Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong
Under the Gaullist Constitution one of the major responsibilities of the French president is that he or she shall ensure, by his or her arbitration, the proper functioning of the public authorities (article 5). However, within the last few decades Sri Lanka has witnessed a situation where not only have executive presidents failed to ensure the proper functioning of public authorities, but have in fact become the enemies of public authorities.
This is the situation that gave rise to the 17th Amendment to the Constitution. At the time, it was thought that the development of strict constitutional provisions were essential in order to place obstacles in the path of those-including the executive president-who attempted to interfere politically with the appointments, promotions, transfers and other matters relating to officers of public authorities that are considered vital in the country. The authorities recognised in the 17th Amendment are the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigate Bribery or Corruption, the Finance Commission and the Delimitation Commission. According to article 41(b)(1) of the 17th Amendment, no persons shall be appointed by the president as the chairman or member of any commission specified in the schedule to the article, except on a recommendation of the Constitutional Council. Also, all important appointments of persons within the departments controlled by these commissions-except those specified in the 17th Amendment-cannot be made without the recommendation of the said commissions.
This restriction placed on the president and others regarding the appointment of persons to some of the most vital public authorities, has a history. That is, since the promulgation of the 1978 Constitution, recruitment and control of important officers working in the various public authorities were arbitrarily carried out often according to the dictates of politicians or on political consideration. This had reached such calamitous levels that a specific amendment to the constitution itself was needed to put an end to the practice. Accordingly, the amendment was certified on 3 October 2001 and the common term used to describe the evil that the 17th Amendment was supposed to cure was ‘politicisation’. In the unanimous passing of the 17th Amendment, there was common consensus among all the political parties that appointments to positions in public authorities should be based on objective criteria and merit, rather than on other considerations.
Under the 1978 Constitution, there had developed a practice where the executive president was directly involved in doing away with merit-based and objective criteria for appointments to public authorities. Once this happened, there existed little possibility for these public authorities to function and perform in the manner expected from such authorities. Hence, public authorities had become dysfunctional due to undue interference by the executive president and those acting on his behalf. The 17th Amendment was proposed as a check against the president acting in such a manner.
While a constitutional safeguard had been created against the arbitrary intervention of the executive president in the running of public authorities, on a practical level, the executive president was still in a position to prevent the operation of this safeguard. Three methods could be used. First, the president could make the Constitutional Council-which is the effective body in the structure proposed by the 17th Amendment-dysfunctional. This could be done by delaying or obstructing the appointments of council members. The second method would be to delay or obstruct the appointments to the various commissions, i.e. by not submitting the nominations of proposed candidates for such positions whose merit the Constitutional Council is to consider. The third method, and the most resorted to, would be to fail to provide the funding and other resources essential for the functioning of the commissions. By this method it would also be possible to prevent a commission from doing what it is supposed to do, due to lack of competent personnel, equipment or other financial resources.
So, while the 17th Amendment proposed some serious measures to control the president from behaving in the arbitrary manner that the 1978 Constitution made possible, nonetheless, the tussle between these institutions and incumbent presidents goes on. And sadly, the balance is still in favour of the president. The president can still prevent these public authorities from benefiting from the measures proposed by the 17th Amendment. This malady has currently affected many of the public authorities in Sri Lanka.
The 17th Amendment was one of the most significant measures adopted by the parliament of Sri Lanka to check the powers of the executive president. So there is also a tussle between the parliament and the executive president over the functioning of the public authorities. However, it must be noted that while parliament proposed a constitutional framework for the control of the public authorities, and thus the powers of the president, it has not followed up with any practical measures to ensure the proper implementation of the law it created. It seems that the parties that collaborated to bring about the 17th Amendment have not committed themselves to it in any decisive or consistent manner. Thus, the tension between the executive president and parliament is yet to be resolved.
Today the Sri Lankan public is faced with a grave crisis, as these public authorities are proving incapable of providing the services and facilities they were expected to provide. The 1978 Constitution still overpowers them in favour of the executive president’s capacity to act arbitrarily. Much of the ideological crisis and the resultant loss of hope prevalent in the country currently also centres on the frustrations felt by the citizenry due to their inability to get vital public authorities in the country to function adequately.
The distribution of power between the centre and public authorities
The three diagrams below describe the use of power in three different systems.
The First Diagram gives ‘centralised power’ where the central government has greater control of public authorities. However, the public authorities also have a certain degree of independence and allowance for the use of discretion. The limits of power of the authorities are defined and therefore a public authority can safely work within the boundary of power without feeling in any way that they will be in conflict with the central authority. The difference between this and the second model (below) lies with the extent of power that has been allowed to the public authorities. When compared to the second model, here it is much more limited. The model of power distribution between the central government and public authorities under both the Soulbury Constitution (1948) and the autochthonous 1972 Constitution was based on this first model.
