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CC impasse: Appeal Court issues notice on Prime Minister, Opposition Leader and small parties
A Court of Appeal Bench consisting Justices K Sripavan and Sisira de Abrew issued notice this week on the Prime Minister, Leader of the Opposition and parliamentarians of smaller parties to ascertain whether the required nominations to the Constitutional Council (CC) have been made by the respondents in terms of the 17th Amendment.

Parliamentarians noticed included those of the JHU, the JVP, the ITAK, the UPF and the SLMC. The applications, filed in the public interest by a Colombo based NGO, a former judicial officer and a grassroots activist, were supported by a team of lawyers including President’s Counsel Srinath Perera, President’s Counsel Dr Jayantha de Almeida Guneratne and attorneys M.A. Sumanthiran, Kishali Pinto-Jayawardena and Viran Corea.

The petitioners urged the Court of Appeal to issue writ on parliamentarians who have failed to adhere to the basic constitutional duty imposed upon them in terms of the 17th Amendment to make the nominations.

The latter two applications stated particularly that the cumulative impact of the failure to constitute the CC has led to serious public concern and/or public fear that the 17th Amendment is being deliberately and concertedly rendered nugatory and/or inoperative in essential respects of its constitutional functioning.

As a result, confidence in the rule of law has further eroded despite the fact that “restoring public confidence in the same was the very purpose for which the 17th Amendment was passed into law.".

The petitioner pointed out that five nominations had to be made jointly by the Leader of the Opposition and the Prime Minister, three of whom have to be after consultations with minority parties.

A remaining nominee needs to be agreed upon by parliamentarians not belonging to either the government party or that of the Opposition Leader. However, the nominations have been pending since March 2005 when the first term of the Council expired.

Despite tremendous public concern, the National Police Commission (NPC) and the Public Service Commission (PSC) also lapsed late last year after their terms expired and new members could not be appointed due to the primary recommendatory body, the CC not being constituted. Both bodies were set up in 2001 consequent to the enacting of the 17th Amendment to de-politicise the police and the public service.

Currently all NPC powers including police transfers and promotions are being handled by the IGP while the heads of departments/ministries have been transferred to the PSC. These transfer of powers have been condemned by monitoring bodies such as the Asian Human Rights Commission (AHRC) and Transparency International as an intentional return to the politicisation of public institutions. In a statement issued this week, the AHRC called the delay of more than eight months on the part of Sri Lanka’s politicians to make the required nominations ‘shocking’, pointing out also that the invoking of legal remedies by public spirited petitioners has raised expectations that the CC would be constituted forthwith by the President once the required nominations are made and communicated to him.

In a new development, the Judicial Service Commission was also cast into disarray recently following the resignations of two of its members, Justices Shiranee Bandaranayake and TB Weerasuriya on ‘grounds of conscience’.
The 17th Amendment mandates CC approval as a pre-condition to appointment of members of the JSC other than the Chairman who is the Chief Justice.

Following their resignations, the Bar Association of Sri Lanka (BASL) and the Organisation of Professional Associations (OPA) have called for the matter to be referred to a Parliamentary Select Committee and have stressed the necessity for the speedy constitution of the CC.

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