On 18 May 2006, just nine days after Sri Lanka was elected to the Human Rights Council, President Mahinda Rajapaksa made direct appointments of five new members to the Human Rights Commission of Sri Lanka (HRCSL), which had been inoperative since March 2006 when the terms of office of the previous Commission lapsed.  

The Presidential appointments to the HRCSL occurred in the absence of any transparent or consultative process, followed similar appointments to the Public Service Commission (PSC) and the National Police Commission (NPC) and preceded direct appointments to the higher judiciary, including judges to the Supreme Court and Court of Appeal sworn in on 29 May 2006.  

The appointments were made in blatant violation of Sri Lanka's own Constitution, the provisions of the Human Rights Commission of Sri Lanka Act (1996) and the 'Principles relating to the status and functioning of national institutions for protection and promotion of human rights' (Paris Principles). In the context of Sri Lanka's recent acquisition of a seat on the newly formed Human Rights Council, the direct Presidential appointments display a manifest disregard for fundamental principles of democracy and the operation of the rule of law.   

The 'Aide Memoire' detailing Sri Lanka's pledges and commitments in support of its candidature for the Human Rights Council included the pledge that, "in pursuit of its commitment to the further promotion and protection of human rights, Sri Lanka will … build capacity of… the Human Rights Commission of Sri Lanka and other independent statutory bodies established as part of the national human rights protection system." The step taken by the President, effectively stripping the HRCSL of its independence and therefore of any credibility or transparency, does just the opposite.    

The Human Rights Commission of Sri Lanka Act  

The Human Rights Commission of Sri Lanka Act 1996, which established the HRCSL, stipulates the appointment procedure for HRCSL members requiring that members are "to be appointed by the President, on the recommendation of the Constitutional Council." Since it was anticipated that the Human Rights Commission of Sri Lanka Act would slightly precede the establishment of the Constitutional Council, the Act further stipulated that "in the period commencing on the appointed date and ending on the date in which the Constitutional Council is established, members of the Commission shall be appointed by the President on the recommendation of the Prime Minister in consultation with the Speaker and the Leader of the Opposition."   

The Constitutional Council   

The Constitutional Council (hereafter the 'Council') was created by the Seventeenth Amendment to the Constitution on 3 October 2001 with the stated purpose of making appointment recommendations to national institutions. Article 41(b) expressly requires that "[n]o person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council." Establishment of the Council sought to remedy what had previously been unrestrained Presidential discretion over the process of appointment of members to national institutions.   

The Council is stipulated to consist of the Speaker (as Chairman), the Prime Minster, the Leader of the Opposition, as well as "…one person appointed by the President, five persons appointed by the President, on the nomination of both the Prime Minister, the Leader of the Opposition; one person nominated upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belongs and appointed by the President."  

Following its establishment in 2001, the Council was only effectively operative for one term of three years, between March 2002 and March 2005. In March 2005 the terms of office of the Council members expired and have not since been refilled. The reason generally cited for this delay is the failure to resolve the issue of which of the minority parties shall be allowed to nominate the final member of the Council on behalf of independent groups or independent political parties.  

If this was the true reason for the delay and a matter of serious concern to the President, he could have intervened with the minority parties himself, but he has not done so. Also, if the minority parties could not agree on a nomination a proposal could have been made to share the three-year term between their representatives, but no such option has been considered. Further, the President failed to make the appointments to the Council recommended to him by his own Prime Minster as well as the Leader of the Opposition. Since the quorum of the Council is six members, if these appointments were made the Council would have been functional despite the lack of agreement on the final Council member.   

The Paris Principles  

Under the Human Rights Commission of Sri Lanka Act, the persons appointed shall "be chosen from among persons having knowledge of, or practical experience in, matters relating to human rights." Because the Act contains no definition of the criteria entailed by 'knowledge of, or practical experience in' recourse may be had to existing international norms to fill in the gaps left by municipal law. Therefore the Paris Principles, representing the accepted standard for the functioning of NHRIs, are applicable in the interpretation of the provisions of the Act.   

The Paris Principles state that “the composition of the national institution and the appointment of its members, whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces.”  

Additionally, the Commonwealth Secretariat 'National Human Rights Institutions (NHRIs) Best Practice' stresses the fundamental requirement of independence for the effective functionality of NHRIs. This includes freedom from "outside restraint or improper influence" and the requirement that appointments not be determined exclusively by the executive. The 'Best Practice' recommends that members reflect gender balance, the ethnic diversity of society and the range of vulnerable groups in their respective societies as well as "the qualifications necessary to undertake the role …"   

The appointments…  

The appointments originally included two previous members of the HRCSL who reportedly refused reappointment because of the unconstitutional basis of the appointments. In their stead, a former judge of the Supreme Court, Deshamanya P. Ramanadan, was appointed as Chairman, along with a retired judge of the Court of Appeal and two others who were virtually unknown to the human rights community in Sri Lanka. The fifth appointment, and the only one with any long term experience in the field of human rights was lawyer and activist S.G. Punchihewa, who reportedly refused the appointment on the basis that it was arbitrary and unconstitutional, and stated that he had not been informed about the appointment until he saw a news broadcast mentioning his name and announcing the appointment.   

There is widespread public concern that, besides the unconstitutional nature of the appointments, none of the four members who accepted meet the HRCSL Act criteria of "having knowledge of, or practical experience in, matters relating to human rights" or the recommendations of the Paris Principles.   

Additionally, it is clear that no consultative process of any kind took place and the appointments cannot be other than arbitrary, as evidenced by the admission of Mr. Punchihewa that he knew nothing of the appointment prior to its announcement. The fear is that President Rajapaksa is taking advantage of the lack of a Constitutional Council to stack institutions, including the HRCSL, with sympathisers - this at a time when the situation of conflict is escalating and the strengthening of NHRIs particularly essential. 

The rules? 

In a press release announcing the appointments, the Permanent Mission of Sri Lanka to the UN in Geneva stated that they were "an indication of President Rajapaksa's personal commitment and that of the Government, to the fulfillment of Sri Lanka's obligations towards the promotion and protection of human rights at both the local and international level." It added that the appointment was aimed at furthering the promotion and protection of the rule of law and that it was "a manifestation of the Government's strong commitment to uphold the principles of democracy, pluralism and human rights in the context of the peace process."  

This is disturbing. The Sri Lankan President's "personal commitment" evidently does not go so far as to ensure that the procedures laid down in international human rights standards and best practice on human rights are followed. The appointments to the HRCSL and the other national institutions and to the higher judiciary reflect disregard for the rule of law and principles of democracy.   

This is further evidenced by the recent decision of the Court of Appeal of Sri Lanka regarding the constitutionality of the appointments to the NPC and PSC. The Court of Appeal held that, under Article 35(1) of the Constitution, the President has immunity from proceedings in any court for his actions or omissions, whether they are official or private, apart from the three express exceptions stated in Article 35(3).   

According to the decision, the President therefore possesses immunity from action by any court for the violations of Article 41(b) of the Constitution prohibiting appointments except on the recommendation of the Constitutional Council. The decision represents an exceptionally broad and untenable interpretation of Presidential immunity.

 Human Rights Features