The Second Diagram gives a situation where power is decentralised. Here, definite powers are assigned to public authorities by way of law and recognised practices. Some powers are kept at the centre. The relationship between the centre and the public authorities is defined by very clear legal demarcations. The public authorities can feel safe in making decisions and in using initiative in the areas over which they are mandated. This is the model usually followed in developed democracies. But, none of the Sri Lankan constitutions developed their constitutional ideas on the basis of this model. Perhaps what the 17th Amendment was attempting to do was to introduce this idea of more independent public authorities. However, it is difficult for that type of distribution of power to coexist with the type of absolute power vested in the centre as in the third model (below). As a result, the central authority functioning under the 1978 Constitution has obstructed the development of the public authorities that were proposed under the 17th Amendment of the Constitution.
The Third Diagram shows where central authority more or less completely controls power. In this model public authorities do not have any decision-making powers or avenues to use their discretion in order to achieve the objectives for which the particular public authority is created. In almost any matter, the public authorities await orders from above. If orders from above have not arrived, the holders of authority in the public institutions do not feel confident to act. They would always feel unsafe that what they do may be found fault with by the central authority. Thus, the public authorities develop a sense of dependence on the central authority to take decisions even on day-to-day routine issues, which they are supposed to do. The consequence of this on the public authorities is that they begin to avoid all responsibilities for which they were established.
In the first two diagrams we have used the term ‘Central Government’. In the third diagram we have used the term ‘Central Authority’. This is because in Models One and Two, a government as an executive means a system through which an executive operates. For example, in a government headed by a prime minister, the government will be the cabinet of ministers and the system through which they operate. There can also be a government within a presidential system where the president also acts through parameters laid down by law and works together with other agencies that are considered part of the government. Nonetheless, be it the prime ministerial system or the presidential system, the functions of the government is controlled by an intricate web of checks and balances, not by a single individual. Here, the system processes all actions. However, in the power model shown in Diagram Three, the centre can in fact be just one person. This one person can decided on policy as well as ensure that his will is carried out. Hence, here it is not the government that rules, but a single individual acting as the authority. This is the model on which the 1978 Constitution of Sri Lanka was based.
Within this model every aspect of rational government will be killed by the one authority at the helm that controls all real power. In the absence of adequate checks and balances, this authority usually tends to act irrationally. The reasonable framework that is needed to maintain relationships within the system and to act and interact through a wide web of power distribution-in a limited manner as demonstrated under Model One, or a much wider distribution of power as per Model Two, cannot exist under the application of power within the framework described in Model Three.
The direct consequence of the use of power under Model Three is the creation of anarchy. This is the reason Dr Colin R de Silva described the 1978 Constitution as being modelled after the constitution of Jean-Bedel Bokassa, the leader of the Central African Republic who declared himself emperor. The implication is that to get back to any rational form of government, the 1978 Constitution should be abandoned: the power model depicted in Diagram 3 should be eliminated.
Can the 1978 Constitution be abandoned via proper implementation of the 17th Amendment? Perhaps it can pave the way for the restoring or creating of a new relationship between the public authorities and the centre. This of course requires that the centre be genuinely willing to part with the absolute power given to it under the 1978 Constitution and allow the authorities created under the 17th Amendment to act in an independent and authoritative manner.
The collapse of the policing institution in Sri Lanka is not merely due to the defects of the policing system itself. Its defects are the direct consequence of the prevailing model of power in the country through and for which it is compelled to operate. Whatever defects existed in the pre-1978 policing system, they could have been corrected by various measures adopted within the system itself, with support from the government. However, the problems that now exist cannot be addressed without a change in the constitutional set-up.
The attempts so far to depoliticise the system and create a rational system of policing by introducing an independent National Police Commission have not produced the expected results. The main reason for this failure is that the centre (the executive president) has sabotaged the proper implementation of the 17th Amendment by, among other things, depriving it of adequate resources for its operation. Within the policing system itself, there has been a serious attempt to sabotage the commission. This is to be expected, as with any institution that is undergoing serious challenge. However, the lack of opportunity for the commission to exercise its authority due to the lack of the requisite resources has created many tensions. The result is that the fundamental problems of the policing system in Sri Lanka have not yet been addressed.
This article consists of the edited text of chapter 10 in a new book released by the Asian Human Rights Commission, An x-ray of the Sri Lankan policing system & torture of the poor, edited by Basil Fernando & Shyamali Puvimanasinghe (September 2005).