A comment on the Four Commissions

Need for reforms cries out loud

By Victor Ivan

An unprecedented interest in the reforms required for good governance is arising. The UNP demands independent commissions for electoral affairs, for the judicial service, for the police service and for the public service, under a constitutional council, and for that purpose the UNP's K.N. Choksy, M.P. is to present a draft bill in parliament which is prepared by him .

SLMC leader Mr. Rauf Hakeem too has demanded four commissions on the same subjects within the first 100 days of the PA government but has not expressed any ideas about the nature of those commissions.

The President said that some of those demands have been met by the new draft Constitution and requested that they be won through helping her to get them passed. Mr. Batty Weerakoon has said that he would not oppose any of these commissions except the police commission.

It is not necessary to delay reforms until agreement is reached on a new constitution. The European Union had requested the government to set up an independent election commission before the parliamentary election, but the government refrained from complying. However, now the government is in such a position that it is unable to get aid without effecting reforms. Consequently the government is compelled to talk about reforms.

A group of independent professionals attached to the Organisation of Professionals too, has made a proposal as the 17th amendment to the constitution proposing four independent commissions for elections, the judicial service, government service and police service. The proposals in this draft appear to be stronger than those submitted by the PA and the UNP.

The commissions proposed by these three groups are expected to function under the constitutional council.

The constitutional council of the PA is to consist of:

(a) The Speaker, (b) The Prime Minister (c) The Leader of Opposition (d) The president of the chief ministers' conference (e) Seven MPs appointed by a parliamentary select committee to reflect the ethnic diversity (f) two retired judges.

The Constitutional Council proposed by the UNP is to consist of:

(a) the Speaker (b) the Prime Minister (c) the Leader of the Opposition (d) Five respectable persons engaged in public service jointly nominated by the above three.

The Constitutional Council proposed by the professionals:

(a) the Speaker (b) the Prime Minister (c) the Leader of the Opposition (d) three MPs nominated by other parties and independent groups with the highest numbers of MPs other than those parties to which the above three persons belong (e) two retired supreme court judges who are not above the age of 75 (f) Five from the civil society who are devoted to public service and with no political affiliations. These five persons too must be nominated by the following organisations at the rate of one person per organisation or movement:

(1) The Organisation of Professional Association (2) The Chamber of Commerce (3) The joint front of Trade Unions (4) The media organisations, viz. the Editors' Guild, the association of publishers, the free media movement and the union of professional journalists (5) A combination of non-government organisations.

While a system of independent institutions is necessary in which there is no room for political interference, it is also necessary to have a system where independent and honourable persons are selected to those independent institutions.

In Sri Lanka there is a tradition of appointing persons who do not have necessary qualifications to positions of importance.

Eg:

* A person facing a Supreme Court inquiry was appointed to the post of Chief Justice.

* Two persons outside the administrative service who have no experience in administration hold the two posts which are considered to be the highest in administration, viz. the post of Secretary to the President and the post of Secretary to the Treasury.

* A district judge with no experience in parliamentary affairs was appointed to the post of Secretary General of Parliament.

* A person who is court martialled and convicted for highway robbery has been appointed to a senior post in the commission of Essential Services.

* The chairmanship of the Press Council which has semi judicial powers is held by the Media Minister's legal advisor.

* A person accused of a number of exchange frauds functions as a member of the Exchange Commission.

The possibility of government leaders to make such improper appointments should be limited. A system must be established specially to appoint honourable and most suitable persons to posts of central importance.

The Constitutional Council proposed by the PA or that proposed by the UNP does not offer a viable solution to this fundamental question. An independent judiciary is foremost among all the reforms required.

In the UNP's proposal, it is the President who has the right to appoint all the judges in the higher judiciary including the Chief Justice. In the independent judicial commission proposed by the UNP the head will be the Chief Justice selected by the President at his or her discretion. Thereby the judge who is the author of the draft and who is the subject of the dispute has tried to please the President who has made that improper appointment. At the same time he seems to have tried to please his leader with the intention of giving the leader the possibility of appointing any henchman of choice.

