Chapter 10 | The Nineteenth Amendment and its Impact on Law Enforcenment and the Administration of Justice

Hejaaz Hizbullah

Law enforcement and the administration of justice are essentially the function of three types of officials. These officials are the police, the prosecutor, and the judge. Law enforcement and administration of justice in Sri Lanka encounter challenges of both omission and commission. At times the system fails to act or at other times it acts for the wrong reasons. The harassment of political opponents through arrests and prosecutions and letting go political supporters with indictments being withdrawn or light sentences are well known and well recorded. These are instances of political interference and influence on the law enforcement mechanism. However, less well known is the ethnic bias in the law enforcement mechanism. The absence of any serious prosecution in respect of the violence in Aluthgama in June 2014 is a recent example that highlights the presence of a possible ethnic bias in the law enforcement and administration of justice system. In other words, the problem has been that political and ethnic minorities have found the law enforcement system failing them in certain instances.

In relation to these grave lapses, quite apart from the qualitative issue of the competence and capacity of these officials, the cause of such failures is allegedly the lack of independence. The argument has been that if the officers are left to act on their own, that they will deliver justice without fear or favour. In terms of this argument, unfortunately, due to the extent of political involvement in the law enforcement and administration justice process, political influence prevents officials from acting independently unless they are willing to sacrifice their next promotion.

What does the Nineteenth Amendment do to address this problem?      From a law enforcement and administration of justice point of view, it seeks to attain two objectives. It aims to create an environment where these officials – the police, the prosecutor and the judge – can perform their functions with a degree of independence. It also aims to make governance transparent and open to challenge. To achieve these objectives, the Nineteenth Amendment adopts three important measures. First, it reduces the powers of the President and distributes these powers to other officials. The idea is to achieve a balance in the constitutional structure. The amendment also reduces the scope of presidential immunity and now all government action except the declaration of war and peace is open to judicial challenge in some form or other. The second measure is that it makes the right to information a fundamental right, and thirdly, it introduces reforms to the Judicial Service Commission (JSC).

In this chapter, I argue that taken as a whole the Nineteenth Amendment is a step in the right direction. It has the potential of creating a positive culture where the discharge of official functions by the police et al will be based purely on law and order and justice considerations. However, the Nineteenth Amendment, like all constitutional measures, only sets out a framework. As such, it is only as effective as a constitutional framework can be. The extent to which it will impact on the police sergeant on his way to making an arrest, a State Counsel contemplating an indictment, or a Magistrate deciding on a bail application, would be decided by the space that emerges through an interplay of political and social forces within the framework that the Nineteenth Amendment establishes.

The Mischief

However, before examining the three measures that the Nineteenth Amendment introduces, it would be useful to look at the ‘mischief’ that the amendment sought to rectify. The ‘mischief’ in the Eighteenth Amendment, and, in fact, even before that – except for the short period when the Seventeenth Amendment was in operation – was that there was no escaping the President and his sphere of influence or interference. A public officer who decided to act against, or did not act in favour of the political regime, which was essentially the regime of the President, would soon find him or herself relegated to pariah status within his or her department. So in order to keep one’s career on track, one had to perform and produce ‘results.’

For example, the Inspector General of Police was appointed by the President and he functioned under a Ministry which was invariably under the President. During the tenure of President Rajapaksa, his brother, Gotabhaya Rajapaksa, was the Secretary to the Ministry under which the Police Department functioned. The Attorney General was also appointed by the President. Again during President Rajapaksa’s presidency the Attorney General’s Department was brought under the purview of the Presidential Secretariat. In this context, no Inspector General or Attorney General could be expected to act independently, for they functioned in a network controlled by the President.

In respect of the judiciary, the Chief Justice and all superior court judges were appointed by the President. In Silva v Bandaranayake,[1] where Shirani Bandaranayake’s appointment as a judge of the Supreme Court was challenged, the Supreme Court held that in making appointments the President was required to only act in ‘co-operation’ with the Chief Justice, but qualified even that by saying,

“Of course, the manner, the nature and the extent of the co-operation needed are left to the President and the Chief Justice, and this may vary depending on the circumstances, including the post in question.[2]

In this way, the Court held that the petitioners had failed to supply sufficient information of a lack of co-operation: “While all four petitioners make these allegations, they neither claim personal knowledge of the facts nor state the sources or grounds of their belief.”[3] In other words, unless the petitioner had personal knowledge of the lack of co-operation between the President and the Chief Justice, there was no way in which a judge’s appointment could be challenged. In the case of Victor Ivan v Hon Sarath N Silva,[4] the Supreme Court held that the powers of the President in appointing the Chief Justice was covered by the immunity granted to official acts of the President under Article 35 of the constitution.

Both Silva v Bandaranayake and Victor Ivan v Hon. Sarath N Silva highlight two other issues that the Nineteenth Amendment sought to address. First was the immunity of the President under the previous Article 35, which kept the President outside judicial reach, and the second was the absence of a right to information, which restricted the amount of information that was available in the public domain, and thus limiting public scrutiny and challenge of governmental action. Another problem that the Nineteenth Amendment seeks to address is with regard to the JSC. Under Article 111H of the constitution, the JSC was empowered to appoint, promote, transfer, and exercise disciplinary control over judges of the minor judiciary. The Chief Justice was the chairman of the JSC. There were two other judges of the Supreme Court who acted as members who were also appointed by the President. The resultant position was that through the JSC the minor judiciary was brought within the sphere of influence of the President.

