No excuse not to implement it

March 1st, 2008

by Rohan Edrisinha

(Expert in Constitutional Law and Colombo University Law Lecturer Rohan Edrisinha takes on the excuses trotted out on behalf of the government by SCOPP (Secretariat for Coordinating the Peace Process) and others over the President’s failure to appoint the Constitutional Council despite the fact that the minority parties have agreed on their nominee - former auditor General SC Mayadunne.)

It is pertinent at this moment to examine why even now the 17th Amendment to the Constitution is not implemented.

The media has reported that President Mahinda Rajapaksa told Opposition Leader Ranil Wickremesinghe during their meeting this week that he cannot move forward in this regard because a parliamentary select committee is looking into deficiencies in the 17th Amendment. This is not a valid excuse because the 17th Amendment is part of our Constitution. It is already law. It is fine if a select committee wants to improve on the 17th Amendment but you must apply and implement the law as it is, and then, if necessary, improve it later. Everyone agrees that there are weaknesses in our Presidential system. Does that mean that until these weaknesses are overcome you don’t have Presidential elections or that nobody will hold the office of President? This excuse for further delay is utterly unacceptable.

Furthermore, the parliamentary Select Committee, as far as I know, has completed its work and has submitted its report which is quite good. I have seen a copy of it. Minister of Constitutional Affairs D E W Gunasekara, who chaired the group, has said the committee has finished its work. It is very strange for the claim now to be made that the select committee has still not finalised its report.

Non-implementation

In the meantime, much to my surprise, the Secretariat for Coordinating the Peace Process (SCOPP) has issued several statements in the past few months seeking to justify the non implementation of the 17th Amendment. One of the arguments put forward in a statement of 8 January 2008 is that, “it is the Speaker who selects members of the Council”. This is not correct. According to Article 41A of the Constitution all that is provided for is that the Speaker CHAIRS the Council. The selection of members is NOT made by him. Some members of the Council hold office ex officio. Separately, the Prime Minister and Leader of the Opposition have to identify and then nominate five persons. The President, too, has to nominate one person and the smaller parties in Parliament (parties other than the parties of the Prime Minister and the Leader of the Opposition) have to nominate one person. The Speaker has NO role in selecting any of the members. So, to say that the fault lies with the Speaker and not with the President is an incorrect reading of the 17th Amendment.

Appointments

The SCOPP statement of 8 January 2008 also makes the misleading claim that the President had no alternative but to appoint the Human Rights Commission because of the stalemate with regard to the appointment of the Constitutional Council and that the President made the appointments “in the way in which such appointments had been made by previous Presidents on their own before the 17th Amendment was passed.”

Before the 17th Amendment was passed, appointments to the Human Rights Commission were made according to the provisions of the Human Rights Commission of Sri Lanka Act No 21 of 1996. Section 3 of the Act anticipated the creation of a Constitutional Council but provided that, until a Constitutional Council is established, the President shall appoint members on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition. This was not done. Therefore the appointment of the present members of the Human Rights Commission was done a) in violation of the 17th Amendment; and b) in violation of the Human Rights Commission Act 1996; and c) therefore, not as previous Presidents had appointed members to the HRC.

SCOPP in a statement dated 20 December 2007 also makes another false claim. It states that:

“Unfortunately perhaps, according to a Supreme Court ruling… in Sri Lanka an official body which has no designated quorum cannot function unless all its members are in place. Given this finding, the Constitutional Council cannot exist unless and until the Speaker nominates its final member.”

There are two problems with this claim by SCOPP. First, why has SCOPP not specified the name and reference of the case as is usually done when one is basing an argument on a decision of a court? Secondly, this point is irrelevant as the Constitutional Council does have a designated quorum. The legal advisor to SCOPP has obviously not read Article 41 E (3) of the Constitution which declares that the quorum of the Council is six members.

Endorsement

Another erroneous claim was made by Human Rights Minister Mahinda Samarasinghe in a statement issued on Human Rights Day, 10 December 2007, and carried on the website of Sri Lanka’s Embassy in Geneva. It states that: “His Excellency the President took steps to appoint the Commissioners of the Human Rights Commission; this action has been endorsed by the Court of Appeal as being within his constitutional authority.”

Again, there is no reference for the Court of Appeal decision so that one can verify this claim. However, as far as I know, a petition filed in the Court of Appeal challenging the President’s appointment of members to the Human Rights Commission in violation of the 17th Amendment was dismissed in limine or at the threshold due to a procedural objection raised by the Attorney General based on the much maligned Article 35 of the Constitution.

This Article prevents legal action against a President. The court, therefore, never brought its mind to bear on the merits of the case as the preliminary objection was upheld. To state that the court endorsed the President’s action is false and misleading.

For two years, the whole country was told that the problem was with the smaller parties in parliament failing to identify their nominee. Now it seems that the delay is because the President has not identified his nominee to the Constitutional Council. This, basically, supports the argument that I have made since 2006 that there is simply no political will on the part of the President and government to activate the 17th Amendment. They are now continuing to delay the process because, the longer the 17th Amendment remains unimplemented, the more opportunities exist for the President to continue to make unilateral, politically partisan appointments.

Speculation

The situation is serious because several appointments that should be made in a non-partisan manner under the 17th Amendment are due in the next few months. The position of the Secretary General of parliament is to become vacant soon. There are going to be vacancies on the Supreme Court and the Court of Appeal. There is speculation about appointments to the office of the attorney general and the inspector general of police. Therefore, this matter must be resolved as a matter of urgency. The Government should explain what the real reasons for the delay are given the fact that the old reason for the delay no longer exists.

This issue could easily have been resolved in early 2006 if the questions of constitutional interpretation had been referred to the Supreme Court for an opinion. This is another reason why the governments’ credibility on this matter is extremely low.

The lesson from the 17th Amendment fiasco and the unwillingness of the President to activate it suggests to me a dangerous populist attitude towards politics which believes that a person who is elected by a majority of the people has democratic legitimacy which entitles him to virtually do anything. This kind of populism is very dangerous for constitutionalism and the rule of law because the raison detre of a constitution is the protection of certain fundamental principles and institutions from crude majoritarian democracy. [Courtesy: LakbimaNews]

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