President
appoints more than Police Commission can seat
Civil rights activists and legal experts have pointed out that President
Mahinda Rajapaksa has apparently committed a serious constitutional
faux pas by exceeding the constitutional limit of the seven-member
National Police Commission (NPC) as a result of the appointment
of seven new members to the NPC this week.
These
appointments have been made despite the fact that two members of
the former NPC are still holding office, namely S.B. Bandusena (a
former secretary in Public Administration) and Dr. M. Gopalasundaram
(former Chairman OPA).
In
terms of Article 155A(4) of the Constitution (by virtue of the 17th
Amendment), both these members hold office for three years having
been appointed to the NPC on December 4, 2003 and as such, are still
serving members of the NPC.
However,
with the new seven appointees, the NPC will consist of nine members
despite the fact that Article 155A(1) of the Constitution permits
only a seven-member Commission. This, legal experts argue, establishes
clear intentional violation of the Constitution.
In
addition, it has been pointed out that the newly appointed Chairman
of the NPC, former Labour Ministry Secretary Neville Piyadigama,
had been ordered by the Supreme Court in 1995 to pay personal costs
to a petitioner in a fundamental rights case where he was named
as a respondent in the petition.
Holding that the unfair retirement of the petitioner in that case
was null and void, (SC FR275/94 SC Minutes dated 26-6-95) K.M.M.B.
Kulatunga J (with whom former Chief Justice G.P.S. de Silva and
Ramanathan J agreed), directed the State to pay
Rs.60,000
compensation and Rs.5000 as costs (cost to be paid personally by
Mr. Piyadigama, the then Secretary of the Ministry of Labour and
Vocational Training).
These
and other instances have been cited as examples of what might have
been prevented if the rigorous screening procedures followed by
the CC had been in place instead of arbitrary appointments made
by Presidential fiat.
In general, domestic and international human rights monitors have
strongly criticised the Presidential move to bypass the Constitutional
Council which is mandated by the 17th Amendment to recommend the
nominations to the Commissions for the President to make the appointment.
For
the past one year, the Constitutional Council has been in abeyance
after the term of the first Council expired in March 2005 due to
the delay on the part of parliamentarians vested with the duty of
making their nominations to the ten-member Council. For the past
several months, the remaining delay has been on the part of the
smaller parties in Parliament, notably the JVP, the JHU and the
TNA on agreeing on the last member of the CC. Strongly worded statements
were issued this week by the Asian Human Rights Commission (AHRC),
the Transparency International (Sri Lanka) and the Colombo based
Centre for Policy Alternatives.
“These
moves indicate that the Sri Lankan government is on its way to becoming
a dictatorship. The present manipulation of all public institutions
is a move by the executive to gain absolute power and instill fear
into all areas of life.
Bypassing
the constitutional process in this instance can only lead to further
unconstitutional and illegal acts. The reversal of these appointments
is therefore crucial.” the Hong Kong-based Asian Human Rights
Commission (AHRC) said
Accusing
the Rajapaksa Presidency of making the constitutional commissions
“presidential playthings” rather than independent commissions,
the AHRC pointed out that if President Rajapaksa had genuinely wanted
to resolve the delay in appointing the Constitutional Council and
other commissions, he should have intervened with the minority parties,
particularly the JVP, TNA and the JHU, to get the third member appointed.
The
AHRC further stated; “As a European Union representative suggested,
if these parties cannot agree on a single member, they could agree
to share the time period of three years. It is clear however, that
the President was not concerned with expediting the appointment
to the Constitutional Council, which would then select commissioners
for the various commissions under the 17th Amendment on merit. The
President's action has in fact preempted the Constitutional Council
being duly appointed.”
It
called upon President Rajapaksa to withdraw these appointments forthwith,
and urged the appointed members to desist from accepting these appointments,
pointing out that the damage caused by the appointments and their
acceptance will be greater than any good the commissioners contemplate
doing through the commissions.
“Neither
the commissions nor the appointments are at present legitimate.
By functioning illegitimately, the significance of the commissions--which
are vital to the defence of basic freedoms--will be lost.”
it said.
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