I was saddened recently to read an attack on recent appointments to the Human Rights Commission of Sri Lanka by a body that calls itself the Friday Forum. The body describes itself as a Group of Concerned Citizens, an informal gathering of public spirited persons who are dedicated to promoting peace and development in Sri Lanka within a framework of democracy.

The concern of at least some of these citizens is of very recent origin. Many of them were conspicuous by their silence when Sri Lankan democracy was in grave danger and when minorities were physically attacked. They continued to enjoy prestigious government jobs when the first six amendments to the constitution subverted all democratic norms and drove the TULF from Parliament, when a Court of Appeal judgment was overturned by sudden legislation, when crossovers to government were legitimized, when mayhem took place at the Jaffna DDC elections and the Jaffna Public Library was burnt, when Mrs Bandaranaike’s Civic Rights were taken away by an Act of Parliament, when the 1982 Referendum deprived voters of the right to choose their representatives for six more years, when July 1983 took place.

But conversions can happen, and we should be glad that the older amongst them, secure after distinguished careers and with satisfying pensions, have now seen the need to express such concerns. And when they work together with people like Suriya Wickramasinghe, who was courageous throughout as a leading figure in the Civil Rights Movement when Human Rights was not fashionable, we must hope that their conversions are genuine.

What is surprising however in their comments is their total contempt for the process laid down for such appointments, and their ignorance of constitutional practice all over the world.

In essence, there are two very different systems according to which appointments to high positions are made. On the Westminster system, appointments are made by the titular Head of State, on the recommendation of the Head of Government, or sometimes by specially constituted bodes, themselves appointed by the Head of State on the recommendation of the Head of Government. The Head of Government does not need to consult anyone as to his recommendations and, since the Head of State is supposed to function on the advice of the Head of Government, his recommendations are almost always followed without question.

This system does not have many critics, and understandably so. Though abuse can happen – and one need only read Tissa Devendra’s excellent articles to see that even the so-called independent Public Service Commission was never really independent – one basic principle is affirmed, namely that the person appointing should not have absolute control over such appointments. Thus, though in effect the Head of Government does have full decision making powers, there is time for reflection, and there is need for care, since the final appointment is made by someone else. Thus the decision maker takes care over the decision (which is what the recommendation amounts to), but also knows that the Head of State could if required simply ask that the matter be looked at again.

The other system arises when you have an elected Head of State with full Executive powers. Such a person both chooses and appoints, and this is understandable given that such a Head of State has been selected by the people precisely to exercise Executive powers. However, given that absolute control of such appointments is generally considered undesirable, there is usually a process of ratification. The most obvious example of this is the American system, where the Senate has to consent to the appointment of senior officials, including even Cabinet Ministers.

For over 20 years Sri Lanka had a situation where neither of these controls obtained. J R Jayewardene as President appointed whom he chose, with no one to gainsay him, and the practice continued under his first three successors. There was technically a High Posts Committee in Parliament, but Jayewardene ignored that when it voted against one of his nominees – Upali Wijewardene – and subsequently the High Posts committee, while in theory able to grill nominees, has not had any real power. Several members of the Friday Forum benefited from being appointed to exalted positions under previous Presidents. None of them at the time thought of speaking out against the unbridled power of the Presidency.

In 2001 however there was a change, in recognition of the principle that some sort of check should be exercised. This was institutionalized however only because President Kumaratunga needed JVP support, and the passing of the 17th amendment was one of the conditions the JVP made when they helped her to establish what was described as a Government on Probation. Sadly the JVP did not think, for which I upbraided them at the time, to institutionalize the other principle they wanted enforced, that of a small cabinet.

Also sadly, those who rushed through the 17th amendment took no account of practices and principles in other countries as noted above. Characteristically they confused the Head of State under an Executive Presidential Constitution with the Head of State under a Westminster one. So, when specifying the positions to which appointments were to be made under the 17th amendment, they decided that some of them would be decided on by the President subject to ratification by the Constitutional Council, and some would be decided on by the Constitutional Council, to be appointed by the President.

I will not discuss here the preposterous nature of the Constitutional Council which was set up, with horse-trading going on until practically the moment when the bill was to be voted on. Thus you had a total mish-mash, which meant that for some years there was a total impasse on the appointment of one member.

It is also forgotten that the Bill did not specify what would happen if the President refused to make appointments recommended by the Constitutional Council. I do not recall those members of the Friday Forum who held high office during the Presidency of Chandrika Kumaratunga raising questions about her refusal to appoint an Elections Commission as recommended by the Constitutional Council.

