Image: Ranil Rajapaksha is happy that he has a torturer as a IGP.
The Young Journalists Association of Sri Lanka filed a fundamental rights petition today seeking an order to quash the appointment of Deshabandu Thennakoon as the Inspector General of Police, arguing that it is illegal, arbitrary, irrational, and contrary to and in violation of the provisions of the Constitution.
The association also states that Mr. Deshabandu Tennakoon is unfit for the post of Inspector General of Police and despite these disqualifications, he has been appointed to the position in violation of the constitution.
On behalf of the Young Journalists’ Association of Sri Lanka, the President Tharindu Jayawardhana, Secretary MfM Fazeer, Convener Shalika Wimalasena, Treasurer Nirosh Maithree, Committee Member Tharindu Uduwaragedara, Vice President B. Niroshkumar, and Member Reka Nilukshi filed the petition through the attorney at law, Mrs. Manushika Cooray.
The nine members of the Constitutional Council, including its Chairman and the Speaker of the Sri Lankan Parliament, Mr. Mahinda Yapa Abeywardhana and the Secretary-General Mr. Dammika Dassanayake, along with the Attorney General representing the President of Sri Lanka and Mr. Deshabandu Thennakoon, have been named as the respondents of this petition.
The petitioners have also sought an interim order preventing and suspending Mr. Deshabandu Thennakoon from performing the functions of the Inspector General of Police until the final determination of the application.
Further details from the petition are as follows.
1. The Petitioners state that;
a. the 1st Respondent is the Honourable Speaker of Parliament of Sri Lanka, and the Chairman of the Constitutional Council of Sri lanka appointed under Article 41A(1) of the Constitution;
b. the 2nd Respondent is the Honorable Prime Minister of the Republic of Sri Lanka and is a member of the Constitutional Council;
c. the 3rd Respondent is the Honourable Leader of the Opposition of the Parliament of Sri Lanka and is a member of the Constitutional Council;
d. the 4th, 5th and 6th Respondents are members of Parliament and are members of the Constitutional Council;
e. the 7th, 8th and 9th Respondents are members of the Constitutional Council.
f. The 10th Respondent is the current Inspector General of Police, who’s appointment as the Inspector General of Police forms the subject matter of this application;
g. The 11th Respondent is the Secretary General of the Constitutional Council of Sri Lanka;
h. The 12th Respondent is the Honorable Attorney General of the Republic of Sri Lanka and has been made a party to this application in terms of the Rules of this Court and under Article 35(1) of the Constitution of Sri Lanka as the 10th Respondent was appointed as Inspector – General of Police by the President.
2. The Petitioners prefer this application in respect of a violation of their Fundamental Rights guaranteed under Article 12(1) of the Constitution of the Republic of Sri Lanka, in respect of the decision of the 1st to 9th Respondents to approve the appointment of the 10th Respondent as the Inspector General of Police under Article 41C(1) of the Constitution of Sri Lanka and the act of the President to appoint the 10th Respondent as the Inspector – General of Police.
3. The Petitioners state that these are acts and omissions that are executive and administrative actions for the purposes of Articles 17 and 126 of the Constitution and Article 41G makes the invocation of the jurisdiction of the Supreme Court under Article 126 as the only legal remedy available to a citizen affected by a decision of the Constitutional Council and the actions of the President.
The Office of the Inspector General of Police
4. The Petitioners state that the Inspector General of Police is the head of the Police Department. The Police Department is charged with various duties and functions in terms of the law including the Police Ordinance and the Criminal Procedure Code. Therefore, it is necessary that the Head of the Police Department be a person who is of unblemished character and who is able to establish public confidence in the criminal justice process and the Police Department.
5. The Petitioners are advised that Your Lordships’ Court in several judgments have found long standing institutional failure on the part of the police and the ensuing lack of public confidence in the Police Department. It is therefore imperative that an individual with an impeccable record and standing is appointed to such a high post.
6. The Petitioners state that the failure to take all possible steps in so selecting and appointing a suitable candidate is contrary to the best interests of the People, and contrary to the duty on all organs of State to respect, secure and advance the Fundamental Rights of the People.
7. The Petitioners state that in terms of several Schemes of Recruitment and Promotions of the Police Department an unblemished character is a requisite for appointment and promotions to the other ranks of the Sri Lanka Police. The Petitioners are aware that persons who have blemishes in their conduct including those who have been found by the Supreme Court to have infringed the fundamental rights of persons have been deprived of promotions in the Sri Lanka Police.
The Petitioners annex hereto copies of certain circulars and schemers pertaining to the above as well as the Rules of the Public Service Commission in proof thereof, marked as ‘P-2 A’ to ‘P2-D’ and plead the same as part and parcel hereof.
The President
8. The Petitioners state that it is incumbent upon the President of Sri Lanka to ensure that in nominating and appointing a person to the office of Inspector General of Police that he nominates a person who is without blemish and who is a person who will ensure the protection of the rights of the citizen of Sri Lanka. The Petitioners state that the President is under a Constitutional duty to ensure that the best possible person be appointed to such high office and that such nomination and appointment must involve an objective assessment of the merits and demerits of the officer concerned.
