SRI LANKA: GOVERNMENT CIRCUMVENTS CONSTITUTIONAL

C O N F I D E N T I A L SECTION 01 OF 03 COLOMBO 000198

SIPDIS

SIPDIS

DEPARTMENT FOR SCA/INS

E.O. 12958: DECL: 02/25/2018
TAGS: PGOV PHUM CE
SUBJECT: SRI LANKA: GOVERNMENT CIRCUMVENTS CONSTITUTIONAL
CHECK ON EXECUTIVE POWER


Classified By: CLASSIFIED BY AMBASSADOR ROBERT O. BLAKE, JR. REASONS:
1.4(b,d).


1. (C) SUMMARY: Parliament adopted the 17th Amendment to
the Sri Lankan Constitution in 2001, intending it to be a
significant check on the powers of the Executive
President. The 17th Amendment mandates an independent
Constitutional Council (CC) responsible for nominating
members to key public institutions, thus limiting political
interference in the appointment process and promoting good
governance. However, President Rajapaksa has obstructed
the formation of the Council for the past two years,
preferring to make extra-constitutional, direct
presidential appointments to several important government
bodies. In the coming months, several key posts, including
Secretary-General of Parliament, Attorney General, a

SIPDIS
Supreme Court Justice, and an Appeal Court judge, will fall
vacant. Thus, a further delay in reconstituting the CC
would pave the way for more direct presidential
appointments to key jobs. Civil society organizations
recently brokered an agreement between minority parties,
including both Sinhalese and Tamil nationalists, in an
effort to break the logjam. However, the President has yet
to appoint the Council in accordance with the constitut
ional requirement. End Summary.

What the 17th Amendment Says
--------------


2. (SBU) In September 2001, Sri Lanka's Parliament passed
the 17th Amendment to the Constitution with a greater than
two-thirds majority, in an effort to depoliticize key
public institutions, particularly the police and public
services. At the time, there was serious concern that
then-President Chandrika Kumaratunga was exerting too great
an influence over the country's public institutions through
politically motivated appointments, transfers, promotions,
and disciplinary control of officers of key public bodies.


3. (U) The 17th amendment mandates the creation of a
10-member Constitutional Council (CC) to serve two primary
functions: 1) nominate members to important commissions
(the Elections Commission, Public Service Commission,
National Police Commission, Human Rights Commission,
Permanent Commission to Investigate Allegations of Bribery
or Corruption, Finance Commission, and Delimitation
Commission),who are then appointed by the president. 2) It
also approves appointments to key public offices (including
auditor general, inspector general, chief justice and
judges of the Supreme Court, and the president and judges
of the Court of Appeal). This independent control over
important appointments was designed to check the
president's previously unrestrained power in the
appointment process.


4. (U) The CC is to be composed of the Prime Minister, the
Speaker of Parliament, the Leader of the Opposition, one
person appointed by the President and five people appointed
on the nomination of both the Prime Minister and the
Opposition Leader. (Note: in nominating the group of five,
the Prime Minister and the Opposition Leader are to consult
the leaders of all political parties and independent groups
represented in Parliament.) The final member is to be
nominated by agreement of a majority of the minority
parties represented in Parliament (those parties other than
the Prime Minister's party and the chief opposition
party). Except for the first three persons listed above,
all nominees must be distinguished public figures who are
not members of any political party. According to the
amendment, once the President receives written notice of
the latter six nominations, he must "forthwith" make the
respective appointments.


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History of Circumventing Constitutional Council
-------------- --


5. (SBU) Two successive Executive Presidents, Chandrika
Kumaratunga and the incumbent, Mahinda Rajapaksa, have
circumvented the 17th amendment by refraining from
appointing nominees to the CC. They have filled the
resulting void by making direct appointments (not vetted
through the CC) to the commissions. A prominent public
interest lawyer and columnist, Kishali Pinto-Jayawardena,
assessed that "by early 2006, the 17th amendment had
essentially broken down." Six vacancies on the CC had not
been filled. As a result, the police and public service
commissions had fallen under the control of the Inspector
General of Police and the heads of ministries or
departments, fundamentally violating the spirit and intent
of the 17th amendment. Two senior judges of the Supreme
Court resigned from the Judicial Service Commission (to
which their appointments are subject to CC approval),
citing reasons of conscience. Kishali Pinto-Jayawardena
added that circumvention of the 17th amendment calls into
question the government's commitment to constitutional
democracy. In addition, she worried that disregard for
constitutional provisions for governance in the south
surely stokes the fears of ethnic minorities "that a
similar fate may visit constitutional compromises of
devolution or federalism."

