment and its setting up of a body to independently supervise the police.
The NPC and PSC fell vacant in end 2005 and the CC itself ceased to function due to the expiry of term in October 2005. Except the appointed members of the CC, the members of other commissions are re-appointable for another term. Civil society pressure was mounted to make the appointments forthwith but the political parties, without exception including the Opposition did not sufficiently agitate on the matter.
Media reported in February 2006 that the Prime Minister and the Leader of the Opposition had communicated the names of their five joint nominations to the President but no appointments were made by the President even though he was constitutionally required to make them 'forthwith'. The positions taken by civil society organisations was that those nominees?should be appointed so that?the CC can function with the required quorum along with the ex officio members being the Speaker, the Prime Minister and the Leader of the Opposition.
At that time, reports were that the presidential appointee to the CC (an appointment made by President Rajapakse's predecessor had an unexpired term of his office up to May 2006, thus further buttressing the argument that once the remaining vacancies were filled in the CC, it could function. However, no action was taken by the office of the Presidency in that regard.
In the mean time, on 30th March 2006, the HRC fell vacant.?The two members of the Judicial Service Commission resigned on obvious conflicts with the Chief Justice and that commission is added to list of defunct commissions. A TISL source suggests that acting members have been appointed by the President in terms of a provision in the 17th Amendment which allows him to make acting appointments provided that they do not exceed fourteen days. Presumably, such acting appointments are extended by him after each fourteen day period comes to an end, thus clearly rendering such actions beyond the spirit if not the letter of the 17th Amendment.
Main civil society organizations including TI Sri Lanka, Organization of Professional Associations (representing 38 Professional bodies), Centre for Policy Alternatives, Free Media Movement, Civil Rights Movement, Citizens Movement for Good Governance and regional bodies such as the Commonwealth Human Rights Initiative (New Delhi) and the Asian Human Rights Commission (Hong Kong) have voiced serious concern in regard to the bypassing of the Constitution. Most of these organizations have urged the appointees not to accept the unconstitutional appointments.?However the government has chosen to ignore civil society voices.?
Unconstitutional Cabinet decision
On 14th December 2005, the Cabinet took an unusual decision circumventing the 17th Amendment whereby the Cabinet delegated the powers of the NPC and PSC to the Inspector General and the Secretaries of Ministries and Heads of Departments. This purported delegation is totally unconstitutional and in any event the Cabinet had no power to delegate in respect of these appointments.?Civil society organizations raised their strong objections to this move.?(See also TISL Press Release on www.tisrilanka.org on the subject) Thereafter the IGP and Heads of Pubic Institutions including Secretaries made an unimaginable number of transfers, promotions and?appointments within Police and other?the public sector institutions. Thousands police officers in different ranks were promoted without following the scheme of promotions adopted by the NPC. Some of the police transfers were challenged before the Court of Appeal and the cases are now pending.
Questionable Appointments & Attitude of the Government
On or about 7th April 2006, the Government suddenly made an announcement stating that the President has written to the Speaker to submit the nominations for the CC. On or about 9th April 2006, the Speaker wrote back to the President stating that he has done everything possible but failed to get consensus on the nominee of the minority parties. Suddenly on 10th April 2006, the government announced the appointments of the members to the NPC and PSC.?(See the annexsure) It is obvious from the sequence of events that the President had in fact selected the persons long before the communications with the Speaker. The communications were in fact a pretext to justify a purported dead lock.
The following questions, raised by the civil society, remained unanswered up to now:
What are the criteria adopted to select these persons?
Was it President's own decision to make these appointments or, if not, who advised the President to make these appointments? If any professional advised the President, has the professional acted within his ethical framework or for personal gain, in which event, it amounts to corruption.
Why did not President consider other options to make appointments to the CC and instead made appointments directly to the commissions?
Can the Sri Lankan government satisfy the national and international stake holders on its bona fide and commitment to a constitutional solution to the ethnic conflict?
Among those who were appointed were retired judges, professional and not-so known person. Would the appointees accept unconstitutional appointments and if they do so, how should they defend the constitution? Do these people have courage to defend democratic values, contemplated in the 17th Amendment, while holding unconstitutional appointments??lt;/li>
At the time of the President's appointments, two members of the National Police Commission were in fact serving. The President appointed 7 more (meaning two more than the constitutional number). Does it mean recklessness or mere disregard to the constitutional requirements?
