Untitled - International Commission of Jurists

The Court of Appeal dismissed petitions challenging the refusal of the President to
make the appointments to the CC in the manner stipulated by the Constitution on
grounds that presidential immunity precluded legal challenges to his actions while in
office. 44 The immunity bar has been held not to apply to actions of past Presidents 45 or
to those public officers who rely on Presidential acts to justify their own
transgressions of the law. In some instances, the judicial view has inclined towards
holding that even the direct actions of the President are reviewable, as was the case in
Silva v Bandaranayake 46 , where the majority examined the Presidential act of
appointment of a Supreme Court judge though ultimately desisting from striking
down the appointment. The law in respect of presidential immunity therefore remains
inchoate and efforts have been made to delete this constitutional provision on the
fundamental principle that no one should be above the law.
The integrity and independence of several oversight mechanisms meant to supervise
rights adherence by government bodies, including the Human Rights Commission of
Sri Lanka (HRCSL) and the National Police Commission (NPC) in particular,
suffered as a result. In 2007, the Human Rights Commission of Sri Lanka was
downgraded from category A to category B by the United Nations International
Coordinating Committee (ICC) of National Human Rights Institutions. 47 The several
reasons that led to the downgrading included concerns regarding the independence of
the Commissioners, given their unconstitutional appointments by the President, the
actual practice of the Commission lacking the requisite balance and objectivity, and
the Commission’s inability to ensure its political independence, and its failure to issue
annual reports on human rights as required by the Paris Principles.. In mid-2009, the
National Police Commission and the Public Service Commission (PSC) were
rendered unable to function due to lack of quorum after the terms of several
commissioners lapsed. Reportedly, the duties of the NPC and the PSC are being
exercised by the relevant ministry secretaries even though their offices continue to be
maintained on public funds. The terms of the current members of the Human Rights
Commission have also lapsed.
The President’s willingness to bypass democratic checks on his authority, combined
with sweeping executive powers under expanded emergency laws, further centralized
the power of the Executive Presidency. Against this background of disregarding
minimum standards of constitutional governance, it was unsurprising that demands to
the government to secure accountability for serious human rights violations were left
unattended.
In 2006, a commission of inquiry was established under the COI Act of 1948 to
investigate fifteen selected incidents, later increased to sixteen, 48 that had occurred
44 Article 35 (1)of the Constitution. In Public Interest Law Foundation v. the Attorney General and
Others, CA Application No 1396/2003, C.A. Minutes of 17.12.2003. [1997] 1 Sri LR 92 at 95.
45 The Waters Edge Case referred to later on.
46 [1997] 1 Sri LR 92 at 95.
47 Report and recommendations of the Sub-Committee on Accreditation, December 2007.
48 Commission of Inquiry appointed by President Mahinda Rajapakse in November 2006 to inquire into
“alleged serious violations of human rights arising since 01.08.2005” (hereafter, the 2006 Commission)
to Inquire into Serious Human Rights Violations. These cases include the assassinations of Minister
Lakshman Kadirgamar, MP Joseph Pararajasingham, Kethesh Loganathan, the execution style shooting
of 17 aid workers in Mutur and killings in Mutur, Trincomalee, Sancholai, Pesalai Beach, Keyts Police
area, Pottuvil, Kebithagollawa, Welikanda, Digapathana and the disappearance of Rev Jim Brown.
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