Appointments to public positions

Good Governance (10)


By Prof. Rajiva Wijesinha

When we were discussing electoral reform at a meeting of all parties chaired by the President, I was astonished at the general incapacity or unwillingness to conceptualize. The principal exception to this was the JHU representative, Asoka Abeygunasekera, whose few interventions went straight to the core of the problem.

A week later, at the launch of his book on the last election, I was telling one of the diplomats present about his conceptual capacities when he got up to speak. His main point was the general lack of analysis in addressing problems. I suspect that, like me, he has been sadly disillusioned by the failure of this government to address scientifically the problems it identified during the election campaign, and work systematically to overcome them.

Unfortunately this government, like the last one, seems to avoid thinking and planning, but rather produces ad hoc solutions when problems crop up, with no assessment of long term goals. Its idea of consultation seems to be to leave particular matters to particular individuals, which is why perhaps there has been no progress at all on that most important of commitments, a Code of Conduct. Instead we have concentration by individuals of what they want, which reduces to how they can best enhance their own powers.

All this is accompanied by outbursts that do more damage than the good achieved by positive measures. Ranil Wickremesinghe threatening to shoot Indian fishermen or attacking the Australian government for not following the line of his preferred Westerners with regard to the last government, Mangala Samaraweera defending Kshenuka Seneviratne by accusing Tamara Kunanayagam of speaking in support of the Tigers, Ravi Karunanayake claiming that the business sector had supported the previous government, all show a penchant for scoring debating points without considering the long term interests of the country.

Nowhere is the absence of coherent thought more obvious than with regard to the commitment to depoliticize appointments to public positions. Discussion has centred on the 17th amendment, which was a hasty ad hoc measure, agreed to by a process of horse trading at the last minute. It was done without any analysis of the actual problem, and was caused largely by Chandrika’s appointment of Sarath Silva as Chief Justice. As far as I remember, there were no other complaints about those she had appointed to decision making positions.

However the principle, that such appointments should not be in the sole gift of a single individual, is unquestionably good. Ironically, except for the Liberal Party, in the person of Chanaka Amaratunga, whose grasp of political principles from a liberal as opposed to a statist perspective was unrivalled, no one had protested about the opposite having previously been the norm. And he had also drawn attention to an even worse provision, not introduced in the Jayewardene Presidential constitution, but rather brought in by the previous statist government, that Secretaries to Ministries be appointed by the Executive, not the Public Service Commission. In addition, all Secretaries lost their positions when a new government came into office, which virtually affirms that they are political appointees rather than public servants.

This latter provision is not changed in the current draft amendment. There is still no check on the President, except for the reintroduced provision that he should always act on the advice of the Prime Minister, which serves only to intensify the politicization of the process. It seems strange therefore that we have what seem elaborate mechanisms to ensure the independence of the Public Service Commission, only to keep them deprived of the power to appoint the most important figures in the Public Service.

Meanwhile the appointments to that Commission, and others, are in the gift of the Constitutional Council, an institution without parallel in any other country with structures based on clear political principles. That Council will be virtually a creation of the Prime Minister and the Leader of the Opposition, a situation that we realize, from the present mess in Parliament, can be very dangerous. And even if the present absence of proper checks and balances is not likely to be a common occurrence, there is a distinct danger of horse trading in establishing the Council.

What we should have done, on the contrary, is looked at practices elsewhere, and in particular the responsibilities given in other countries to Parliamentarians as legislators and monitors (as opposed to being just aspirants to, or mere voting fodder for, the Executive). Fortunately, after long neglect by the Prime Minister of the promise to amend Standing Orders, former Secretary General of Parliament, Priyani Wijeyesekera, who became a member of the UNP Working Committee to help save Ranil when he was under threat, has at last come up with a good draft to set up Sectoral Committees. I have urged that that be put before the Standing Order Committee, which has already finalized drafts to strengthen the financial oversight of Parliament, and to rationalize the impeachment process. If we can meet soon, we can easily finalize at least that pledge within just a little over 100 days. Unfortunately, as under the last government, I seem to be the only person anxious that that Committee meet and finalize its work.

If Sectoral Committees are set up, they would be the ideal arena in which appointments to decision making bodies are canvassed. Instead of such appointments being the prerogative of a closed shop of appointees of those with political power, the nominations could be by the executive, but ratification should be by the elected representatives of the people. As in the United States, there should be two layers, one a detailed examination by the Committee concerned with the subject, the other a review by Parliament as a whole. Such a process would also serve to strengthen the collegiality of Parliament, whereas now we work only through confrontation.

Such an approach would also get rid of the inconsistency with regard to such appointments. The present draft envisages that the head of the Executive nominates individuals to important positions, subject to ratification by the Constitutional Council, while the Constitutional Council nominates Commissions, to be appointed, in effect without question, by the head of the Executive. It would make more sense for all the choosing to be in the hands of the Executive, with stricter provisions about ratification if required for positions which are essential for safeguarding the rights of the people.

Finally, the best safeguard of its rights is the public. They should be permitted to make representations, so long as they are not anonymous, and the reports of Parliamentary Committees should be publicly available. In all cases, those who make or ratify decisions should be required to explain their rationale. If such transparency is mandatory, it will not be easy for appointing authorities to exercise their prerogatives on the basis of personal agendas.

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