23 May, 2019

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Has President Sirisena Caused A Constitutional Crisis?

By Niranjan Rambukwella

The Director-General of the Bribery Commission, Dilrukshi Dias Wickramasinghe, resigned yesterday. Her resignation was a response to President Sirisena’s comments accusing the Commission of politically motivated investigations.

In a system where the diverse branches of the political system check and balance each other, it is within the President’s rights to use his bully pulpit to criticize the functioning of independent commissions. However, his failure to offer evidence for his allegations, combined with his failure to trigger formal accountability mechanisms – such as a Parliamentary Select Committee or a Commission of Inquiry – makes his accusations appear more political than principled. At this nascent stage in our constitutional history, the President’s alacrity to find fault is troubling. As the new constitution is still teething, the independence of the new commissions is still fragile. This means that Mr. Sirisena’s criticism could have the chilling effect of a veiled threat.

Dilrukshi Dias Wickramasinghe

Dilrukshi Dias Wickramasinghe

However, Mrs. Dias Wickramasinghe’s resignation may also precipitate a constitutional crisis. If the Bribery Commission is truly independent as those of us who voted for Good Governance and by extension the 19th Amendment envisioned, then there appears to be no constitutional requirement or convention for Mrs. Dias Wickramasinghe to resign. I would argue that eliciting the executive’s ire, in the form of the President’s comments, is a sign that an independent commission is performing its constitutional function of holding the executive to account. In fact, provoking the executive’s wrath is the inevitable corollary of a well functioning independent commission’s task.

This is why the independent commissions are effectively appointed by by the Constitutional Council[1] and ultimately answerable to the legislature, i.e. parliament, and not the executive. The 19th Amendment clearly states that:

“All the Commissions referred to in the Schedule to this Article, other than the Election Commission, shall be responsible and answerable to Parliament.”[2]

The President’s formal appointment is precisely that, a formality, they do not report to him nor can he sack them. They are responsible and accountable to the Republic through Parliament, the Constitutional Council.[3]

In the case of Mrs. Dias Wickramasinghe, matters are a little murkier. According to the statute governing the Bribery Commission, the Director-General is appointed by the President in consultation with the members of the Bribery Commission.[4] However, note that the same section empowers the Commission to:

“delegate to the Director-General or any other officer appointed to assist the Commission any of its powers (other than the powers, referred to in paragraphs (i), (j), (k) and (l) of subsection (1) of section 5, section 11 and this section) and the person to whom such powers are delegated may exercise those powers subject to the direction of the Commission.”

It is clear that Parliament’s intent was that the Director-General would be answerable, above all, to the Commission. Therefore, it appears that convention, in light of this section, dictates that the Director-General should resign only when she or he loses the confidence of the Bribery Commissioners. Maintaining the President’s confidence is secondary at best, tangential at worst.

This interpretation is made all the stronger by virtue of the 19th Amendment. The act creating the Bribery Commission was promulgated in 1994. However, one of the main intentions of the 19th Amendment was to strengthen the independence of independent commissions. This is why the 19th Amendment envisions a new, more independent, legal framework for the Bribery Commission that places.[5] Therefore, we must now interpret existing provisions in light of the new constitutional regime which would strengthen the argument that the Director-General serves at the Commission’s pleasure rather than the President’s.

This makes sense. After all why should the Bribery Commission require the President or the executive’s confidence. The Commission could well be investigating members of the President’s family, his political associates or friends, creating clear conflicts of interest. It is proper and fitting that they are answerable to the Constitutional Council and Parliament.

Therefore, Mrs. Dias Wickramasinghe’s resignation means that either she admits to acting in a politically motivated manner and should be investigated, or the executive’s action, in this case Mr. Sirisena’s comments, have been so grave as to prevent the Bribery Commission from fulfilling its constitutional obligations. In resigning Mrs. Wickramasinghe is levelling a very serious charge. If it is true that the President’s comments prevent the Commission from fulfilling its duties, then the President is acting in violation of the constitution.

Members of the Commission must now either bring disciplinary action against Wickramasinghe or assert their independence vis-a-vis the executive. They should only consider resignation if they feel that we have reached a constitutional crisis – a point when they feel they have done the utmost but that in the end they cannot fulfill their constitutional duties.

While such pronouncements made by the President are immune from suit, other branches of the polity – the legislature, media, attorney-general, civil society – must respond to this crisis and figure out whether the Bribery Commission is acting politically or the President is interfering in the operations of the Independent Commissions. January 8th was the day to rally around an individual, Mr. Sirisena; today is the time to rally around institutions, in this case the Bribery Commission.

