Commissions: a quantum leap or a small step for Sri Lankans?

By Rajpal Abeynayake

If there could not be good governance, a surrogate "government" could be formed to see that the people can hope for a free and fair election. A "surrogate government" embodied in the five independent commissions, could also see that the police do their duty, and that the police do not throw their lot with the political party usually the government party which offers them the most amount of patronage.

But since the idea of the five independent Commissions was first mooted and upto the time of going to press, when a draft bill for the establishment of the Commissions is before the Supreme Court, there has been little discussion by way of how effective these Commissions are going to be in terms of delivering desired results. ( Refer the interviews below, where persons such as Rohan Edrisinha, argue that the lack of discussion on the draft bill is an unhealthy constitutional practice, especially when a bill of this important magnitude is being considered.

The rationale for the assumed independence of the Commissions rests on the mode of appointment. A Constitutional Council,which is a body of persons of eminence, is supposed to consist of persons of integrity, who have a distinguished public profile, and are not affiliated to any political parties. Such a council, which appoints persons to head the Police Commission, for instance, or the Elections Commission, will appoint persons of undoubted integrity if any.

Obviously, it is safe to assume, normally, that such a Constitutional Council will be totally above board, and above suspicion. 

Such Constitutional Councils, or their equivalents, no matter how they are named, have been proven to be tremendously successful in other polities. This writer, for instance, cited the case of a Chief Justice of Belize, who was removed by the Supreme Court of his country, as his appointment was held to be void ab initio _ or void from the very outset. 

In Belize, the Chief Justice is appointed on the recommendations of a Constitutional Council pretty much similar to the one envisaged in the present proposed amendments.

But, the rationale for the establishment of the independent Commissions also underscores the fact that Commissions may have their own in-built Achille's heel so to speak _ meaning that there may be several inherent weaknesses which in reality would make the Commisions less effective than they are widely expected to be.

For example, the state can choose to dole out patronage to members of the armed forces and the police in different ways, by circumventing the Police Commission, during times of a national security crisis, such as what we are going through now.

Though the Police Commission has sole authority over how the police force shall be run, it is not difficult for a government that needs armies of security men to protect VIPs and to protect key state facilities, to hide under the cover of Emergency security imperatives, to dole out largesse to members of the police. Obviously, the quid pro quo will be police assistance in elections, and other situations that a government, especially a besieged one, keeps constantly getting into.

But, securing police compliance in this way, will be far less effective than securing police compliance the way it is on done now _ by having sole powers over matters such as promotions and transfers, which effectively make DIGs lackeys of the local political operator MP, minister or whatever rogue title he carries appended to his name.

Former Ombudsman Sam Wijesinha, for instance, details in his interview below, the way certain Constitutional Council decisions MAY be filibustered by the designs of the Executive and how influence can be brought to bear despite the ostensible water- tightness of the Constitutional Council's procedures.

In one way, the nation can hope to be sanguine and optimistic about the independent Commissions but also the nation cannot afford to be too gullible or naive, and have too many great expectations. This is for the simple reason that there is a peculiar kind of transparency that has been evident, especially in the past six or seven year tenure of this government.

This is that , as of by right, the incumbent government will use, quite transparently (translate as thickly) whatever skullduggery at its disposal to subvert the probity of constitutional or legal process. 

The best recent instance was the episode of the Select Committee regarding misconduct by the CJ was handled. An independent court issued a writ on parliament and transgressed their mandate _ - at the prodding of a cabal of loyalist Attorneys _ to a point where the Speaker has to issue strictures against them. 

Papers have cast entire "independent" bodies and their integrity in doubt repeatedly, and all that can be said is that it is unlikely that all this is without cause.

That is the state of the nation and the national predisposition now is towards transparent tampering with the process and with due process. There is no gainsaying that everything will be done with all the loopholes available in the legislation on the independent commissions, to ensure once they are established, that their independence is compromised, or is rendered ineffective.

The Police Commission can be ineffective, if direct bribery is resorted to blatantly before an election, and this is easier accomplished by a incumbent government. That does not mean that the Police Commission will not have the powers to act against officers who have been bought by the government; but how effective will the Commission be against a juggernaut of determined state corruption? 

When an election is in progress, the government will attempt to use all the state apparatus at its disposal to carry out its logistical operation for rigging and malpractice. Government buses, state fuel, everything will still be commandeered. Now, it is correct that the independent Elections Commission will have the right to counter these measures with their own temporary edicts governing election procedure, but how effective will they be in the face of this juggernaut of determined state subversion?

Obviously, these are issues, which have already been dealt with by writers such as Tassie Seneviratne, other former DIGs and election analysts etc.. The preceding was therefore only a distillation of those fears and anxieties and how they might still prevail despite the five independent commissions.

But, where do all these anxieties mean that the Commissions will be ineffectual totally, that they will have the clout of a tea party of effete bureaucrats?

The Commissions may legitimize what may after all be a continuing charade; the Commisions may legitimize bad elections or corrupt judiciaries.

But, what the Commissions will undoubtedly do is to higher the bar for the miscreant. The state subversive, or the minister within the government who will want to continue rigging and manipulating will have to deal with a much tougher array of barriers, hurdles and obstacles. The Commissions will block greatly the loopholes, and leave fewer escape routes for the potential culprit. But, perhaps, the Commissions will still not cure _ and for a lot of reasons, some of those given here and in the accompanying interviews, they will in many ways be a small incremental but important step towards ensuring that we can reclaim the confidence we have lost in our systems of governance.

