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.
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 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.”
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.
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. 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. 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.
 19th Amendment to the Constitution, 41B
 19th Amendment to the Constitution, 41B (6)
 19th Amendment to the Constitution, 41B
 See Section 158A