The Constitutional Council
9. The Constitutional Council of Sri Lanka was initially established under the 17th Amendment to the Constitution and thereafter under the 19th Amendment and the present Constitutional Council functions after amendments introduced under the 21st Amendment to the Constitution;
10. The ration d’etre for the establishment of the Constitutional Council was the introduction of a body to examine presidential appointments to high office and to act as a check on the exercise of executive presidential powers.
11. The Constitutional Council was and is expected to act independently of the President and at its first meeting held on January 25th, 2023, the Constitutional Council resolved ‘unanimously agreed to discharge duties and functions of the Council in an independent, accountable and transparent manner’.
The Petitioners annex hereto marked as ‘P3’ a print out of an article published in the Parliament website (accessed on March 9th, 2024) and plead the same as being part and parcel hereof.
12. The Petitioners state that under Article 41C(1) of the Constitution, no person shall be appointed by the President to the offices specified in the schedule to the said article unless such appointment has been approved by the Constitutional Council upon a recommendation made to the Council by the President. The office of Inspector – General of Police is one such office that requires Constitutional Council approval.
13. The Petitioners state that the requirement that appointments are to be approved by the Council mandates that the said Council shall independently assess the suitability and fitness of the appointee recommended by the President and that they shall thereafter approve the said recommendation upon being satisfied that the appointee is suitable and fit to hold the high public office which in this instance is the office of the Inspector General of Police.
14. The Petitioners state that the act of approving requires more than merely voting for or against a particular nominee.
15. The Petitioners state that the requirement of approval by the Council connotes that the Council shall not act as a rubber stamp to the President but shall be a body that approves the appointment after an objective assessment of suitability.
16. The Petitioners state that in or around February 26th , 2024 the President appointed the 10th Respondent as the Inspector General of Police claiming that the nomination of the 10th Respondent had been approved by the Constitutional Council.
17. The Petitioners state that prior to February 26th, 2024, the 10th Respondent was appointed as acting Inspector General of Police by the President on November 29th, 2023, upon the retirement of the then Inspector General of Police. The Petitioners are aware that the said appointment was approved by a majority decision of the Constitutional Council and has been challenged in several Fundamental Rights applications before Your Lordships’ Court.
18. The Petitioners state that to the best of the knowledge of the Petitioners, the Constitutional Council has not in terms of the requirements of the Constitution approved the recommendation of the President to appoint the 10th Respondent as Inspector General of Police.
19. The Petitioners state that the 3rd Respondent has expressly stated over social media that the appointment of the 10th Respondent did not receive the approval of the Constitutional Council as required by law.
20. The Petitioners further state that neither the President nor the Constitutional Council have engaged in any assessment or evaluation process and/or did not engage in any adequate assessment or evaluation process to assess and evaluate the suitability and fitness of the 10th Respondent to be appointed as the Inspector General of Police.
21. The Petitioners state that the President and the Constitutional Council have failed to consider the serious findings of the Supreme Court against the 10th Respondent for human rights abuse and also other allegations which render the 10th Respondent unfit to hold the said office.
22. The Petitioners state that;
a. The 10th Respondent is not the senior most Police officer in the Police Department;
b. The Presidential Commission of Inquiry appointed in respect of the Easter Sunday attacks of 2019 has recommended that disciplinary action be initiated against the 10th Respondent for his failure in performing his duties to prevent an attack despite having intelligence reports of an impending attack;
The Petitioners annex hereto the relevant pages setting out the said recommendations marked as ‘P4’ and plead the same as being part and parcel hereof.
c. The Petitioners verily believe that no proper disciplinary action has been initiated against the 10th Respondent.
d. During the attack on peaceful protestors at the protest site styled ‘GotaGoGama’ on May 9th, 2022, the 10th Respondent was seen standing and watching the attacks take place and failed to take action holding office of Senior Deputy Inspector General of Police of the Western Province;
e. The Petitioners are aware that the 12th Respondent took a decision to indict the 10th Respondent for offences pertaining to the May 9th incidents. Against the said decision the 10th Respondent had sought and obtained inter alia a writ of certiorari in the Court of Appeal, against which decision the 12th Respondent has sought Special Leave to Appeal to Your Lordships’ Court which is presently pending.
The Petitioners annex hereto marked as ‘P5’ photographs of the said attacks and plead the same as being part and parcel hereof.
f. In SC FR 107/2011 the Supreme Court on December 14th, 2023, delivered judgement finding the 10th Respondent as having violated the Fundamental Rights of the Petitioner in the said application guaranteed under Articles 11, 12(1), 13(1) and 13(2) of the Constitution and ordered to pay compensation of Rs 500,000/-;
The Petitioners annex hereto marked as ‘P6’ a true copy of the said judgement and plead the same as being part and parcel hereof.
g. the Supreme Court of Sri Lanka in the said judgement has stated that ‘The manner in which the 1st, 2nd and 3rd Respondents being officers of the law, have conducted themselves, in concert with the 4th Respondent, is a stark betrayal of the Rule of Law. They have acted in a manner entirely repugnant to the virtues of a democratic republic.’ [page 49 of the judgement];
h. The 10th Respondent has threatened the 1st Petitioner on a post published on facebook when the 1st Petitioner asked questions with regard to the 10th Respondent at the weekly Cabinet Press briefing;
The Petitioners annex hereto marked as ‘P7A’ and ‘P7B’ print outs of the said posts and pleads the same as being part and parcel hereof.
