An Axe On Democracy
By Raisa Wickrematunge
The UN Advisory Panel report has certainly caused its share of buzz. While opining that there could be some meat to the war crimes allegations, the report also claimed there was a lack of “comprehensive accountability.”
In particular, the UN pointed at the Human Rights Commission which it said, “could also potentially contribute to advancing certain aspects of accountability, but the Panel has serious reservations.” It added that the Commission would need both political will and resourcefulness in following up on cases of missing or detained people.
Apart from that, the UN painted a less than rosy picture of institutions dealing with accountability in general. Though they would do in-depth fact finding, they claimed that many did not issue public reports, and recommendations made by the Commissions were rarely implemented.
The HRC’s Mandate
According to the Chairman, Human Rights Commission, Justice Priyantha Perera, the Commission arose out of an Act of Parliament: the Human Rights Commissions Act of 1996. “Any person who has had their human rights violated can make a complaint. The Commission will then hold an inquiry into the matter. If the complaint is established, the Commission will make a recommendation with regard to relief given,” Justice Perera said. In addition, provision is made for people to make a complaint for a violation of their fundamental rights under the Act. It is only the Supreme Court that is empowered to look into such complaints, Perera clarified. However the Commission would be able to make a recommendation in terms of action against the party about whom the allegation is made, if it was proved to be true.
In November 2006, lawyer Justice Ananda Coomaraswamy was appointed as head of the Commission. Though his tenure officially ended by end 2009, he served a few more months, Perera said. Then in February this year, the President introduced the 18th Amendment into legislation, Perera explained. In accordance with the new legislation, a new Committee was formed, with Parliamentary approval, and Perera was appointed as the new Chairman.
What is Justice Perera’s response to the comments made in the report? Perera said he had not read the report, as he was busy getting things in order within the Commission itself.
However, he said the comments that the UN made about the Commission were “presumptuous.”
“This Commission was just appointed in February. The UN panel is highly presumptuous in making these comments. We can’t solve all the problems that have existed for the past 30 years,” Justice Perera said.
He added that the Commission would do anything within the law to make sure justice was served with regard to missing and detained people. “We can’t be contravening the law, but this new Commission is committed to its work,” he said.
He added that the provisions in the Human Rights Commissions Act clearly established both the powers which could be exercised by the commission and the sanctions available. Despite this, he added that the Act “could be tightened further” to help those whose rights had been violated.
He also said that the Commission was still an impartial body. “I would not be involved in any institution where there was interference,” he said. He added that as he had experienced absolutely no interference of any kind during his tenure as Chairman, Public Services Commission, he presumed that this would continue in the Human Rights Commission as well. Justice Perera said that he believed the UN had indeed crossed the line, even though the current legislation set out in the Act could be improved upon.
Introducing The Bribery Commission
The Commission to Investigate Allegations of Bribery and Corruption was introduced in 1994. According to the Commission’s website, the Commission investigates, prosecutes and prevents incidents of bribery, corruption and the accumulation of wealth above a person’s position. The 1954 Bribery Act mostly limits cases of bribery to employees of the state, ministers and members of parliament, to name a few. The last Bribery Commission Chairman, Justice Ameer Ismail was appointed on March 25, 2005. His purview officially ended on March 28, 2010. Around this time (in February) the 18th Amendment was drafted into legislation.
The last raid according to the website occurred on March 3, 2010, when an interpreter in the Magistrates Court, Horana was arrested for demanding and accepting a bribe of Rs. 3000 in order to facilitate a brief on a closed case.
The Secretary of the Bribery Commission told The Sunday Leader that this Commission is not currently functioning, and directed us to the Director General, who was on holiday when The Sunday Leader called for further clarification.
The UN Panel And Lankan Democracy
By Maryam Azwer and Gazala Anver
Among the issues raised in the UN Panel report on alleged war crimes was that “…domestic institutions that could play a key role in achieving accountability also demonstrate serious weaknesses.”
Over the years, there have been many calls for the proper establishment of such domestic institutions as an independent Elections Commission (EC), and the re-establishment of an independent National Police Commission (NPC). Both commissions, it has been argued, are crucial for a functioning democracy.
Executive Director, Center for Policy Alternatives (CPA), Dr. Paikiasothy Saravanamuttu, said that the absence of these two commissions poses a threat because: “The executive (now) does whatever it wants.” For the democratic mechanism to fall into place, he pointed out, independent commissions are a must.
According to Dr. Saravanamuttu, the NPC which functioned until of late, did up to a certain point, help prevent human rights violations. However he also said that “it wasn’t entirely successful, considering that human rights violations continued to take place.”
As for the Elections Commission, which was never established despite provisions being made in the 17th Amendment to the Constitution, he said that the whole point of an Independent Elections Commission would be to provide independence from political interference, and prevent abuse of state resources.
Political analyst, Dr. Jayadeva Uyangoda, explains that “one of the democratic demands of this country has been de-politicisation of the public service, or to make certain public services independent of political control.”
Sri Lanka, he says, needs a new process of democratisation. “What we have is a parliamentary democracy. The problem is that democracy has not gone deep into institutional culture in Sri Lanka. Sri Lanka has a very weak liberal democracy. In that context, these commissions have become important.”
With the current system, he points out, there is a serious imbalance among the executive, legislature and judiciary. “We require a stronger balance between the three. One of the problems is that the executive emerges stronger than the legislature and judiciary.”
One of the main impediments to this balance could be that these commissions are not functional. The reestablishment of the NPC, and the establishment of the independent EC, are therefore arguably much needed for an active democracy.
The National Police Commission
The National Police Commission was established by the 17th Amendment to the Constitution, which aimed to depoliticise important national institutions, and was first appointed at the end of 2002.
As per its mandate, the National Police Commission had powers:
over the appointments, promotions, dismissals, disciplinary control and transfers of all police officers, except the Inspector General of Police.
to receive, investigate and redress public complaints against any police officer or the police service.
to formulate schemes of recruitment and training and codes of conduct and standards to be followed in making promotion and transfers.
The NPC ceased to function since its last term ended over a year ago. This came as a result of the Constitutional Council, which appoints members to the commissions, itself being nonfunctional.
The Elections Commission
Under the 17th Amendment to the Constitution, the Elections Commission was established to “conduct free and fair elections and referanda.” Although the commission was never appointed, as stated in the constitution, the powers of the commission were vested with the Elections Commissioner. Newly appointed Elections Commissioner, Mahinda Deshapriya, speaking to The Sunday Leader said that the EC was never established because: “members were never appointed to the EC.”
The functions of the EC, which the Elections Commissioner currently carries out include:
preparing the electoral register
conducting the presidential, parliamentary, provincial council and local authority and referendum elections
The body that currently performs the above mentioned functions as well as the administrative duties is the Elections Department.
Responding to allegations that political interference has in the past prevented the process of a free and fair election, he said that “there has so far been no problem carrying out functions.”
“The Elections Department has been functioning independently with no political influence,” he said. He also added that the only problem at present is working within the limits of the power given to the Elections Commissioner. “That is the difference between India and Sri Lanka,” he said.
“We are completely independent,” he said.