By Jehan Perera –
Among the systems of good governance put into place after the watershed elections of January 2015, the 19th Amendment to the constitution takes pride of place. Over the past one and a half years there have been other path breaking legal enactments also, such as the Office of Missing Persons Act (OMP) and the Right to Information Act (RTI) which have the potential to transform the way governance takes place in the country. If implemented in a positive spirit, the OMP can bring closure to the grief of families of the disappeared and serve as a deterrent to future resorts to enforced disappearances. The RTI can pave the way for more transparent governance so that what the government says and does is not out of sync. However, these are still in the future, as they need to be implemented.
At the present time it is the 19th Amendment that has set the tone, spirit and created the enabling environment for the present period. It brings into focus the two key principles of limits to power (through the reduction of presidential power) and checks and balances (through independent commissions). The independent commissions established under the 19th Amendment are the Commission to Investigate Allegations of Bribery and Corruption, the Public Service Commission, the Human Rights Commission, the National Police Commission, the Election Commission, the Delimitation Commission, the Finance Commission and the Public Service Commission. Some of these commissions are better known to the general public than others.
The Elections Commission, Bribery and Corruption Commission and Human Rights Commission engage in matters that have political relevance and are controversial. Therefore they receive more public attention than the other commissions. The Election Commission has come in for brickbats recently due to the continuous postponement of local government elections. The Election Commissioner, Mahinda Deshapriya, earned high praise for his conduct of the last presidential and general elections with much less independence than afforded under the present legislation. The Election Commissioner has pointed out that he can hold elections if the government provides him with the electorates and number of seats. The government has so far failed to provide these prerequisites with regard to local government elections on the grounds that the proper delimitation of electorates has yet to be completed. Each of the independent commissions can only work successfully if the rest of the government system cooperates with them.
On the other hand, the Bribery and Corruption Commission and the Human Rights Commission have been acting with independence on their own steam with regard to tasks entrusted to them. The former has commenced taking action against leading members of the former government, even those once thought to be untouchable, and is now proceeding to take action against those from the former government who are in the present government. The latter has on occasion, and as needed, been forthright in providing major critiques of government actions, the most recent being the proposed amendment to the criminal procedure code, where it was intended that suspects should be denied access to a lawyer until they make their first statement (confession) to the police.
Even the best laws and mechanisms can be undermined by the appointment of those unsuited to head them. It is to the credit of the government and to the Constitutional Council which is vested with the powers of selecting appropriate persons that the appointments to the independent commissions have been of a high caliber. Those appointed are in general of a liberal and universalist disposition in relation to governance issues. In particular the appointment of Dr Deepika Udagama to head the Human Rights Commission and Prof Siri Hettige to head the National Police Commission are especially noteworthy as both of them have shown long years of commitment to liberal and universal values and been associated with civil society while also being eminent teachers at the national universities. What is promising is the willingness on the part of the independent commissions to work with the resources available in civil society to promote the good governance mandate of the government. The government does not view civil society as an enemy to be opposed and defeated as did its predecessor. This enables those institutions, and the sectors served by them, to benefit from the latest advances in technology, thinking and mechanisms to serve the Sri Lankan people better.
A recent example would be the international conference on “Future Policing for South Asia” which was held in Colombo last week and organized jointly by the National Police Commission, the Police Department, the Regional Centre for Strategic Studies, the Asia Foundation and the UN system in Sri Lanka. This conference brought in fresh thinking into issues of policing, both in the South Asian region and Sri Lanka in particular. It was attended by the heads of police from several Asian countries, as well as international scholars and experts in the field. The final day saw a discussion take place between the police and experts on issues of governance, democracy and accountability, community policing, new technology and environmental policing. The discussion on governance, democracy and accountability in particular showed the willingness of the police to be self critical and open minded in seeking the best solutions to enable them to better serve the people.
Prof. Hettige as chairman of the National Police Commission explained how it had embarked on policy formulation and programme development in collaboration with other state, civil society and international organizations to facilitate the process of transition. Taking steps to ensure better ethnic balance in the police and to rectify the present imbalances, keeping in mind that the three decade long war was caused by ethnic grievances which were increased during the years of war, has to be an important part of this transition. There is a need for a shift in mindset in the entire society away from a militarized approach to security to a civilian approach. The importance of the police in securing law and order needs to obtain greater priority and accordingly a larger quantum of resources commensurate to its importance.
There was a discussion on the issues of democratization of police. The first is accountability to the democratically elected government and its decisionmakers which is upward accountability. Second is accountability to the community. This is part of the police ethos of being a police service rather than a police force. As accountability requires a system of checks and balances, the need to strengthen investigative function of National Police Commission was proposed as well as to strengthen the Special Investigation Unit (SIU) of the police. In addition, it was proposed to improve the performance appraisal system and make it more transparent and systematic at the station, district and provincial levels. Having a system of social audit of police stations at the community level to make the police personnel more accountable to the community was another of the innovations proposed.
There is an untapped reservoir of liberalism within Sri Lankan society especially at its higher levels, which includes the public service. It must be remembered that the public service voted for a change at the last elections, as the postal votes of public servants indicated. At higher levels of society, the educational opportunities are greater and so are the possibilities for mixing with those of other backgrounds. After the bitter experience of three decades of conflict there is little or no resistance to the need for greater ethnic inclusivity in state institutions or in the decision making bodies. There is a willingness to practice pluralism as opposed to remain separate. But targets need to be set and checks lists of what needs to be done have to be formulated. Or else inertia will dictate that the practices of the past continue. There continues to remain a need for more Tamil speaking police personnel in those parts of the country where Tamil speaking people live in significant numbers, especially the North, East, central hills and Colombo. The 19th Amendment provides the enabling environment for this type of positive change to take place through the policy directions of the independent commissions.