Editorial

Four judges of the superior courts took oaths of office recently, three in the Court of Appeal and one in the Supreme Court.

Normally, such events in the rarefied atmosphere of Hulftsdorp would have been greeted with an incurious response from the public. But, in this case, they have triggered debate due to President Mahinda Rajapaksa appointing the judges directly, despite the 17th Amendment stating that the approval of the Constitutional Council (CC) must be first obtained "upon a recommendation made to the Council by the President."

He has also opted to disregard a recommendation by the former President and by the Attorney General that, as per tradition, one of the vacancies should be filled by a senior officer from the official bar.

Other similar Presidential appointments have been made to commissions on the police and the public service. These cannot, in all conscience, be referred to any longer, as 'independent commissions'.

The recent appointment of judges takes this constitutional transgression to even more dangerous levels.

Judges, by virtue of their very role, are expected to uphold the rule of law and hold the scales of justice evenly in their hands. What is the impact on this time-honoured role when their very appointments are scrutinized on the basis of constitutional legitimacy? In what position does this put lawyers appearing before them or litigants taking their grievances to court? What damage does this cause to the institution of the judiciary which has already suffered trenchant criticism in recent years? These are grave questions that go to the very heart of Sri Lanka's democratic system.

As our Legal Columnist pointed out last week, a dangerous precedent has been set for the future, particularly when the Government proposes constitutional solutions for the North-East conflict. When the Constitution is disregarded at will where processes of governance are concerned, what sanctity can be attached to it otherwise? Are we not lending support to those who mock Sri Lanka's Constitution as a worthless document? Then again, we had a recent discussion on a "new Bill of Rights for Sri Lanka" hosted by the Ministry of Constitutional Affairs even while the non-implementation of the 17th Amendment was being loudly justified by the Government.

The ironic ignoring of the Constitution on the one hand and the farcical proposing of expanded constitutional remedies would have been immediately highlighted by conscientious civil society organisations elsewhere in South Asia. Energetic protests would have ensued as we have seen in Nepal where a monarch who dared to bypass that country's constitution is now sidelined. Barring a few groups, Sri Lanka's civil society, by its polite acquiescence if not complicity in such exercises of constitutional hypocrisy, is partly to blame for this present situation of chaos.

An early excuse as to why the President was not filling the vacancies to the CC was the inability of the smaller political parties, (the JVP, the JHU and the TNA) to agree on nomination of the last member to the CC. However, senior lawyers have subjected the relevant constitutional articles to careful interpretation and opined that this hurdle could be overcome by preferring that option that is the most constitutional.

This is that the President should forthwith appoint the five nominated members to the CC already sent to him some months back by the Leader of the Opposition and the Prime Minister. This would enable the Council to function with its ex officio members (the Prime Minister, the Leader of the Opposition and the Speaker as Chairman) thus satisfying the required quorum of six members. In addition, it is solely in the Presidential hands to give effect to the sitting of his own appointee.

Thus, insisting on the last member to be nominated by the smaller parties before he makes the appointments appears to be unnecessary. Past practice during the term of the first CC was that all appointments were not made at one and the same time.

We have asked this earlier and ask it again. If the President justifies his appointments to the commissions on the basis of necessity, (or inherent powers) why cannot this same doctrine be invoked by him to compel the remaining nomination to the CC? The Attorney General's opinion that the JVP cannot constitute part of the smaller parties who can make the nomination by majority vote of the remaining member to the CC should act as a further impetus.

The 17th Amendment was passed in 2001 purely to limit what had earlier been sole presidential authority in making the appointments. It could not be said surely that the President, in making the appointments directly, has chosen the alternative that gives full effect to the intention of Parliament in passing the 17th Amendment in the first place. Rather, the contrary seems to be the case.
We urge the President to choose the most constitutional alternative to filling the vacancies in the CC rather than an option that defeats the very purpose of the Constitution. A wider response from the public, including concerned bodies such as the Bar Association of Sri Lanka is needed. More conscientious voices should be heard, urging the Government back onto the path of constitutional democracy.