Focus on Rights

When political rulers in any country disregard the law and the Constitution, the consequences of such actions are not for that moment only. Rather, its impact on systems of democracy is irreversible.

President Mahinda Rajapaksa's new appointments to the National Human Rights Commission (NHRC) this week, amply proves that point. In this case, as in the earlier appointments to the National Public Service Commission (PSC) and the National Police Commission (NPC), the President has justified his appointments on the basis of necessity.

But, this begs an all too obvious question. Why is it that this same doctrine of necessity could not have been invoked by him to compel the remaining nomination, (by the smaller parties in Parliament), to the Constitutional Council? For this is why, as loudly proclaimed by government spokesmen, the CC cannot function and the President is compelled to make his own appointments.

Even more tellingly, why is it that, in the first instance, the President has not even made the appointments of the five joint nominations sent to him months back by the leader of the Opposition and his own Prime Minister? There is no requirement that he should make all the appointments at one and the same time. In fact, this was not the procedure followed when the first CC was set up during the tenure of the Kumaratunga Presidency.

As the Civil Rights Movement rightly pointed out recently, the issue here is of filling vacancies to the CC and not the re-constitution of the CC. If the five nominations had been appointed as indeed, the President is stipulated to do "forthwith" once he received a written communications, then the CC along with its other members, namely the Prime Minister, the Leader of the Opposition and the Speaker as Chairman could surely have commenced functioning? The quorum as specified in Article 41E(3) is six members. If any ambivalence prevailed in regard to the functioning of the CC, the constitutional articles should be interpreted in a manner that gives full effect to the presumed legislative intent to make the 17th Amendment workable which is a principle that any first year law student is familiar with.
Insofar as the appointee of the President is concerned, if the term of office has come to an end (as it was reported to be the case by May 2006), then re-appointment (in terms of Article 41A (10) would have been an available option unlike in the case of the other appointed members. In the alternative, a fresh appointment could have been made. As far back as the early months of 2006, I remember Presidential Secretary Lalith Weeratunge affirming that the Presidential Secretariat was only waiting for the nominations to be communicated to the President whereupon which the appointments would be made "immediately." These words are now, of course, thrown to the far winds.

And now we come to the opposition United National Party. In this regard, honest bewilderment is felt in relation to Saturday's statement by the Leader of the Opposition Ranil Wickremesinghe pertaining to yesterday's elections to the Colombo Municipal Council. The statement is so replete with inaccuracies that it is natural to wonder whether there is a deliberate strategy from within the party to make the Opposition Leader look ridiculous. In the alternative, the lawyers of the United National Party who presumably looked through this statement before it was released to the media, ought to be put in the stockade.

Firstly, the statement quotes Article 25 of the International Covenant on Social Cultural and Economic Rights as guaranteeing the right to vote which apparently, the UNP is relying on for its own cause of contesting the CMC elections through an independent party. This by itself is an immediate error. The Economic Social and Cultural Rights Covenant does not deal with voting rights at all. Instead, the correct reference should have been the International Covenant on Civil and Political Rights, of which Article 25 guarantees the right to vote as upheld on several occasions by the Supreme Court.

Though, one such judgement does make a mistaken reference to the wrong covenant, this had been corrected in references thereafter. And it is inexcusable that an official statement released by the Leader of the Opposition, himself a lawyer, should have contained such a gratuitous mistake.

But more seriously, the statement makes the categorical assertion that the provisions of the Local Authorities Ordinance differ from the provisions of the Provincial Council Elections law. Therefore, it is asserted that a judgement of the Supreme Court outlawing the nomination of an outsider to a vacancy arising in that Council would not apply.

This states a categorically incorrect legal position of which the UNP itself is well aware since it was the party against which the Court of Appeal relatively recently, delivered judgement upholding a similar principle in respect of the Mawanella Pradeshiya Sabha.

In Masahir vs Returning Office, Kegalle, (CA No 1298/03, CA Minutes 19/9/2005), the UNP General Secretary had issued a letter to the 1st Respondent Assistant Commissioner of Elections, nominating an outsider to fill a vacancy created in the Sabha by a member resigning from his post consequent to which the election had been made by the Assistant Commissioner.

Thereafter an appeal was filed by a contestant who had come seventeenth on the list of the UNP candidates, according to the preferences given by the voters but had been bypassed for the vacancy. The nominated outsider was a relative of the elected councillor who had resigned

The bypassed candidate argued that the Assistant Commissioner of Elections was obliged in law to reject the said nomination of the outsider. He cited an earlier precedent of the Supreme Court on a similar matter involving Provincial Council elections (2003 (1) SLR 277) where the Court (per Justice MDH Fernando) ruled that the power of a secretary of a political party to nominate, upon a vacancy arising, is confined to candidates whose names have appeared in the original nomination paper and who have secured some preferences at the elections.

The Court of Appeal (judgement of Justice S. Sriskandarajah with Justice I Imam agreeing) upheld the petition and issued the writs of certiorari and mandamus prayed for. Specifically the judges stated that Section 65 of the Local Authorities Elections Ordinance was in all respects similar to Section 65 of the Provincial Councils Elections Act. Senior counsel appeared for the UNP in that case and it is inconceivable as to how this judgement could have been so airily disregarded by that party in their assertions at this point in time. These statements appear to be made in utter disregard of the statutes and the applicable case law.

It is amusing meanwhile to see party lawyers of the People’s Alliance now hotly citing these judgements to their benefit notwithstanding the fact that the very opposite contention was equally vehemently put forward by them in the Supreme Court when their own nomination was in issue. This again shows very well, the expedient uses that the law and the Constitution are being put to.

In particular, the continuing cynical negation of the 17th Amendment has borne out fears of the ethnic minorities that a similar fate may visit constitutional compromises of devolution or federalism, as far distant as those appear to be right now. And this much is true. Until political respect for the 17th Amendment is manifested in actual terms, talking about any kind of constitutional reform whether in the context of the conflict or the hilariously termed 'new bill of rights for Sri Lanka" will be farcical in the deepest sense of that term.