After all this is the first serious test of our independent commissions and our constitution. Can they hold at least one section of the executive – the Presidency – to account when they are obstructed in the performance of their duties? Can they fight the executive and win? If ever they can, it is now under a coalition government where the executive is somewhat divided. If not, dusk begins.


[1] 19th Amendment to the Constitution, 41B

[2] 19th Amendment to the Constitution, 41B (6)

[3] 19th Amendment to the Constitution, 41B

[4] http://www.commonlii.org/lk/legis/num_act/ctiaoboca19o1994704/s16.html

[5] See Section 158A

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Latest comments

  • 17
    7

    It is the Prez who politicized the the direction of Bribery Commission by uttering political statements in public without prior consultation with the Commission or the Minister in Charge. DG should have also first talked to her employer so that the Minister could respond to Prez’ public complaint, before hastily giving a knee jerk reaction. Now the whole thing is in a mess with both the senior people out of the country. The public expected equality in treating suspects, and taking direct legal action against culprits. Now the Prez has come and pronounced that he wants a several tier legal system for different groups of erring citizens: monks, his son, Rajapakshas, all their minions, crooked businessmen, alleged war heroes of unknown character,party supporters. All these people will have a cushioned law, whereas the average citizens will have the full force of the law.

    • 8
      0

      Yes, Thrisu, even if we the ones being out of the island may have felt, that the chnage on the 8th Jan 2015, I dont think that will work so long people s attitude would not change.
      How can we keep hopes just because the govt changed but not even basic structures were changed in the adminsitration areas of any POWERful ministries. Consensula politics can only be applicable for a world where the civilized are the majority. Not even a tiny portion of lankens in general belong to the civilized. SO how can we expect tangible changes?

      Now with much to be revealed in terms of late suicide of Kegalle s former retired army officer – that should be a number 1 act being planned by Gotabaya to escape Lasanthas murder. It is reported the hand writing of the letter left by the dead person contained total irregularities proving someone else should have completed it. This is indeed an another cover up effort of the criminals.

      • 9
        1

        Niranjan, both propositions are true:

        The Commissioner General, Dilrukshi Wickramasinghe was acting in a political manner and following the instructions of Ranil Wickramasinghe, hence the snail’s pace and lack of any real action on big ticket corruption, AND Sira who is also corrupt was worried about his corrupt crony buddies of the SLFP being caught.

        In short, Ranil and Sira mostly collaborate in corruption, and promote a political culture of corruption, but at the same time they sometimes squabble over who to net!

        The fact of the matter is that the CORRUPT POLITICAL CULTURE of rent seeking has not changed but is getting worse under the Ranil-Sira Jarapalanaya racket, while the King of Jarapalanaya, Mahinda Jarapassa and his families and cronies are glob trotting as are Sir, Ranil and their massive cabinet of corrupt clowns while piling on the national debt and VAT onto poor people.
        Long live miracle of Modayas.

  • 9
    3

    Some one said, she resigned in order to scuttle any more investigations on the Central Bank Scandle.

    Which govt did similar things ?

    They don’t investigate Conflict of interests and accompanied frauds in that scandle. Instead they say, the dealer is smart.

    • 2
      0

      It seems the drama is over, there will be no prosecution for any crimes committed.

      My3 was elected to prosecute criminals and money launderers, now he is doing the opposite, made those involved in the investigation to resign..

      So what this yaha ha ha palanaya all about?

      • 0
        1

        Mrs. Dilrukshi Wickramasinghe was only playing a drama, nobody was Prosecuted because Ranil was playing a game. Now that she is gone, the President can appoint a right person. Mrs. Anoma Fonseka is the best person for this post. As the wife a former Army chief, she will do a very good job in prosecuting the criminals.

      • 0
        0

        Do you really think this country can clean its corrupt system just by going after MR cronies – corruption and bribery is an accepted norm in our public/ political sector – only the scale is different at different levels – and it is being used widely as a manipulative tool in politics – MR did it earlier and now RW continuing – same will continue with the next Gov. change – no politicians in this country are genuine and none of them have real desire to run a clean Gov. – may be it is time to have a Thailand revolution here which might clean up the system and get rid of all political rouges out of the system or we must find somebody like Philippines Pres. Durete

  • 6
    0

    What an enlightening analysis with an apt conclusion.
    As a real patriot you have triumphed all the pseudo patriots & the smart patriots.

    Watch out for DJ’s poisoned dagger.

