The Special Report

• Challenges before the Constitutional Council
• Behind the lines with the Taliban 

Challenges before the Constitutional Council 

By Victor Ivan

This system is a new experience for Sri Lanka. In any country there are institutions which should have an independent status and be free from political interference. 

To obviate any room for the head of government who assumes office to influence such independent institutions and to hand over the responsibility of appointing the heads and members of such institutions to a council consisting of independent persons and to keep them in an active state may be considered the main aim of this system. 

For the lively existence of such a Constitutional Council it must have public acceptance and trust. For that purpose it is essential to appoint a group of respected persons. However, that alone will not ensure acceptance and trust of the people. People's trust and acceptance will depend on the activity of that council. 

However good those persons may be, if they confine themselves to filling vacancies of heads and members of institutions that fall under their council, then it is unlikely that they will get the people's acceptance. However, if they go beyond that and are vigilant and continuously watch over the institutions that come under them and intervene to correct serious mistakes that might occur, then they will inevitably receive wide public acceptance. The initial activity of the Constitutional Council will be the main occasion to test its strength and limitations. Although the Constitutional Council is a very powerful institution, the relevant legislation does not include a clear interpretation of its responsibilities and duties. Consequently the responsibility to take decisions also devolves on the Constitutional Council. An institution which has the power to appoint persons or to recommend persons must also have the power to remove them when they commit serious wrongs. The Constitutional Amendment does not say whether such a power exists or not. Therefore, it is a problem that should be solved without delay. 

The Constitutional Council must, in deciding its activity understand first of all what democratic impulses influenced the creation of such a system. The intention that influenced the creation of such a system was to direct not only the process of appointing persons to these institutions but also to direct those institutions along a path that would be to the common benefit of the country. The activity of the Constitutional Council must accord with those intentions. 

The government's intention appears to have been to confine the Constitutional Council within narrow limits from the very beginning. 

Although some institutions have been given the power to appoint new members, some other institutions have not been given such power. Although the Commissions have been given the power to select and appoint new members, the Secretaries of three Commissions and the Director General of the Bribery or Corruption Commission who were there continue to hold those posts. There is a serious discrepancy between the powers and the limitations. 

According to the Bribery or Corruption Allegations Inquiry Commission Act No. 19 of 1994, the Director General of that Commission must be appointed by the President in consultation with the members of the Commission. 

This shows that the members of that Commission had the authority to recommend a Director General of their choice. A compulsion to retain the person who now holds the post of Director General in the same post disregarding whatever wish the Constitutional Council and the appointing Commission may have, cannot be justified under any circumstances. Infact that post is a full time post. However, the present Director General also functions as an additional Solicitor General of the Attorney General's Department. It is not necessary to say that this is a contradictory situation.

The Constitutional Council must also have the power to decide whether the Secretaries of the other Commissions must be retaining those posts or more suitable other persons must be appointed to those posts.

One of the functions that the Constitutional Council must perform at the very beginning is to make a proper definition of the responsibilities of the institutions and the main posts that come under that council. 

What prevails everywhere today is an extremely complicated situation. 

The President of the Human Rights Commission functions as the chief executive of an institution that hears human rights cases. At the same time he also appears for the accused in some cases where allegations of violation of human rights have been made. This contradiction is found in the activity of the Attorney General, the Elections Commissioner and the Auditor General.

At election petitions the Elections Commissioner must not have the right to take the side of the winner. In such cases the role of the Elections Commissioner as well as that of the Attorney General must be impartial.

Although the Bribery or Corruption Inquiry Commission has many powers, it too becomes a meaningless institution if it functions in an aimless manner. The main attention of such an institution must be directed not to the small fry but to the powerful persons. 

The main targets of that institution must be the members of the Cabinet which may be considered the chief executive body, and also the heads of departments.

Although one of the main responsibilities of that Commission is to inquire into the assets and liabilities of persons, it has not discharged that responsibility.

The functioning of the Auditor General is also extremely weak. He himself admitted that he had not audited the President's Fund. All privatisations that have occurred had happened without any examination on his part. It is the responsibility of the Constitutional Council to correct the erroneous path followed by every one of these important institutions. The Constitutional Council has a responsibility to give a good start to everyone of these institutions in regard to their duties and obligations and to ensure a proper activity on their part.

Appointment of persons to the Judicial Services Commission will inevitably be an occasion to judge the credentials of the Constitutional Council. The most important of all the reforms that have to be carried out relates to justice. The Constitutional Council intends to appoint a Judicial Services Commission at a time when an impeachment is pending against the head of the judiciary. 

The Chief Justice has not withdrawn from judicial and administrative functions pending the end of that inquiry. 

