Under the Constitution of Sri Lanka, the executive president has not been given the power to select members of any of the commissions established or supervised by the 17th Amendment. The power of selection lies with the Constitutional Council and the president can only make appointments based on the Council’s selections. The Asian Human Rights Commission (AHRC) therefore denounces President Rajapakse’s recent appointment of Commissioners to the Human Rights Commission.
A human rights commission appointed in breach of the country’s constitution is incongruous. It lacks credibility and objectivity, which are essential for any public institution. Without these elements, the Human Rights Commission of Sri Lanka cannot fulfill its mandate of human rights promotion and protection, and will instead serve to protect and promote the president and his government from accusations of human rights violations. The Nepalese Human Rights Commission suffered similar appointments by former King Gyanendra in 2005. For this very reason, the Commission won no support, domestically or internationally. In the same way, the present Human Rights Commission of Sri Lanka also cannot win any local or international cooperation.
The chairperson appointed by the president for this Commission is seriously ill and unable to perform even simple functions. He is popularly known as a ‘political survivor’, who has never shown any interest in human rights affairs. Among the appointments, the only human rights figure is Mr S G Punchihewa, who has a long and credible record of being involved in the Sri Lankan human rights movement. The AHRC hopes that on the basis of his record he will refuse to accept this nomination until it has been approved through a constitutional process. The AHRC also understands that several others have been approached to take up the post, but have categorically refused due to the unconstitutional manner of appointment. The rest of the appointed commissioners are all persons without any known record of positive involvement in human rights. Being a former Supreme Court or Appeals Court judge in no way qualifies a person to be a member, let alone the head, of a human rights commission functioning under the Paris Principles.?
It is internationally accepted that persons working in national institutions such as the Human Rights Commission of Sri Lanka should have a credible track record of involvement and contribution to the human rights field. In fact, the Commission’s first Chairperson was a former Supreme Court judge who negatively contributed to the protection and promotion of human rights within the country as he had no understanding of the conceptual basis on which the human rights movement and organisations are based. His appointment was made prior to the establishment of the Constitutional Council, therefore precluding any opportunity for the human rights movement to raise questions and objections his appointment. There can be no further excuse for such appointments however; it is crucial that the constitutional process of selecting persons on merit alone be the process through which appointments are made.
This authoritarian and unconstitutional appointment is also in violation of Sri Lanka’s pledge made before its election to the new UN Human Rights Council. While Sri Lanka pledged to build the “capacity of the Human Rights Commission of Sri Lanka and other independent statutory bodies established as a part of a national human rights protection system,” its first act after becoming a member to the UN body has been to destroy the independent character of the Human Rights Commission.
In response to the question raised by the UN Committee against Torture’s periodic country review in November 2005 regarding the problems arising from the non appointment of commissioners under the 17th Amendment, the Sri Lankan delegation stated:
“Our reply is that it is only the three year term of office of the present Commissioners will come to an end by March 2006, and that the Commission is a body corporate having perpetual succession vide Section 2 of Act No. 21 of 1996, and will continue to function in terms of the Act.”
A similar reply was given regarding the appointments to the National Police Commission. Both of these undertakings have been blatantly violated. For either commission to function in a legitimate manner and have perpetual succession, it is essential they be appointed within the framework of the Constitution. What is unconstitutional cannot have the right of succession.
In recent months the Sri Lankan government has come under heavy pressure regarding the 17th Amendment. Apart from local pressure, there was significant international pressure coming from UN bodies, the European Union and other groups. In particular, funding agencies informed the government that resources will not be given to the Human Rights Commission until commissioners were appointed. In response to all this pressure, the Sri Lankan government has in effect created a fake commission through authoritarian appointments.
The AHRC warns that this fake commission will have a disastrous impact on Sri Lanka’s already poor human rights situation. While victims will face even more obstacles and harassment, their perpetrators will be guaranteed impunity. The AHRC therefore calls for the following:
1. All Sri Lankans to reject this commission and indicate its lack of legitimacy.
2. The UN and all other international bodies to denounce these appointments and call for a properly appointed commission consisting of persons who have a proven track record in the protection and promotion of human rights.
3. Funding agencies must not support such a fake commission, which will only contribute to the denial of human rights.
4. The UN Human Rights Council must seriously examine Sri Lanka’s human rights track record and denounce practices destructive to the development of an authentic national institution under the Paris Principles.