  • 8
    0

    Thanks Niranjan Rambukwella, for enlightening us about where we stand with regard to the 19th amendment to the Constitution.

    The questions you ask are also apt. Was Dilrukshi Wickramasinghe guilty of playing politics with her powers or was her job made untenable by the threats posed by the President. Supposing the former is true, Dilrukshi has done the right thing and resigned. Punishment enough. But if the latter is true what now? Who will come forward to impeach My3. Does the law allow such action? The JO will not come forward to impeach My3 because My3 was only doing a favour to powerful figures within the JO with his hysterical outburst against CIABOC.

    Dark clouds are gathering over the President.

  • 7
    1

    The ex DG should never have resigned.

    Wonder whether she was getting closer to the President himself, who until very recently was a man of the Former Regime.

  • 6
    6

    I still want to know WHY she resigned.

    • 2
      1

      GOOD QUESTION.

      Just because the President makes a noise that does not mean that she should just give up. Clearly the President cannot sack her. Then the only possibility is that the President has something to hold against her and she knows that it can be used against her. In some other web sites it was reported (how right they are is anybody’s guess) that her financial management of the Commission was not to the expected levels.

      Moreover, the position of DG bribery is not in her main career path. She could be denied the appointment of say the position of Solicitior General or Attorney General by the Prez.

      The real answer can only be given by HER EMINENCE.

  • 10
    6

    President Sirisena should apologize to Dilrukshi and ask her to come back to the same position. President has violated the constitution. If the President himself violates the constitution whom can we depend on to protect the constitution?

  • 6
    6

    Niranjan Rambukwella

    “At this nascent stage in our constitutional history, the President’s alacrity to find fault is troubling. As the new constitution is still teething, the independence of the new commissions is still fragile. This means that Mr. Sirisena’s criticism could have the chilling effect of a veiled threat.”

    Power Corrupts. The Rajapaksas are bribing Sirisena aka Gon Gamarala, with the stolen billions from the people.

    What action can be taken constitutionally to impeach Gon Gamarala? The simpleton has to go.

  • 9
    5

    President Sirisena has abandoned any semblance of Presidential behaviour. His track record is developing nicely into one of knee-jerk incontinence. From maduwalige-for-bra-throwers to banging Bribery commissioners, our Prez wades in shooting from the hip. All we can do, as we watch open mouthed, is asked “what comes next?”

  • 9
    1

    What constitutional crisis? Has the constitution ever been upheld meticulously?

    Constitution is not worth the paper it is written on, with opportunist politicians we have in Sri Lanka.

    • 0
      0

      Yeha, President Srisena took oath under old constitution, The 18th Amendment intact, not with that 19th Amendment, – thus this gutless disgraceful president found a cover to continue his predecessor’s path of gutty lambasted!

  • 6
    10

    President Sirisena who is noted for his mild manners lost his cool when he lashed out against officials of the Bribery Commission department. His subsequent denial was seen as a damage control attempt and nothing more. Already President Sirisena’s commitment to yahapalanaya is under the cloud when he appointed his younger brother Kumarasinghe Sirisena as the Chairman of Telecom within a few days after he got elected as Presidnet. This smacked of favouritism and nepotism which were the norms during Mahinda Rajapaksa’s rule. Before his appointment as the Chairman of Telecom, he was the CEO of Timber corporation. He had no exposure to telecommunication. President Sirisena’s image has been further dented when he took his son Daham to UNO as a member of the official delegation. This is reminiscent of Mahinda Rajapaksa taking a jumbo delegation consisting of his relatives and friends when he went to the same UNO. Daham is fast becoming a play boy like Namal Rajapaksa spending time in night clubs with his friends. President Sirisena cannot eat the cake and keep the cake. He cannot preach about yahapalanaya and then act contrary to the principles of good governance.

  • 8
    8

    Siresena is too much of a dope to lead anyone

    • 7
      0

      dope ?

      you thought Presz is Mahinda Raja ?

      Mr Sirisena does not consume alcohol. like Beliattta rascals.

    • 2
      0

      Max Moron willnever get it.

      Why not try a therapy Max ? That can heal you and the folks you represent for sure. For me crystal clear that will turn you to a good man.

  • 3
    10

    I think this is a fall out from the night-club clash.

    The UNP perhaps excreted pressure on the Prez to do the right thing with his son. Although the Prez was not prepared to send his son to jail.

    The Prez then hit back pointing to alleged political interference at the Bribery Commission instigated by the UNP.

    The way the BC functions at times seems like a political witch hunt particularly when is concerns people like Gota who is widely considered not be corrupt.