Although Mr. Param Coomaraswamy who is handling the subject of judicial independence at the UN has informed the President about it, the President, as well as the Chief Justice, is silent. Although the Constitutional Council has no power to remove the Chief Justice who is the subject of an impeachment inquiry, it has a responsibility to keep him away from judicial and administrative functions until the end of the impeachment inquiries. The whole country is watching what policy is going to be adopted by the Judicial Services Commission in regard to the Chief Justice, when persons are appointed to the Judicial Services Commission.

The writer is the Editor of Ravaya

Behind the lines with the Taliban 

The Taliban commander named Janzer stood in his hideout in the bleak mountains of Afghanistan and gave the News of the World a message to take back to the West.

"God willing, we will wipe out the Americans", he said. "Don't forget to tell your people that the Muslims are prepared to die for their beliefs. Tell the British and the Americans!" 

In a dramatic demonstration of his power he raised his Kalashnikov automatic rifle above his head and emptied a magazine of bullets into the sky. 

As the deafening sound echoed back from the rock-strewn landscape he yelled: "Death to Bush and the great Satan America! Jihad!"

Friends of the Taliban had smuggled us into eastern Afghanistan for our meeting with Janzer and his men. 

They told us they swear brotherhood with Osama bin Laden, accused by the US of leading the terrorists who killed more than 6,500 in the hijack attacks of September 11. 

I had crossed the border with photographer Conrad Brown. 

We were hidden under flour sacks in the back of a truck. 

When we reached the end of roads passable by vehicles, we struck forward on foot to our rendezvous "behind enemy lines". 

Since the threat of military retribution by American President George W. Bush we were the first Westerners to make the journey over the mountains. 

We spent the night sleeping rough in the rugged camp with the Taliban fighters. While we slept, they took turns to keep watch for the impending US attack. 

"Because you are a Muslim brother and have been introduced by an old friend, you are welcome here," said Janzer, he heads a team of some 30 soldiers ranging from youngsters to old men. "We are ready and waiting to sacrifice our lives for Allah. That is our strength as an army," he said.

"We saw off the Russians and now god willing, we will see off the Americans, the British and anyone else who dares to come on our soil!"

History proves that no invading army should take Janzer's threat lightly.

No one should underestimate the total commitment of Janzer and the rest of the Taliban fighters. 

The unrelenting will of those who are left in Afghanistan today have been forged in fire.

They are unmoved by starvation cruelty, threats... or even death.

Clad in traditional Afghan shalwaar kameez (long shirt and baggy trousers) and sandals, we treakked through the breathtaking mountainous region until we arrived at the Taliban hideout.

A high mud wall enclosed a courtyard and two rooms. Several armed men sat in the yard. Another group were praying.

"This is Afghanistan and those mountains behind us are Pakistan. There are lots of Pakistani troops hiding there," said Ghulam Khan, a bearded mullah in his sixties, who hepled us sneak into Afghanistan from Pakistan.

"We have our troops scattered all over this area. The West can't dream of tackling us here. They will surely be defeated". Khan and his team were warmly greeted by a man named Raim Ullah. His beard was thick and black, but his head was shaved.

After several minutes of discussion between them, we were introduced to a succession of men, some carrying AK-47s over their shoulders.

Janzer, the leader of the group, was one of the men at prayer. He wore a black turban and flowing robe. After finishing his devotions he picked up his rifle. Sitting on a string-woven bed Janzer spoke with pride and enthusiasm about his preparations for war.

"We are not afraid of anything except Allah," he said. We have young boys who are with us, and older brothers who are with us."

He invited us to share a silver bowl of water with him.

Janzer wanted to explain his reasons for his anger at the West and Pakistan President Pervaiz Musharraf, who has declared his support for a war on terrorism. "Osama bin Laden is like us, someone who is fighting for Islam," he said. "We cannot and will not betray him like Musharraf has done."

"We are not terrorists, we are religious people fighting for our rights. The West has no evidence to say that Osama bin Laden has done anything wrong."

"They just want someone to blame and the Islamic world to be finished. But Islam is too powerful. This is a holy war and the whole Muslim world should be with us."

When asked how the group received battle orders, Janzer said: "We don't need any orders. We are all equals and have the same goal. If anyone moves in these mountains, we know about it."

"I'll save my rockets for the Americans'

Janzer and his men wanted to give us a display of their firepower. They took us to the edge of the mountain and produced an arsenal of weapons.

We counted over a dozen Russian AK-47s and other small arms.

They proudly took it in turns to fire bullets into the skies, chanting words from the Quran.

One youngster aged about 12 casually appeared clutching a rocket launcher and ammunition. "This can finish off a tank from 700 yards. We used it against the Russians. It works well," said one man.

He politely asked us if we wanted a demonstration. But he looked pleased when we declined.

"I'd rather save every rocket for American tanks," he said. "We have been told to sit tight until the Americans attack." The gang then asked us to join them for target practice as they fired bullets down the mountain side, shattering large rocks.

Inside the glass house

Editorial/ Opinion Contents