Thereafter addressing a press conference, the Minister of Constitutional Affairs stated that the President made the appointments under his presidential powers and anyone disappointed can challenge it in courts. This undemocratic and arrogant statement is an open challenge to democratic values of a democracy. The public does not expect to go to courts to determine constitutional issues. Undeniably, it is the duty of the elected officials to ensure that the Constitution is not violated for short term political gain.
Recently, a workshop on a "New Bill of Rights" for Sri Lanka was hosted by the Ministry of Constitutional Affairs. TISL stresses the importance of addressing the non-implementation of the 17th Amendment as a priority issue prior to any constitutional reform process being embarked upon by the Government. Any other course would only be politically expedient and would heighten public cynicism that the law and the Constitution itself are worthless.
Conclusions & Recommendations
TISL, having examined the issues carefully, come to the following conclusions and make consequential recommendations:-
1. The appointments to the Independent Commissions are undoubtedly unconstitutional, amounting to an intentional violation of the Constitution, which is an impeachable offence. To prevent the perpetuation of the unconstitutional government structure at the highest level, either the appointees must resign or they should be removed to pave way for legal appointments.
2. Due to these appointments, there is no doubt that the speed, at which the entire state sector is being politicized, will intensify. These appointments were shrouded with secrecy and it is reasonable to presume that the independence expected of these members can never be achieved.
3. The Leader of the Opposition and other opposition parties has failed in their constitutional duty to defend the constitution in or outside parliament on the issue, at the appropriate time. Absence of a parliamentary debate on the subject is ample testimony to their sensitivity to good governance. It also proves that the 17th Amendment was not introduced with the genuine intention of depoliticizing the public service but as a face saving devise to meet the public demand.
4. There is no doubt that the media has been a major contributory factor in this debilitating process. Excepting few media institutions and newspapers, generally journalists have not devoted much space for public opinion or reporting on the controversy. This is especially evident in reporting and commentary in the Sinhala and Tamil newspapers. The polarized behavior of the media has affected this important governance issue as well. For example, the Human Rights Commission is defunct at a time when disappearances are reported throughout the country. The media is undoubtedly expected to bring in the consequences of absence of the HRC, the other independent commissions as well as the non-constitution of the CC. However, it has not done so. On the one hand, the silence of the politically controlled state media and on the other hand, evidence of self imposed censorship of some private media has encouraged the political authorities to act unconstitutionally.
5. TISL recommends the following suggestions to remedy the crisis with a view to reestablishing constitutional governance:
?The President should appoint the five joint nominees of the Prime Minister and the Leader of the Opposition already communicated to him forthwith as he is constitutionally required to do and allow the CC to function with the quorum along with the ex officio members being the Speaker, the Prime Minister and the Leader of the Opposition;
The President should proceed to make afresh his own appointee to the CC if the appointee of the former President has, by this time ceased to hold office;
All parties who are deemed not to belong to the party of the Prime Minister or the Leader of the Opposition should be given a specific time period by the President/Speaker to agree by majority vote on who the remaining member;
Bring in an amendment with the support of the political parties to resolve the issue for future.
Upon the properly constituted CC is appointed, the unconstitutionally appointed members to the NPC and PSC should be removed and new members should be appointed by the CC, if they have not resigned then.
====================================================
Annexure (source Daily Mirror, 11-4-2006)
National Police Commission
1. Nevil Piyadigama (Retired Administrative Service Officer)
2. Ven Elle Gunawansa,
3. Chandradasa Nayayakkara
4. Nimal Punshihewa
5. R. Shivaraman
6. Javad Ysuf
7. Sharmaine Madurasinghe
Public Service Commission
1. Priyantha Perera (former SC Judge)
2. Gunapala Wickramaratne,
3. Dr. H.H. Mukiya
4. Dr. W.P.S. Jayawardana
5. Dr. Bernard Zoysa
6. Dr. Palitha Kumarasinghe
7. Prof. Dayasiri Fernando
8. Srima Wijeratne
9. Dr. Mendis Rohanadheera
Forwarded Statement by the AHRC] SRI LANKA: The Constitutional Council must function -- a meaningful interpretation needed
Dear friends,
The Asian Human Rights Commission (AHRC) wishes to forward to you a statement and a press summary issued by the Civil Rights Movement (CRM) in Sri Lanka.
Asian Human Rights Commission
Hong Kong
-------
FOR IMMEDIATE RELEASE
April 24, 2005
FS-007-2006
A Forwarded Statement by the Asian Human Rights Commission
A Statement by the Civil Rights Movement (CRM) Sri Lanka
E 01A/04/2006
23 April 2006
Press Summary
People have observed with amazement verging on disbelief the non-functioning of the Constitutional Council for over a year, and the apparent unconcern with which institution after institution has been allowed to cease to function, says a statement by the Civil Rights Movement.