    The Prez would have also wondered how the Central Bank Gov was not pursued with a similar vigor.

    So its all possibly a misunderstanding that should be corrected. I think Dilrushi Fernando was an excellent commissioner. She did not get somethings right – but on the whole is a good fit for what the position demands.

  • 6
    6

    I am no lawyer but I fully endorse the views of the writer. Further how can investigating in to the former comanders, who are not involved in politics be construed as political. Also he says he does not give telephone call to officials implying that he does not interfere. What does he call this?
    He did not sound like a man who wants to retire after one term. One thing for sure, his actions will ruin the stability of the country but he will never win another election, not even Polonnaruwa, because his short sightd actions have strengthened the hand of MR and his cronies.

  • 4
    6

    Hat off to Mr. Rambukwella for his fine analysis. If I remember correct, the President said that at least his appointees to the law enforcement bodies he referred to, had a duty to keep him posted on legal steps being taken in respect of ‘high profile’ individuals or something to that effect.I think it is not incumbent on an official to play informant to the President just because he/she happens to be the latter’s appointee. In the case of CIABOC DG, she is- her resignation is to be accepted – an employee of the CIABOC and is accountable only to it for all her actions. Therefore, I think there should clear-cut Constitutional provisions to make the CIABOC DG and holders of such high office immune from the interference by the executive.

  • 4
    4

    Failure by the three commissioners to re assert the Independence of the Commission subsequent to MS utterances would have resulted in the DG to resign. They should have come out a left a simple statement the very next day.

  • 4
    5

    U TURN BY YAHAPALANAYA………..AIYO PAW FOR THE 6 MIL VOTERS.

  • 7
    5

    One of the stupidest/idiotic statement MY3 has made recently fulled a political/constitutional crisis bringing down the government machinery to near halt. Previously he urged all public officials to carry out their jobs without fear and fairness. However, this statement pulls strings backward in the forward march to yahapalanaya (a negative feedback loop).

    From MY3s side he has grave concerns over the daylight financial robbery carried out by CB (CB governor and PM) and is not taken and given priority over other less important cases and put to back-burner. Is PM protecting Mahendran?

    Both PM and President have to drop their political agendas and work together to Yahapalanaya as pledged by both of them in their swearing in ceremonies.

  • 4
    6

    The timing for the word “Aiyo” is impeccable.

    AIYO SIRISENA

    • 1
      1

      “AIYO SIRISENA”

      AIYO Gon Gamarala SIRISENA!

  • 1
    0

    Investigate weather she purposely delayed the investigations or not,if on whom orders. .even the president should not allowed to interfere in the investigation. ..

  • 1
    0

    i would like to ask the author of this article whether the president caused a constitutional crisis when he gave a letter to the Cheap Justice sacking him.

    president sirisena has done a good thing in the following

    1.Cheap Justice

    2.arjuna mahendran

    3.first cousin of ranil wickremesinghe.

    when people voted for him as president it was because he will be a check and balance for ranil and ranil as usual can’t do what he wants because they don’t trust him..so president sirisena is fulfilling that role and the people were right not to trust ranil solely to govern this country with his royal college and colombo 7 cronies.

  • 4
    1

    Just to divert the bad news about the hooligan son dum-boy’s night club thuggery.

    LIKE FATHER LIKE SON

  • 1
    1

    As usual, all of the actors in this play seem to have got their wires crossed !!:
    > The Prez seems to have exceeded his authority by making these comments and he simply cannot take ” stern action” ( of an unspecified nature) simply because he appointed the Members of the Commission and its DG. After all this is supposed to be an Independent Commission?.

    > Why did the DG get so agitated in no time, without perhaps consulting the Commissioners to whom she is answerable (and perhaps wait for her buddy to return to the Island and seek his advice) and tendered her resignation?. What is she trying to prove? and to whom?

    > Who will answer the burning question why practically nothing is being done by any of these Independent Commissions about the Central Bank saga?. Under whose ‘ sarong/satakaya’ is Mahendran hiding ? Simply, waiting for the COPE Report is not the answer.

    We need some clear cut answers.

  • 1
    0

    Another example of the fox guarding the hen-house. When oh when will our citizens ever learn the true meaning of democracy?

    • 1
      1

      sinhalese buddhist

      “When oh when will our citizens ever learn the true meaning of democracy?”

      Can you deliver a sermon on democracy?

      We want to learn.

  • 0
    0

    The actions speak for itself. Dil must be feeling guilty. Prez must be feeling offended. Powers are not in the correct places. Obviously actions and reactions.

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