However, the judicial commission proposed by the professionals is different in shape. It is a proposal prepared after taking into consideration the present crisis in the judiciary, the reasons that have influenced it, and the arrangements in the modern world to maintain an independent and honourable judiciary. According to it not only the Chief Justice but also all judges of the High Court are appointed by the constitutional council.

The judicial commission proposed by them consists of the Chief Justice, the two most senior judges of the Supreme Court, the Attorney General, the president of the court of appeal, a professor of law nominated by the faculties of law, and a representative of the Minister of Justice. The appointment, transfer, dismissal and disciplinary control of judicial officers come under this commission.

A serious problem is that when a judge of the higher judiciary commits an offence, there is no way of removing that judge from his post except by a resolution of parliament. When an offence is committed against an ordinary person, there is no possibility of taking action by a resolution. However, according to the draft prepared by the professionals such a person has the right to complain to the constitutional council. When there is a two-thirds approval the constitutional council has the power to remove a judge of the higher judiciary from his post.

According to the constitutional council proposed by the UNP it has the power to appoint the controllers to the four commissions, the Attorney General, the IGP, the Election Commissioner, the Bribery Commissioner and the Ombudsman only.

If the UNP fails to understand the provisions of the draft it has submitted, the result will be something like a mountain labouring to bring forth a mouse.

- The writer is the Editor of Ravaya

Focus on Rights

Bane of opportunism

By: Kishali Pinto Jayawardene

It would have been better and certainly far more honest if Mr Rauf Hakeem, the Honourable Minister of Internal, International Commerce and Trade and Shipping, Development and Muslim Religious Affairs, had stood up and bravely confessed that he had, in his own unique way, failed to abide by his promises as the 100-day deadline on the three independent commissions on the public service, the police and the judiciary expired. Doubtless, the Sri Lankan voters, with their customary myopic shortsightedness, would have forgiven him. But instead, the course that he has opted to take proceeds from the sublime to the ridiculous. A Select Committee to look into the setting up of the three Commissions? And, to make matters worse, to examine as to how they could be set up under the draft Constitution itself? How much more grandly opportunistic can one get? This question does not, of course, beg an answer.

The simpler course of action, if Mr Hakeem had used his political leverage sincerely, would have been the immediate implementation of the three commissions as provided for in the draft Constitution itself. In other words, the preliminary setting up of a revised Constitutional Council more fairly weighted between the Government and the Opposition and then the appointing of the three commissions thereafter by the Council. There is, indeed, nothing further to look into. But to expect immediate reform from a government and its allies still obsessed with the idea of pushing through a flawed Third Republican Constitution, lock, stock and smoking barrel while the country crumbles around it, would be too much. So, while the UNP parties or does not party (neither of which actually makes much difference for it remains quite gorgeously inept in opposition either way), what exactly are we left with?

In a very simplistic sense, the public service, the police and the judiciary are three fundamentally interconnected guardians of public order. They are vested with different levels of responsibility and accountability. Where the first two falter in their tasks, the overriding duty of the judiciary is to bring them into line not only for the benefit of the common people but for their own well being as well. This is what happened in the initial wave of judicial decisions of the Supreme Court of this country in the early nineties and thereafter. This was, mark you, before the People's Alliance came to power in 1994, thus exposing once again the monumental lie in the complaint made ad nauseam by the President and her Ministers that it was only her government that was held to account by the courts. This column will select three cases to establish this fact.

Decided in the month of August, 1993, Bandara and Another Vs Premachandra, Secretary, Ministry of Lands, Irrigation and Mahaweli Development and others is only one of the many such decisions that stood out in that pre-1994 period. This case set out succinctly the reason as to why standards of fairness should prevail within the public service itself and why the judiciary had a very definite obligation in this respect. Here, a probationer surveyor came before the Supreme Court, stating that his rights along with twenty-one others had been infringed by their being sent vacation of post notices as a result of having participated in trade union activity. In upholding his complaint, the Supreme Court stated unequivocally that even though public servants held office at pleasure, any action taken with regard to a public servant must be fair and not arbitrary. Powers of appointment and dismissal are conferred by the Constitution on various authorities in the public interest and not for private benefit. They cannot be regarded as absolute and unfettered and their exercise must be governed by reason and not caprice. In a judgement by Justice Fernando with Justices Perera and Wijetunge agreeing, the Court went on to observe that " The State must, in the public interest, expect high standards of efficiency, service and fairness from public officers in their dealings with the administration and the public service. In the exercise of constitutional and statutory powers and jurisdictions, the judiciary must endeavour to realise that this expectation is realised."

