In a speech read to the Parliament recently, Prime Minister and Minister of Public Administration, Home Affairs, Provincial Councils and Local Government Dinesh Gunawardena challenged the validity of the interim order issued by the Supreme Court (SC), stopping the incumbent Inspector General of Police (IGP) (Deshabandu Tennakoon) from functioning in his official capacity till a final decision is made by the SC on several petitions filed against the appointment of the said IGP. 

The petitioners claim that the incumbent IGP’s appointment by the Constitutional Council (CC) is unconstitutional and illegal, and also that due to alleged serious violations of the law and human rights (found guilty, among others, of torture and arbitrary arrest and detention in SC FR 107/2011 – Weheragedara Ranjith Sumangala vs. Bandara, Police Officer, Police Station, Mirihana, and Others), he is, in any case, not worthy of holding the top-most post in the premier law enforcement agency of the country (the Department of Police). 

The SC arrived at its decision after several days of argument where all the issues relating to the Constitution pertaining to this matter were thoroughly discussed. The Court, in its interim order, mentioned that the petitioners have established very serious grounds that required the SC to consider and to determine. 

The Premier’s objection aired in the Parliament was that the decisions of the CC cannot be challenged by the SC. If this position was to be correct, the CC itself would be considered above the Constitution itself. It is the duty of the SC alone to be the final arbiter of the constitutionality of any law or any decision by anyone functioning under the Constitution, and owes allegiance to the Constitution. 

The issue on which the CC decision as conveyed to the President by the Speaker of the Parliament who is also the Chairperson of the CC, is that the Speaker has acted illegally and unconstitutionally in conveying what transpired at the CC meeting which considered the suitability of the appointment of the IGP. The Speaker falsely attributed to himself the power to decide on a matter concerning which he did not have the power to decide on. Thus, he acted contrary to the limits of his power, and in fact, abused his power in conveying his consent for this appointment. 

If the Prime Minister’s position is accepted regarding the unassailability of the decision made by the Speaker, however wrong, illegal, and unconstitutional that decision may be, then, the Speaker of the House of the Parliament would be considered as holding a position where he is infallible. This of course is an absurd position regarding any mortal who merely holds power given to him by the Constitution or by a statue. The Speaker is a creature of the Constitution. To turn it the other way, is to treat the Speaker as a creator of the Constitution, and its sole interpreter. To give such an interpretation is ridiculous and absurd. 

The Constitution is based on a continuous tradition of upholding the principle of the separation of powers. All interpretation of various Articles of the Constitution should be done only within the framework of the overarching principle of the separation of powers, the rule of law, and the fundamental tenets of democracy. 

There is no reason at all to consider the incumbent IGP as an indispensable person for the State to carry out its obligations to uphold the dignity of the State, and ensure the protection of the people and the security of the nation. The sensible course open to any statesmen under these circumstances is to find a suitable alternative for the interim period and there is a large body of suitable persons to choose from within the Police service. 

If the Speaker, the Prime Minister, and the President were to make use of this opportunity to create a stir against the SC, they would be doing the greatest possible damage to a nation which is already in peril on many fronts. 

The ultimate guardians of the independence of the Judiciary, the security of the SC and the other courts, and the integrity of the nation, are the people themselves. As the country is preparing for an election for the post of the President which is to be held on 21 September, it is to be hoped that the Speaker, the Prime Minister, the President, and the Government as a whole acts in a manner to protect the right of a free and fair election to the people. This requires that no acts should be done on the pretext of protecting the incumbent IGP in order to create violence or any other disturbances that will affect the people’s right to elect their own government in a peaceful manner.       

(The writer is the Policy and Programmes Director of the Asian Human Rights Commission)

………………………………………………………………………………………………………………….

The views and opinions expressed in this article are those of the author, and do not necessarily reflect those of this publication