23. The Petitioner states that in the above circumstances, the nomination and purported approval of the appointment of the 10th Respondent as Inspector General is illegal, irrational, arbitrary, in violation of the rule of law and has been done without any consideration of the 10th Respondent’s fitness to hold the said position as the commanding officer of the Police force.
24. The Petitioners state further that under Article 41E(4) of the Constitution, five votes are necessary for any decision or approval to be valid. The Speaker – the 1st Respondent, does not have a vote. He has a casting vote which shall be exercised in the eventuality of an equality of votes. The Speaker has no right to exercise a casting vote where there is no equality of votes.
25. The Petitioners state that at the meeting of the Constitutional Council held on February 26th, 2024, to consider the President’s recommendation for the appointment of the 10th Respondent as the Inspector General of Police, only 04 votes had been cast in favour and 02 votes had been cast against approval and 02 members had abstained.
26. The Petitioners are made aware that after the conclusion of the meeting the 1st Respondent had informed the President of Sri Lanka of the outcome and then proceeded to state that the 02 abstentions can be considered as a vote against the appointment of the 10th Respondent in which even the votes for and against are tied. He then stated that if it were so he would cast his vote in favour of granting approval.
27. The 1st Respondent has written to the President to consider his recommendation as approved if he considers that the 1st Respondent’s vote has been duly cast.
The Petitioners annex hereto marked as ‘P8’ a true copy of the no confidence motion submitted by the Opposition against the 1st Respondent and plead the same as being part and parcel hereof.
28. The Petitioners state that there was no equality of votes and therefore the utilization of the casting vote by the 1st Respondent is not lawful.
29. In those circumstances, the purported exercise of the Chairman of his casting vote is illegal and unconstitutional.
30. The Petitioners also state that, therefore, that the decision of the President ( represented by the 12th Respondent) to nominate the 10th Respondent as the Inspector General of Police and the purported approval by the Constitutional Council and the appointment of the 12th Respondent as Inspector General of Police by the President are;
a. Illegal;
b. arbitrary;
c. irrational; and
d. contrary and in violation of the provisions of the Constitution;
e. made without a consideration of all relevant material and by considering irrelevant material.
31. The Petitioners state that the said acts and omissions of the President of Sri Lanka and all of some members of the Constitutional Council as set out above constitutes a violation of the Petitioners’ right to equality before the Law and denies to the Petitioners the equal protection of the Law in violation of Article 12(1) of the Constitution.
32. The Petitioners state that the Petitioners fear reprisals, harassments and attacks on themselves, their person and their families for having made this application and reserve their right to seek suitable orders from this Court in the event any reprisals are initiated by the 10th Respondent to punish, annoy, harass and intimidate the Petitioners, their Attorneys and Counsels for making an application of this nature against the 10th Respondent.
33. The Petitioners make this application purely in order to safeguard the Rule of Law of this country.
34. The Petitioners state that this application would be futile and nugatory unless the interim relief as prayed for are granted and in the interests of justice it is imperative that such relief is granted.
35. The Petitioners state further that they have not invoked the jurisdiction of your Lordship court previously in respect of the subject matter of this application.
Wherefore the Petitioners pray that your Lordships’ Court be pleased to:
a. Grant leave to proceed;
b. Declare that the 1st to the 12th Respondents have violated the Fundamental Rights of the Petitioners under Article 12(1) of the Constitution;
c. Declare that the nomination and/or appointment of of the 10th Respondent as the Inspector General of Police is unlawful without any force in law;
d. Declare that the 10th Respondent’s nomination as the Inspector General of Police has not been duly approved by the Constitutional Council;
e. Quash and set aside the appointment of the 10th Respondent as the Inspector General of Police;
f. Grant and issued interim order preventing and suspending the 10th Respondent from performing the functions of the Inspector General of Police, until the final determination of this application;
g. Direct one or more or all of the Respondents to submit to Your Lordships’ Court all correspondence pertaining to the nomination and appointment of the 10th Respondent as the Inspector General of Police, including the minutes of the Constitutional Council dated 26th February 2024 and the letter dated 26th February 2024 addressed to the President by the 1st Respondent on the nomination and/or approval of the nomination of the 10th Respondent to the same;
h. Costs;
i. Grant such and other further relief as shall seem meet to Your Lordships’ Court under and in terms of Article 126(4) of the Constitution.
(A Note shared on WhatsApp by Tharindu Uduwaragedara. )