Independent Commissions have been long sought by the public. Their rationale is that certain decisions ought to be made independently of political considerations and therefore are best done by those not beholden to their political masters. Rulers have favored centralization while advocates for democracy preferred decentralization.
The Seventeenth Amendment of 3 Oct. 2001 provided for a Constitutional Council (CC), which would recommend people for independent commissions running the public service and the police, besides other commissions. The amendment turned out to be toothless, a damp squid, when the President failed to appoint the CC. Instead, like a slap on our face, we had the Eighteenth Amendment removing term limits for the president.
The Nineteenth Amendment
The Nineteenth Amendment was a progressive step pushed by civil society after the 2015 elections. We have something positive in the CC. The presidential term limit was restored. Nine commissions were created.
After appointing the nine Commissions, the government claimed credit for democratizing Sri Lanka and got much mileage in international circles.
However, the trends towards centralization and aggrandizement of power continue just like before. A key Commission under the Nineteenth Amendment that we were promised, the University Grants Commission, was not listed among the new independent commissions, seemingly deliberately to exercise political control of our universities.
Aggrandizement and Usurpation of Powers
I was appointed to the Election Commission by the President on 13 Nov. 2015. The letter of appointment mentioned no salary or terms except the 5-year period. I suppose it was assumed that we would be so flattered that we would not ask about money!
We were summoned for a 19 Nov. meeting with the CC. The CC Chairman, the Speaker, congratulated us that ours is the most important of the nine Commissions. The intent, we were told, was that where things had been done by one person, the Commissioner of Elections, decisions would now be taken by three independent persons. After further pleasantries, we were told that our Chairman would get Rs. 150,000 a month and we members Rs. 100,000. In addition, the Chairman would get a car but not us members. We would get Rs. 25,000 and Rs. 5,000 a month for transport and communications.
I suppose we were so happy that we did not stop to ask if the CC had any authority to promise us that. Under §41B.3 of the Constitution, the CC has only the power to recommend names for members of the Commissions and three names for each post of Chairman from which the President decides whom to appoint, all the while reflecting the “pluralistic character of Sri Lanka, including gender.” Like the many mistakes in the short Nineteenth Amendment, these three names for Chairman is contradicted by §103.1 which lets the President appoint as Chairman one of the three recommended by the CC for the Election Commission. I wonder how many mistakes there will be as we rewrite the whole constitution!
The CC failed to do its job to reflect pluralism. There are hardly any women on the Commissions and none on the Election Commission. Yet it was poking its nose into what is not its business. That authority to set our salaries is explicitly given to Parliament in §103.8 of the Constitution which says “A member of the Commission shall be paid such emoluments as may be determined by Parliament.” Note that Parliament means the Cabinet, not the CC, has to initiate it. Further, Emoluments means salary, not our travel and communications. The CC has few duties after recommending names and yet they have to meet at least twice a month Hence this meddlesomeness.
The money promised by the CC never came.
A Pattern Violating the Law
I have pointed out elsewhere the numerous errors in the Nineteenth Amendment. The Prime Minister has not cared to correct the laws since we pointed out the flaws last November. We then get used to saying the law must be violated as a practical necessity or we cannot function. The CC, most of them big lawyers, even President’s Counsel, agreed to this and other violations!
Soon no one will care for the law. Is that what the government wants? What will happen when the new Constitution comes? Could we assume mistakes when we think a clause wrong and violate it? What the PM expects of our new constiution is seen in his contracting the Financial City laws to Britain’s Baker&McKenzie for $2.3 mn.
After several months without any pay, our Chairman, Mahinda Deshapriya, was able to negotiate permission with his SLAS colleagues to pay us Rs. 25,000 a month as an advance. This was felt to be the minimum that Parliament would approve so that accountants could sign off on the payments.
I understand that the Delimitation Commission was meeting in the home of a member with her making tea and serving lunch because there was no budget. Perhaps it is the CC’s way of dignifying women to reflect our “pluralistic character”! Recently the Delimitation Commissioners were begun payments because the Constitution did not require Parliament to set their salaries. Some Commissions have not even met.
