Focus on Rights

A constitutional solution to the north-east conflict when the constitution itself is being disregarded?

This week's All-Party Conference consensus offering a constitutional solution for the North-East conflict would warm the hearts of only those who persist in being irrepressibly naïve.

Many other such 'constitutional solutions' offered in the past have, most spectacularly, failed to reach their desired ends. This newly displayed 'Southern Consensus" only brings back a sense of déjà vu, invoking feelings that are sickeningly negative rather than warmly reassuring.

Thus, it is necessary to debunk some delightfully comfortable myths. Assuredly the North-East conflict is not separable from the general governance failures that are now a matter of course in Sri Lanka. Where our rulers have consistently demonstrated no respect for the Constitution, how can they, with a straight face, put forward any kind of solution for the ethnic conflict based on constitutional change? But this is Sri Lanka and our politicians have remarkably straight faces all the time, particularly when they are engaging in despicable charades that are to the ruination of this country.

The most recent example of this is the disregarding of the 17th Amendment purely as a matter of political expediency. President Mahinda Rajapaksa, in so doing, has conveniently argued that his actions were necessitated by the failure of parliamentarians to act according to the Constitution.

So where parliamentarians disregard the Constitution, this is sufficient reason for the Presidency also to follow suit? Is this what we are hearing now from the executive and the legislature? But I am to be corrected. As reported in this week's newspapers, the President had insisted (when meeting the editors) that he had chosen the correct path of making the appointments directly to the independent commissions and the judiciary in the absence of the Constitutional Council (CC).

Apparently, he had affirmed that he had been acting on legal advice; perhaps it may have been on the advice of some of this week's President's Counsel who had been appointed, renowned as they are for their standing as constitutional law experts. And as heavy handed as this sarcasm may be, it is eminently justifiable given the absurdity of the entire situation.

This is so on the one hand. On the other, such 'expert advice" that direct appointments to the Commissions are to be preferred as against exerting all the powers vested in the office of the Presidency to fill the vacancies in the CC is quite contrary to the opinion expressed publicly by eminent legal personalities.

These opinions, expressed clearly and coherently, are to the effect that the most constitutional alternative for the President, in the face of this apparent deadlock in Parliament, is to go ahead with the appointments of the five nominations already in his hands and allow the CC to function along with the ex officio members and his own nominee. (see, for example, the statement of the Civil Rights Movement, 23 April 2006). But no, that is not being done. And we have this asinine explanation thrown in our faces; that this disregarding of the Constitution was effected upon 'legal advice'?

Equally, these impugned Presidential actions are contrary to the opinion of the Attorney General that appointments to the police force and the public service can be effected only through the Public Service Commission (PSC) and the National Police Commission (NPC) as properly constituted in terms of the 17th Amendment. This blatant disregarding of the opinion of the chief law officer of the State is again, another manifestation of the contempt that is now apparent for the law.

So we return now to our initial question; where a vital constitutional amendment is disregarded with such utter lack of compunction and accountability by Sri Lanka's rulers, what sanctity can be attached to a constitutional solution in regard to the North-East conflict which indeed, involves far more aggressively contentious issues?

What is to prevent Sri Lanka's President (the present or his successors) from departing at any point of time from such compromises, even if these are enacted as a part of our Constitution in a manner akin to the disregarding of the 17th Amendment? Ready made precedent is now available for this departure; the doctrine of necessity can be effortlessly resorted to.

And where is one to appeal against such departures from the Constitution? Article 35(1) of the Constitution confers immunity to the President from having proceedings instituted or continued against him in any court in respect of anything done or omitted to be done in his official or private capacity. The only exceptions to this rule are limited to inter alia ministerial subjects or functions assigned to the President and election petitions.

Interpreting this clause, a liberal line of reasoning had been evidenced in the Supreme Court in past years. One of the most recent such decisions was M.N.D. Perera vs Balabatabendi and Others (SC(FR) No 27/2002, SCM 19.10.20040 where, in delivering the majority judgement, Justice C.V. Wignesvaran held that the mere directive of the President is not sufficient to justify unconstitutional action by minions.

This case concerned a refusal by then President Chandrika Kumaratunga to allow entry into the President's House to the news editor and crew of a television station in Colombo to televise the swearing in of then Prime Minister Ranil Wickremesinghe.

In reviewing this refusal despite the immunity attaching to actions by the President, previous case law was adverted to by Court, including (as he was then) Justice Sharvananda's observations in Visuvalingam & Others vs Liyanage and Others (No(1), a full bench consisting of nine judges, [1983] 1 Sri LLR, page 203 at page 204 as well as Wijesuriya vs the State 77 NLR, page 25 at 56, Karunatilleke vs Dissanayake [1999] 1 Sri LR and Senasinghe vs Karunatilleke, SC 431/2001, SCM 17/3/2003)

In Senasinghe's Case, a Referendum Proclamation issued by the President was held amenable to judicial review. Justice MDH Fernando held in this as well as in a number of other cases, that the immunity of the President only provided a shield of personal immunity from legal proceedings, leaving the impugned acts themselves open to judicial review. On this basis, acts of public officers, such as the Commissioner of Elections, the Secretary to the President and the Inspector General of Police relying on directives of the President could be scrutinized by court.

However, different principles have been applied where direct appointments by the President are concerned. This is seen in a relatively recent judgment of a Divisional Bench of the Supreme Court hearing challenges to Chief Justice Sarath Nanda Silva's appointment to the post in late 1999. The petitions were dismissed on three preliminary objections raised by the Attorney General, the first and most important of which was that the appointment of the Chief Justice could not be questioned before court. The Court preferred not to accept the argument of the petitioners that the Chief Justice was a beneficiary of the act of the President or that he was 'invoking' the act of appointment to stay in office and that therefore the presidential act of appointment could be reviwed through the person of the Chief Justice who did not himself enjoy immunity.

This constituted a departure from a 1997 majority view of the Court when, in considering challenges to the appointment of Justice Shirani Bandaranayake, immunity was not in issue though the challenge was thrown out on a different basis.

It is this precedent that now prevents the recent appointments to the commissions under the 17th Amendment (now, no longer 'independent commissions') being challenged in the Court of Appeal. This week's ruling by the Court of Appeal refusing interim relief in respect of the appointments to the PSC and the NPC follows an earlier decision by the judges in Public Interest Law Foundation vs the Attorney General and Others, CA Application No 1396/2003, CA Minutes of 17.12.2003 where the refusal of the President Chandirka Kumaratunga to appoint the Chairman of the Elections Commission was also held to be protected by a 'blanket immunity"
The whole now constitutes a terrible enigma for the Sri Lankan public as evidenced in the many articles and letters published in the newspapers. Undeniably it was a slippery slope that the Rajapaksa Presidency embarked upon when it ignored the 17th Amendment to the Constitution. While earlier, we had predecessors in his office engaging in expedient amendment of the Constitution which was destructive enough, the present wholesale ignoring of an explicit constitutional provision has taken this country into a realm of constitutional anarchy that has dangerous implications where the conflict itself is concerned.

How can one blame the minorities (caught between an unreservedly totalitarian LTTE and a shifting Southern government) for professing no faith in the Constitution when the majority community itself is struck dumb by such open infringements?

We need the 17th Amendment implemented forthwith. We need arcane notions such as presidential immunity to be thrown out of the legislative window. Then only perhaps can we regain our faith in the Constitution and look for genuine alternatives of power sharing.