Need for independence in independent commissions

In 2000 Parliament adopted the 17th Amendment (17A) to the Constitution which established a multi-partisan Constitutional Council (CC) and removed the President’s unbridled power to make key appointments to independent institutions. The Constitutional Council was primarily aimed at depoliticising the state and public service. 

This amendment was passed unanimously with overwhelming support from all parties reflecting the desire and need perceived at that time, to strengthen institutions of governance. This followed the negative experiences of abuse of power by successive government leaders and the need to set up a system of checks and balances to curb that power.

After the independent commissions established under the 17A were diluted by the power grab of the 18A in 2010 they were restored in 2015 through the 19A. The pendulum has swung in either direction since with the 20A diluting the independent commissions while recently passed 21A attempting to restore some credibility into these institutions. It is also apparent that these commissions, however empowered they may legally be, even with constitutional guarantees, will be independent, strong, and relevant only as far as those appointed to them adhere to the high standards expected of them. As witnessed during the constitutional coup orchestrated by president Maithripala Sirisena in October 2018, even offices such as the Inspector General of Police and the Attorney General, which had constitutional protections against arbitrary removal, capitulated on the side of the plotters of the coup.

The manifest unsuitability of some of the commissioners holding office in independent commissions have been glaringly visible in recent days. National Police Commission Chairman Chandra Fernando was seen at the VIP lounge of the airport last week welcoming Basil Rajapaksa, the national organiser of a political party. He was accompanied by another member of the Police Commission. Similarly, the Commission to Investigate All Forms of Bribery or Corruption is filled with individuals with dubious records. 

The commission is made up of a former justice of the Supreme Court, a former judge of the court of appeal and a former senior police officer who were all blatantly biased during their professional lives. Sri Lanka’s Human Rights Commission has in recent years been downgraded for its lack of independence and transparency by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, which is the international body that regulates national human rights institutions.

These are reflective of the progressive decline in the independence and effectiveness of most of its democratic institutions including the independent commissions. These include the police, the public service, the Parliamentary Oversight Committees, the Attorney General’s Department, the judiciary, the Public Service Commission, the Human Rights Commission, the Police Commission, and the Commission to Investigate All Forms of Bribery or Corruption. At the moment there is no national institution, including the courts, that commands the credibility and respect of all sections of Sri Lankan society and of all its communities.

The past two decades of constitution making proves the desire of society for independent institutions to minimise politicisation, corruption and abuse of power. The independent commissions and the constitutional council that appoints individuals to these institutions are vital for the survival of democracy in this country. The appointment of individuals to these institutions cannot be taken lightly and as recent examples have demonstrated the damage that can be done by having the wrong individuals in these institutions can be devastating. It is therefore imperative that the independent commissions and the constitutional council be filled with individuals with the highest levels of integrity if there is any hope of regaining their credibility.