Former presidents of Sri Lanka, JR Jayawardene, R Premadasa and C Kumaratunga are well known for their authoritarian operation of the executive presidency, therein crippling the countrys most vital public authorities. Jayawardene and Premadasa aimed for direct control over all public authorities. Kumaratunga, who came to power with promises of change, continued this tradition even after the enactment of the 17th Amendment to the Constitution, which was a deliberate attempt to obstruct executive interference into the functioning of public institutions. The Asian Human Rights Commission (AHRC) now questions the path President Rajapakse will take: will he continue the tradition of authoritarian control, or will he enable the effective functioning of vital public institutions?
The 17th Amendment, in 2001, gave powers of appointment, transfer, dismissal and disciplinary control of public authorities to independent commissions, whose members were to be appointed by the Constitutional Council. Several of these commissions however, were never appointed, such as the Election Commission. Two that were appointed, are no longer functioning as the term of office of the commissioners has expired–on November 24, 2005 for the National Police Commission and December 1, 2005 for the Public Service Commission–and new commissioners cannot be appointed as the term of the former members of the Constitutional Council expired in March 2005.
The delay in appointing the Constitutional Council as well as comments made by government spokespersons have resulted in suspicions regarding the government’s commitment to protecting public interest. The question being asked is whether political control will be enhanced and the authenticity of the commissions diminished, or whether the commissions will be able to perform their independent role as envisaged in the 17th Amendment. The spokespersons have mentioned the need for constitutional reform, in particular regarding the 17th Amendment, but there have been no clarifications regarding the nature of this reform. The general feeling among the people is that the proposed amendments would curtail the independence of the commissions and bring them under political control.
The pretext for such reform is that provisions to remove commissioners do not exist, even though such provisions are available with regard to Supreme Court judges. This argument has little credence however, given that the term of office of a commissioner is only three years. No legal procedure removing any person from office–including a Supreme Court judge–can be concluded in Sri Lanka within a period of three years or less. Two impeachment motions against the present Chief Justice have been pending for several years in fact, without any result. Therefore, it must be concluded that the aim of reform is the easy dismissal of those commissioners who cannot be brought under political control.
Until an amendment is passed in parliament, the Sri Lankan president or any other authority is not empowered to suspend any parts of the constitution. It is therefore the duty of the president and the government to ensure the implementation of the constitution as it exists. Any failure to do so will not only bring the relevant public institutions to a halt, but also set in motion many dangerous trends regarding public order and security. Everyone will watch what the new president will do on this matter; his path will be made clear by whether the Constitutional Council members are promptly appointed or not.
