By Tudor Munasinghe
With acknowledgement to the published articles
by Dr. B.S.Wijeweera

President’s Power of Appointment

In the 18th Amendment to the Constitution there are three categories of appointment listed in the Schedules: the seven Commissions (Category 1), members of the higher judiciary and the Judicial Service Commission (Category 2), and four scheduled offices consisting of the Attorney-General, Auditor-General, Ombudsman and the S-G of Parliament (Category 3). Earlier, under the 17th Amendment, the President was obliged to appoint on the nomination of the Constitutional Council (CC) in respect of Category 1 and with the approval of the CC in respect of the other two, before making such appointments. The IGP who was in Category 3 in the 17th Amendment has been dropped from the Schedule in the 18th Amendment and is now to be appointed by the Cabinet of Ministers like any other Head of Department.
Now, the Constitutional Council stands abolished. The President is free to make appointments to the Commissions (Election, PSC, Police, Human Rights, Bribery, Finance, Delimitation) and the offices listed above after a mandatory consultation process prescribed in the 18th Amendment. With the blanket repeal of Articles 41A to 41H the provision that the appointees shall be persons of eminence and integrity who have distinguished themselves in public life and are not members of a political party is no longer there. Thus there is the possibility of unsuitable appointees and politicisation of the Commissions as well.

The Consultation Process: Parliamentary Council

In making the above appointments, the President, after making due inquiries as he may deem fit, will propose persons and seek the observations of the Parliamentary Council. The Council comprises the PM, Speaker, Leader of the Opposition, a MP nominated by the PM, and a MP nominated by the Leader of the Opposition. In making the nominations to the last two slots it has to be ensured that such persons belong to communities other than those to which the three ex-officio persons belong. The two nominated MPs may be removed at the discretion of the President from the membership of the Council.
The Council acts as a collective body, which means decisions will be guided by the majority principle. And, the government will enjoy a majority in the Council. When the President seeks the observations of the Council in respect of appointments to the Scheduled Commissions, the Council is obliged to convey such observations through the Speaker within one week (why such a short consultation period?). In the event of  failure to so convey the observations, the President will be free to make the appointments as proposed by him. In any event, because of the in-built majority enjoyed by the government this consultation may become a mere token exercise. The President is not obliged to comply with the observations of the Parliamentary Council unlike in the 17th Amendment where the appointments had to be with the approval of the Constitutional Council.
In summary, the President identifies the persons to be appointed, sends their names for observations of the Council and having considered these observations finally decides on whom to appoint. He takes the initiative and has the final say. Under the 17th Amendment it was the CC that took the initiative to recommend persons for appointment to the Commissions.

Public Service Commission

The changes to the PSC brought about by the 18th Amendment are important. As before there are nine members who serve for three years, who are appointed by the President this time after consultation with the Council. As was the case under the 17th Amendment, the Cabinet determines all matters of policy relating to public officers. Also as before the Cabinet is vested with the power of appointment, transfer, disciplinary control of all heads of government department whereas all such powers in respect of all other public officers are vested in the PSC.
Three important changes are observed. Police officers who formed a special category under the 17th Amendment (i.e. neither armed forces nor public officers) have been brought within the definition of public officer. The second change is that earlier PSC members could not be removed by the President without the prior approval of the Constitutional Council. Now they serve at the pleasure of the President, unless Parliament by law provides for the manner in which they are to be removed, which is highly unlikely in the present Parliament. The third change is that the delegation of powers of the PSC to Committees and public officers will be determined by the Cabinet. For example, all powers of appointment and dismissal in respect of police officers may be delegated to the IGP at the discretion of the Cabinet. Earlier under the 17th Amendment the Police Commission decided on the nature and extent of such delegation, not the Cabinet.

Election Commission (EC)

Under the 18th Amendment the number of EC members has been reduced to three, whereas under the 17th Amendment it was five. The President appoints the EC after consultation with the Council. The members serve as before for five years. The security of tenure that was provided by the 17th Amendment has been preserved in that the procedure relating to the removal of members of the higher judiciary from office will apply to EC members too. This is an important safeguard.
The most important change is that at election time the Elections Commission will not be able to give blanket prohibitions on the transfer and appointment of public officers including police officers. This was an important safeguard to prevent politically motivated interference with the public service and police during an election.
On the issue of control of the media during election time, the distinction between state media and private media has been done away with, especially the references to SLBC and SLRC in the 17th Amendment. Any guidelines issued by the EC will apply to all media, both state and private. Perhaps, a welcome change is the provision for the President to appoint an Additional Commissioner or a Deputy Commissioner to the post of Commissioner of Elections pending the constitution of the EC, thus providing the much wanted relief to the incumbent Commissioner. The provision for the appointment of a Competent Authority to state media institutions in case of failure to adhere to the guidelines has been removed.

Police Commission (PC)

The PC which wielded considerable influence over the Police Service under the 17th Amendment has vastly reduced powers in the 18th Amendment. Its only functions are (a) to entertain and investigate complaints from the public against a police officer or the police force and (b) provide redress according to any law passed by Parliament. If Parliament is tardy in passing such a law the PC could become ineffective and lose faith in the eyes of the public.
Providing protection to the public from the excesses of police officers is one of the most daunting tasks of good government. The police service works as a unit; it has the power and the muscle to protect its own. It relaxes this rule only in rare instances such as the Angulana murder case. Even politicians are beholden to them despite the outward show of deference shown to politicians. In this context, how does a toothless Commission protect the citizen when it has no power to take disciplinary action against a police officer, or even transfer an officer under investigation? Even the PC formed under the 17th Amendment, with its extensive powers, found this task to be formidable. How can an emaciated new PC face up to this challenge?

