Civil rights activists and legal experts have pointed out that President Mahinda Rajapaksa has apparently committed a serious constitutional faux pas by exceeding the constitutional limit of the seven-member National Police Commission (NPC) as a result of the appointment of seven new members to the NPC this week.
These appointments have been made despite the fact that two members of the former NPC are still holding office, namely S.B. Bandusena (a former secretary in Public Administration) and Dr. M. Gopalasundaram (former Chairman OPA).
In terms of Article 155A(4) of the Constitution (by virtue of the 17th Amendment), both these members hold office for three years having been appointed to the NPC on December 4, 2003 and as such, are still serving members of the NPC.
However, with the new seven appointees, the NPC will consist of nine members despite the fact that Article 155A(1) of the Constitution permits only a seven-member Commission. This, legal experts argue, establishes clear intentional violation of the Constitution.
In addition, it has been pointed out that the newly appointed Chairman of the NPC, former Labour Ministry Secretary Neville Piyadigama, had been ordered by the Supreme Court in 1995 to pay personal costs to a petitioner in a fundamental rights case where he was named as a respondent in the petition.
Holding that the unfair retirement of the petitioner in that case was null and void, (SC FR275/94 SC Minutes dated 26-6-95) K.M.M.B. Kulatunga J (with whom former Chief Justice G.P.S. de Silva and Ramanathan J agreed), directed the State to pay
Rs.60,000 compensation and Rs.5000 as costs (cost to be paid personally by Mr. Piyadigama, the then Secretary of the Ministry of Labour and Vocational Training).
These and other instances have been cited as examples of what might have been prevented if the rigorous screening procedures followed by the CC had been in place instead of arbitrary appointments made by Presidential fiat.
In general, domestic and international human rights monitors have strongly criticised the Presidential move to bypass the Constitutional Council which is mandated by the 17th Amendment to recommend the nominations to the Commissions for the President to make the appointment.
For the past one year, the Constitutional Council has been in abeyance after the term of the first Council expired in March 2005 due to the delay on the part of parliamentarians vested with the duty of making their nominations to the ten-member Council. For the past several months, the remaining delay has been on the part of the smaller parties in Parliament, notably the JVP, the JHU and the TNA on agreeing on the last member of the CC. Strongly worded statements were issued this week by the Asian Human Rights Commission (AHRC), the Transparency International (Sri Lanka) and the Colombo based Centre for Policy Alternatives.
?These moves indicate that the Sri Lankan government is on its way to becoming a dictatorship. The present manipulation of all public institutions is a move by the executive to gain absolute power and instill fear into all areas of life.
Bypassing the constitutional process in this instance can only lead to further unconstitutional and illegal acts. The reversal of these appointments is therefore crucial.? the Hong Kong-based Asian Human Rights Commission (AHRC) said
Accusing the Rajapaksa Presidency of making the constitutional commissions ?presidential playthings? rather than independent commissions, the AHRC pointed out that if President Rajapaksa had genuinely wanted to resolve the delay in appointing the Constitutional Council and other commissions, he should have intervened with the minority parties, particularly the JVP, TNA and the JHU, to get the third member appointed.
The AHRC further stated; ?As a European Union representative suggested, if these parties cannot agree on a single member, they could agree to share the time period of three years. It is clear however, that the President was not concerned with expediting the appointment to the Constitutional Council, which would then select commissioners for the various commissions under the 17th Amendment on merit. The President`s action has in fact preempted the Constitutional Council being duly appointed.?
It called upon President Rajapaksa to withdraw these appointments forthwith, and urged the appointed members to desist from accepting these appointments, pointing out that the damage caused by the appointments and their acceptance will be greater than any good the commissioners contemplate doing through the commissions.
?Neither the commissions nor the appointments are at present legitimate. By functioning illegitimately, the significance of the commissions--which are vital to the defence of basic freedoms--will be lost.? it said.