 

The Nineteenth Amendment

The Nineteenth Amendment changes this. Appointments to the office of Inspector General of Police, the Attorney General, and the Chief Justice and judges of the Supreme Court and Court of Appeal, are now subject to an appointment process involving the Constitutional Council. Furthermore, with regard to the appointment of superior court judges, the President is required to obtain the views of the Chief Justice. The Nineteenth Amendment also sets up the National Police Commission, and Public Service Commission, which will control appointments, promotion, and transfer of public officers. Another key change that the Nineteenth Amendment introduces is that it reduces the scope of the President’s powers of assigning Ministries for himself arbitrarily, through the somewhat enhanced role of the Prime Minister. Thus it is possibly more difficult than before for the President to bring departments like the Police Department or the Attorney General’s Department under his purview.

The amended Article 35 of the constitution takes away presidential immunity for the President’s official actions, with the actions of the President at least open to scrutiny for a violation of fundamental rights under Article 126 of the constitution.[5] Article 14A(1) of the Nineteenth Amendment makes the right to information a fundamental right. The extent to which this right would be made effective remains to be seen. However, at least in principle, the right to information has become a constitutional right allowing citizens to have access to information and thereby opening the doors of government for public scrutiny.[6]

The Nineteenth Amendment also introduces critical reform to the JSC,  with the amended Article 111D(1) providing that the Commission shall comprise of the Chief Justice and the most senior judges of the Supreme Court, with one judge having experience as a judge of courts of first instance. The result of this amendment is that, firstly, the President has no discretion in selecting judges of his choice to be members of the Commission. Secondly, the requirement that one judge has trial court experience ensures not only that the Commission benefits from such experience, but it also ensures that one judge would be a career judge who rose through the ranks as opposed to a judge who might have been appointed to the Supreme Court on the strength of other experience.

Assessment

So does the Nineteenth Amendment really deliver on the promise with regard to law enforcement and the administration of justice? What these constitutional changes do is that no longer is the President or the Prime Minister’s singular approval or support necessary for appointment or promotion. A public officer who acts independently can find security in the appointment and transfer process, which is no longer at the whim of the President or any other political actor. Furthermore, the Constitutional Council as a body, unlike an individual President, would in making appointments set precedents and develop its own set of rules which would control the Council’s own approvals and recommendations, thus reducing the ability to manoeuvre or manipulate.

However, it is difficult to imagine the President’s recommendations to the Constitutional Council or the Prime Minister’s suggestions within the Council being rejected by the Council. Appointments to the offices in Schedule I of Article 41C(1) are on the recommendation of the President. It is the President who will name the appointee and seek Council approval. With regard to the Commissions in Schedule to Article 41B(1), it is the Constitutional Council that will make the recommendations to the President to make the appointments. Appointments to the JSC will be by the President with the approval of the Council under Article 111D(1), but this is subject to the strict qualifications set out above.

Where the President and the Prime Minister come from the same political party and the party enjoys the comfortable majority in Parliament, it is difficult to see the Nineteenth Amendment reaching its full potential. The Prime Minister could easily dominate Parliament and the Constitutional Council, and assign to himself portfolios of his choice and have his or her nominees appointed through the Constitutional Council.

The redeeming feature of the Nineteenth Amendment, then, is that it gives the Leader of the Opposition and civil society representatives in the Council a role in the appointments process. Moreover, the right to information and the removal of the immunity of the President for his official acts makes governmental actions transparent and open to challenge. Whilst the President and the Prime Minister may still get their way, it seems unlikely for example that a Former Cabinet Legal Advisor would be ratified for appointment as Chief Justice, as was the case in President Rajapaksa’s appointment of Mohan Peiris.

Conclusion

To the Police Sergeant, the State Counsel, and the Magistrate, the Nineteenth Amendment puts in place an institutional structure that creates a space for them to perform their functions independently. The dimensions of that space will be determined by a tug of war between the political forces in power, the opposition, and other socio-democratic forces. In this sense, the early day of the implementation of the Nineteenth Amendment is important in setting down precedents. There appears to be a healthy mix in the membership of the Constitutional Council, with the Attorney General, the Inspector General of Police, and the Chief Justice showing visible signs of independence. This impartial performance of their functions would, hopefully, likely transcend not just political lines but also ethnic lines. But this, of course, remains to be seen.

[1] (1997) 1 SLR 92.

[2] Ibid: p.94.

[3] Ibid: p.96.

[4] (2001) 1 SL R 309.

[5] See N. Anketell, ‘The Executive Presidency and Immunity from Suit: Article 35 as Outlier’ in A. Welikala (Ed.) (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (Colombo: Centre for Policy Alternatives): Ch.5.

[6] Cf. chapter by Gehan Gunatilleke in this volume.

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