Three years later, similar relief was given to a telephone operator at the General Hospital, Ragama who had been transferred as a labourer to the Leprosy Hospital, Hendala even though an inquiry against her for alleged misconduct had substantially cleared her. This was a case more patently unjust than most, as even though she was exonerated, the then Director General of Health Services had informed her that all the charges had been proved and that action would be taken against her. Upon appeal to the Public Service Commission, even though the Commission restored the findings of the inquiry officer, she was subjected to a grossly disproportionate punishment. This was reversed by the Court, when she appealed. It is notable in this case that midway through the hearing, terms of settlement were agreed upon by the parties giving certain relief to her. Despite this, further relief in terms of compensation and increments was granted to her by the Supreme Court on the basis that the facts disclosed a manifest injustice and the Court cannot merely accede to a settlement which disturbs its conscience.

A year later, we have the case of a police officer who had been transferred by the Inspector General of Police acting under powers delegated to him by the Public Service Commission as a consequence of a directive made by a SLFP party organiser in that area. In holding that the transfer of OIC Ranga Bandara from a police station in the North Western Province Range was arbitrary, capricious and unreasonable, the Supreme Court pointed out that the IGP was acting as a public officer exercising powers delegated to him by the PSC. These powers are held in trust by him and should have been exercised with due care for the purpose for which they were entrusted by the PSC and with the same independence which the public have a right to expect and which is constitutionally protected. What had taken place here was a misuse of those powers in a manner that demoralised the entire public service.

On one end of the scales, we have these cases and countless more which demonstrate very clearly that a balanced judicial supervision over governance is very necessary. On the other end, we have protestations that the judiciary cannot interfere with the administration and indeed, that such interference would be prejudicial to governance. These arguments are relatively uncomplicated. The police argue that their ability to maintain law and order is seriously hampered by the judiciary calling them to task on each and every occasion. The Public Service Commission, as pointed out elsewhere on this page, proceeds on similar reasoning. One compromise between these two competing lines of thought would be to entrust supervision of the public service to mechanisms of mediation and conciliation rather than adjudication. Thus, we see the Human Rights Commission attempting, in a welcome exercise of its authority, to enter into dialogue on these issues with the Public Service Commission. While this might result in some damage control, the necessity to retain judicial control of an intensely political public service is obvious.

It is however this thinking that the public service must be made the exclusive domain of the executive that is dangerous. We have, in fact, come full circle back to the early seventies that saw a reaction to the strict judicial control exercised over the Public Service Commission under the Soulbury Constitution. The Commission, which was an independent body by itself, was succeeded by Boards that ensured the complete politicisation of the public service in a manner that is well known.

This is a state of affairs that continued in 1972 and in 1978 despite a return of an emasculated Public Service Commission. What we see now is an unabashed return to those times, God rest our souls. And Mr. Hakeem's broken promises are only a very necessary part of that grim inevitability.

Whither the Public Service Commission?

By J.C. Weliamuna

In the background of extreme politicisation of the public service, in what manner are the rights of public servants protected in law?

Article 55 of the present Constitution, specifies that administrative control of the public servants has been vested in the Cabinet and no court or tribunal shall inquire into or call in question any order or decision made by the Cabinet, a Minister, Public Service Commission or a public servant concerning "the appointment, transfer, dismissal or disciplinary control of a public officer". These provisions were earlier found in Article 106 of the 1972 Constitution and continue to be all the more dangerous when the "Public Service Commission" comes under the direction and command of politically biased politicians and bureaucrats.

The silver line in a cloudy Article 55 is the entitlement of the public servants to challenge discriminatory actions under the Fundamental Rights jurisdiction. The Supreme Court, in the past, has held that no arbitrary action is permitted against public servants who are entitled to the equal protection of the law.