She did not however conceptualize her objections to the process, and therefore it was assumed that she was just being cussed by those who wanted her to follow without question the recommendations of the Council. The present President however made clear his reasons for finding the Constitutional Council a perverse mechanism, and he therefore amended the law as soon as he was able to do so.

The present system requires only consultation, not ratification, by a Parliamentary Council, which includes amongst its five members the Leader of the Opposition plus a nominee of his. I can see that ratification might have been more satisfactory but, given the way in which the Opposition has behaved, it is clear that the Government was quite right in having purely an advisory process.

This is also constitutionally more sensible, given that Sri Lanka confuses the Legislative and the Executive in a manner you do not find in countries cited as precedents with regard to Executive Presidencies. Given that the leading lights of Parliament are members of the Executive, it would not make sense to give them veto powers in relation to the President, unlike say in the American Senate, which does not include members of the Executive.

Unfortunately the Opposition has resolutely refused to play its role. First the normally sensible Mr Sumanthiran of ITAK refused to accept nomination to the Parliamentary Council. I have since told him that it would be unfortunate if the representatives of the North continued to act as though what happened at the Centre did not concern them. This was one of the ways in which the TULF played into President Jayewardene’s hands during the time of the 1977 government. By withdrawing when there was discussion of national issues that they claimed did not relate to the North and East, they allowed Jayewardene and his minions to claim that they were interested only in Eelam. I believe then that Mr Sumanthiran, one of the more responsible members of the Opposition, was benefiting neither the country nor his party in refusing to become a member of the Parliamentary Council.

The leader of the Opposition and his current nominee, Mr Swaminathan, seem now to have gone even further in distancing themselves from the appointing process. The Friday Forum devotes half a sentence to this, in saying ‘While we can fault the opposition for its non-participation’, before going on to claim again that the process under the 18th amendment is unsatisfactory.

I was told by a leading member of the UNP that this refusal to participate is deliberate, and will continue, since the UNP is opposed to the 18th amendment. When I asked why the UNP members accepted membership of the Council, I was told that this was essential to prevent others being nominated.

I find such behavior disgusting. If the UNP wishes to boycott the Parliamentary Council, they should do so definitely, and make a detailed critique if the Government then appointed stooges to the Council who simply rubber-stamped all nominees of the President. But to assume that a process of consultation is necessarily window dressing is to ignore political principles and practices in this country when a Westminster style constitution was in operation; and it is to underestimate the power of informed criticism of unsuitable nominees, in a context in which such criticism can be made public. In short, the mealy-mouthed secretive antics of the UNP are an object lesson in avoiding responsibility while continuing to enjoy the privileges of office.

The intrinsically oppositional members of the Friday Forum ignore all this and instead go on to attack some members of the Human Rights Commission, on the grounds that they include a former Inspector General of Police, a former Government Analyst and a medical practitioner. They seem to think that what they term human rights protection experience and credentials are required, which would suggest that they want either lawyers or members of advocacy organizations such as themselves.

This is not the place to argue the suitability of particular occupations for membership of the Human Rights Commission. The point is, it is not the role of individuals, however grand they are, or think they might be, to lay down laws or practices to an elected government. Parliament has set up a Council with a strong opposition presence to provide advice, and it is open to members of the Council to seek expert advice from anyone they choose to consult. It is also open to them to canvass issues publicly.

In short, the 18th amendment provides mechanisms to ensure that appointments will not be arbitrary, and that issues of unsuitability can be raised, privately or publicly, depending on what is more effective to achieve the purpose. It is sad if understandable therefore that the Friday Forum does not deal more actively with the irresponsibility of the Opposition in avoiding its responsibilities under the Constitution.

With regard to some members of the Friday Forum, both their political sympathies and more importantly their political prejudices are well known. But it is a pity to see individuals who normally criticize in terms of established political principles jumping on this bandwagon. Instead of helping to strengthen the Human Rights Commission – and there is much to do in this respect – the usual suspects seem to have followed the usual practice of denigrating whatever government does, so as to erode confidence in the Commission practically before it has begun to work.

I hope the Friday Forum has at least privately written about its concerns regarding his behaviour to its cherished leader of the Opposition, who was such a shining light of government in the early eighties, when most of them kept sedulously quiet about attacks on minorities and the perversion of democracy. But I doubt it.

Sunday Island 3 April 2011