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