There are already three and possibly four members of the Constitutional Council in place. The PM and the Leader of the Opposition, if they have not already communicated their five nominees to the President, should do so. The Seventeenth Amendment requires the President to then “forthwith” make the appointments. The quorum is six, and once this number or more are appointed the Council should begin to function. That it may do so despite a vacancy must be read into the law, says CRM. “The Council forms the keystone on which the appointment of vital Commissions and officials depends, and the legal provision which creates it must be construed so as to give it meaning and efficacy. Having taken away the President’s unfettered power to make appointments there can be no construction of the Seventeenth Amendment that deliberately hands back to him these same powers.”
Reported appointments by the President to the Public Service Commission and the Police Commission are “unconstitutional and misguided” says the statement. A constitutional option would have been to seek a speedy amendment enabling the Council to function with nine members. Another would have been for the President to use his constitutional power to seek the opinion of the Supreme Court on the dispute as to which of the smaller parties are entitled to participate in the selection of the tenth member. Neither step is necessary, in CRM’s view, but they would have had the merit of finding a solution within the bounds of constitutionality, while preserving the purpose of the Seventeenth Amendment. The Council, which was created by a rare consensus and warmly welcomed across the political spectrum, must be made to function, CRM concludes. “This is all the more vital in a pluralist, complex and conflict-prone society such as ours.”
The full text of the statement is given below.
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E 01/04/2006
SRI LANKA: The Constitutional Council must function
-- a meaningful interpretation needed
“The meaning of a Constitution is to be found, not in slavish adherence to the letter, which sometimes killeth, but in the discovery of its spirit, which giveth life…”[1]
The general dismay voiced over the non-functioning of the Constitutional Council for over a year is shared by the Civil Rights Movement (CRM). Many have observed with amazement verging on disbelief the apparent unconcern with which institution after institution – the Public Service Commission, the Police Commission, the Judicial Service Commission - has been allowed to cease to function despite appeals and protests by the public. The latest casualty is the Human Rights Commission, whose term ended on 3 April this year.
Why should this happen when the Constitutional Council got off to a good start after the Seventeenth Amendment to the Constitution was passed in 2001?
The Seventeenth Amendment envisages a Constitutional Council of ten persons, three of whom are Members of Parliament – the Speaker, the Prime Minister and the Leader of the Opposition. The actual incumbent may change, but the law takes care that there is never a hiatus, so that we have at any given time three Council members.
Seven members are appointed by the President, but the President does not select them except for one. This one can be removed at will. The nominee of President Kumaratunga (Mr HL de Silva) resigned after some time and the Constitutional Council functioned with nine members. When the vacancy was filled by the President, the appointment (of Dr Colvin Gunaratne) took effect for three years from the date of appointment, and not for the unexpired period. In March 2005, therefore, there was one other member surviving in addition to the three ex officio members. His term may or may not have expired by now. If it has, the President should make a fresh appointment. The position therefore is that today there are in place three or maybe four members of the Council. There is no question of the Council having gone out of existence or having to be totally “reconstituted”; it is a question of filling vacancies, which have occurred.
The remaining six members (including the President’s nominee) are all expected to be “persons of eminence and integrity who have distinguished themselves in public life and who are not members of any political party”.[ii] Clearly the Constitutional Council is not meant for stooges, and lobbying for appointment is not contemplated.
Five members are selected by the Prime Minister and the Leader of the Opposition acting jointly. Three of these have to be selected after consultation with party leaders in Parliament to represent minority interests, ensuring that there is a Tamil, up-country Tamil and Muslim in the Council, or persons who represent their interests. The sixth member is chosen by MPs belonging to the smaller parties. According to uncontradicted press reports the selection of the five persons has been completed. If so it was the duty of the Prime Minister and Leader of the Opposition to communicate to the President their names in writing. If this has not been done, it must be done now, and we could then have a Constitutional Council of nine members. There is no requirement that the remaining nomination should have been made and that all six names should go in at one and the same time. If the five names have in fact been so communicated, it was the duty of the President to appoint them. What the Seventeenth Amendment says is that the President shall “upon receipt of a written communication of the nominations under sub-paragraph (e) OR sub-paragraph (f)” make the respective appointments ‘FORTHWITH”.[iii] (Emphasis added). The sub-paragraph (e) referred to relates to the five chosen by the Prime Minister and Leader of the Opposition, and (f) refers to the nominee of the smaller parties. The nominee of the smaller parties in Parliament must be communicated by the parties taking part in the selection themselves. Common sense dictates that if these small parties fail to select a member they will simply forfeit, for the time being, a place in the Constitutional Council. The same principle would apply in the hypothetical case of a President failing to appoint his or her nominee. Is it conceivable that, by giving the President the right to select one person, the framers of the Seventeenth Amendment intended to give him or her the power to stymie the whole operation of this vital exercise?
