SRI LANKA: Seventh day of mourning against executive interference into the judiciary and other independent institutions–Good faith and necessity no defence for President’s flouting of constitution

June 4, 2006

A Statement by the Asian Human Rights Commission (AHRC)

SRI LANKA: Seventh day of mourning against executive interference into the judiciary and other independent institutions–Good faith and necessity no defence for President’s flouting of constitution

In its previous six statements the Asian Human Rights Commission (AHRC) has set out the consequences of President Rajapakse’s appointment of judges to the Supreme Court and Court of Appeal, as well as various commissions, in direct contravention of constitutional provisions.

When the 17th Amendment was referred to the Supreme Court prior to ascertaining its constitutionality before the parliament, the Supreme Court observed that

…The Bill in its entirety has the objective of altering the legal regime for the appointment, regulation of service and disciplinary control of public officers–including judges and judicial officers. It places a restriction on the discretion now vested in the President and the Cabinet of Ministers in relation to these matters and subjects the exercise of this discretion to the recommendation or approval of the new body to be established known as the Constitutional Council.

A spurious argument being used as a defence of the president’s current actions is that he has violated the constitution in good faith. While this claim cannot stand up under close scrutiny, even at face value it is hollow. Saying that the constitution can be violated in good faith is no different to saying that murder can be committed in good faith. In fact it is worse: if a president can convince himself that he can unconstitutionally act in good faith, then the country is in very serious danger.  If the country’s constitution can be violated in ‘good faith’, there is little that cannot be violated in the same manner.

It must be asked whether a public officer can exercise power that the constitution, or any other law, has taken away from him. The Supreme Court has clearly noted that the 17th Amendment took away certain powers of appointment and disciplinary control from the president and his cabinet, and gave it to another body. President Rajapakse acts as if no such deprivation of his power ever took place. Can such action invoke good faith as its defence? This is like a constitutional monarch claiming back powers taken away from him through a constitutional process. If this were to happen in the United Kingdom or even neighbouring Thailand, it would be considered as gross interference of the legal process and would result in serious consequences. Nepal’s former King Gyanendra attempted this in February 2005 and within a little over a year the people rose against him and parliament vowed to take away all his powers.

Another argument used to justify President Rajapakse’s actions is that of necessity. This argument is based on the delay of a nomination to the Constitutional Council by the minority parties. If this was in fact the issue at stake–and there is much evidence to show it was not–the president should have found a credible way to conduct the selection process before making appointments to the various commissions. Such an act would have been in good faith; the essence of the 17th Amendment is to separate the selection process from that of making appointments. However, when the president exercises the power of selection that has been taken away from him by a constitutional process, the argument of necessity has no validity. As the proverbial Mahadanamuttha story goes, this way of looking at necessity is like cutting the neck of a goat to free its head stuck in a clay pot.

These arguments of good faith and necessity were used as defences by absolute monarchs, during times of ‘benevolent dictatorship’. These arguments are in effect saying that Sri Lanka’s president must be allowed to do what he thinks is necessary for the good of the people, without the impediments of law. The two architects of the present constitution, J R Jayawardena and R Premadasa, were also aiming for positions similar to that of ancient kings. It was even argued by a Solicitor General before the Supreme Court that President Jayawardena claimed lineage to the ancient kings, which was rejected in court. After President Premadasa’s assassination, a throne-like chair was found in his residence, prompting public ridicule; he was referred to Premadasa Rajjuruwo (King Premadasa).

The removal of the 17th Amendment raises the president to the position of an absolute ruler. In the words of President Jayawardena, he can then do everything “other than making a man a woman, or vice versa”.

Document Type : Statement
Document ID : AS-131-2006
Countries : Sri Lanka,