Focus on Rights

The presidential filling of the vacancies in the Court of Appeal and the single vacancy in the Supreme Court reported on Saturday, in truth, consummated this unholy disregard for the due constitutional process. These appointments again bypassed the constitutional requirement decreeing approval by the CC upon a recommendation made to that effect by the President. This requirement obviously could not be complied with in the absence of the CC. Indeed, they have raised the most dread fear that litigants could possess; would decisions by judges appointed in this manner possess constitutional legitimacy if challenged at any point in the future?

The recent opinion of the Attorney General, that the Janatha Vimukthi Peramuna (JVP) cannot join with parties 'not belonging to the party of the Prime Minister or the Leader of the Opposition" in nominating the remaining member to the 17th Amendment's Constitutional Council (CC) is significant.

This view is based, with great commonsense, on the nomination papers of the political parties in the elections preceding the constitution of the current Parliament, according to which the JVP was unequivocally a constituent party of the Peoples Alliance. Reportedly, the party intends to contest the matter in court.

However, the JVP needs to do more than merely argue that it has the right to come within the ambit of Article 41A(f), (along with the JHU and the TNA). This will only lend credence to those who question the party's adherence to democratic norms and principles.

It is undoubtedly a pity that this strongest and most praiseworthy voice behind the very enactment of the 17th Amendment would now abandon this high moral ground for constant waffling on the current crisis. In 2001, after this constitutional amendment came into being, memory recalls that the JVP, in fact, acted as a mediator in getting the other parties to agree on their nominations.

Now, in contrast, it is seen as a major stumbling block if not an enthusiastic partner with a Presidency intent on cold bloodedly negating the 17th Amendment. Its collusive resistance to constitutional governance is to be regretted. And while the party may be peeved with one or the other of the members already nominated to the Constitutional Council, this should not detract from its obligation towards establishing the body itself.

Or is the JVP saying that it does not support the 17th Amendment per se and that it would prefer appointments to be made by sole presidential fiat? If so, then it has departed wholesale from its avowed commitment in 2001 towards remedying a highly politicized public service and deserves public contempt for its expedient change of political heart. A non-compromised stand both in regard to the implementation of the 17th Amendment as well as its once equally strong position on safeguarding the independence of the judiciary, (which too, it has now departed from), would have pulled many skeptics to their side. It is this doubt, apart from its cacophonic militancy, that has snatched away from the party, a chance that it had to some extent earlier, of establishing itself as a credible alternative to the country's two major parties.

From a general perspective, the open contempt displayed towards the 17th Amendment to the Constitution by the Office of the Executive Presidency resulted in darkly surrealist happenings this week.

One apparent appointee, (a human rights lawyer respected for his involvement in the human rights movement in Sri Lanka), declined his appointment to the National Human Rights Commission (NHRC), stating quite startlingly that he had known of his appointment only after media reports. This testified to the appointment process being conducted with a lack of gravity that was most unbecoming.

Two other senior legal academics had earlier, declined to accept offered positions on that same commission. It is a matter for relief that, at least, in their cases, they had been consulted beforehand.

In somewhat predictable counterpoint, some minor or relatively major stars in the judicial and legislative firmament, (also put on some of these commissions), staunchly pledged their commitment to appointments. In so doing, they also ironically flaunted their disregard for the country's Constitution. Two former judges of the Supreme Court are now respectively the purported Chairman of the Public Service Commission (PSC) and the purported Chairman of the NHRC, which also includes a former judge of the Court of Appeal.

The so-called appointments include various other mediocre legal professionals who have, (besides their mediocrity), the other distinctively common factor of close ties in one way or the other to President Mahinda Rajapaksa.

That aside, all these appointments were made disregarding the fact that the 17th Amendment hands over the power of selection of commissioners to the Constitutional Council rather than the President. The excuse given in the early stages of this unconstitutional process was that the Council itself was not constituted due to the dilly dallying on the part of the smaller political parties, (the JVP, the JHU and the TNA), in nominating the last member to the CC. An appropriate backdrop to this farce was the President calling upon the Speaker to resolve the deadlock in the nomination process. Upon the Speaker replying that he could not, the process of direct presidential appointments began in earnest.

However, opinion was expressed by many, including respected senior lawyers, that this constitutional hurdle could be overcome by preferring that option that would be the most constitutional as opposed to the President unilaterally making the appointments. This was that the President should forthwith appoint the five nominated members to the CC already sent to him some months back and enable the Council to function with its ex officio members, thus satisfying the required element of quorum. In response, there was only a deafening silence from the Presidential Secretariat.

But no Sri Lankan should be surprised at what is happening in regard to the systematic dismantling of the 17th Amendment to the Constitution. This was the first real attempt by Sri Lanka's politicians to bring back a measure of order to a persistently politicised public service and the police in particular. It was passed by consensus in the House in 2001 and the debates show an agreeable understanding to remedy the damage done to the country's public spirit by years of political interference.

Consequently it is a useful question to see as to how this general and highly applauded consensus changed so much for the negative within the short space of three years that the 17th Amendment was properly worked, given the initial delay in the CC coming into being.

Did any of the bodies set up under the 17th Amendment trespass on their legitimate spheres of authority or act in such an aggressively independent way so as to justify such a drastic crippling of the primary constitutional provision as is evidenced now?

The answer to this question is resoundingly in the negative. None of these Commissions behaved in the manner that, for example, Indian Elections Commission, under the chairmanship of Chief Elections commissioner T.N. Seshan, conducted itself. Seshan's Commission challenged the full limit and more of its powers, sometimes even drawing public criticism that it was going beyond its authority in pulling up politicians for alleged abuse of power.

In Sri Lanka, there were instances where the PSC, the NPC and the NHRC stood their ground in response to arbitrary directions and actions by politicians including Ministers and the Executive Presidency. One notable instance was the NPC's preventing of politically inspired transfers of police officers in the pre elections period. However, there was no magnificent displaying of their authority beyond a point on the part of one or the other of these Commissions and certainly not a flinging down of the gauntlet to Parliament.

Where the Constitutional Council itself was concerned, the one instance of stubbornness displayed by the first Constitutional Council was its disregarding of the refusal by the Kumaratunga Presidency to appoint its recommendations for the post of Chairman, Elections Commission.

Though the then CC (consisting at that time also of her own appointee) examined her objection that the recommended nominee had links to the opposition UNP, this was found to have no merit. The Presidential objection was disregarded thereafter and the list of nominees sent back for re-consideration but no appointment followed. This was the main reason as to why the Elections Commission was not constituted at all during that period.

We have to conclude therefore that this current impasse on the part of Sri Lanka's politicians stems from a sheer rude disregard for constitutional imperatives and an arrogant assertion of absolute authority. The blame for this has to be shared by the opposition United National Party notwithstanding the brave though seemingly isolated attempts of its deputy leader Karu Jayasuriya to awaken some reaction from his party's monolithically dead flanks.

The question persists; leaving aside the now fashionable debate on 'failed states', are we yet governed by the law and by the Constitution? Sadly, the Delphic Oracle itself may hesitate to provide an answer to that question.