The quorum for the Constitutional Council is six members, and once this number or more are appointed the Council should begin to function. True, there is no specific provision that the Council may function notwithstanding a vacancy, but this has to be read into the law. It is well established that constitutional provisions should be interpreted with their end, object and purpose in mind, and must receive “a broader and more liberal construction than statutes.”[iv] In examining constitutional language, if “by one mode of interpretation the right must become shadowy and insubstantial … and by another mode it will attain the just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail”.[v] This principle is particularly applicable where the underlying intention is to provide a remedy to an existing situation.[vi]
Expounded in numerous US cases, the principle has been recognised by judges in the Commonwealth including Britain. The Constitutional Council forms the keystone on which the appointment of vital Commissions and officials depends, and the legal provision which creates it must be construed so as to give it meaning and efficacy. Having taken away the President’s unfettered power to make appointments there can be no construction of the Seventeenth Amendment that deliberately hands back to him these same powers.
The failure to appoint the tenth member is reportedly due to a dispute as to which political parties are entitled to participate in the selection. Apparently there is a misconception that this selection has to be by consensus. But the relevant constitutional provision is clear that the decision is by majority vote. Those entitled to participate are the members of Parliament belonging to political parties or independent groups other than those to which the Prime Minister or the Leader of the Opposition belong. There is also apparently a dispute as to whether the JVP is entitled to participate. This would appear to depend on the manner in which they came into Parliament, in this case after the 2004 general election. But in any event CRM’s position is that these questions cannot hold up the functioning of the Council.
According to press reports the President, after an unsuccessful attempt to obtain, through the Speaker, a nomination from the smaller parties, has himself unilaterally appointed members to the Public Service Commission and the National Police Commission. There does not appear to have been an official communiqué from the Presidential Secretariat on this step. Such appointments, if made, are unconstitutional and misguided. They are also in direct contradiction of the spirit of the Seventeenth Amendment. An option would have been to seek a simple constitutional amendment enabling the Council to function with an acceptable number of vacancies. Parliament would surely have co-operated in passing this expeditiously. Another would have been for the President to seek the opinion of the Supreme Court, as he is empowered to do under the Article 129(1) of the Constitution, as to which parties are entitled to participate in the selection of the tenth member. Neither of these steps is necessary in view of the position taken by CRM, but they would have had the merit of finding a solution to the impasse within the bounds of constitutionality, while preserving the very basis and purpose of the Seventeenth Amendment.
The Constitutional Council is a salutary step forward in the de-politicisation of crucial public institutions and the furthering of democracy. Whatever shortcomings exist must be rectified in a separate exercise, with a responsible evaluation of experience so far, and public consultation. In the meanwhile the Council, which was created by a rare consensus in Parliament, and warmly welcomed by the people across the political spectrum, must be made to function. This is all the more vital in a pluralist, complex and conflict-prone society such as ours.
Suriya Wickremasinghe
Secretary
Civil Rights Movement (CRM)
Notes:
i Opinion of the Justices (1933) 204 NC 806, 172 SE 474, followed in re Advisory Opinion to the Governor (1944) 223 NC 845, 285 SE2d 567
ii Article 41A(4)
iii Article 41A (5)
iv Carpenter v State (1966) 179 Neb 628, 139 NW 2d 541, 544
v Prigg v Pennsylvania (1842) 41 US (16 Pet.) 539, 10 L.Ed 1060, 1088
v Chisholm v Georgia (1793) 2 US (2 Dall.) 419, L.Ed 440, 465
23 April 2006
CRM
4 Charles Circus, Colombo 3
Tel: 2573887 Fax: 2576317 e-mail: nad@slt.lk
[Forwarded Statement by the AHRC] SRI LANKA: President Violates 17th Amendment to the Constitution
Dear friends,
The Asian Human Rights Commission (AHRC) wishes to forward to you a statement sent to us by the Centre for Policy Alternatives (CPA) in Sri Lanka.
