16th September 2001

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Focus on RightsHow the Independent Commissions may succeed or fail

Cynics may disagree on the eventual out come of the Memorandum of Understand ing between the People's Alliance and the Janatha Vimukthi Peramuna and quite justifiably so. But, if not for nothing else, we are indebted to the latter for bringing about the spectacle of a chastened Presidency and a shamed government, minus even the tatters of any self respect that it might have claimed earlier. This is demonstrated very well in the sorry sights of the drastically reduced Cabinet of Ministers that were spread over the national newspapers this week. The process of shaming the People's Alliance has now already begun and the JVP will undoubtedly avail themselves of the electoral benefits that this would lead to, irrespective of whether the Memorandum realises its final objectives.

For the moment however, this column is concerned with the process of establishment of the Constitutional Council and the four independent commissions on the elections, police, judiciary and public service, which pose some fascinating paradoxes. The 17th Amendment, proposed by the joint opposition, establishes a Constitutional Council, which in composition, differs substantively from the Constitutional Council specified in the Draft Constitution of the People's Alliance, which was attempted to be rammed down the throats of the people in this country last year. While the latter Council had an in-built government majority, the Council in the 17th Amendment comprises the Prime Minister and the Leader of the Opposition in Parliament who will jointly appoint five persons of eminence and integrity who have distinguished themselves in public life. At least two of such persons should be representative of minority interests.

It is disappointing however no provision has been made for any representation of gender interests both in the structure of the Council itself as well as in the recommendations that they are mandated to make in respect of appointments to the independent commissions. This is quite unlike provisions relating to the structure and mandate of similar bodies of this nature for example, in South Africa.

But the stipulation by the joint opposition, to bring in an intervening and hopefully restraining influence of members of civil society into the Constitutional Council of the 17th Amendment, is to be welcomed. In contrast, members of the Constitutional Council in the Draft Constitution comprised a bewildering medley of regional and national politicians, including the two Vice Presidents, the Leader of the House, the Minister of Constitutional Affairs and the Chairman of the Chief Ministers Conference. The insincerity of the People's Alliance in proposing such a Council which would have been largely if not wholly ineffective in making crucial appointments to public office if the Draft Constitution was, in fact, passed last year, is thus very clear. This insincerity is, in fact, blatantly continued in the efforts made, as reported in the newspapers late this week, to allow President Kumaratunga to nominate three additional persons to the Council as proposed by the 17th Amendment. Such a revision, would undoubtedly again defeat the purpose of the Council.

This welcoming of the composition of the Constitution Council, as it stands at present, proceeds however on the assumption that those members of "eminence and integrity who have distinguished themselves in public life" who are appointed to the Commission, will have the courage, the determination and the strength to make apolitical decisions. These are again, qualities that one cannot automatically assume will be possessed by individuals, however distinguished they may be. Those individuals who are, in fact, appointed in the forthcoming weeks, will therefore find themselves under as intense a scrutiny regarding their stand on issues as that which will be brought to bear on holders of political office. Meanwhile, it would perhaps be advisable to bring about a greater security of tenure to the members of the Council than that afforded at present, whereby each member holds office for a period of three years unless he resigns or is in the 'joint opinion of both the Prime Minister and the leader of the Opposition', "physically or mentally incapacitated from functioning further in office." Prejudice caused by convictions involving moral turpitude or resolutions imposing civic disability would also lead to his or her removal.

The 17th Amendment specifies that decisions reached by the Council should be unanimous or in the event of failure to reach unanimity, it would be carried by the votes of at least four members of the Council present at the meeting. The Speaker shall be the Chairman of the Council but shall have no original vote at meetings of the Council. However, in the event of an equality of votes, he will have the casting vote. The Council is mandated to make recommendations to the President regarding the appointments of members of the Elections Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, the Bribery and Corruption Commission, the Finance Commission, the Delimitation Commission and the Media Commission. The Council will follow a similar procedure regarding appointments to the offices of the Attorney General, the Secretary General of Parliament, the Ombudsman, the Commissioner General of Elections and the Director General of the Commission on Bribery and Corruption.

The President is obliged to make the appointments only according to these recommendations. No person shall be appointed by the President to the offices of the Chief Justice and the Judges of the Supreme Court, the President and the Judges of the Court of Appeal, the Auditor General and the Inspector General of Police unless such appointment has been approved by the Council upon recommendation made to the Council by the President. Similar approved has to be obtained if any person is appointed to act in these offices as well.

