A report in todays Daily Mirror newspaper of April 3 states that Sri Lankan President Mahinda Rajapaksa “is exploring the possibility of setting up independent commissions under the 17th Amendment, bypassing the now defunct Constitutional Council…” The president is also quoted as having said that he was looking into the possibility of an appointed parliamentary select committee to replace the Constitutional Council, as it has not yet been possible for the minority parties in parliament to together nominate one person to be a member to the council, as required by law.
Although the persistent failure to re-establish the Constitutional Council is a debacle, it does not warrant or justify the president violating the Constitution of Sri Lanka. It would take him far less time and effort to negotiate and agree on a candidate than to go down the long and arduous path of circumventing the constitution and creating a substitute body that would lack credibility and legitimacy. To date there is nothing on record to show that either the president or his government has sought to negotiate and break the impasse. This is despite the fact that the president is the custodian of the constitution, obliged to intervene personally on any occasion where public authorities and constitutional bodies are having problems in functioning.
The very purpose of the 17th Amendment to the Constitution was to limit the draconian powers that the 1978 Constitution handed to the executive president. By 2001 these powers had resulted in an authoritarian system which was destroying all the basic checks and balances in the national system of governance. The institutions established by the 17th Amendment, including the Constitutional Council and commissions appointed through nominations approved by it, were meant to restrict the ability of the president to interfere unnecessarily in the national administration.
Any changes to the institutional arrangements brought about through the 17th Amendment will defeat its purpose. New bodies installed with similar-sounding names and similar-sounding mandates could in fact be substantially different and far weaker institutions than those envisaged by the amendment.
Any new appointments made by a parliamentary select committee would of course be subject to the committee’s control and supervision. The committee would presumably have the right to remove appointees and nominate new ones whenever it saw fit. This is in stark contrast to the provisions of the 17th Amendment, which allow for appointments and removals to be made only through constitutionally-approved avenues. These avenues are what give the Constitutional Council and related commissions their independence: removing these means removing this independence, thereby rendering these bodies worthless.
For its part, while the Human Rights Commission of Sri Lanka was created by normal legislation it was strengthened through the 17th Amendment, with its appointments being made through the Constitutional Council. The persistent demand from the commission, together with other concerned persons in the country and international agencies abroad–including UN human rights bodies–has been for the commission to be incorporated into the constitution itself. In many countries this is the status that national human rights institutions enjoy.
By contrast, the effect of having Sri Lankan human rights commissioners appointed through a parliamentary select committee would be to deprive the Human Rights Commission of Sri Lanka of its independence. This would make it a worthless body, incapable of carrying out its mandate. The Asian Human Rights Commission urges all parties to resist this proposal. If the government of Sri Lanka persists in following this line, it recommends that all support and cooperation be withdrawn from the Human Rights Commission of Sri Lanka–whether financial or otherwise–until such a time as the decision is reversed and the body’s independence restored.