Asian Human Rights Commission
Hong Kong
-------
FOR IMMEDIATE RELEASE
April 13, 2005
FS-005-2006
A Forwarded Statement by the Asian Human Rights Commission
A Statement by the Centre for Policy Alternatives (CPA) Sri Lanka
SRI LANKA: President Violates 17th Amendment to the Constitution
The Centre for Policy Alternatives (CPA) expresses its deep concern and opposition to the decision of President Rajapakse to unilaterally appoint members to the National Public Service Commission and the National Police Commission, in violation of both the letter and the spirit of the 17th Amendment to the Constitution. The justification for this intentional violation of the Constitution is totally unconvincing.
The 17th Amendment to the Constitution was passed by Parliament in September 2001, mainly at the initiative of the People’s Alliance and the JVP. CPA had some reservations both with respect to the process of adoption and the substance of the Amendment, but supported the rationale of the Amendment, which was the depoliticisation of key public institutions with a view to promoting good governance. The Amendment is today part of Sri Lanka’s Constitution, the Supreme Law of the land. Both the Police and the Public Service were institutions urgently in need of depoliticisation, especially after the increased malpractices and perception of partisanship during elections since the early 1980s.
As indicated by CPA in its public statements and in the petition filed in the Court of Appeal, the President and his predecessor should have taken urgent steps to fill the vacancies on the Constitutional Council. We note that these occurred as early as March 2005. The President or the Speaker should have summoned a special meeting to resolve the dispute with respect to which of the parties in Parliament were entitled to have their members serve on an electoral college to elect a nominee to the Constitutional Council. An alternative course of action would have been to constitute the Constitutional Council without the nominee of the smaller parties. This would have enabled the Council to commence its primary function that of recommending persons who are and are seen to be non-partisan, to the various positions and Commissions required by the 17th Amendment to the Constitution. Whilst this would not have been the ideal course of action, from the perspective of governance it certainly would have been a better one than that pursued by the President.
The President’s action also has repercussions for the process through which a negotiated political settlement of the ethnic conflict can be attained. Embarking on a course of action which is in flagrant violation of the letter and spirit of the Constitution while at the same time taking a strict, legalistic approach to constitutional interpretation in its negotiations with the LTTE on issues such as the constitutionality of the Cease fire Agreement and the P-TOMS mechanism, is particularly unfortunate, as it demonstrates inconsistency and double standards. The LTTE and Tamil nationalists will be able to argue, with justification, that the Rule of Law and fidelity to the Constitution become relevant only when dealing with issues of peace, reconciliation and reconstruction but not when dealing with the exercise of power by governments of Sri Lanka and their leaders.
CPA believes that the intentional subversion of the 17th Amendment to the Constitution poses a threat to the Rule of Law in Sri Lanka, probably unparalleled since the assault on the independence of the judiciary by the government of President J.R. Jayewardene in the 1980s.
CPA calls upon President Rajapakse to revoke his unconstitutional decision and take urgent steps to fully implement the 17th Amendment to the Constitution. It also calls upon all those nominated to positions on these two Commissions to refuse to accept the appointments, thereby lending their support to upholding the Rule of Law in Sri Lanka. It calls upon all sections of civil society including the Bar Association of Sri Lanka to act in solidarity to uphold the letter and spirit of the 17th Amendment to the Constitution.
[sgd]
Dr. P. Saravanamuttu
Executive Director
Centre for Policy Alternatives (CPA)
[Forwarded Statement by the AHRC] SRI LANKA: President usurped powers of the Constitutional Council; TISL condemns appointments to Police Commission and Public Service Commission
Dear friends,
The Asian Human Rights Commission (AHRC) wishes to forward to you a statement sent to us by the Coalition against Corruption, Transparency International Sri Lanka.
Asian Human Rights Commission
Hong Kong
-------
FOR IMMEDIATE RELEASE
April 12, 2005
FS-004-2006
A Forwarded Statement by the Asian Human Rights Commission
A Statement by the Coalition against Corruption, Transparency International Sri Lanka
SRI LANKA: President usurped powers of the Constitutional Council; TISL condemns appointments to Police Commission and Public Service Commission
Transparency International Sri Lanka (TISL) notes with shock and dismay the appointment of the members to the National Police Commission and Public Service Commission, in violation of the constitutional provisions to protect the integrity of those institutions. It is the Constitutional Council that should select and screen members of all of these commissions established under the 17th Amendment. In this instance, the President has chosen to appoint members directly without following the constitutional norms that underpin good governance and the Rule of Law. By doing this, the President has risked pushing the country into an unconstitutional regime of governance. The long term adverse consequences of this include the perpetuating of the politicization of public sector and Police. The President's action goes directly against the concept of "Independent" Police or Public Service Commissions
The political leadership, both of the government and of the opposition is responsible for this situation. They have jointly demonstrated their inability to sustain a constitutional process with a long term vision and integrity and they are opposed to depoliticize the police and public service.
