Contempt of the Constitution: Disregard for the Rule of Law and its Impact on the Ethnic Conflict in Sri Lanka

Kishali Pinto-Jayawardena

The 17th Amendment to Sri Lanka’s Constitution was unanimously passed in Parliament in 2001 to stipulate independent supervision over important appointments in public service. Hailed domestically and regionally, this constitutional amendment mandated a process of appointments to several key commissions and offices through approval by a 10-member Constitutional Council (CC).

The intervening authority of the CC was 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 jointly nominated (taking into account minority concerns) to the CC by the Prime Minister and the Leader of the Opposition. One member was nominated by the smaller parties in the House, which did not belong to either the party of the Prime Minister or the Leader of the Opposition. All these appointed members held office for three years and could only be removed on strictly mandated grounds. Any individual appointed to fill vacancies in the CC held office for the un-expired duration of that term. The President had the authority to appoint a person of his or her own choice and any person succeeding that particular vacancy held office for the full period of three years. The rest of the CC comprised of the Leader of the Opposition, the Prime Minister and the Speaker of the House ex officio.

The 17th Amendment was implemented to some extent only during three short years, namely 2002 to 2005. What Sri Lanka witnessed thereafter was its systematic downgrading and devaluing.

The Breaking Down of the 17th Amendment

Early tussles between the CC and the Executive Presidency were witnessed by the then President, Chandrika Kumaratunge, refusing to appoint the Chairman to the Elections Commission (EC) who had been nominated by the CC.

The other new independent National Police Commission (NPC) was 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 NPC despite the fact that this would obviously negate its independent character. These were only precursors to a far more serious attack on the Constitution.

After the terms of the six appointed members to the first CC expired in March 2005, the vacancies were never filled. Chaos was created thereby. The term of office of the Public Service Commission (PSC) lapsed by late 2005 and five members of the seven member NPC relinquished their office due to expiry of their terms.

However, no new appointments were made as the CC itself had not been constituted. The Cabinet of Ministers therefore decided that the responsibilities of the NPC and PSC could be assumed by the Inspector General of Police and by the Secretaries of Ministries/Heads of Departments respectively. Public uproar resulted on the basis that this was precisely the mischief that the 17th Amendment had set out to remedy.

Further controversy followed when, in early 2006, two senior judges of the Supreme Court (constituting the Judicial Service Commission along with the Chief Justice as the Chairman) resigned their position citing grounds of conscience. The widely held perception was that the resignations were due to differences with the Chief Justice whose disciplinary actions in regard to judges of the subordinate courts had been challenged as being arbitrary.

The National Human Rights Commission also lapsed in March 2006 and with that, the 17th Amendment became a virtual dead letter.

The failure to fill the vacancies in the CC was apparently due to one single factor: the deliberate delay on the part of the smaller political parties in Parliament, not belonging to the party of the Prime Minister or the Leader of the Opposition, to agree by majority vote on the one remaining member that would complete the CC.

However, on his own part, Chandrika Kumaranatunge’s successor, President Mahinda Rajapakse, also refrained from making the appointments of the five nominations jointly sent to him by his own Prime Minister and the Leader of the Opposition. If the five nominations had been appointed, as indeed, the President is stipulated to do “forthwith” once he receives a written communication, (as he had received in this case), then the CC along with its ex officio members, could have commenced functioning. The quorum of the CC, as specified in Article 41E(3) of the 17th Amendment, is six members.

Committing Contempt of the Constitution

Despite the absence of the CC, President Rajapakse recently made direct appointments to the NPC and PSC, thus effectively and unconstitutionally voiding the approval powers of the CC. Furthermore, the appointees were predominately supporters and close personal friends of President Rajapakse with only some exceptions.

Moreover, seven new appointments were made to the National Police Commission without the President being properly advised that there were still two serving members of that Commission. With his appointments, the NPC came to be constituted of nine members, two more than the constitutionally stipulated seven members. This caused great embarrassment to the Government.

Presently, the status of the NPC remains obscure with unconfirmed reports that the new appointments have been revoked. The appointments to the Public Service Commission have, however, gone ahead and apparently the Commissioners are now serving in their positions despite calls urging them to resign given the unconstitutional manner of the appointments.

Insofar as the other Commissions were concerned, the Judicial Service Commission also perilously balanced itself on the knife-edge of constitutional propriety by having two acting members appointed by the President. The 17th Amendment permits such acting appointments without the approval of the CC but only up to a period of fourteen days. The appointments are not valid beyond the fourteen-day period. Consequently, it is presumed that the acting appointments are being renewed every fourteen days, thus violating the spirit if not the letter of the Constitution.

Prior to its members going out of office, the National Human Rights Commission (NHRC) had 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 NHRC had safeguarded citizens caught in the cross fire between government forces and the Liberation Tigers of Tamil Eelam (LTTE).

On 19 May 2006, President Rajapakse, in line with his other appointments to the PSC and NPC, made direct appointments to the NHRC.

Ironically, two former members of the NHRC, both senior law academics, had declined re-appointment. In their stead, a former judge of the Supreme Court and a retired judge of the Court of Appeal accepted the appointments along with two others who were virtually unknown to the human rights community in Sri Lanka.

The fifth appointee to the NHRC, a senior lawyer, also declined his appointment after continuing protests by civil society organisations who called on all those who had been appointed to resign from their posts.

Conclusion

Currently there are grave concerns that the Government might legitimise the bypassing of the 17th Amendment and embark on its own process of expedient constitutional reform. These fears were borne out recently by efforts of the Ministry of Constitutional Affairs to hold seminar discussions on a “new bill of rights for Sri Lanka” without addressing the primary problem of the non-implementation of the 17th Amendment. These questions also reflect negatively on Sri Lanka’s newly won seat in the United Nations Human Rights Council, disclosing as they do, basic doubts in regard to the genuine commitment of the Government towards constitutional democracy.

It does not require profound constitutional deliberations to acknowledge the lesson that this holds for the ethnic conflict in the Northeast. Where constitutional provisions regarding governance processes in the South are disregarded so easily by Sri Lanka’s politicians, what is 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?

Truly, there is no simple answer to this devastatingly quixotic question.

The writer is a public interest lawyer and regular media columnist in Sri Lanka who holds senior consultancy positions on law, rights and gender.