However, the fact that fundamental rights jurisdiction has been vested in the Supreme Court has been unfortunately viewed by successive governments and their known and unknown stooges as an adverse interference by the Supreme Court. However much judgment on issues was rational and however independent the judges were, some of the decisions have been openly and maliciously criticised by politicians.

On some occasions, these criticisms have come from Presidents, powerful Ministers and public officers. The saddest part is that on these occasions, nobody stood up against those political authorities or acted in order to protect the judiciary.

The Cabinet, as well as the Public Service Commission, is appointed by the President who heads a political party. How a Cabinet is appointed on whims and fancies of the President needs no further explanation when one looks at the present cabinet. The Cabinet is vested with the administrative control of the public officers. A Public Service Commission (PSC) is established with powers to control some categories of the public servants. Theoretically the powers of the PSC derive from the delegation from the Cabinet.

Be that as it may, the public servants have a right to appeal to the PSC against any injustices done to them. For a common public servant who does not seek political patronage, the PSC is the sole authority when there is an injustice.

How does the PSC look at public servants' right to challenge the arbitrary actions in fundamental rights cases? This is no doubt an important question for those who examine the aspects of good governance in Sri Lanka. Let us examine this question further. The Report of the Chairman of the PSC (1995-1999) states at page 6 thus:

"Article 55(5) of the Constitution lays down that decisions of the PSC cannot be questioned in any court of law. This provision has, however, been effectively nullified by the recent spate of Fundamental Rights litigation by officers within, and even by some aspiring to enter, the public service who have sought relief from the Supreme Court claiming violation of their fundamental rights over this period….Coupled with the recent tendency towards "judicial activism" there has been a number of decisions enjoining the PSC, Ministries and Departments to overturn earlier administrative decisions, amend criteria of recruitment and even, occasionally, award substantial damage to the plaintiff. This has meant the imposition of effective judicial control over the administrative process. This development has put the breaks on speedy and effective administration. The PSC finds itself in the firing line (being the most frequent respondent) and has to ensure that relevant officials and Ministry Secretaries scrutinise all administrative proposals and actions in the light of recent judicial decisions. This has resulted in an inevitable, but unfortunate, slowing down of administration which could reach epidemic proportions unless a solution is worked out in consultation with the judiciary, of course".

The above paragraph reveals the approach of the PSC towards fundamental rights cases filed by the public servants. Some politicians expressed similar views when courts struck down arbitrary and politically motivated action that pleased the political leadership of the day. Some were heard to say that the "Supreme Court has put the breaks on speedy and effective administration". Be that as it may, let us examine carefully the contents in the above statement of the PSC.

The PSC has not addressed its mind to limited entitlement of the public servants to petition the Supreme Court in fundamental rights cases when it says that Article 55(5) has been nullified by the Supreme Court. In a confusing assertion, the PSC says that due to judicial activism, reliefs are granted to petitioners. Of course, the judicial control of administrative actions is acceptable to any democratic country and is widely welcomed by legal experts and administrators who believe in the rule of law.

It stands to reason that if the PSC acted in the manner of an independent tribunal, no recourse would be necessary to courts in the first instance.

The PSC, like the politicians, thinks that speedy and effective administration is being prevented by Supreme Court decisions. What is this speedy and effective administration they are talking about; the administration that is totally politicised where public servants are transferred on whims and fancies of politicians; where no recruitments are possible without a chit from a politician and so on? Analysis of the cases filed by public servants will demonstrate clearly that a large majority of the cases have merit and they have been filed challenging arbitrary and capricious actions. When there is such credible evidence to be found, courts have consistently in the past (hopefully, in the future too) put breaks on the administration. Is this wrong? No doubt, those who are answerable for such illegal action will repeatedly criticise the fundamental rights jurisdiction. PSC wants a solution worked out in consultation with the judiciary to prevent Fundamental Rights cases "reaching epidemic proportions." No doubt, the police too will follow the PSC in this direction in controlling cases filed against police on illegal arrest, detention and torture. The simple answer to all this will be to repeal the fundamental rights chapter in the Constitution or ensure that no independent judges are appointed.