TISL urges the President to withdraw these appointments forthwith and urges the members so appointed by the President not to be parties to an unconstitutional and politically motivated process of governance. The public should be aware that the damage caused is irreparable. We call upon all those who value constitutional governance, the political parties, the corporate sector, organizations and individuals, to protest this move and to make every effort to ensure that the constitutional process will be back on track soon. Failure to oppose to this undemocratic move of the President amounts to collusion on their part and exposes their hypocrisy.
J.C. Weliamuna
Executive Director
[Forwarded Statement] SRI LANKA: A Statement by University of Colombo Law Teachers Association on Independence of the Judiciary
Dear friends,
The Asian Human Rights Commission (AHRC) wishes to forward to you a statement by the University of Colombo Law Teachers Association.
Asian Human Rights Commission
Hong Kong
-------
FOR IMMEDIATE RELEASE
February 27, 2005
FS-002-2006
A Forwarded Statement by the Asian Human Rights Commission
A Statement by University of Colombo Law Teachers Association on Independence of the Judiciary
The Law Faculty Teachers' Union of the University of Colombo expresses its deep concern over a statement issued by the Secretary to the Judicial Service Commission published in the Daily News on 6 February, 2006 under the heading "JSC Will Continue to Function Despite Judges' Resignation". The statement, which is on the recent resignation of two Supreme Court Justices from the Commission, has serious implications for the preservation of the dignity, authority and independence of the judiciary.
First, the statement engages in a very negative personal characterization of the two justices. By implication it points to the fact that because of their insignificant value as justices their resignation is of no consequence. One justice is characterized as one who is nearing retirement. The other is described as one who has come to the Bench directly from academia without experience at the Bar and is also in the habit of frequently resigning from official bodies. We do recognize the value of fair criticism of members of the judiciary. However, in this instance, the statement attempts to deflect public attention from the crisis caused by the resignations through unwarranted personal characterizations of justices. We see no link between those characterizations and the crisis facing the JSC. The use of such unbecoming methods brings the judiciary to ridicule and also defeats the right of the public to be informed of the real reasons that precipitated the crisis.
Secondly, the statement clearly suggests that, as a rule, academics do not have a place in the higher judiciary. We take serious issue with that position. We are of the opinion that the appointment of eminently qualified academics to the higher judiciary would enrich the development of jurisprudence of the appellate courts and therefore serves the public well. Indeed, international best practice is that an appellate court or constitutional court should be representative and include persons from diverse backgrounds and experiences.
Finally, we express our grave concern by the statement attributed to the Chief Justice that the "two vacancies in the Judicial Service Commission will be filled by the next two most senior judges of the Supreme Court". According to the Constitution, the members of the Judicial Service Commission shall be the Chief Justice and two judges of the Supreme Court appointed by the President with the approval of the Constitutional Council and not the Chief Justice. The Constitutional Council which should have been reconstituted early last year has regrettably still not been constituted. This too has serious implications for the supremacy of the constitution and the Rule of Law.
We request the Secretary of the JSC or for that matter any other official or institution to act in a responsible and dignified manner recognizing the crucial importance of preserving the dignity and the independence of the judiciary in a democracy.
Contempt of the constitution: Reaching the zenith of disregard for the rule of law in Sri Lanka
Kishali Pinto-Jayawardena, Convenor, Rule of Law Centre, Sri Lanka
The 17th Amendment to the Constitution of Sri Lanka was unanimously passed by parliament in 2001 to stipulate independent supervision over important appointments in public service and key commissions. Hailed domestically and regionally as a creditable effort towards remedying a highly-politicised police and public service in particular, the constitutional amendment mandated a process of appointments to these commissions and offices through approval by an apolitical, 10-member Constitutional Council (CC). The intervening authority of the CC was to be an external check over what had earlier been unrestrained presidential fiat in the appointment process. Its composition envisaged a process of consensual decision-making by the constituent political parties in parliament.
