by Neville Ladduwahetty Courtesy The Island

February 26, 2019, 11:02 pm
President Sirisena’s comments on the Constitutional Council (CC) and the Human Rights Commission of Sri Lanka have elicited both supportive and negative responses from several quarters. This note is not on whether the President had grounds to say what he did or not. Instead, it is to set the record straight as far as the two institutioans are concerned. In addition, since the CC and its offshoots, the Independent commissions, have been hailed as major achievements in support of the rule of law under the 19th Amendment, it is absolutely necessary that the CC and the institutions it creates adhere to the rule of law and practices of good governance.

THE CONSTITUTIONAL COUNCIL

The Speaker as the Chairman of the CC addressed Parliament, on 25th January 2019 and made the following statement: “I informed on that occasion that I had tabled on 08. 12. 2016 in Parliament a report containing the guidelines followed by the Constitutional council submitting nominations for appointing members of the Independent Commissions laid down in Article 41(b) of the Constitution and in approving the nominees sent to us by the President for appointing persons to positions stipulated in Article 41 (c) of the Constitution … In addition to that, the report containing the aforesaid guidelines will be tabled in Parliament tomorrow for the information of Hon. Members…It shall be mentioned that seniority, integrity, independence and impartiality of persons are considered in addition to the said guidelines in appointing persons to respective positions”.

The plea by the Speaker cited above would have been superfluous had the CC followed the provisions in the Constitution under the 19th Amendment as stated in Articles 41E (4); (6) and 41G (1); (3) since they collectively require the CC to adhere to them.

Article 41 E (4) states: “The Council shall endeavor to make every recommendation, approval or decision it is required to make by unanimous decision, and in the absence of an unanimous decision, no recommendation, approval or decision made by the Council shall be valid, unless supported by not less than five members of the Council present at such meeting”.

Article 41 E (6) states: “The procedure in regard to meetings of the Council and the transaction of business at such meetings shall be determined by the Council, including procedures to be followed in regard to the recommendation or approval of persons suitable for any appointment under Article 41 B or Article 41 C”.

Article 41 G (3) states: “The Council shall have the power to make rules relating to the performance and discharge of its duties and functions. All such rules shall be published in the Gazette and be placed before Parliament within three months of such publication”. In addition, Article 41 G (1) requires the CC to forward reports of their activities to the President every three months.

In regard to guidelines, seniority has become an issue. If the CC had assigned weightage to the qualities they were looking for, when they developed guildines, this would have been a non-issue. The lack of such procedures has made the guidelines for selection open to question.

Had the CC gazetted the guidelines “relating to their performance and discharge of their duties and functions” and placed them before Parliament, the Speaker could have used them instead of attempting to explain to Parliament that the charges made by the President against the CC are baseless. The fact that he did not do so means that there are serious shortcomings in the manner the CC conducts its business.

The CC was created to curb the arbitrariness of executive action. Therefore, if such an institution is to fulfil the purposes for which it was created, it has to gazette and place before Parliament the parameters that guide its operations. Else, it amounts to replacing the arbitrariness of an individual with that of an institution whose decisions are final and cannot be challenged. In such an event, who should be held accountable for such omissions? Is it the Secretary General of the Council or the three civil society members? If they cannot ensure that due process is followed, they should resign in protest.

THE HUMAN RIGHTS COMMISSION OF SRI LANKA

Addressing the critical statements by the President, the HRCSL stated:

” …it is due to the independence of the Council and the trust placed in the Council that in 2016 the United Nations designated the HRCSL to vet the SriLankan military and police officers for deployment to Peace Keepingmissions. We consider the fact that HRCSL is the only national institution selected to undertake the vetting process amongst all countriesthat supply troops for Peacekeeping missions as a triumph for Sri Lanka”.

The highly exaggerated claim that the United Nations sought out the HRCSL and “designated the HRCSL” is far from how the HRCSL came to be associated with the vetting process, judging from what the Chair of the HRCSL stated during the course of an interview with The Sunday Times of July 22, 2018. TheChair is reported therein to have stated:

‘Vetting (screening) does not come under the HRC mandate, outlined in theparent statute. In 2016, however, the Ministry of Foreign Affairs (MFA) wrote to the Commission and requested it to take on the task. Vetting was earlier carried out by the UN. But the MFA said that Sri Lanka was the first to be invited to do it locally’. “The Foreign Ministry’s position was the Human Rights Commission was the obvious choice as it was an independent institution now under the 19th Amendment and had the credibility to take it on “, Dr. Udagama said.’ (Ibid)

The admission cited above claiming that the UN singled out the HRC of Sri Lanka is stretching the truth. What really happened was that the MFA passed a hot potato to a reluctant HRCSL to undertake the task despite its scope being beyond its mandate.

The task undertaken by the Commission is that: ‘All Member States that nominate or provide personnel to serve with the UN must screen and certify that such personnel have not committed, or are alleged to have committed, criminal offences and/or violations of international human rights law and international humanitarian law. Those who seek to serve with the UN must attest the same and, where necessary provide relevant information. The processes by which this can be done are outlined in Decision 2012/18 of the UN Secretary General’s Policy Committee’ (IPS, April 22, 2018).

“Having admitted that the task assigned by the Ministry of Foreign Affairs is beyond the mandate of the HRCSL, which according to Act No. 21 of 1996 that set up the Human Rights Commission, is limited to “rights declared and recognized by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights”, the question is whether the HRCSL has the competence to certify that the personnel they clear have not committed, or are alleged to have committed criminal offences and/or violations of international humanitarian law, and if they do not, how credible would be their clearance”? (Ladduwahetty, Screening of peacekeeping personnel from Sri Lanka, The Island, July 24, 2018).

“The context in which the HRCSL should conduct its screening/vetting should be that of an armed conflict since the conflict in Sri Lanka was an armed conflict that was conducted under conditions of a declared emergency. Therefore, the applicable law is international humanitarian law; a fact acknowledged by the UN Secretary General’s Panel of Experts and the Office of the High Commissioner for Human Rights in Geneva. Consequently, human rights are derogated except for laws that are recognized by the International Covenant on Civil and Political Rights which are Articles 6 -right to life, Article 7 – prohibition of torture and Article 8 – slavery. Therefore, the issue is whether HRCSL has the competence to evaluate whether humanitarian law violations were committed during the armed conflict and thereafter until normalcy was restored” (ibid).

The HRCSL in its response claims that it has met with all the “stakeholders” and developed a Standard Operating Procedure (SOP) in June 2018, and furthermore that the UN has informed them that the vetting process could resume from December 2018. Since the request from the Foreign Ministry was in 2016, the question that follows is why it took the HRCSL until June2018 to develop an Operating Procedure. An even more pertinent question is whether the SOP was published (gazetted) and approved by Parliament or any other competent authority in keeping with practices of good governance.

CONCLUSION

It is evident from the foregoing that the primary cause for criticism against the Constitutional Council is that it has not met constitutional provisions of gazetting its guidelines and placing them before Parliament. As for the HRCSL, if it has not published the Standard Operating Procedure, the guidelines for selecting peacekeeping personnel will remain opaque. The arbitrariness common to both reflects arrogance; they seem to think that they and only they know what is best for Sri Lanka and no one else should know how they conduct their operations. The plea of the public is that both institutions have an obligation to the people who have a right to know how they operate because they are not above the law.