• Accountability is crucial to meaningful development
• The abolition of the Audit Service Commission could render theNational Audit Act obsolete
• The 20th A removes the power of the Elections Commission to issue guidelines on “any matter related to the public service”
• At present there is no clear legal impediment to the discharge of the President’s duties

S.C. Asoka Obeyesekere, Executive Director at Transparency International Sri Lanka, airs out his views on the 20th Amendment in an email interview with Daily Mirror.

Excerpts:

QWhat is your general view on the draft 20th Amendment to the Constitution?

Whilst there are many observations that can be made on the 20th Amendment, there are four key accountability gaps. These relate to: 1) Right to Information (RTI), 2) Investigations into corruption, 3) Oversight of public finance and 4) Conduct of free and fair elections. 

Right to Information

Whilst the Government has decided to retain a citizen’s fundamental right to information (RTI), brought by the 19th Amendment, the operationalization of the RTI Commission could be impacted by the repeal of the constitutional council. Any challenge to the implementation of RTI is problematic given the numerous ways in which citizens have used RTI ranging from matters on school admission to accessing land title documentation. 

Investigations into Corruption

The repeal of the constitutional recognition of the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) along with the removal of the proactive power of CIABOC to initiate investigations of their own accord is problematic. The unwillingness of law enforcement to take action is a longstanding public grievance – removing the power of the Bribery Commission to proactively act can setback the fight against corruption. 

Oversight of Public Finance

The abolition of the Audit Service Commission could render the National Audit Act obsolete. Through the National Audit Act, the Commission was empowered to impose surcharges on public officials who cause a loss to the state as a means of recovering those losses. This mechanism for surcharging would be lost. Additionally, the restrictions placed on the breadth of entities audited by the Auditor General would also limit the crucial financial oversight role of Parliament. 

Whilst the operationalization of the National Procurement Commission mandate has faced challenges, public procurement is a high-risk area for corruption which the President has promised to address in his manifesto. We call on the Government to recognise the importance of an independent procurement commission to coordinate and increase transparency in public procurement. 

Free and Fair Elections

The 20th Amendment removes the power of the Elections Commission to issue guidelines on “any matter related to the public service”. This fundamentally impacts the ability of the Elections Commission to prevent and address the misuse of public property during elections. This impacts areas such as providing jobs and transfers during election time. This could have far reaching consequences on the ability of the Elections Commission to conduct free and fair elections. 

Q The 20th Amendment seeks to roll back the 19th Amendment which comprises some grey areas. Don’t you see the need to rectify them?

Any grey areas should be identified, publicly discussed and the proposed amendments brought forward following such open discussion – as would be considered normal in a vibrant democracy. Presently there is opacity to the constitutional reform process, with limited public discussion in support of the amendments despite the fundamental norms of separation of powers being undermined. There are also areas within the 20th Amendment, such as the powers of the Elections Commission, which no one publicly acknowledges as problematic – yet the powers are to be significantly curtailed. 

Similarly, we can all agree on the transformational impact that the RTI has had on many people’s lives and this has been recognised by the Government too. It would be unfortunate if the 20th Amendment, even if inadvertently, curtails this right. This highlights the fact that in the process of attempting to rectify perceived grey areas, the Government should be cautious not to create new ones.

QSome people say it is dangerous to concentrate too much power in the hands of the president as a single individual. How do you see it?

It is essential that we view the concentration of power in the Presidency separate to the characteristics of any individual holding office, as these powers have longstanding consequences beyond the term of any individual. We have to also acknowledge that such concentration of power in the office of the President is at the expense of the other two pillars of democracy, namely Parliament and the Judiciary, which is an unwise constitutional arrangement – which could be ripe for the abuse of power and a breakdown in the rule of law. 

QHowever, the President is elected by people after every five years. He is the choice of the people. Then, doesn’t he have the authority to discharge his duties without any legal impediment?

The President has a clear mandate from the people, however like every citizen, whether elected representatives or not, the president must abide by the laws of the country. As things presently stand there is no clear legal impediment to the discharge of the President’s duties. 

QThe desired objectives of the 19th Amendment could not be achieved on the ground. The Independent Commissions did not prove to be independent since some members openly took partisan stands. This is the argument put out by the Government. What is your view on it?

The delivery of bona fide independence is one which is not turned on and off like a light switch. It comes from the evolution of institutions, which develop a culture of independence from the friction caused by holding the powerful 
to account. 

In the same manner in which we are challenged to find appropriate politicians that reflect a vision for the next generation of our country, we could also fail in not finding the correct individuals to take on the roles of championing the very independence of “independent commissions”. This is sometimes because those entrusted with such authority lack the zeal to drive true accountability. This is the case for some and not all. That however does not mean that the solution comes from discarding some commissions and placing the authority for the remaining appointments in the hands of an individual. That approach to governance is tantamount to throwing the baby out with the bathwater. Independent Commissions which have failed to take root over a short period of time must be nurtured, not dismembered. 

QIs a powerful executive presidential system needed for the country to speed up development?

Accountability is crucial to meaningful development; in fact one of the biggest obstacles that prevent citizens from reaping the benefits of development is corruption. Corruption in its simplest definition is the abuse of entrusted power for private gain. The argument that less accountability and fewer checks and balances allows for greater development for the public good is therefore problematic. Additionally, attracting investment in a global marketplace is anchored on a stable investment environment with accountability guaranteed by the rule of law. This could in the long run be undermined by a concentration of powers in the office of the Executive President at the expense of Parliament and the Judiciary.  

Q What will your organisation do to thwart the enactment of the 20th Amendment?

As I mentioned before, the public have given the President and the Government a mandate for constitutional reform at successive elections, but this mandate is for a Constitution that is accountable to the people as stated in the President’s manifesto. Our position is that in its current form, the 20th Amendment does not deliver on this promise. It is important that on some of the key red flag areas, as highlighted earlier, government considers further refinements to safeguard against fundamental accountability gaps emerging. 

QThe Government has the ability anyway to muster a two- thirds majority. In that sense, will your efforts yield?

It is the responsibility of our elected public representatives to be accountable to, and work in the best interests of, the public. Given this responsibility we urge Members of Parliament to not overlook the accountability gaps that have been highlighted in the proposed 20th Amendment. 

QThe Government justifies its move saying that it has a mandate to change the 19th Amendment. What are your views?

As mentioned before, this mandate is for a “constitution that is accountable to the people”, as stated in the President’s manifesto. Our view is that in its current form, the 20th Amendment does not deliver on this promise.