Current State of Play
--------------


6. (C) Today the CC remains unconstituted. For two years,
the Tamil National Alliance (TNA) and the Sinhalese
nationalist JVP could not agree on a nominee for the
minority parties. President Rajapaksa made no effort to
compel the minority parties to come to agreement, instead
exploiting the situation by appointing political cronies
beholden to him to public institutions.


7. (SBU) In large part due to lobbying by the Organization
of Professional Associations (OPA),which initially
proposed the 17th amendment, the TNA and JVP finally agreed
on a compromise nominee, former Auditor General S.C.
Mayadunne. This should have cleared the way to activate
the CC. Yet President Rajapaksa appears to be in no hurry
to appoint Mayadunne. Chief government whip Jeyaraj
Fernandopulle cited a potential conflict of interest,
Mayadunne's current consultancy contract to two
Parliamentary Committees. Most observers see this as a
peripheral concern. Moreover, Mayadunne made it clear he
is willing to resign from the consultancy position if
appointed to the CC.


8. (SBU) There are signs that the government may not be
able to delay creation of the CC much longer. A
broad-based coalition of civil society leaders is pushing
the government and political parties to establish the CC.
Religious heads, together with representatives of the
Chamber of Commerce, the OPA, and the Law and Society
Trust, met on February 14 to draft a proposal to the
President and political parties and make plans for rallying
public opinion if obstruction of the CC continues. But the
President could be playing for time: several key government
posts, including Secretary-General of Parliament, Attorney
General, a Supreme Court Justice, and an Appeal Court
judge, will fall vacant in the coming months. A further
delay would pave the way for more direct presidential
appointments to these key jobs.


9. (C) OPA President Elmore Perera, who has led the
campaign for the CC from its inception, told Ambassador on
February 19 that the President's continued use of
extraconstitutional appointments under this scenario would

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make him vulnerable to a charge of intentional violation of
the Constitution - an impeachable offense. The JVP, under
increasing pressure to demonstrate independence of the
President on ethical issues, has threatened to vote in
favor of an impeachment motion, which needs only a simple
majority. This would result in an automatic referral to
the Supreme Court for an opinion. While this would likely
not lead to the President's removal (which would require a
two-thirds vote in Parliament),it would result in a huge
embarrassment for Rajapaksa.

Critical Questions Facing a New Council
--------------


10. (SBU) With the CC defunct, the National Police
Commission recently extended the services of ten officials,
in clear violation of existing procedures governing
re-employment of retired personnel in public service.
Other sensitive public sector appointments have also
bypassed the 17th amendment and politicized the public
service. If the CC were reconstituted, the immediate
question would be whether those appointed to public
institutions in the interim (i.e., unconstitutionally)
retain their positions. Further, would decisions made by
such persons, including judges, retain constitutional
legitimacy, and hold if challenged in the future?
Constitutional scholars tell us there is no clear answer to
those questions, which will almost certainly have to be
resolved by the Supreme Court. However, most take the view
that while the interim appointments are voidable, the
decisions taken by these functionaries would probably
retain their validity.


11. (C) COMMENT: The Executive's circumvention of the
17th amendment severely undermines the independence and
accountability of public institutions in Sri Lanka. It
also stands in stark contrast to this same Government's
trumpeting of the importance of implementing the 13th
amendment to devolve power to the provinces (instead of the
more ambitious power-sharing proposal being considered by
the APRC). President Rajapaksa, unwilling to pursue the
obvious solution (appointment of the compromise nominee May
adunne) seems intent on delaying activation of the CC as
long as possible in order to continue his current
extra-constitutional practice of directly naming members of
the Election Commission and other important bodies. His
political opposition is trying to bring maximum pressure on
him to comply, but may well have trouble generating
significant grassroots agitation on what is a relatively
arcane - if still vital - issue. As a result, there may be
a few innings left in this game, even though the eventual
outcome does not appear in doubt.

BLAKE