An unprecedented interest in the reforms required for good governance is arising. The UNP demands independent commissions for electoral affairs, for the judicial service, for the police service and for the public service, under a constitutional council, and for that purpose the UNP’s K.N. Choksy, M.P. is to present a draft bill in parliament which is prepared by him.
SLMC leader Mr. Rauf Hakeem too has demanded four commissions on the same subjects within the first 100 days of the PA government but has not expressed any ideas about the nature of those commissions.
The President said that some of those demands have been met by the new draft Constitution and requested that they be won through helping her to get them passed. Mr. Batty Weerakoon has said that he would not oppose any of these commissions except the police commission.
It is not necessary to delay reforms until agreement is reached on a new constitution. The European Union had requested the government to set up an independent election commission before the parliamentary election, but the government refrained from complying. However, now the government is in such a position that it is unable to get aid without effecting reforms. Consequently the government is compelled to talk about reforms.
A group of independent professionals attached to the Organisation of Professionals too, has made a proposal as the 17th amendment to the constitution proposing four independent commissions for elections, the judicial service, government service and police service. The proposals in this draft appear to be stronger than those submitted by the PA and the UNP.
The commissions proposed by these three groups are expected to function under the constitutional council.
The constitutional council of the PA is to consist of:
(a) The Speaker, (b) The Prime Minister (c) The Leader of Opposition (d) The president of the chief ministers’ conference (e) Seven MPs appointed by a parliamentary select committee to reflect the ethnic diversity (f) two retired judges.
The Constitutional Council proposed by the UNP is to consist of:
(a) The Speaker (b) the Prime Minister (c) the Leader of the Opposition (d) Five respectable persons engaged in public service jointly nominated by the above three.
The Constitutional Council proposed by the professionals:
(a) the Speaker (b) the Prime Minister (c) the Leader of the Opposition (d) three MPs nominated by other parties and independent groups with the highest number of MPs other than those parties to which the above three persons belong (e) two retired supreme court judges who are not above the age of 75 (f) Five from the civil society who are devoted to public service and with no political affiliations. These five persons too must be nominated by the following organisations at the rate of one person per organization or movement:
(1) The Organization of Professional Association (2) The Chamber of Commerce (3) The joint front of Trade Unions (4) The media organizations, viz, the Editors’ Guild, the association of publishers, the free media movement and the union of professional journalists (5) A combination of non-government organizations.
While a system of independent institutions is necessary in which there is no room for political interference, it is also necessary to have a system where independent and honorable persons are selected to those independent institutions.
In Sri Lanka there is a tradition of appointing persons who do not have necessary qualifications to positions of importance.
Eg:
* A person facing a Supreme Court inquiry was appointed to the post of Chief Justice.
* Two persons outside the administrative service who have no experience in administration hold the two posts which are considered to be the highest in administration, viz, the post of Secretary to the President and the post of Secretary to the Treasury.
* A district judge with no experience in parliamentary affairs was appointed to the post of Secretary General of Parliament.
* A person who is court martialled and convicted for highway robbery has been appointed to a senior post in the commission of Essential Services.
* The chairmanship of the Press Council which has semi judicial powers is held by the Media Minister’s legal advisor.
* A person accused of a number of exchange frauds functions as a member of the Exchange Commission.
The possibility of government leaders to make such improper appointments should be limited. A system must be established specially to appoint honorable and most suitable persons to posts of central importance.
The Constitutional Council proposed by the PA or that proposed by the UNP does not offer a viable solution to this fundamental question. An independent judiciary is foremost among all the reforms required.
In the UNP’s proposal, it is the President who has the right to appoint all the judges in the higher judiciary including the Chief Justice. In the independent judicial commission proposed by the UNP the head will be the Chief Justice selected by the President at his or her discretion. Thereby the judge who is the author of the draft and who is the subject of the dispute has tried to please the President who has made that improper appointment. At the same time he seems to have tried to please his leader with the intention of giving the leader the possibility of appointing any henchman of choice.
However, the judicial commission proposed by the professionals is different in shape. It is a proposal prepared after taking into consideration the present crisis in the judiciary, the reasons that have influenced it, and the arrangements in the modern world to maintain an independent and honorable judiciary. According to it not only the Chief Justice but also all judges of the High Court are appointed by the constitutional council.
The judicial commission proposed by them consists of the Chief Justice, the two most senior judges of the Supreme Court, the Attorney General, the president of the court of appeal, a professor of law nominated by the faculties of law, and a representative of the Minister of Justice. The appointment, transfer, dismissal and disciplinary control of judicial officers come under this commission.
A serious problem is that when a judge of the higher judiciary commits an offence, there is no way of removing that judge from his post except by a resolution of parliament. When an offence is committed against an ordinary person, there is no possibility of taking action by a resolution. However, according to the draft prepared by the professionals such a person has the right to complain to the constitutional council. When there is a two-thirds approval the constitutional council has the power to remove a judge of the higher judiciary from his post.
According to the constitutional council proposed by the UNP it has the power to appoint the controllers to the four commissions, the Attorney General, the IGP, the Election Commissioner, the Bribery Commissioner and the Ombudsman only.
If the UNP fails to understand the provisions of the draft it has submitted, the result will be something like a mountain labouring to bring forth a mouse.