Why do we need further constitutional reform? | Daily News

Why do we need further constitutional reform?

Part III

Separation of Powers – Judiciary not a check on power

Given the importance of laws in curbing power even two chambers is not a sufficient safeguard. Therefore citizens should have the right to challenge laws in the courts. The following must be dispensed with:

Article 80(3) prevents the people from challenging provisions in laws that have been enacted by the legislature.

Article 35(1) – (3) of the Constitution of Sri Lanka conferring immunity upon the President from civil or criminal proceedings.

Power of the president to pardon any offender (Article 34) undermining the judiciary. In effect, associates of the president able call on his/her goodwill may be above the law. Article 89 disqualifies criminals from standing for office but the President may overrule this under article 34.

Until the 19A all Supreme Court judges were appointed by the president, making the courts beholden to that office. The 19A restored this power to an independent commission. Steps to strengthen independent commissions are discussed in more detail below and the general remarks also apply to the judiciary.

Recommendations to strengthen the Judicial Services Commission

Clear criteria for selection of judges and a rigourous recruitment process based on competitive exams.

Standard criteria for promotion of judges based on merit and seniority.

Disciplinary procedures and standard criteria for removal of judges.

Initial and on-going training on new methods, laws, and related areas of knowledge including mandatory training in international human rights law.

Limiting coercion and delivering justice: controlling the police and attorney general

Rights are granted by laws but their enforcement depends on the system of justice. It must protect the rights of citizens against infringement by others, including the government and the powerful.

The police maintain the law, protecting people and their property, preventing crime. Courts provide redress for wrongs. The Attorney General prosecutes crime.

Sri Lanka system falls woefully short, according to the ICJ “efforts to seek justice are frustrated by investigative, prosecutorial and judicial lack of independence, impartiality and capacity, all of which continue to contribute to a pervasive culture of impunity within the system”.

Police

To provide security and maintain the rule of law the police are given special powers: to arrest and detain and the power to use force. This monopoly on the use of force place the police in a unique and sensitive position within the democratic State. Adequate control mechanisms are required to ensure that these powers are consistently used in the public interest. Risk of misuse include: police brutality, deaths in custody, torture and ill-treatment, extrajudicial killings, enforced disappearances and excessive use of force, including in cases of demonstrations.

Controls include:

Laws specifying functions and powers of the police (in line with international human rights laws).

Operational procedures/instructions that reflect the spirit and letter of the law.

Complaints mechanisms, both to police leadership and external bodies.

Procedures on dealing with misconduct, disciplinary and criminal, overseen by an independent body.

Proper training, basic and on-going.

For example, the UK police are subject to the Police and Criminal Evidence Act 1984, which set the powers of police on matters of stop and search; entry, search and seizure; arrest, detention and the questioning of suspects. Failure to follow these rules can result in failures to secure convictions because the courts render inadmissible any evidence which has not been fairly obtained. Codes of Practice created under the Act govern cautioning procedures, identification parades and a range of other responsibilities. Breach of the codes is admissible in evidence in criminal or civil proceedings against the police.

Separately the UK has a Human Rights Act, requiring all public bodies to respect human rights. They may be taken to court for failure.

Recommendations

Sri Lanka’s Police Ordnance of 1865 needs to be replaced by something on the UK lines along with standard codes of practice.

Sri Lanka needs proper legal protection for human rights. Currently human rights have weak protection under the (circumscribed) fundamental rights chapter, the ICCPR Act, No. 56 of 2007 and the Human Rights Commission.

Article 15 of the constitution restricts fundamental rights in for a variety of reasons including parliamentary privilege, Contempt of Court, defamation. Article 16 allows any pre-existing laws to prevail notwithstanding inconsistency with fundamental rights, effectively limiting its application.

The Sri Lankan ICCPR Act makes a mockery of the International Convention on Civil and Political Rights. It contains only four main substantive rights-conferring provisions (compared to the 20+ in the international act) and these too in abridged form.

“The Sri Lankan bill of rights is incomplete and structurally incoherent.” (Welikala and Edrisinha)

Therefore, repeal articles 15 and 16 of the constitution, amend the ICCPR act in line with international practice and consider a new human rights act.

Attorney General’s office (AGO)

The Attorney General’s Office’s (AGO’s) must be willing to pursue prosecutions independently, even against other state actors and courts must ensure fair and timely trial.

