The HRC'S justification of their appointments; a continuation of the farce?

By Kishali Pinto Jayawardena

Chairman of the Human Rights Commission, S. Anandacoomaraswamy has responded to this column last week ('Farcical Statements and Violations of the Constitution', the Sunday Times, 6th May 2007) by propounding a truly astonishing justification for the appointment of members of the HRC, (including himself), by the President.

His position appears not to be based on the commonly trotted out 'impossibility of performance' ground discussed previously in this column but rather, (and I faithfully re-produce); 'Section 3(2) of the Human Rights Commission Act, No 21/1996 gives powers to H.E. the President to appoint the members of the Human Rights Commission on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition when the Constitutional Council is not established." He further goes on to say "It is under this proviso that even the former President acted before the Constitutional Council was established in appointing members of the Human Rights Commission and Commission to Investigate Allegations of Bribery or Corruption."

I am however appreciative of this response as it affords a good opportunity to examine the blatantly farcical nature of this justification in the context of the relevant statutory provision. Let us now see what Section 3(2) of the HRC Act, No 21 of 1996 actually states in its substance, a part of which has been conveniently left out by the Chairman, NHRC in his response. This section states as follows 'The members of the Commission shall be appointed by the President on the recommendation of the Constitutional Council.' The proviso (which he tries to rely on) meanwhile, states as follows; "Provided however that, during the period commencing on the appointed date and ending on the date when the Constitutional Council is established, members of the Commission shall be appointed by the President on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition" (emphasis mine). However, his response completely ignores the first half of this proviso and takes only its latter part in an expedient and completely amazing reading coming from one who was formerly a judge of this country's highest court.

A proper reading of this section therefore makes it extremely clear that the application of this section is strictly limited to appointments made between the 'appointed date' (defined elsewhere as being the date of operation of the Act which is somewhere in 1996) and the date on which the first Constitutional Council (CC) was established, namely in 2003. During this period, the necessary appointments to this Commission as well as the Bribery Commission were, in fact made by the President sans any intervening factor but the situation changed completely in 2001 when the 17th Amendment explicitly required that the nominations had to be first approved by the CC. Consequently, Chairman, HRC's attempted use of this proviso to justify unconstitutional appointments in 2006 and thereafter, offends the plain meaning of the language of Section 3(2) of the HRC Act, negates the centrally important interpretive impact of the term "appointed date' in the proviso and indeed, is contrary to basic commonsense. His expediently extravagant 'spin' on the proviso takes only that portion which serves as justification for his own appointment.

I would therefore counter-respond to this selective reading of Section 3(2) of the HRC Act with the utmost severity. The appointments made by the President to the HRC and the other commissions were clearly unconstitutional as they bypassed a specific constitutional condition regarding prior approval of the CC. Two former members of the HRC, namely the Dean of Colombo's Faculty of Law and its Head, both law teachers declined re-appointment, the former publicly stating that this was because it would mean submitting herself to an unconstitutional process of appointment.

But let us take this question somewhat further. Even if the Chairman, NHRC's letter is taken at face value, it gives rise to some interesting dilemmas. For example, his own position is that the Leader of the Opposition should have been consulted if the appointments had taken place in terms of this provision. So, was the current Leader of the Opposition, Mr Ranil Wickremesinghe and the Speaker, in fact, consulted in this regard? If this consultative process had taken place and the UNP had actually agreed to such appointments, this deprives that party as well of any moral right to take any position on the 17th Amendment. This question ought to be clarified and explored further.

In addition, has the Chairman, HRC (by this explanation) thrown the appointments to the other Commissions proverbially to the wolves, given that he has sought to justify the HRC appointments on an improbably selective reading of the provisions of the HRC Act and not on the general ground of 'impossibility of performance', which would be unconvincing in terms of its constitutional rationale but which at least, would apply in common to all the Commissions? In the case of the National Police Commission, the Public Service Commission and the Judicial Services Commission, there are no separate statutes governing the appointment process unlike in regard to the HRC and they stand or fall on the provisions of the 17th Amendment. These are interesting questions.

Finally however, the Chairman, HRC's plaintive cry that I have focused on this issue 'even earlier' arouses no sympathy on my part. Mr Anandacoomaraswamy should be made aware that I will focus on this issue yet and yet again according to my conscience until the due constitutional status quo is restored. Rather than engaging in painful straining of statutory language to justify their appointments, (which impacts negatively not only on the Chairman but also on the two other retired judges on this body as it may be assumed that this is a collective response), the HRC should look to at least, showing that they are actively working to ameliorate the desperate plight of thousands caught by the conflict and in preventing extra judicial executions and enforced disappearances. Currently, it appears to function as a mere documentation centre. While the commitment of some area level HRC workers ought to be commended, a strong central body that is apolitical and committed to the core values of human rights protection is conspicuously lacking to the extreme detriment of this country.