Untitled Document

The birth of the independent commissions
That the inordinate delay in appointing members to the Independent Commissions under the 17th Amendment to the Constitution resulted in a feeling of anti-climax when the appointments were, in fact, made this week, is somewhat ironic. The Constitutional Council may well contend in its defence that the task of appointment was onerous, given the intrinsic seriousness of the task but that is an explanation that cannot be stretched beyond a point. Aggravated meanwhile by the quite unnecessary furore over the aborted attempt to secure a blanket immunity for the Council in its functions, it would not be unkind to comment that the appointments are taking place within an atmosphere of decreased public expectations compared to what prevailed ten months back. Nevertheless, the appointment of members to the independent commissions on the police, public service, elections, finance and the re-appointing of members to the National Human Rights Commission has to be welcomed if not euphorically then at least, with some measure of relief that the task has at last been concluded, albeit its severe birthing pangs.

All these appointments, under the Seventeenth Amendment, belong to the first category of appointments wherein it is specified that the Constitutional Council recommends the names and the President appoints. The other two Commissions belonging to this category, the membership of which has not been affected as yet by the Constitutional Council, is the Permanent Commission to investigate Bribery and Corruption and the Delimitation Commission. The duty of the Council to make such a recommendation is stipulated to be "whenever the occasion for such appointment arises".

Meanwhile, it is of particular interest that a different procedure is laid down by the 17th Amendment for the appointment of persons to the Judicial Services Commission. Here, the President first makes a recommendation to the Council, which then has to approve it. A similar procedure of appointment is laid down for members of the appellate judiciary including the Chief Justice and in respect of particular offices including the Attorney General, the Auditor General, the Inspector General of Police, the Ombudsman and the Secretary General of Parliament. The rationale for maintaining such a difference in the process of appointment remains obscure. Similar procedures of appointments to independent commissions and offices in Nepal, for instance, do not stipulate such distinctions. The Constitution of Nepal, (which Sri Lanka examined at the outset when it was decided that the mechanism of a Constitutional Council was necessary in order to reform the country's politicised structures of governance), lays down a uniform process of appointments for all commissions and all offices whereby the Constitutional Council recommends and the King appoints. Instead of such a vastly simplified procedure, we have preferred complexities that, at the worst, connote sinister machinations and at the best, indicate highly confused minds.

Consequently, the Judicial Service Commission under the 17th Amendment, comprises the Chief Justice and two other judges of the Supreme Court appointed by the President and approved by the Council. While earlier drafts of the 17th Amendment stipulated that the Commission consists of the two senior most judges of the Supreme Court along with the Chief Justice, this proviso had been taken out in the final draft for reasons best known to the guiding powers behind the 17th Amendment. The Commission is vested with disciplinary powers regarding members of the lower judiciary. At this point of time, however, it may well be said that regardless of the possible transforming effect that the appointing of the independent Commissions this week may have on the processes of governance in this country, the reconstituting of the Judicial Service Commission now or at any near point in the future under the 17th Amendment, is unlikely to result in any earth shattering changes. The different process of appointment translates down to the fact that the President will have first choice in the selection of the names and thus have her own way unless the Council is prepared to contest the choice in an extended battle of wills. And the latter is a rather improbable scenario for more reasons than one.

The debates on reform of the national judicial systems have proceeded much further in countries neighbouring Sri Lanka, as evidenced most recently in a lengthy analysis written to the "Hindu" newspaper by former Indian Supreme Court judge V.R. Krishna Iyer, (reproduced incidentally in full in this country's Daily Mirror on the first of this month). Justice Iyer suggests that judicial appointments (and indeed matters of judicial discipline) are far too paramount to be left to the judges themselves. In the matter of appointments therefore, he suggests therefore a national Judicial Commission, consisting inevitably of the Chief Justice and including one or two judges of the Supreme Court but bringing in also elements from outside such as representatives of the Bar and outstanding statesmen of the country. In countries which have no outstanding statesman or leaders of the Bar, (would Sri Lanka be a good example?), this may well pose a problem but Justice Iyer makes this suggestion in the context of India, which can justifiably lay claim to a pool of men and women of courage as well as integrity.

India's system of judicial appointments is currently governed by a complex procedure regulated by two judgements of the Indian Supreme Court. Thus, a 1993 decision, popularly referred to as the Second Judges Case stipulated that the constitutional duty imposed on the Government to "consult" the Chief Justice of India (CJI)in making judicial appointments, meant that in contentious cases, the advice of the Chief Justice would prevail over the discretion of the Government. But this advice had to be through a particular process of recorded internal consultation between the Chief Justice and his/her senior most colleagues on the Court. In giving their opinions, all were, moreover, expected to adhere to the principle that the legitimate expectation of seniority could be departed from only for "strong and cogent reasons". However, despite this process, there was constant criticism from civil rights activists and members of the Indian Bar, that the process of judicial appointments was not good enough.

Thus it was that the 1993 judgement came under review by a Presidential Reference, resulting in a judgement by the Indian Supreme Court which emphasized the need for the consultative process to be comprised of not only the views of the Chief Justice but also his senior most colleagues. This process is now sought to be further improved by Justice Krisha Iyer and his like through the setting up of a Commission that draws in elements from outside the judiciary in dealing with the judiciary. Justice Iyer goes on to recommend in addition, a Judicial Performance Commission that would consider complaints of unjudicious conduct even among the higher judiciary. As he points out, impeachment is an extraordinary remedy that rarely operates satisfactorily and a forum for correction and disciplinary purposes (identified by him to be essential since judicial misconduct is escalating), is far preferable.

Sri Lanka's debates on the independence of the judicial system are, of course, frozen at a different point in time and in a wholly different contextual scenario where judicial integrity has become a major issue at the apex court. And as already stated, it is highly unlikely that the appointment of an "independent" Commission on the judiciary by the Constitutional Council would do much to change this. Perhaps, the current debates in India could be recorded to help us at a stage when we can envisage a more hopeful future. For the moment therefore, comparative analyses on the status quo prevailing in both countries are so far removed as to be practically inapplicable to each other. This is our continuing shame in South Asia.

Back to Columns