Setting up of a constitutional council with powers to recommend persons for top posts and bringing under it the activity of five independent commissions will be a significant step towards non-politicization of the administration.
Along with the setting up of the council, which should come under parliamentary supervision, there should emerge a mechanism to monitor the activities of those who are appointed to top posts. The biggest shortcoming in the constitutional council proposed in the draft constitution is the absence of such a mechanism.
There is no method of disciplinary control with regard to superior court judges. The only thing that can be done when there are allegations of misconduct is to remove the accused judge from his post through a parliamentary motion. But this method does not do justice to a person who is victimized by an alleged misconduct of a judge. The victim is no way in a position to influence more than half the number of members in parliament and remove the errant judge.
There is an incident which I learned from a reliable source. A female cleaning employee who was running to save herself from an unpleasant incident, had allegedly banged into a Judge.
Following a complaint by the judge, the woman employee was questioned. At this inquiry the woman is alleged to have told she was running out of the room of a judge who tried to abuse her. Although she complained to the then Chief Justice G.P.S. de Silva about this improper conduct on the part of the judge, the Chief Justice took little or no action against the judge.
One may come to a conclusion that the Chief Justice and the president of the Court of Appeal think that taking disciplinary action against judges is not their job.
The Judicial Service Commission is a powerful institution which is not under the control of anybody outside it. Once there was an allegation against a high court judge that he had raped a girl who was working in his house. Professor Chandrasiri Niriella who examined the girl was of the view that she had been raped. When the police went to arrest the judge, a high official had allegedly intervened and prevented it.
At the primary inquiry held in the Magistrates Court, Attorney General’s Department officials represented the victim.
The judge was later discharged on a technical matter.
Kalyananda Thiranagama, who had appeared for the victim, requested the AG’s Department to appeal against the judgment which he said was unfair. But that request was not complied with.
Later the judge was re-appointed to the high court with the chief justice’s approval.
Even if the allegation of rape is disregarded, the Judicial Service Commission did not consider the issue of a high court judge employing a child as a domestic aide. However, the judge who was reappointed to high court was unable to assume office because he was seriously injured in a motor accident while he was on his way to the courts.
The manner in which the JSC acted in regard to magistrate Lenin Ratnayake who had been accused of rape, was also controversial. In the first incident of alleged rape the woman who was subjected to it made a formal complaint to the JSC through lawyer Thiranagama. Later a newspaper took up the cause and carried out the campaign to bring the magistrate to justice.
As a result of appeals by former presidents of the Bar Association emphasized to the Chief Justice, the JSC held an inquiry into the allegation against that magistrate. Although the inquiry found the magistrate guilty of all the allegations, he has not been removed from the judicial service up to date.
All those instances show the need to set up an institutional framework to inquire into activities of judges of the higher courts, members of the JSC and other top officials such as Attorney General, the Commissioner of Elections and the Auditor General.
Although the Attorney General, in the narrow sense is the chief legal advisor to the government, in the broader sense he is the custodian of the people’s fundamental rights. When a conflict arises as a result of an attempt by a government to curtail or to infringe on the rights of the people, the Attorney General should take not the government’s side but the people’s side.
However, in election petitions there is a contradiction in the action of the Attorney General as well as those of the Commissioner of Elections. As a matter of technicality, the Commissioner of Elections is made a respondent in election petitions and it is the Attorney General who appears on behalf of the Commissioner. It should not be possible for the Commissioner of Election or the Attorney General to follow a policy of defending a person who has won an election through corrupt means when an election petition is taken up.
Unfortunately, what happens now is that the Attorney General who appears for the Elections Commissioner defends the winner – a ruling party member – who is accused of winning the elections by fraudulent means.
It is the Commissioner of Elections who knows better than the petitioner about corrupt practices that have taken place. What the Commissioner of Elections should do in such an instance is not to defend the winner, but to present to the courts the facts, and to help the courts to get a correct picture of the situation.
Likewise, the Commissioner of Elections should speak in defense of a free and fair election. He should be in a position to obtain statements of assets and liabilities of the members of the officials of the political parties as well as those of candidates. However in order to please the politicians, he allegedly refrains from obtaining these statements.
The Auditor General too has an obligation to play an extremely important and prominent role. It is he who is obliged to audit the activities of all government institutions and to report their activities to Parliament. No government fund should be outside the Auditor General’s scrutiny. However, he does not audit the President’s Fund. Although the Auditor General has a responsibility to find out whether the sale of government institutions is done in a way that causes no loss to the government and report the factual situation to the Parliament. The Auditor General has not reported to the Parliament his observations of any privatization deal.
All these instances show that it is necessary to set up a mechanism which keeps a watch over the activities of persons holding high posts.
If it is possible to create under the proposed constitutional council an institution to which people can complain when the President, ministers, MPs, judges and other top officials commit offences. This institutions should be empowered to probe the complaints and report them to Parliament. If this is done, the room for such persons to commit offences, too, can be curtailed to a great extent.