TISL releases a Position Paper on the most critical constitutional issue in Sri Lanka and the responses of the stake holders

TISL releases a Position Paper on the most critical constitutional issue in Sri Lanka and the responses of the stake holders

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?
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:-

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.
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.
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.
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.
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.
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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

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