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TISL Executive Director Asoka Obeyesekere - Pic by Shehan Gunasekara
By Shailendree Wickrama Adittiya
Transparency International Sri Lanka (TISL) yesterday highlighted accountability lapses in the proposed 20th Amendment to the Constitution, focusing on key areas like public finance, free and fair elections, investigation of corruption, and Right to Information.
At a press briefing, TISL Executive Director Asoka Obeyesekere said there were four key areas TISL had identified as those they wanted to flag, explaining, “We are all conscious of the fact that there are wide-scale effects connected to the 20th Amendment.”
The first area is the Right to Information (RTI) and Obeyesekere said: “It is very encouraging that the fundamental right to information has been retained within our Constitution even after the passage of any prospective 20th Amendment.”
He went on to explain that the Right to Information had been transformational since February 2017 and had impacted citizens in different ways, spanning from school admissions to land rights.
“The Right to Information Commission is appointed by the Constitutional Council. The 20th Amendment replaces the Constitutional Council with a Parliamentary Council, which has a much more limited scope,” Obeyesekere said, explaining that in these circumstances, appointing an RTI Commission could put the operationality of the RTI at risk and at the very least impact and weaken the country’s system of the RTI.
Obeyesekere, in response to a question, explained why a Parliamentary Council was viewed as problematic, explaining the Council was mandated to give nonbinding observations.
“In a system of checks and balances, there is a concern that a Parliamentary Council, the way in which it provides observations, and the way in which others have to function based on those observations, is potentially disempowering to other individuals who would have been represented in the Constitutional Council, which provided alternative points of view,” he added.
According to TISL, it is about ensuring a good balance of power between different bodies and the provisions in the 20th Amendment to the Constitution appeared to put too great an emphasis on the role of one of the three pillars of government, which is the Executive.
However, Obeyesekere said they could not speculate on the Parliamentary Council, adding, “It is not to say that those who may come on to the Parliamentary Council will function without integrity.”
The second area TISL is focusing on is corruption investigation and the repealing of Article 156A, which looks at the establishment of a Commission to Investigate Allegations of Bribery or Corruption.
According to the Article, the law shall provide for “The powers of the Commission, including the power to direct the holding of a preliminary inquiry or the making of an investigation into an allegation of bribery or corruption, whether of its own motion or on a complaint made to it, and the power to institute prosecutions for offences under the law in force relating to bribery or corruption.”
Repealing this Article would have two effects, the TISL Executive Director said – the first is the removal of constitutional recognition awarded to the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) and the second is regarding the independent and proactive nature of the commission.
“Article 156A is the provision that allows CIABOC to act on its motion. If that is repealed, CIABOC can only act when there is a complaint made to it,” Obeyesekere said, adding that it was an established best practice globally that an anticorruption commission had the power to act on its own.
The third area of focus is the oversight of public finance and Obeyesekere said that as per the proposed 20th Amendment to the Constitution, the Audit Service Commission and the National Procurement Commission would be removed. The removal of the former will make the National Audit Act obsolete.
The Act allows for the surcharging of public officials who wilfully cause a loss to the State, Obeyesekere said, explaining that making the National Audit Act non-functional would impact a key accountability system in the country.
In terms of the National Procurement Commission, Obeyesekere said they were conscious of the fact that it was not fully operationalised, but that they were also aware that procurement was a high-risk area, making it essential to look at it independently.
“There is a manifesto commitment by the President to tackle corruption and improve efficiency within State operations and so it is important to recognise the need for an independent procurement commission as well,” he added.
The final key area that TISL is focusing on is free and fair elections and Obeyesekere explained: “TISL, from its inception, has worked on the protection of public resources during election time and one of the key areas in protecting public resources is the ability for the Election Commission to provide directives.”
The 20th Amendment, however, will place a limit on the directives the Election Commission can provide and specifically excludes directives on matters connected to the public service. This can directly compromise the integrity of elections, Obeyesekere said, adding that it included appointments, transfers, and other decisive elements during elections.
In response to a question, he explained that the Election Commission would continue to function under the 20th Amendment but that the area was being focused on as TISL wished to highlight that particular powers of the Election Commission were being curtailed.
This would not affect election monitoring activities carried out by TISL, which includes receiving, filing, and verifying complaints and engaging with the public. “We are just highlighting the fact that the Election Commission, when it comes to public resources, plays a very important role. Those powers are potentially being reduced and there are consequences to those reductions of power,” he went on to say.
Obeyesekere stated that if he were to flag a fifth area, it would be Emergency bills: “The necessity for Emergency bills is also an area that has question marks that require further public discussion to justify the reasons for why it will take place.”
During the press briefing, TISL explained that these key areas negated manifesto pledges by the President to tackle corruption as well as the mandate received by the Government for constitutional reform. A constitution that is accountable to the people should not be at the expense of Parliamentary oversight and the independence of the Judiciary, Obeyesekere added.
Having explained these key areas in which accountability was compromised in the proposed 20th Amendment to the Constitution, TISL stated that this was a starting point for public discourse on the subject and that the organisation was currently discussing steps they would take in discussing these views with the relevant parties.