Five members of high integrity and standing were nominated jointly to the CC by the prime minister and leader of the opposition. One member was nominated by the minor parties in the house. All these appointed members held office for three years. They could be removed only on strictly-mandated grounds, and any individual appointed to a vacancy held office only for the un-expired portion of that term. In addition, the president also had the authority to appoint a person of his or her own choice. The rest of the CC comprised of the leader of the opposition, the prime minister and the speaker of the house ex officio.
The powers of the CC were twofold. Firstly, it was empowered to nominate members to key commissions, who were then appointed by the president. These bodies included the Elections Commission, Public Service Commission, National Police Commission, Human Rights Commission, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, and Delimitation Commission. Secondly, it was authorised to approve appointments to important public offices such as the auditor general, inspector general, chief justice and judges of the Supreme Court, as well as the president and judges of the Court of Appeal. It also had to approve the appointment of the two members of the Judicial Service Commission other than its third member, who is the chairman and by tradition, the chief justice.
Early implementation of the 17th Amendment
Some problems were identified in the implementation of the 17th Amendment during 2003 and 2004. For example, at one point, the first presidential appointee--a senior constitutional lawyer--wished to resign his position (due primarily to public criticism that he was continuing with his practice while a member of the CC). At that time, it was discovered that there was no provision made for the resignation of the presidential appointee, unlike the other nominated members. By similar oversight, the successor to the vacancy created by his departure also stayed on not for the unexpired portion of that term but instead held office for a full three years. There were other concerns at the non-prescribing of proper time limits of key constitutional bodies, and the lack of provisions for resolution of disputes arising between the recommendatory authority of the CC and the appointing authority of the president. More substantively, it became clear that the powers granted to the Elections Commission (exercised by the election commissioner during that period, as the commission was not set up) were inadequate.
However, despite the hasty manner in which the 17th Amendment was passed by parliament, all these deficiencies could have been corrected by a further constitutional amendment. Yet, what Sri Lanka witnessed thereafter was not a consensual effort at improving the 17th Amendment but rather its systematic downgrading and devaluing.
Opening tussles between the Constitutional Council and presidency
One of the new commissions established under the 17th Amendment was the Elections Commission (EC). This body was given greater powers than what had existed previously in regard to supervision of the electoral process, including the power to appoint a competent authority for two state media institutions if they violated guidelines in the pre-election period. As abuse of the state media had become a recurring and well-documented feature of Sri Lankan elections, this was a salutary provision.
However, the EC was not even established due to opposition raised by then President Chandrika Kumaranatunge over the proposed chairperson. Though the CC (which included a presidential appointee) considered her objections, it found no merit in them. Thereafter, the recommendations it again forwarded to President Kumaratunge were not accepted, despite frequent pleas from the incumbent elections commissioner that the EC be speedily constituted. His appeal to the Supreme Court on the same went unanswered. A similar appeal filed by a public interest group in the Court of Appeal, calling upon the court to compel President Kumaranatunge to appoint the members of the EC, also failed (see Public Interest Law Foundation vs. the Attorney General and Others, CA Application No 1396/2003, CA Minutes of 17.12.2003). In the latter instance, the argument was interestingly that article 41B of the Constitution (brought in by the 17th Amendment) did not permit the president to wield unfettered powers over the appointment of the EC, and that she had no discretion over the appointments once the CC forwarded its recommendations. However, article 35(1) of the Constitution was held to give 'blanket immunity' to the president from proceedings instituted or continued against her in any court in respect of anything done or omitted to be done in her official or private capacity, except in limited circumstances constitutionally specified in relation to inter alia ministerial subjects or functions assigned to the president and election petitions.
In the period thereafter, the new National Police Commission was also hampered at every turn by politicians who took umbrage at its efforts to prevent political transfers of police officers prior to elections. Astonishingly, government politicians proposed in 2005 that the inspector general of police should form part of the police commission.
The 17th Amendment breaks down
By early 2006, the 17th Amendment had essentially broken down. The term of the six appointed members to the first CC had expired in March 2005, but the vacancies had not been filled. The terms of office of the commissions on police and public service lapsed in late 2005, but new appointments could not be made due to the ongoing failure to constitute the CC. The cabinet therefore decided on a novel remedy. In December 2005 it agreed that "the arrangements that prevailed prior to the establishment of these Commissions could be resorted to, purely as an interim measure..." The "responsibilities" of the National Police Commission and Public Service Commission were thus "assumed" by the inspector general of police and secretaries of ministries or heads of departments respectively.