Status of the IGP

In regard to the IGP and the Police Department the 18th Amendment sends conflicting signals. Under the 17th Amendment, IGP was a scheduled post along with the Attorney-General and Auditor-General. Now the IGP has been removed from the Schedule. His appointment by the Cabinet does not require prior consultation with the Council. Earlier, under the 17th Amendment, his tenure along with that of the Attorney-General was protected by the Removal of Officers Act, No 5 of 2002. He could not be summarily removed. Now he holds office at the pleasure of the Cabinet – not a desirable situation.
Assuming this gloomy prognosis the question that arises is whether it is prudent to confer such vast powers affecting society on an official whose tenure is not secure and whose position is vulnerable and who is beholden to the Executive for his appointment, extension of service and removal.
Transformation of the Police Department

Given this context the Police Department may undergo an ominous transformation. Up to now it has always been regarded as a civilian department. All personnel matters were handled under the direction of a civilian PSC or, later, the Police Commission under the 17th Amendment. Appointments and promotions to senior positions, other than the IGP, were the direct responsibility of these Commissions. The IGP played only an advisory role. In  future, the situation could change with the IGP controlling all appointments and promotions under the direction of the Executive President. Though nominally all police officers are deemed to be public officers, they will function under a military style command structure with the IGP at the apex. Appeals will lie to the PSC and Administrative Appeals Tribunal (AAT), but the feature of command control will be more pronounced.

The Judiciary

Under the 17th Amendment to the Constitution, the Chief Justice and Judges of the Supreme Court, Chairman and Judges of the Appeal Court and Members of the Judicial Service Commission other than the chairman were to be appointed by the President with the approval of the Constitutional Council. Under the 18th Amendment the appointments are made by the President after seeking the observations of the Parliamentary  Council, where the President’s Party has an in-built majority and whose observations in any case he is not obliged to accept. Thus the whole process is controlled by politicians and the President may appoint whom he wishes at the end of the day.

Conclusion

There are four features in the 18th Amendment  when taken together cause concern. The first is the natural desire of any politician to perpetuate his power (the present UNP leader is also a case in point). For this purpose the restriction on the number of terms any person can be president  is to be removed.
The second is the ability of the Elections Commission to conduct free and fair elections. This will depend on the integrity of the three commissioners. Very probably initially three good choices will be made in consultation with the Council. But the crunch time will be later down the line when the first set of commissioners will go out of office and the parliamentary and presidential elections will begin to show on the horizon. Who will be the commissioners at that stage? Will they be persons of integrity or malleable persons who could be influenced?
The third is the politicization of the Public Service and the Police. Under the 18th Amendment the IGP is nominally powerful but lacks security of tenure. And, we know from the experiences of the Referendum of 1982, and the Wayamba PC election that the fairness of an election process is very much dependent on the impartiality and integrity of the Police Service and the Public Service. The Public Service Commission under the 18th Amendment does not have the same independence that prevailed under the 17th Amendment. With the appointment, transfer and disciplinary control of heads of departments coming under the Cabinet of Ministers and ministry secretaries being appointed by the Executive President the eventual politicization of the Public Service is inevitable.
The fourth is the effect of this Amendment on the independence of the Judiciary. While under the 17th Amendment appointments to the higher judiciary were made by the President with the approval of the Constitutional Council, under the 18th Amendment appointments are made by the Executive President after obtaining the “observations” not “approval” of the Parliamentary Council which may not object to any unsuitable appointments because of its in-built majority in favour of the government.
Taking all these features together the unmistakable trend is that we are drifting towards unfettered Executive Power with total politicisation of the Public Service and Police. If an Executive Presidential System is to be retained this must be linked to a robust legislature with accountability and checks and balances. These checks and balances are not there in the 18th Amendment to the Constitution.
What would be the effect on much needed investment, particularly Foreign Direct Investment (FDI), for economic development of the country and employment generation? Whether investors would wish to invest in a country where the Public Service is politicized and where the Judiciary may not be independent is debatable. Our experience has been that political control of the Public Service leads to massive corruption. Public servants who are beholden to politicians for their appointment, promotions and career development will not be able to take independent decisions in procurement of projects, goods and services which perhaps is  what the politicians want.
One is reminded of the saying “Power Corrupts, Absolute Power Corrupts Absolutely”. This Constitutional Amendment confers absolute power on one individual, the Executive President. The argument advanced for such power is that it is needed for economic growth. The fallacy of this argument has been demonstrated by India which has achieved impressive economic  growth under democratic governance. So has many other countries in the region. While the present incumbent may exercise power with some responsibility the 18th Amendment has the potential to pave the way for a future Idi Amin, a Robert Mugabe, or a Ferdinand Marcos.
There should be a campaign at all levels of society — devoid of Party politics — to get this objectionable Constitutional Amendment repealed  and for the 17th Amendment to be brought back with necessary revisions as recommended by the Parliamentary Select Committee chaired by D.E.W.Gunasekera in the last Parliament.

Source: The Sunday Leader – 03.10.2010