Friday, 30th January 2015
Presentation to Parliament of a Nineteenth Amendment, repealing the Eighteenth Amendment and re-instating the Seventeen Amendment, a basic constitutional measure relating to independent commissions, has been declared to be a core element of the current 100 day Parliamentary programme. It is, therefore, important to reflect on some of the more serious shortcomings inherent in the text of the Seventeenth Amendment and to formulate suitable approaches to the improvement of its content, in light of practical experience, before it is re-enacted as an integral part of the Constitution. This is essential to achieve the objectives of public policy contemplated by this initiative.
Some of the areas requiring attention are commented on in this article.
I. Political Parties and Their Role in the Composition of the Constitutional Council
Within the entire framework of the Seventeenth Amendment, the pivotal institution is the Constitutional Council. It is the Constitutional Council that is vested with responsibility for identifying the membership of seven Commissions performing vital public functions.
The Seventeenth Amendment contains clear provision that, apart from the Prime Minister, the Speaker and the Leader of the Opposition, the other members of the Constitutional Council “shall be persons of eminence and integrity who have distinguished themselves in public life and who are not members of any political party”.
This latter element is obviously crucial in ensuring that the Commissions are independent and depoliticized.
However, the seven persons who are expected to fulfil this intention are unlikely in practice to do so because of the manner in which they are required to be identified.
One of these persons is appointed by the President. Five persons are appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition. In selecting these persons, it is declared that “The Prime Minister and the Leader of the Opposition shall consult the leaders of the political parties and independent groups represented in Parliament. Three of such persons shall, in consultation with the Members of Parliament who belong to the respective minority communities, be nominated to represent minority interests”.
The resulting anomaly is this: While emphasis is placed on the principle that the persons nominated or appointed should be free from party political affiliation or bias, it is improbable that this aspiration will be realized in practice, because they are in fact chosen for appointment by political parties and their leaders. The persons appointed, therefore, although unencumbered by party membership, are nevertheless aware of the source (namely, the political party) from which their appointment for all intents and purposes derives, and it is consequently unrealistic to believe that this link will be irrelevant in decision making on their part.
This is a serious flaw in the structure of one of the principal organs established by the Seventeenth Amendment. It has also led to insoluble problems on the ground. When implementation of the Seventeenth Amendment was attempted, the Constitutional Council could not be fully constituted because of an irreconcilable difference of opinion between two smaller parties in respect of identification of the tenth member to be appointed.
II. Quorum and Legality of the Constitutional Council
The Constitutional Council mechanism broken down at the very start because of a legal issue which could not be resolved. Nine members were in place, but the tenth could not be appointed because of disagreement between the two smaller political parties responsible for this appointment. Although the Seventeenth Amendment specifically provides that “The quorum for any meeting of the Council shall be six members”, this did not provide a solution. The reason was a ruling by the Supreme Court that the Constitutional Council must be constituted in full before it could begin to function validly, and the provisions relating to the quorum become applicable only after all the members of the Constitutional Council have been lawfully appointed.
This issue, in light of empirical experience, needs to be addressed to prevent atrophy of the Constitutional Council at the very outset.
III Removal of Members of the Constitutional Council
One of the stipulated grounds for removing a member of the Constitutional Council during the three year tenure of office, according to the text of the Seventeenth Amendment, is “both the Prime Minister and the Leader of the Opposition forming an opinion that such member is physically or mentally incapacitated and is unable to function further in office”.
This does not seem satisfactory: independence is not buttressed by a provision that enables removal on the basis of a political agreement.
IV Statutory Bodies Within the Scope of the Seventeenth Amendment
The Seventeenth Amendment sets out seven statutory bodies whose personnel can be appointed only on the recommendation of the Constitutional Council. These are the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, the Permanent Commission to Investigate Allegations of Bribery or Corruption, The Finance Commission and the Delimitation Commission.
There appear to be some gaps in this regard. In the context of current priorities, it is suggested that the University Grants Commission and the Official Languages Commission should be included. It may be noted that this is in line with the recommendation contained in the Report of the Presidential Commission on Youth, published in March 1990.
V Full Time Officers and Ex Officio Appointments
Past experience demonstrates some grave deficiencies in this area.
With regard to the National Police Commission, while provision is made for the appointment of seven members on the recommendation of the Constitutional Council, serious problems arose in practice because of two circumstances – the Chairman was not a full time officer, and there had not been an appropriate input in respect of matters relating to administration and personnel, by the Inspector-General of Police. There were some obvious anomalies, highlighted at the time, in the decisions by the Commission regarding transfer and promotion of police officers. These surfaced in an extreme form in repeated fundamental rights actions instituted by aggrieved police officers. There is no doubt that a significantly sharper focus than that provided for in the Seventeenth Amendment, is called for with regard to procedures governing access to, and analysis of, relevant data.
Equally, there are cogent grounds for making provision for a full time Chairman of the Election Commission (which consists of five members), in addition to the Commissioner-General of Elections.
VI An Even-Handed Approach to Remedial Measures
The need for modification in this aspect is apparent in the provisions pertaining to the Election Commission.
During election periods the Commission is vested with power to issue guidelines to “any broadcasting or telecasting operator or any proprietor or publisher of a newspaper” to ensure a free and fair election. However, the scope of the duty to obey such guidelines is narrowly defined, in so far as the institutions subject to the duty are concerned. The sole institutions mentioned in this regard are the Sri Lanka Broadcasting Corporation and the Sri Lanka Rupavahini Corporation. Where these institutions contravene the guidelines issued by the Commission, provision is made for the appointment of a Competent Authority.
While the legal considerations applicable to State institutions and private entities are, of course, different, an appropriate mechanism has to be found to bring the latter, as well, within the ambit of the duty to comply. This is essential to forestall inequality of treatment and consequent ineffectiveness of a vital category of orders issued by the Election Commission.
VII Appellate Systems
Orders or decisions by the Public Service Commission may be canvassed before an Administrative Appeals Tribunal appointed by the Judicial Service Commission. Further thought may be usefully given to the nature of the jurisdiction of the Administrative Appeals Tribunal and to the relationship between this jurisdiction and judicial review by established courts.
VIII The Judicial Service Commission
The Judicial Service Commission, which wields far-reaching disciplinary powers in respect of the minor judiciary, is declared to consist of the Chief Justice and “two other Judges of the Supreme Court”.
In light of previous experience, it may be worth considering whether seniority should be spelt out as the compulsory criterion governing identification of the other two members of the Judicial Service Commission. This may well be preferable to open-ended discretion.
IX Structural Changes Regarding Executive Presidential Power
It is not yet known what changes are contemplated with regard to the powers and functions vested in the Executive Presidency. These could possibly have a bearing on the content of the Seventeenth Amendment, the provisions of which were formulated in the setting of the Executive Presidency, as it operates at present.
Courtesy – The Island
18th amendment, Corruption, Democratic governance, Human Rights, Independence of judiciary, rule of law, Sri Lanka
