With the direct appointment of two Court of Appeal judges, the president of the Court of Appeal and one Supreme Court judge by Sri Lanka’s executive president, the judiciary has been dealt an attack more serious than any in the past. Such direct influence following a series of tragic events undermining the constitution would be almost impossible to undo.
These appointments were unconstitutional. The president only has the power to approve nominations to be given to the Constitutional Council, which will make the final selections. These appointments are the latest in a series of unconstitutional appointments made by the president; earlier ones were to the Human Rights Commission, the National Police Commission and the Public Service Commission.
When the issue of appointments to the National Police Commission came up, Sri Lanka’s attorney general declared that any appointments made without going through the Constitutional Council, would be unconstitutional. The country’s political opposition consisting of the United National Party, has also expressed its disagreement over these unconstitutional appointments. Extensive coverage has been given to this issue in the media for the last few months, and many concernced persons have written letters to various media in response. There are also two writ petitions before the Court of Appeal regarding this matter.
Local protests over the abandonment of the 17th Amendment have been stronger and far more consistent than on any previous issue. Organisations that raised objections include the Civil Rights Movement of Sri Lanka (CRN), Transparency International of Sri Lanka (TISL) and a coalition of NGOs organised under the People Against Torture (PAT). International protestors include the European Union, the Commonwealth Human Rights Initiative, South Asians for Human Rights (SAHR), the Asian Human Rights Commission (AHRC) and many other groups. President Rajapakse and his government however, are ignoring all such protests.
Once the country’s constitution is so flagrantly contravened, the judiciary and other legal bodies have no legitimate basis to stand upon. Sri Lankan citizens are now forced to comply with institutions that are in fact, illegal. The present contradiction that has arisen can no longer be resolved on the basis of legal principles such as the constitutional process or the supremacy of the law. This has resulted in a great deal of confusion within society.
The ludicrous situation arising from this will be clearly demonstrated when the attorney general–who has declared the unconstitutionality of any appointments made outside the 17th Amendment–makes the welcoming speech at the ceremonial sittings of the un-ceremonially appointed judges. The attorney general will have to suffer humiliation and blatant disregard for his own authority if he opts to make these speeches. This will worsen when he and members of his department have to go before the highest courts to speak on the constitutionality of bills as well as other constitutional matters. The unconstitutional appointments to the highest courts create a contradiction to the attorney general, to all lawyers and citizens who approach these courts in order to canvass the issues relating to the constitution, including human rights recognised under the constitution. Although there is the opinion that the Chief Justice of Sri Lanka will not hesitate to justify these appointments on the basis of necessity, it is important that a petition is filed with the Supreme Court challenging the legality of the appointments.
When a constitution is flouted in this way, there is no basis on which any of the contracts in various areas of social life may stand. Agreements made between conflicting parties in the country, business contracts, or any other personal contracts can no longer rely on legal enforcement when the fabric of the law itself is thus damaged.
There are no easy solutions to these enormous problems. Ignoring this crisis however, can only lead to graver implications for the entire system of law and rational governance. The Asian Human Rights Commission is in no position to suggest any solutions, but it calls on all concerned persons in the country and outside to reflect deeply on this catastrophe. The AHRC calls for this week of mourning to address the need for such collective thought. Without serious collective effort to consider the danger that the people are in, it is not possible to fathom the depths of this crisis.
