President Sirisena is curtailing his own powers in an attempt to build strong institutions in the island nation
Sarwar Lateef | May 21, 2015
The approval by Sri Lanka’s parliament last month of the 19th constitutional amendment represents a historic landmark in that country’s governance. Its implications stretch well beyond Sri Lanka and deserve the attention of governance reformers in India and elsewhere. The amendment is part of a broad programme of reforms launched by president Maithrapala Sirisena, who was a surprise winner in Sri Lanka’s presidential elections this January.
The principal thrust of these reforms is to restore a parliamentary system of government and to abandon the Second Republic’s Gaullist-style presidency introduced by president Jayawardena in 1978. Disenchantment with a strong presidency set in principally during the regime of president Rajapakse, elected in 2005 on a platform to defeat the Tamil insurgency. The 26-year-old insurgency was brought to an end in May 2009, and Rajapakse won a landslide victory in the 2010 presidential elections.
Rajapakse’s term in office saw a sharp deterioration in Sri Lanka’s relatively strong democratic institutions and good governance. The Rajapakse brothers allegedly abused their wartime powers, and the country witnessed the erosion of civil rights and the rule of law, and saw a sharp rise in corruption. A once highly respected judiciary became compromised and earlier efforts to strengthen public institutions were reversed. The election commission was stripped of its powers, particularly relating to the use of official resources during elections by the incumbent president/government, and the powers of the national police commission (which included appointments and postings of all police officers with a view to protecting them from political interference) were delegated to the inspector general of police, while those of the public services commission to secretaries of ministries and heads of departments.
Rajapakse used his rubber stamp majority in parliament to allow himself the right to seek a third term in office. The 18th constitutional amendment, adopted in 2010, further increased the powers of the presidency and reversed an initial – and with the benefit of hindsight, somewhat half-hearted – attempt at reforms contained in the 17th amendment, by abolishing the constitutional council designed to protect Sri Lanka’s key constitutional bodies and commissions from political interference.
The original version of the 19th amendment, as tabled in parliament, was principally aimed at abolishing the executive presidency in favour of a parliamentary system of government. The supreme court ruled in mid-April that this required a national referendum, and could not be done merely through a constitutional amendment. But the court endorsed the rest of the amendment, which includes several steps to reduce presidential powers, restoring the two-term limit, preventing the president from dissolving parliament before it has completed at least four and a half years, and requiring him to consult with the prime minister on all ministerial appointments.
The biggest stimulus to governance reforms in the 19th amendment comes from the restoration of the constitutional council. Although the council lacks the stronger presence of civil society originally intended by its authors, much of the sloppy drafting that contributed to the earlier council’s premature demise has been avoided. The 10-member council comprises the speaker of parliament, the prime minister, the leader of the opposition, and four members of parliament, one each appointed by the president, the PM, the leader of the opposition and collectively by the smaller parties in parliament. In addition three outsiders, chosen for their eminence and integrity, and who have distinguished themselves in public life, will be selected, possibly through the high posts committee of parliament [which is charged with approving the selection of all senior government appointments such as secretaries to ministries, heads of missions and public sector undertakings.
The council is charged with recommending appointments to the judiciary, all constitutional posts, and chairmen of major commissions. In the case of chairmen of commissions, the president receives a list of three names and is given two weeks to respond to such recommendations. If he fails to do so, the appointments go into effect. Under the 19th amendment, the major constitutional posts and national commissions report only to parliament and no longer to the president, with two major exceptions, the judiciary and the election commission, which, as president Sirisena noted, do not report to anyone. The powers of the election commission and the police commission instituted in the 17th amendment have been restored. The operational costs of these bodies are a charge on the consolidated fund, and hence not subject to budgetary political pressures.
How India chooses its guardians of accountability
“There is a rapidly growing opinion in the country which holds that appointments to constitutional bodies such as the election commission should be done on a bipartisan basis in order to remove any impression of bias or lack of transparency and fairness. The people of India wish to see that only persons with competence, integrity and an impeccable record of service get appointed to these crucial bodies, whose functioning greatly determines the quality of governance. The present system whereby members to the election commission are appointed by the president, solely on the advice of the prime minister, does not evoke confidence among the people. Keeping these important decisions as the exclusive preserve of the ruling party renders the selection process vulnerable to manipulation and partisanship.”