However, the government has got credit from the International Community for the Commissions in Geneva. The US is praising the government without quite realizing that promises are kept only in form.
Undermining Parliament: Reversion to a One-man Commission
Someone must have realized that the CC’s promise was meaningless even though the PM, Speaker, and Leader of the Opposition are CC members. A Cabinet Paper subsequently set our salaries at Rs. 100,000 and Rs. 75,000 a month for the Chairman and Members, and Rs. 25,000 and Rs. 5,000 as travel allowance and telephone allowance respectively. There is no warrant for the Cabinet to set our travel allowance. Only salary (emoluments) is to be set by Parliament. The Commission must have the freedom to set off genuine expenses incurred as a part of work. After all, §104B.1 of the Constitution, gives the Commission the right to “exercise, perform and discharge all such powers duties and functions” relating to elections, and under §104B.1 the Commission is “responsible and answerable” only to Parliament, which has set for itself in enacting the Nineteenth Amendment the power to set emoluments, not our travel expenses.
Rather astoundingly, the Cabinet Paper claimed to make the Chairman full time and the two members part time. The Chairman automatically becomes Executive Chairman. There is no warrant for any of this in the Constitution, which simply speaks of a Chairman and two members. Nor do our Letters of Appointment mention part-time. When the intention is to have an Executive Chairman, usually the legislation says so – e.g., the Universities Act, §7.1, about the UGC Chairman. Our quorum of three with three members also implies Parliament’s intention to have all three present for decisions, although this is taken with some justification as a practical absurdity and violated with CC-permission.
The Salaries Commission also I understand slashed our salaries further and there has been yet another cabinet paper on our salaries which I am not privy to, but still no salary or even intimation of what it will be.
Without adequate travel expenses and the two members in part-time capacity, the Commission reverts to a one-man commission against all the intentions of Parliament. Part-time implies that the two members are out of important Commission meetings. Lack of adequate travel facilities means absenting oneself when, say, the PM, President or the Joint Opposition suddenly ask for a meeting with the Commission.
The Delimitation Committee says their report will be ready by 31 Aug. We have said we can hold elections 90 days thereafter. The relevant Minister and President say elections will be next year. It is easier for the government to prevent the Commission from holding elections when only one person is present at meetings.
Although the Chairman of the Commission tries his level best to include the other two members, there are limits with these restrictions. To be frank, I do not know much of what is going on at the Commission despite the Chairman providing translations of many documents. The boast of 3-person decision-making is merely a dream with these restrictions.
Permission for Leave
The latest inroad into the powers of the Commission concerns leave. §103.5 allows a member of the Commission to absent himself from two meetings with the permission of the Commission. §103.7 permits the President to grant a member leave from discharging his duties for up to two months. Now suddenly the CC wants us to apply to it for leave as if they, and we, have nothing better to do.
We have now been working for almost ten months without a salary as if we are part-time. For we have nothing to say whether we are full-time or part-time. Today I am wondering how to go to Colombo on a Rs. 25,000 a month advance on a salary that may never be approved by Parliament. I need to free-load with relations for the night to save money. And it is indeed too much of a strain on them when I stay with them because I have weekly meetings, sometimes for two or three days at a time. Or I wonder whether to take a night bus and return by the next night’s bus, sitting half asleep through the meeting in between to spare my relations. I cannot afford a hotel, nor can I stay in a cheap dingy room. And all that for an underpaid, undefined job?
The government’s promises inherent to the Nineteenth Amendment are yet to be reality. The President’s promise of a “Red Carpet Welcome” to returning expatriates made in a special speech in parliament has also turned out to seem a promise made without sincerity. Few believe any more in any of the umpteen boasts by the government. They are just hype.
Many Sri Lankans rooted for this government and were very happy when it was elected. The ship of state must correct course before it is too late, and the people sour of this government too. Once cynicism sets in, democracy will suffer irreparably.
*S. Ratnajeevan H. Hoole is a member of the Election Commission