What the draft bill says...

Article 6: The provisions of sub paragraph (a) of paragraph 5 _ quoted above, (our italics) shall not be applicable to a proprietor, or proprietor or publisher as the case may be, who informs the commission within seven days from the date of the nomination of candidates at an election or from the date of the proclamation of a referendum to be held, that it is the policy of the broadcasting or telecasting station or newspaper, which such operator proprietor or publisher as the case maybe represents, to support any particular candidate or any particular named political party or independent group at any forthcoming election or to support or oppose a proposal to the people at a Referendum, as the case may be. 

The above self explanatory provisions in the draft Elections Commission will require that newspaper give an endorsement to a political candidate, or else the newspaper subjects itself to the scrutiny of the Commission. 

Can a election commission traduce the freedom of expression in this way and if the press can be mistrusted which is obviously by the fact that such a provision has been enacted _ why shouldn't a Commission be mistrusted as well? Why should a Commission be empowered to get the press to commit itself or commit itself otherwise to the Commission's own edict? These and other issues, it is important to note, have not been discussed in public or with the media before the draft bill was presented.

Independence not through legislation alone

You cannot ensure independence by legislation alone. Today, for instance, there is a big battle going on with the President wanting an extra nominee in the body that is going to appoint the commissions. The Speaker, the Leader of the Opposition and the Prime Minister will appoint three nominees. Then you get six appointed by the Leader of the Opposition and the Prime Minister. That's nine. When you have an odd number like that there is always a possibility of a majority. 

But the President wants an extra person. If this happens the composition will be even. When there is an even number there is a possibility of a majority. Why does the appointing person also want a nominee for herself? That makes it obvious that she herself wants a spokesman for her views. However much you say they are independent, it so happens that these so-called independent men divide themselves according to certain affiliations. 

A newspaper depends mainly on advertisements. It cannot survive solely on the sales. When newspapers have to depend so much on advertisements, where is the freedom of the press?

If a media commission is appointed, it can prevent people from publishing scurrilous things. But what is there to prevent them from not publishing the truth? No law in the world can make people decent and honorable citizens unless there is a compelling force in their hearts and minds.

Today the government is rather hesitant in appointing a media commission because it is frightened. Constantly we find various people denying what is being said. When the media is a monopoly of the government, it will used to their advantage.

There is no perfect method. The capacity to act with integrity is something that has to be developed. Both parents and teachers have a big say in evolving an independent society. 

People kept in the dark

The PA, the UNP and the JVP are responsible for this situation. From 1994 to 2000 the process of amending the Constitution was confined to a parliamentary select committee room. The people were kept in the dark. 

Constitutional Council should be free from politics

G. Hidellarachchi

OPA President:

The constitutional council should consist of the Speaker, the Prime Minister, the Leader of the Opposition, two parliamentarians nominated by the two registered political parties or independent groups excluding those of which the three above named are members, appointed by the Speaker. 

The most senior retired judge of the Supreme Court who is not more than 70 years and five persons who are not more than 70 years should be in the council. 

Out of these five one member each should be nominated by the OPA, the Chamber of Commerce, the Federation of Trade Unions, the media and the non-governmental organisations engaged in the promotion of human rights .

The constituent council must be independent of politics. 

A healthy process

The present system, specially the public service, is heavily politicized since it functions through the goodwill of a relevant political party.

There was a PSC just after the country gained independence. It consisted of a chairman and seeing how it functioned the system had been clean. But this was changed in 1972 and it became politicized.

The commissions should consist of eminent people who are not politically motivated or affiliated. They should be people who have earned respect and who have a proven and clean track record while in service' It is very important to have independent commissions since the present constitutional provisions have turned into instruments of politicians. Since the Cabinet has the sole authority over promotions and institutions such as the police they have become politicized.

By having an independent commission, the public servant's merit will be accepted. Even the exams will be conducted by the commissions and due recognition will be granted. This is very important because it imparts values of good governance which leads to democracy. Those who are elected to the commission should be people who have not addressed any political rally nor offered support to any political party. There are people who can be chosen to the commission. At present there are those who have carried on apolitically and done a lot of service to the country and not got involved in anything. They can be appointed as commissioners.

Independent Police Commission necessary

The idea of making the police an independent body has been in existence since the country gained independence.

There are two objectives when forming an independent police commission. One is to depoliticise the police. The other is to allow the commission to control the police.

From the time the country came under the British rule, it continued to be a colonial force. But it should have been a service-oriented police force. This led the people to turn to the politician leading to politicisation. 

An independent commission will remove politics from police. Police officers themselves will not be in a position to take unfair advantage of political patronage. Every police commission since1947 has said the Police Department is influenced by politicians. Once there was a suggestion to appoint an ombudsman to make the Police Department independent.

The commission should be given the power to administer the police force. In the United Kingdom there is a police authority functioning under the Home Ministry. 

The Police Department under any government is bound to be influenced or politicised. Therefore it is necessary to have an independent police commission.

People of integrity needed

The public service is under the control of the Cabinet of ministers. All recruitments, transfers and promotions come under the purview of the Cabinet. The Public Services Commission will allow public servants to be independent of political interference.

The success of such a commission will depend on the people who will constitute it. They should be persons of integrity who are impartial. There is no guarantee that they will be impartial. 

Interviews: by Shelani de Silva, Nilika de Silva

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