Statement on the continuing violation of the Constitution
The Centre for Policy Alternatives expresses its serious concern at the continuing violation of the provisions of the 17th Amendment to the Constitution. The process commenced soon after the enactment of the amendment with President Kumaratunga’s refusal to act on the recommendation of the Council with respect to the appointment of the Elections Commission. It continued when a new Constitutional Council was not constituted once the term of the first Council came to an end in early 2005. The failure to appoint a new Council, in turn, prevented the appointment of persons to the various Commissions recognized by the constitution. The crisis with respect to the Supremacy of the Constitution and the Rule of Law reached new heights with the shock resignation of two judges of the three member Judicial Services Commission, citing reasons of conscience for their action.
Almost two months have passed since the election of President Mahinda Rajapakse. The new President, like his predecessor, has taken no steps to ensure that these important institutions are activated, thereby raising serious concerns as to his commitment to Constitutionalism and the Rule of Law.
The 17 Amendment to the Constitution was passed by Parliament in considerable haste in September 2001, mainly at the initiative of the People’s Alliance and the JVP. The Centre for Policy Alternatives 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.
The Centre for Policy Alternatives believes that the Prime Minister, the Speaker and Leader of the Opposition have also demonstrated a shocking disregard for the Rule of Law by not doing more to prevent the supreme law from being violated in this manner. They also have an obligation to keep the public informed as to the reasons for the non-constitution of the Constitutional Council. Media reports indicate that there is now a controversy with respect to which political parties qualify to participate in nomination of a member to the Council in terms of Article 41 A (1) f. The Speaker must make a decision on this issue without further delay.
CPA notes with concern the statement issued by the Secretary, Judicial Services Commission, in which inappropriate references were made about Justice Shirani Bandaranayake’s background as an academic. It is now accepted internationally that a Supreme Court or Constitutional Court should ideally be composed of persons from different backgrounds, including the judiciary itself, the Bar, both official and unofficial, and academia, as such diversity enriches the court. The stature of and respect with which the South African Constitutional Court is viewed, both in the country and outside, is due to the diverse backgrounds of the persons on the Court.
The Centre for Policy Alternatives calls upon the President, the Prime Minister, Speaker and the Leader of the Opposition to fulfil their constitutional obligations and ensure that the Constitutional Council is constituted immediately. It also calls upon the President and the Cabinet of Ministers to desist from making any appointments or transfers of public servants or police officers in violation of the provisions of the 17th Amendment to the Constitution. The intentional violation and subversion of the Constitution must stop.
Dr. Paikiasothy Saravanamuttu
17th February 2006