Untitled - International Commission of Jurists

these commissions are examined in detail in this research. Historically,
Kumaratunge’s presidency is criticized for insufficiently upholding the independence
of constitutional institutions, most particularly the institution of the judiciary. These
developments are examined later on in the context of discussion regarding Sri Lanka’s
Supreme Court and its protection of rule of law norms.
In late 2001, popular dissatisfaction with the Kumaratunge administration resulted in
the opposition UNP capturing power in general parliamentary elections. In 2002, a
ceasefire agreement between the UNP government and the LTTE was signed, leading
to the establishment of the Sri Lanka Monitoring Mission (SLMM) to monitor the
implementation of the ceasefire. The ceasefire was controversial and much-criticized.
Except for arrest, search, and seizure provisions, the PTA remained in effect as long
as the government remained committed to the ceasefire. In April 2003, the LTTE
announced that it was withdrawing from the ceasefire. Further, the fractious ‘cohabitation’
arrangement, as it was popularly termed, between a Presidency and a
parliament belonging to opposing political forces did not last very long with President
Kumaratunge’s party re-capturing parliamentary power from the UNP in a coalition
grouping in April 2004. Kumaratunge’s term as Executive President ended on 17
November, 2005, with the current incumbent, Mahinda Rajapakse, being elected to
power from the same party, the Peoples Alliance. Even though there was no formal
resumption of active fighting between the government and the LTTE during 2002-
2005, human rights violations were committed by both parties to the conflict. Fighting
resumed in 2006 with a commensurate rise in killings, extrajudicial executions and
enforced disappearances. For its part, the government formally announced the end of
the ceasefire in January 2008.
The recent deliberate negation of the 17 th Amendment to the Constitution, passed by
the Parliament in 2001 to remedy the politicization of public institutions and
strengthen oversight bodies, has further increased public perception that the law and
the Constitution is of minimal importance. This amendment stipulated that
Presidential appointments to commissions and important offices must first satisfy
approval by a ten-member Constitutional Council (CC) comprising the Speaker as
Chairman, the Prime Minister and the Leader of the House, and six persons of
integrity and eminence appointed from outside the political arena through
parliamentary consensus. The CC was intended to function as an external check over
unrestrained presidential discretion in the appointment process. However, its
implementation was limited only to the first term in office, 2002 to 2005. Thereafter,
the responsible parliamentary groupings failed to nominate candidates to replace
members whose despite the lapsing of the three-year terms had lapsed.
After considerable public pressure, the nominations were sent to then President
Mahinda Rajapakse in 2008, but the requisite appointments were not made due to the
explanation of the government that a Parliamentary Select Committee was studying
changes that should be made to the 17 th Amendment. This Select Committee had been
convened for over two years and at times had been unable to gather a quorum. In the
meantime, and disregarding the precondition of referral to the CC for nomination and
approval, President Rajapakse has made his own appointments to the constitutional
commissions as well as to vacancies that had arisen in public offices including that of
the Inspector General of Police, the Attorney General and to the appellate courts.
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