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No nominal Independent commissions

27 Oct 2022

Upon enactment of the 22nd Amendment to the Constitution Bill is enacted as the 21st Amendment to the Constitution, the Parliamentary Council (PC) is to be reconstituted as the Constitutional Council (CC). Following this, the relevant decisions will be taken with regard to reconstituting independent commissions.  The fact that these steps are to be taken in accordance with the amended Constitution is a good move, especially given the fact that the PC, as the CC’s replacement, and its role in appointing members to independent commissions, attracted controversy following the 20th Amendment to the Constitution. However, in a context where independent commissions in Sri Lanka have a somewhat tarnished reputation in the eyes of the public, the changes that these commissions require are much broader and more complex.  Independent commissions are, obviously, expected to act in an independent manner. However, there is a widespread notion in society that the majority of independent commissions are not truly independent. The public do not trust the appointment process of members to and the operations of many independent commissions, mainly due to the belief that these commissions are politically biased, incompetent, or have been weakened.  The public’s sentiments are based on the conduct of independent commissions. For example, the public remains extremely sceptical about the independence and competence of the Commission to Investigate into Allegations of Bribery or Corruption (CIABOC), which is a direct result of how the CIABOC has (mis)handled various bribery and corruption cases, especially high-profile ones. Similarly, the Election Commission is on the verge of losing the public’s trust, because the public does not find its performance satisfactory.  However, institutions such as the Human Rights Commission of Sri Lanka (HRCSL) have been able to maintain public trust to a significant extent, and the HRCSL is seen by many as a satisfactorily independent institution. This was demonstrated during the peak of the “aragalaya”, when the HRCSL took a straightforward stance on the rights of the citizens to engage in peaceful protests and took prompt action to inquire into the grievances of activists. Thus, merely categorising commissions as “independent” does not make them independent. Their actions speak volumes in this regard, and should be politically unbiased, reliable, and people-centric, while conveying a positive message about their independence to the public that maintains them. When the public is not convinced that these commissions are truly independent, it defeats the very purpose of their existence.  However, that is not to say that the independent commissions’ sole objective is to satisfy the majority of the public while disregarding the laws, policies, and practices in place. Above all, what is required is that these commissions operate transparently, with the public allowed to question and discuss their operations, and demand changes to these commissions based on valid reasons through a systematic and legally acceptable process. This will ensure the public has the opportunity to engage in a constructive but critical dialogue about these commissions, and demand the necessary changes. In maintaining such transparency, independent commissions should also disclose to the public the limitations and the practical challenges that they face. Such reforms should be a part of the efforts towards improving independent commissions.  At the end of the day, the public should have the right to question how “independent” these commissions are, because these commissions are maintained by the public, for the public.  


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