Focus on Rights

Re-activating our commissions
I n the fabled never-never land, things could not have been stranger. We have an Elections Comm-issioner who is not permitted to retire, an Elections Commission that is not yet appointed, a Bribery and Corruption Commission that has been inoperative for the past several months, and a Constitutional Council which has manifestly failed to live up to grandiose expectations since its inception not so long ago. So, one may well ask, along with the best of us, where do we go from here? Nowhere but speedily into the darkness, one may hazard to answer.

In the first instance, the request made by President Chandrika Kumaratunga to the Constitutional Council, (and apparently acceded to by the government), to change the selection procedures in respect of their recommendations of Commissioners under the 17th Amendment underscores an eminently sensible point. President Kumara-tunga, writing to the Speaker of Parliament who is the Chairman of the Council last week, points out that "the various personal and financial details sought by the Council when a person is recommended to post of Commissioner are irrelevant and unnecessary to decide on his (or her) suitability to the post."

This is, of course, quite part from the fact that the very requirement of presenting oneself for a formal interview before a body which consists in part, (for all its intellectual aura), of politicians, may be enough to deter a great many people. In the result, that the Council has found itself at a loss in the recommending of individuals to high posts comes as no great surprise. The most evident casualty in this respect has been the Bribery and Corruption Comm-ission, which ceased to be legally constituted following the death of one of its Commissioners early this year and remains unable to find a successor.

On the other hand, it is the President herself who is responsible for the delay in the constitution of the Elections Commission, citing reasons relating to the recommendation of a former highly respected Supreme Court judge that are patently absurd as they are unreasonable, key among which is that the latter served on past elections monitoring bodies. So, we have an entertaining tit for tat process, which would be distinctly comic if the context was not so serious. While the Bribery and Corruption Commission has been in existence, though in not a palpably distinguished manner for the past several years, riven as it has been by internal conflicts and a problematic record of work, the appointment of the Elections Commission has an equally urgent logic to it.

We have already witnessed the manner in which the electoral burden cast on the Elections Commissioner has proved to be, on occasion, far too great for him to withstand, given what passes for elections in this country. And previous attempts at forging a non partisan consensus at managing our elections and the inevitable violence that accompanies these events, have been wholly unsuccessful.

One particularly unfortunate example was that once eulogised multi party elections Monitoring Committee. When it was first formed under the direction of President Chandrika Kumaranatunga, a wearied public welcomed it as a much needed multi-partisan consensus. So much so that at that time, a lobby group of top business leaders in the country decided that their coming together to agitate for free and fair polls, following the Wayamba elections, was no longer needed in the face of the all-party initiative.

However, much time did not pass before the initiative petered out. The committee became an "eating and drinking forum" at which representatives of the various political parties could blow hot air about the problems besetting their workings. While it may be unkind to say that the 17th Amendment has not brought about any visible change in this situation since then, this may also be the most truthful statement to make.

Even in its fully operational state, we have seen how deeply flawed the 17th Amendment is, particularly in relation to the lack of enforcement powers of the Commission of Elections, (exercised during the 2001 December general elections by the Commissioner), where there is misuse of state resources. When additionally, the Commission itself is not appointed despite the lapse of time since the Council made the recommendations, the impact it has on public perceptions of governance becomes extremely grave.

Hence the Commissio-ner's plea to free him from sole responsibility for the fracas that takes place for elections in this country which is singular indeed in the electoral history of this country and perhaps, unfortunately for this country, in the world itself. His plea was dismissed by the Supreme Court this week on the basis that the Commissioner was a victim of a constitutional aberration and perforce had to stay until the Commission was appointed.

We have therefore two alternatives. Firstly that President Kumaratunga will make up her mind to abide by the recommendations made by the Constitutional Council or that the latter will compromise on their choices.

The deleterious consequences following upon the second alternative need no elaboration. The real tragedy is, of course, that such delay on the part of the appointing authority could have been acquiesced in by the body constitutionally mandated to make the recommendations without apparent demur for so long or indeed, that there has been no consistently strong protest regarding the same by our civil society leaders. But then, what else is new in Sri Lanka?

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