– LK Advani, in a letter to prime minister Manmohan Singh, June 2012
How India chooses its guardians of accountability has been a subject of debate for some time. The major scandals that broke during the UPA’s term in office highlighted the importance of ensuring that persons of the highest competence and integrity fill these posts, as noted by Advani in his now famous letter to Manmohan Singh. The supreme court in 2011 even struck down a nominee for the central vigilance commission because of the failure of the high-powered committee to take into account pending charges against the nominee. While advocates of change, including Advani and Nripendra Misra (now principal secretary to the PM, in his previous capacity as director of the Public Interest Foundation), would be content with the leader of the opposition being included in the selection of key posts, India has begun to experiment with more complex selection processes as the table below shows.
Appointments to selected constitutional posts and heads of commissions in India
Chief justices of the supreme court and high courts and supreme court and high court justices Subject to an ongoing review by the supreme court, a National Judicial Appointments Committee is to be set up comprising the chief justice of India (chairperson); two senior judges of the supreme court next to the chief justice of India, the union minister of law and justice; two eminent persons (to be nominated by a committee consisting of the chief justice, prime minister and leader of the opposition or the leader of single largest opposition party in the Lok Sabha). National Human Rights Commission The chairperson and members of the NHRC are appointed by the president of India, on the recommendation of a committee consisting of the prime minister (chairperson), the home minister; the leader of the opposition in the Lok Sabha; the leader of the opposition in the Rajya Sabha; the speaker of the Lok Sabha, the deputy chairman of the Rajya Sabha. Central Vigilance Commission Appointed by the president on the advice of a committee comprising the prime minister (chairperson), a cabinet minister appointed by the prime minister, and the leader of the opposition in the Lok Sabha, or of the second largest party in parliament. Lokpal Under the Lokpal and Lokayuktas Act, 2013, still to be implemented, the Lokpal is selected by a committee comprising the prime minister, the speaker of the Lok Sabha, the leader of opposition in the Lok Sabha, the chief justice of India or a judge of the supreme court nominated by him, and one eminent jurist, as recommended by the chairperson and members of this committee. A search committee appointed by the selection committee comprising eminent persons with relevant experience can assist this selection committee.
However, the government still unilaterally decides appointments to the vast majority of positions, including such key bodies as the election commission and the office of the comptroller and auditor general. Nothwithstanding Advani’s views, the 2014 BJP manifesto was silent on this issue and there is little evidence of any commitment by the NDA government to reform the selection process. It is surely time to ensure that all major constitutional posts and those for national commissions are filled in an objective and transparent manner that also allows civil society a voice in the process and lays the foundation for strong and independent public institutions that protect the public interest.
From a governance perspective, the council promises three potential gains. First, appointments to these key bodies will not be politicised. The president or PM will not be able to grant posts to those to whom they owe favours or to those they choose because they will do their bidding. All positions will be subject to an objective review, and a simple majority in the council will select the chosen candidates, even if the PM or the president’s nominee opposes their selection. The speaker who will chair the council will not have a vote except to settle a tie.
A second major gain will be that the process of selecting men and women to hold key constitutional posts and heads of major commissions will be subject to transparency. Even though parliamentarians will have a majority vote in the council, the presence of independent outsiders on the council, albeit only three, imposes a degree of transparency on the process that would hopefully prevent collusion between political parties to ensure selection of officials who will not create problems for the political class. The initial version of the 19th amendment, in fact, gave these outsiders a majority on the council, but members of parliament in the debate on the amendment questioned, perhaps rightly, the appropriateness of unelected persons dominating such a key process of governance.
Third, because key commissions will be directly accountable to parliament (with the exceptions noted above) and their expenses will be a direct charge on the consolidated funds, they will enjoy a considerable degree of autonomy and independence from political interference. The Sri Lankan list of commissions is a broad one, and includes the university grants commission, and the national procurement commission. Thus the reach of the constitutional council will be fairly wide.
This is a model that may be well worth replicating in India (see box). The reforms in Sri Lanka came about because of strong pressure from civil society and the media, a well informed and vigilant electorate, and an enlightened set of political leaders that wished to prevent future presidents from taking the country in an authoritarian direction. How well these reforms work will depend on the integrity and foresight of those who are being entrusted with the tools to improve governance and how well they discharge their responsibilities.
Good governance is not just about effective management and decision-making. It is principally about building strong institutions that will serve the interests and welfare of future generations. Sri Lanka is attempting just this, perhaps a little naively, given its past track record. But it deserves credit for trying.
(The article appears in the May 16-31, 2015 issue)
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