President violates 17th Amendment to the Constitution – 12th April 2006

PRESIDENT VIOLATES 17TH AMENDMENT TO THE CONSTITUTION – CPA

The Centre for Policy Alternatives (CPA) expresses its deep concern at and opposition to the decision of President Rajapakse to unilaterally appoint members to the National Public Service Commission and the National Police Commission, in violation of both the letter and the spirit of the 17th Amendment to the Constitution. The justification for this intentional violation of the Constitution is totally unconvincing.

The 17th Amendment to the Constitution was passed by Parliament in September 2001, mainly at the initiative of the People’s Alliance and the JVP. CPA had some reservations both with respect to the process of adoption and the substance of the Amendment, but supported the rationale of the Amendment, which was the depoliticisation of key public institutions with a view to promoting good governance. The Amendment is today part of Sri Lanka’s Constitution, the Supreme Law of the land. Both the Police and the Public Service were institutions urgently in need of depoliticisation, especially after the increased malpractices and perception of partisanship during elections since the early 1980s.

As indicated by CPA in its public statements and in the petition filed in the Court of Appeal, the President and his predecessor should have taken urgent steps to fill the vacancies on the Constitutional Council. We note that these occurred as early as March 2005. The President or the Speaker should have summoned a special meeting to resolve the dispute with respect to which of the parties in Parliament were entitled to have their members serve on an electoral college to elect a nominee to the Constitutional Council. An alternative course of action would have been to constitute the Constitutional Council without the nominee of the smaller parties. This would have enabled the Council to commence its primary function – that of recommending persons who are and are seen to be non-partisan, to the various positions and Commissions required by the 17th Amendment to the Constitution. Whilst this would not have been the ideal course of action, from the perspective of governance it certainly would have been a better one than that pursued by the President.

The President’s action also has repercussions for the process through which a negotiated political settlement of the ethnic conflict can be attained. Embarking on a course of action which is in flagrant violation of the letter and spirit of the Constitution while at the same time taking a strict, legalistic approach to constitutional interpretation in its negotiations with the LTTE on issues such as the constitutionality of the Cease fire Agreement and the P-TOMS mechanism, is particularly unfortunate, as it demonstrates inconsistency and double standards. The LTTE and Tamil nationalists will be able to argue, with justification, that the Rule of Law and fidelity to the Constitution become relevant only when dealing with issues of peace, reconciliation and reconstruction but not when dealing with the exercise of power by governments of Sri Lanka and their leaders.

CPA believes that the intentional subversion of the 17th Amendment to the Constitution poses a threat to the Rule of Law in Sri Lanka, probably unparalleled since the assault on the independence of the judiciary by the government of President J.R. Jayewardene in the 1980s.

CPA calls upon President Rajapakse to revoke his unconstitutional decision and take urgent steps to fully implement the 17th Amendment to the Constitution. It also calls upon all those nominated to positions on these two Commissions to refuse to accept the appointments, thereby lending their support to upholding the Rule of Law in Sri Lanka. It calls upon all sections of civil society including the Bar Association of Sri Lanka to act in solidarity to uphold the letter and spirit of the 17th Amendment to the Constitution.

Dr. Paikiasothy Saravanamuttu
Executive Director

12th April, 2006

President violates 17th Amendment to the Constitution – 12th April 2006
President violates 17th Amendment to the Constitution – 12th April 2006
President violates 17th Amendment to the Constitution – 12th April 2006

Centre for Policy Alternatives

The Centre for Policy Alternatives (CPA) was formed in 1996 in the firm belief that there is an urgent need to strengthen institution- and capacity-building for good governance and conflict transformation in Sri Lanka and that non-partisan civil society groups have an important and constructive contribution to make to this process. Focusing primarily on issues of governance and conflict resolution, CPA is committed to programmes of research and advocacy through which public policy is critiqued, alternatives identified and disseminated.