Culture of Independent Commissions in Sri Lanka
The role of any person serving as the president of the Republic is to act as an agent of state power under the second
republican Constitution of Sri Lanka. Why do we then have presidents who like to act as the kingpins of power? In fact, the executive president constitutionally empowered to make appointments for two other branches namely legislature and judiciary. This is an eternal segment in Sri Lankan style d governance that has being appeared in our constitutional landscape for last four decades except two instances. The two instances were 2001-2004 phase as well as 2015 Yahapanalana governance, both were fragile political matrixes in nature.
The constitutional architecture
s, as against galvanization of state power over the Presidency, let few other important bodies to act independently on the assumption that keeping institutional integrity of certain public bodies may lead to development in governance. The popular arguments generally bringing to justify the establishment of independent commissions are; keep ing major public bodies and their functions beyond the political interests (especially, the political party in the power), providing opportunities to subject specialists to get along with public functions regardless of political pressure, and enlargement of public faith over such bodies. Establishment of independent commissions is possibly placed considerable restrictions on the discretionary powers of the Executive President in making appointments to high offices. Two of long standing examples that have been validated above arguments are The University Grant Commission and Legal Aid Commission established in 1978.
The emerging democracy loving culture (named as ‘White Lotus Movement’) in the first half of 90s, mainly led by first ever Sri Lankan lady president Chandrika Bandaranayake claimed the
sheer need of establishment of more independent commissions to make certain public functions more transparent. The Human Rights Commission and the Commission to inquire into Allegation of Bribery or Corruption were the first two commissions established during this time.
The draft Constitution of 2001 proposed to bring up these independent commissions under the Constitutional Council that was inter alia responsible for the appointment of commissioners. Alas, the whole constitutional reformation process in 2001
was failed and consequently this draft Constitution was not also adopted. However, Constitutional Council, centerpiece of the Constitutional draft was in place though t adoption process of the Constitution went wrong. There were seven independent commissions established under the subsequent 17th Amendment. They namely were: Election Commission, Public Service Commission, National Police Commission, Human Rights Commission, Permanent Commission to Investigate Allegations of Bribery or Corruption, Finance Commission , and Delimitation Commission. up to meet basic independent requirements. For instance, the Human Rights Commission was downgraded by the International Coordinating Committee of National Institution for the promotion and protection of Human Rights due to lack of transparency. Especially, the role (promotion of human rights) played by the HRC in the last phase of armed conflict, was quite problematic.
The culture of independent commission roll
s back under the draconian 18th Amendment. The amendment totally erased the previous limitations imposed on the exercise of president’s discretion that restricted his appointment power. The 19th Amendment pave the way for occupying independent commission among other several constitutional reforms in Sri Lankan polity once again. As noted above, 17th Amendment introduced 7 independent commissions in numbers. Two new commissions were created bringing total numbers to 9 under the 19th Amendment. The Audit Service Commission and the National Procurement Commission were placed in order to regulate audit service and public procurement process. Another significant introduction in line with the 19th Amendment was Right to Information Commission under Right to Information Act No.12 of 2016. Some of major constitutional inventions also brought aiming the institutional integrity of the commissions. Article 104CC of the Amendment made that any public authorities acting as against to the directives of the Election Commission amidst an election in particular would be a punishable offence. The Judicial Service commission that dealing with the appointments and disciplinary actions of the lower courts is led by Chief Justice and two other judges of the Supreme Court. These new developments inevitably lead to enhance not only institutional integrity but also their scope in general. Moreover, appointment of commissioner based on their merit is always a prerequisite the commissions to be independent. The president can make no appointment for the commissions unless he receives the recommendations from the Constitutional Council. It is clear, this reform seeks to keep power of recommendations by the Constitutional Council beyond power of appointment by the Executive President. The 20th Amendment reintroduce s Parliamentary Council that existed under the 18th Amendment. The Parliamentary Council is not an inclusive or independent constitutional body as like as the Constitutional Council were, is obliged to observe who fit to be commissioners. The President in making appointments for the Independent Commissions , require s to have observations of the Council. Notably, observations have not a binding effect. In case of an appointment, the council will have to give its observation within one week. If they fail to do so, the president will proceed with the appointment as his wish. Another change proposed by the 20th Amendment is , complete removal of the National Procurement Commission as well as the Audit Service Commission.