Meanwhile, in the powers and functions afforded to the independent commissions set up by the 17th Amendment following the establishment of the Constitutional Council, the proposed Elections Commission is perhaps the most striking. The Commission has, as its members, those who have distinguished themselves in the professions or in the fields of administration or education. Their removal is on stringent conditions and is equal to the removal of judges of the appellate judiciary. All conduct of elections and referenda will be under its supervision. Very creditably, there is a particular provision empowering the Commission to prohibit the use of state property for political purposes. Provision has also been made for the Inspector General of Police to make available to the Commission, the facilities and the police officers required by the Commission for the holding of a particular election, who then shall be deployed by the Commission in the manner calculated to promote the conduct of orderly polls. Contravention of these provisions amounts to an offence, punishable by a fine and/or to imprisonment not exceeding seven years.

Taking this discussion into the wider public arena however, an acute danger exists now of the commissions increasingly being regarded as the remedy to all the sins besetting the body politic in this country. As even a superficial look at the recent past will show, this is a comfortable but most dangerous illusion.

The best example in this respect is, of course, the institution of the Permanent Commission on Bribery and Corruption. What many people forget is that when this Commission was set up in 1994, it was not only with exceedingly high public expectations but with political consensus. It collapsed only five years later, its term of office plagued by vicious infighting culminating in a Resolution being brought against its key officers, its Director General being moved out to the Justice Ministry and the functioning of the Commission itself suspended for well over a year. For these future commissions to work properly, we need constant, responsible and sustained public scrutiny as well as strong participation by civic leaders. Whether this is a responsibility that Sri Lankan civil society and the citizenry can shoulder at this moment in time is extremely doubtful.

How independent are independent commissions?

By Victor Ivan

Whatever be the limita tions of the JVP's probationary programme it will certainly function as an initial step towards a change in the political culture of Sri Lanka, if the Constitutional Council and the four independent commissions envisaged in the 17th Amendment to the Constitution can be enacted before September 24.

The proposal for a Constitutional Council and the four Independent Commissions initially came from the civil society that sought to prevent politicians from acting autocratically disregarding the security and the survival of the country. Cleansing the top of the political pyramid and strengthening it, may be considered the essence of that programme.

Some learned critics question how the present attempt can be successful when a supposedly independent Bribery or Corruption Commissions has failed to uphold its independence. The machinery that is going to be set up by the 17th Amendment to the Constitution is not similar to the Independent Bribery or Corruption Inquiry Commission. Indeed it is quite different. First of all, it is important to understand the nature of the machinery.The Constitutional Council will consist of eight persons _ the Speaker, the Prime Minister, the leader of the opposition and five eminent persons. These five members are jointly nominated by the Prime Minister and the leader of the opposition in consultation with leaders of parties and independent groups represented in Parliament.

The power to appoint or recommend the most suitable persons to posts of foremost importance in all institutions which must be of an independent position is to be held by the Constitutional Council. Its main aim is to deprive the Head of State of the right to appoint any suitable or unsuitable person in accordance with his or her discretion and to create a system by which only the most suitable persons would be appointed to such positions. According to the draft constitution, the power to appoint chairmen, members and officials of the following sectors will go to the Constitutional Council:

1. Judges of the Supreme Court and the Chief Justice,

2. Judges of the Appeal Court and its Chairman,

3. The Attorney General,

4. Members of the Judicial Services Commission,

5. The Auditor General,

6. The Elections Commissioner and the members of the Elections Commission,

7. Members of the Public Service Commission,

8. The IGP and members of the Police Commission,

9. Members of the Bribery or Corruption Inquiry Commission and the Director General of that Commission,

10. The Secretary General of Parliament,

11. The Parliamentary Commissioner,

12. Members of the Finance Commission,

13. Members of the Delimitation Commission,

14. Members of the Human Rights Commission.

A number of posts of national importance which should necessarily come under the Constitutional Council are not included in this draft. It is necessary to correct it immediately. Other important posts that should come under the Constitutional Council are as follows:

1. Members of the State Enterprises Commission,

2. Members of the National Education Commission,

3. Members of the University Grants Commission,

4. Members of the Telecommunication Regulatory Commission,

5. Members of the Press Council until the Press Council is abolished,

6. Commissioner of Inland Revenue,

7. The Governor of the Central Bank,

8. The Director General of the Customs,

9. The Public Trustee.

The members of the commissions that come under the Constitutional Council, and the Heads of Institutions will cease to hold office when the Constitutional Council comes into force. It is essential that the Constitutional Council is given the power to select and appoint and recommend persons who hold office at present or the best and trained persons from amongst outsiders. But no such provisions are included in the draft which may be considered its biggest weakness.

If the Constitutional Council is to appoint only the members of the four commissions, then it is unlikely that the people will be interested in or trust the proposed Constitutional Council. If all present heads of institutions cease to hold office and only the most suitable persons are to be appointed, it would be a very important occasion to test the honesty and the strength of the Constitutional Council. It will help rebuild and strengthen the system of institutions which is collapsing due to unsuitable persons holding important and prominent posts. It will also help build the people's confidence in these institutions again.

The writer is the Editor of Ravaya

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