Further controversy followed. In early 2006, the two senior judges of the Supreme Court who constituted the Judicial Service Commission along with the chief justice resigned their positions, citing grounds of conscience. The widely-held perception was that the resignations were due to differences with the chief justice, whose actions in dismissing and transferring judges of the subordinate courts had been seen as arbitrary and unfair in past years.
Only one 17th Amendment body was still left functioning, namely the Human Rights Commission. That lapsed too in March 2006. With that, the 17th Amendment all but collapsed.
The failure to constitute the CC was due to the deliberate inaction of minor political parties. Though these parties were vested with the constitutional duty of agreeing, on majority vote, to one remaining member to the CC, they did not make that single nomination. For his part, the new president, Mahinda Rajapakse, also refrained appointing the five nominees jointly sent to him by his own prime minister and leader of the opposition.
Contempt of the constitution
Taking this constitutional fiasco even further, President Rajapakse recently proceeded to make direct appointments to the commissions, thus effectively voiding the vetting process vested in the CC. These appointments were made without first attempting to compel the smaller parties, one of which is closely allied with his own party, to come to a consensus on the remaining nominations to the CC. He also did not attempt to make the appointments of the nominations already communicated to him.
The appointments were problematic not only in procedure but also in substance. The appointees are predominately supporters and close personal friends of the president. The incredibly slipshod manner in which they were made was disclosed when President Rajapakse went on to make seven appointments to the police commission without being properly advised that there were still two serving members. By his appointments, the police commission came to have nine members, two more than the constitutionally-stipulated number. This caused great embarrassment to the government. The status of that commission is now obscure, with unconfirmed reports that the new appointments have been revoked. However, the appointments to the Public Service Commission have gone ahead and the commissioners are now apparently serving in their positions despite calls being made to them to resign, given the unconstitutional manner of the appointments.
Insofar as the other commissions are concerned, the Judicial Service Commission has also been balanced on a knife edge of constitutional propriety by having two acting members appointed to it by the president. The constitution permits acting appointments to be made without the approval of the CC only up to 14 days. One presumes that the acting appointments are being renewed every 14 days, thus violating the spirit if not the letter of the constitution.
Prior to its members also going out of office, the Human Rights Commission delegated its powers of investigation to a committee. But, no official recommendations or reports could be released as a result of the non-constitution of the primary body. This effective crippling of its functioning had serious impact in the northeast, where the commission had been engaged in safeguarding citizens caught in the cross fire between government and opposing forces. President Rajapakse, in line with his other appointments, subsequently made direct appointments to the commission.
Ironically, two former members of the Human Rights Commission, both senior law academics, declined reappointment, even though they had been lobbied hard by government officials. In their stead, a former judge of the Supreme Court, now in his eighties, and a retired judge of the Court of Appeal who had sat on various presidential commissions of inquiry together with three others (two of which were virtually unknown to the human rights community in Sri Lanka) accepted the appointments. In this case as well, protests by civil society organisations were to no avail.
Conclusion
The president's flagrant violation of the constitution has now reached its zenith with the filling of vacancies in the Court of Appeal and one vacancy in the Supreme Court, disregarding the pre-condition of approval by the CC. This step has consummated the unholy disregard for due constitutional process. These appointments again bypassed the constitutional requirement decreeing approval by the CC upon a recommendation by the president. This requirement obviously could not be complied with in the absence of the CC. The question that now arises is: will decisions by judges appointed in this manner possess constitutional legitimacy if challenged at any point in the future?
Currently, there are grave concerns that the government might legitimise its bypassing of the 17th Amendment and embark on its own process of expedient constitutional reform. These fears were borne out recently by efforts through the Ministry of Constitutional Affairs to hold discussions on a "new bill of rights for Sri Lanka" without addressing the outstanding problem of the non-implementation of the 17th Amendment. The destruction of the 17th Amendment also reflects negatively on Sri Lanka's newly-won seat in the United Nations Human Rights Council, and creates doubts over the government's commitment towards constitutional democracy.
It does not require profound constitutional deliberations to acknowledge the lesson that this holds for the conflict in the northeast. Where constitutional provisions for effective governance in the south are disregarded so easily, what is there to allay fears of the ethnic minorities that a similar fate may visit constitutional compromises of devolution or federalism as the case may be, at any moment that the government may find it politically expedient to do so? There is no simple answer to this devastating question.
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The writer is a public interest lawyer and regular media columnist in Sri Lanka who holds senior consultancy positions on law, rights and gender.
Posted on 2007-06-20
remarks:4 |
