Judges’ appointments challengeable without CC: Srikantha

By Kelum Bandara and Gihan de Chickera

The Tamil National Alliance (TNA) said in Parliament yesterday Judges had been appointed to both the Supreme Court and the Court of Appeal without the approval of the Constitutional Council (CC), and therefore, there would be a constitutional confrontation between the executive and the judiciary if someone challenged it legally.

TNA MP for the Jaffna district N. Srikantha pointed this out to the House during the debate on the 17th Amendment to the Constitution which provided for the establishment of the independent commissions.

MP Srikantha took the government to task for not constituting the Constitutional Council as required in the Constitution, so that members could be appointed to the independent commissions in an impartial manner. He said Judges of the Supreme Court and the Court of Appeal should be appointed with the CC approval only, but there had been a serious deviation from proper procedure in this regard. “If somebody challenges this in the court, there will be a constitutional confrontation between the Judiciary and the Executive, eventually leading to a constitutional deadlock,” he said adding that he hoped President Mahinda Rajapaksa would take serious note of it.

The Tamil legislator said there had been an atrocious disregard for the CC. He said the government could not shirk its responsibility in this regard reasoning that a select committee had been appointed to sort out lacunas in the 17th Amendment to the Constitution. “We flatly reject this argument put forward by the government. A select committee cannot delay the appointment of the CC,” he said.

He said that the CC is part and parcel of the Constitution, which he cited as a living document and nobody can play around with it.

Human Rights Minister Mahinda Samarasinghe pointed out the first CC appointed under the 17th Amendment was constituted in March 2002 and its term expired in March, 2005. The Minister said that the CC couldn’t start functioning as there was a lack of consensus among the minority parties regarding the tenth nominee to it. “The resulting deadlock meant a situation arose where no fresh appointments to critically important national institutions could be made. Under these circumstances, the State machinery was in danger of grinding to a complete halt,” he said.

As a result, he said the President was compelled to make some appointments to certain institutions.

“Take, for instance, the Human Rights Commission of Sri Lanka. If the appointments of five commissioners were not done, the Commission would cease to function as an effective institution. Under the circumstances, the staff of the Commission, the ordinary petitioners who sought relief and matters pending before the Commission could not be proceeded with. It is therefore not only a question of the five individuals who were appointed commissioners. It is a question of an eleven-year old institution of State being rendered non-functional,” he said.

Constitutional Affairs Minister, DEW Gunasekara said the CC has been defunct from March 22, 2005, and it was neither the President nor the government that created this impasse.

The Minister said the problem existed due to the wrangling among the minority parties over their nominee. He said the 17th Amendment to the Constitution was an ill conceived piece of legislation brought to the House hurriedly. “We have identified 15-20 areas where we find flaws and snags in this legislation,” he said adding that a Select Committee was appointed in 2006 to look into this matter and bring about corrective measures.