In Sri Lanka, the Attorney General is the Chief Legal Advisor to the Government and appears on behalf of the Government or its agents in any Court or Tribunal. It is also the chief prosecutor, which creates a conflict of interest where the state or its agents are involved. The ICJ notes “a lack of will to prosecute State actors in human rights cases, particularly those relating to the conflict”.

The practice of drawing judges from the AGO creates a further conflict: “the judiciary has an entrenched institutional loyalty in favour of the executive”.

Recommendations

Create an independent Director of Public Prosecution (DPP) to handle all prosecution. The police should no longer prosecute but confine themselves to investigation. The AGO should be limited to acting as advisor to the government.

The UK Royal Commission on Criminal Procedure, looking at the role of the police as prosecutors, the Commission found that a police officer who carries out an investigation, inevitably, and properly, forms a view as to the guilt of the suspect. They felt, however, that without any improper motive the officer may then be inclined to shut his mind to other evidence which undermines that view or overestimate the strength of the evidence gathered. In the absence of effective oversight, there was also greater opportunity for police corruption.

The DPP must be governed by a code of practice that sets out principles on which to prosecute. One of the most important tasks is to review the evidence in the file in order to decide whether it justifies the charge laid by the police, applying criteria set out in the Code of practice. They must determine if evidence is sufficient, reliable, credible and if prosecution is in the public interest.

The practice of drawing the judiciary from the ranks of the AGO or the DPP should cease.

Limiting coercion by the bureaucracy

The administrative machinery is, for many citizens, the only ‘face’ of the state that they experience. As it is responsible for the delivery of basic services it wields real power over the lives of ordinary people.

Lack of information - on regulations, compliance procedures; insistence on meaningless procedures, unjustified fines or burdensome inspections that violate an agency’s own protocols are examples of bureaucratic oppression-actions that impose unnecessary and harmful burdens on citizens. These stem from poor organisational practices and the attitudes of officials. Although all citizens suffer, minorities and the poor are more frequent victims.

More sinisterly, political opponents may be persecuted using particular provisions.

For example, the Inland Revenue Department is known to have ‘raided’ opposition politicians during the election in 2010. Instead of impartial tax administration, the powers of the department were being abused, turning it into a tool for harassment. Similarly, the immigration department has revoked visas of journalists and aid workers without warning.

The administrative machinery needs to be neutral, delivering services without discrimination. Politicians are inevitably subject to short term and selfish pressures so the administration must be insulated from political pressure. The careers of the staff should not be dependent on politicians but vested with independent commissions, which must control recruitment (on merit, based on competitive exams) promotions and transfers. Politicians should not be able to appoint cronies, punish or reward officials. Independent mechanisms should handle complaints.

The 1978 Constitution originally vested in the President the power of appointing several “independent” commissions including the Public Service Commission, the Judicial Service Commission, the Bribery Commission, the National Police Commission and the Human Rights Commission.

The 19A removed that executive power. The President still appoints people to these and other independent commissions but only those recommended by the Constitutional Council. In establishing the Constitutional Council, the President is entitled to appoint five members, but is required to accept the nominations of the Prime Minister and the Leader of the Opposition.

The problem is independence will not change the staff or practices of the bureaucracy overnight. Some staff will be political appointees only familiar with executing political directives and may continue to do so out of habit or loyalty. A set of general recommendations follow.

Recommendations (for all institutions)

Independent complaints mechanisms to check malpractice.

Develop Standard codes of practice and staff training to ensure work is carried out fairly and impartially.

Regular reviews of procedures, simplifying and standardising rules, increasing the use of electronic and web-based platforms.

An overarching civil service code which sets out the standards of behaviour expected of bureaucrats.

Parliamentary Ombudsmen tasked with ensuring that the administration acts impartially and respects citizens’ constitutional freedoms. Acts on the basis of complaints from the public on central government agencies, municipal agencies, and other public institutions.

The substance of democracy lies in systems of checks and balances; the division of power and processes to hold those in power accountable. Although not comprehensive, the foregoing highlights some serious shortcomings in Sri Lanka. Citizens should press political leaders to address these issues, the ongoing political crisis underlines urgency for further reform.

Concluded

 


 

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