Freeing the institutions that come under the Constitutional Council from politicisation and directing them along a proper path in such a way as to guarantee good governance may be considered one of the main obligations of the constitutional Council.
This system is a new experience for Sri Lanka. In any country there are institutions which should have an independent status and be free from political interference.
To obviate any room for the head of government who assumes office to influence such independent institutions and to hand over the responsibility of appointing the heads and members of such institutions to a council consisting of independent persons and to keep them in an active state may be considered the main aim of this system.
For the lively existence of such a Constitutional Council it must have public acceptance and trust. For that purpose it is essential to appoint a group of respected persons. However, that alone will not ensure acceptance and trust of the people. People’s trust and acceptance will depend on the activity of that council.
However good those persons may be, if they confine themselves to filling vacancies of heads and members of institutions that fall under their council, then it is unlikely that they will get the people’s acceptance. However, if they go beyond that and are vigilant and continuously watch over the institutions that come under them and intervene to correct serious mistakes that might occur, then they will inevitably receive wide public acceptance. The initial activity of the Constitutional Council will be the main occasion to test its strength and limitations. Although the Constitutional Council is a very powerful institution, the relevant legislation does not include a clear interpretation of its responsibilities and duties. Consequently the responsibility to take decisions also devolves on the Constitutional Council. An institution which has the power to appoint persons or to recommend persons must also have the power to remove them when they commit serious wrongs. The Constitutional Amendment does not say whether such a power exits or not. Therefore, it is a problem that should be solved without delay.
The Constitutional Council must, in deciding its activity understand first of all what democratic impulses influenced the creation of such a system. The intention that influenced the creation of such a system was to direct not only the process of appointing persons to these institutions but also to direct those institutions along a path that would be to the common benefit of the country. The activity of the Constitutional Council must accord with those intentions.
The government’s intention appears to have been to confine the constitutional Council within narrow limits from the very beginning.
Although some institutions have been given power to appoint new members, some other institutions have not been given such power. Although the Commissions have been given the power to select and appoint new members, the Secretaries at three Commissions and Director General of the Bribery or Corruption Commission who were there continue to hold those posts. There is a serious discrepancy between the powers and the limitations.
According to the Bribery or Corruption Allegation Inquiry Commission Act No. 19 of 1994, the Director General of that Commission must be appointed by the President in consultation with the members of the Commission.
This shows that the members of that Commission had the authority to recommend a Director General of their choice. A compulsion to retain the person who now holds the post of Director General the same post disregarding whatever wish the constitutional Council and the appointing Commission may have, cannot be justified under any circumstances. In fact that post is full time post. However, the present Director General also functions as an additional Solicitor General of the Attorney General’s Department. It is not necessary to say that this is a contradictory situation.
The Constitutional Council must also have the power to decide whether the Secretaries of the other Commissions must be retaining those posts or more suitable other persons must be appointed to those posts.
One of the functions that the Constitutional Council must perform at the very beginning is to make a proper definition of the responsibilities of the institutions and the main posts come under that Council.
What prevails everywhere today is an extremely complicated situation.
The President of the Human Rights Commission functions as the chief executive of an institution that hears human rights cases. At the same time he also appears for the accused in some cases where allegations of violation of human rights have been made. This contradiction is found in the activity of the Attorney General, the Elections Commissioner and the Auditor General.
At election petitions the Elections Commissioner must not have the right to take the side of the winner. In such cases the role of the Elections Commissioner as well as that of the Attorney General must be impartial.
Although the Bribery or Corruption Inquiry Commission has many powers it too becomes a meaningless institution if it functions in an aimless manner. The main attention of such an institution must be directed not to the small fry but to the powerful persons.
The main targets of that institution must be the members of the Cabinet which may be considered the chief executive body, and also the heads of departments.
Although one of the main responsibilities of that Commission is to inquire into the assets and liabilities of persons, it has not discharged that responsibility.
The functioning of the Auditor General is also extremely weak. He himself admitted that he had not audited the President’s Fund. All privatisations that have occurred had happened without any examination on his part. It is the responsibility of the Constitutional Council to correct the erroneous path followed by every one of these important institutions. The Constitutional Council has a responsibility to give a good start to everyone of these institutions in regard to their duties and obligations and to ensure a proper activity on their part.
Appointment of persons to the Judicial Services Commission will inevitably be an occasion to judge credentials of the Constitutional Council. The most important of all the reform that have to be carried out relates to justice. The Constitutional Council intends to appoint a Judicial Services Commission at a time when an impeachment is pending against the head of the judiciary.
The Chief Justice has not withdrawn from judicial and administrative functions pending the end of that inquiry.
Although Mr. Param Coomaraswamy who is handling the subject of judicial independence at the UN has informed the President about it, the President, as well as the Chief Justice, is silent. Although the Constitutional Council has no power to remove the Chief Justice who is the subject of an impeachment inquiry, it has a responsibility to keep him away from judicial and administrative functions until the end of the impeachment inquiries. The whole country is watching what policy is going to be adopted by the Judicial Services Commission in regard to the Chief Justice when persons are appointed to the Judicial Services Commission.