AHRC-OL-017-2006
June 9, 2006
Open letter to the President of Sri Lanka
Mr. Mahinda Rajapakse
President
Socialist Democratic Republic of Sri Lanka
C/- Office of the President
Temple Trees
150, Galle Road
Colombo 3
SRI LANKA
Fax: +94 11 2472100 / +94 11 2446657
Dear President Rajapakse,
Re: If the present generation destroys Sri Lanka’s legal foundations, what is left for the future generations?
Your appointment of two judges to the Court of Appeal, the President of the Court of Appeal and one judge to the Supreme Court has been seen with contempt by all civic conscious persons, due to those appointments being in contravention to the 17th Amendment of Sri Lanka’s Constitution.
Those who justify your actions claim that the judicial appointments were due, and were done following the seniority of those judges. They also claim that in the absence of the functioning of the Constitutional Council, appointments by the president were the best available action.
The Constitutional Council has been non-functional since March 2005, as former President Bandaranayake made no attempts to appoint new members to the Council after earlier members completed their term of office. It is well known that the former president did not wish an independent body such as the Council to function, which would make non-political appointments to important posts such as the Inspector General of Police and the Elections Commission. Blatantly violating the constitution, President Bandaranayake refused to appoint the Council’s nominee to the Elections Commission, as a result of which the Commission never came into existence. President Bandaranayake repeatedly refused the Commissioner of Election’s–the constitutional predecessor to the Elections Commission–requests to allow him to retire. Although the Commissioner filed a fundamental rights application before the Supreme Court challenging the holding back of his retirement, alleging medical grounds; having undergone heart surgery, the court rejected his application. You are aware that President Bandaranayake’s government continued to hold several elections with this Commissioner as the elections chief. In fact, he was in office during the elections that brought you to office, and continues in the same position today.
As the country’s prime minister during the period served by President Bandaranayake, you did not speak out against such grave violations of the constitution. The general consensus is that an independent Elections Commission would have been an obstacle for those who do not want an independent and impartial election. You also raised no objection when President Bandaranayake extended the term of office of several Inspector Generals of Police whom she wished to keep beyond the age of retirement. A few months earlier, you were elected as the successor to President Bandaranayake, after portraying yourself as a visionary who vowed to uphold the country’s constitution.
However, even several months after assuming office, you did nothing to establish the Constitutional Council, which was being called for from many areas. Several applications were also filed before the Court of Appeal moving that the Prime Minister and political parties be compelled to finalize the nominees to the Council. The only issue to be resolved was agreeing upon a single nominee by the minor parties; the other nine nominated members posed no problems.
You will be aware that the 17th Amendment has no imperative requirement that all 10 members to the Council be appointed at the same time. You will also be aware that there was no constitutional provision preventing you, as President, to appoint nine members to the Council first, and later appoint the 10th member. In fact, it is a basic rule of constitutional interpretation that all constitutional provisions should be interpreted in a progressive and constructive manner. It would have been prudent to have sought legal opinion regarding such a course of action, particularly from the Attorney General.
However, you chose instead to nominate persons on your own to the independent commissions under the 17th Amendment, namely, the Public Service Commission, the National Police Commission and the Human Rights Commission. You appointed a Buddhist monk, who is an active member of a political party in the government group to the National Police Commission. Even the appointments to the Human Rights Commission are not beyond question. Three of the other members you nominated to the Human Rights Commission declined the appointments on the basis that they are unconstitutional. Similarly, the attorney general publicly stated that the appointments made to the National Police Commission were illegal as they were not appointed by the Constitutional Council.
Your next move resulted in the most damning appointments ever made in Sri Lanka’s judicial history–authoritarian and unconstitutional appointments to the higher judiciary. As a lawyer by profession, you cannot fail to understand that it is legally wrong to contravene a statute. It is even worse to contravene the constitution. What can be expected from a country whose first citizen commits such legal wrongs?
It is no secret that Sri Lankan judiciary has been brought under executive control; no president need worry that any court will affect his actions or omissions, official or personal. The country’s chief justice makes no apology for it. Instead, the courts have held that if any law is felt to be unjust or unconstitutional, it must be taken to parliament for the law to be changed. The courts will intervene only when the executive president is not involved. When wrongs are committed under the authority of the president, the courts cease to function.
Perhaps the next constitutional violation will be to appoint persons to the Elections Commission disregarding the 17th Amendment. This will ensure that the ruling party has a majority in parliament and the person at the helm will remain in power for many years to come.
In your recent public addresses, you have often stressed that you are but a trustee of governmental power. If that were the case, how can you behave like a despot? To preach one thing and act upon another is to deceive the country’s citizens with blatant disregard.
We understand that you are a father of three sons. Perhaps you have political ambitions for them. We cannot know your ambitions, and as long as those ambitions have no adverse impact on society, we are not interested in knowing them. However, there are millions of parents in Sri Lanka with a very humble ambition: to make their country a safe place to live, for their children and the future generations to come.
If you, as President of Sri Lanka, continue to blatantly destroy the rule of law, a complete destruction of the society is inevitable.
Samith De Silva
Senior advisor on judicial matters
Asian Human Rights Commission
