NOTES TO THE PEOPLE – Independent Commissions: Are They Really Independent?


Independent Commissions: Are They Really Independent?

sumanasiri liyanage

The idea of independent commissions was mooted in the early 2000 as a means of limiting the powers of the executive president. Thus the 17th Amendment was added to the Second Republic Constitution in 2001: and it proposes to set up two more independent commissions, the election commission and the national police commission the members of which are nominated by a new body called a constitutional council. The constitutional council was made inoperative as the president did not appoint his representative to the council. By 18th amendment, the constitutional council was replaced by a parliamentary council which was reduced to an advisory body. With the 19th Amendment the pendulum swung once again to reduce the executive powers of the president by giving more powers to the constitutional council and the prime minister. According to the amendment, three so-called civil society members were included in it. The number of independent commissions were increased to nine.

            The new book by Dhamma Disanayaka and Jagath Liyanaarchchi on the independent commissions will open up a new debate over independent commissions and with that I hope the constitutional discourse will go beyond the limits of liberal constitutionalism. The book refers only permanent commissions that were established by the constitution. Instead of trying to deal with the multiple aspects raised by political scientists, as a student of political economy, I will focus on three points notwithstanding the fact that those three points are not directly related to the main theme of the book.

Independence vs Elected Principle

Sometime ago there were two satirical teleplays in BBC called Yes Minister and Yes Prime Minister. Although it was not carved out by a written constitution, United Kingdom is known to have an independent public service. Ministers and Prime Minister are elected offices, but they were manipulated with due honor and respect to them by the senior public servants. All the decisions of primary importance were taken at the public service club and not in the Parliament. The two teleplays show how an elected principle was subsumed by an independent public commission. How is this justified? The theoretical logic behind this may be explained in the following manner. In democracies, citizens acting individually elect their representatives and those representatives representing the collective will of the people, at least in limited number of issues take decisions on many matters. The liberal idea seems to believe that ‘the collective will’ of the people may often times act against citizens who are a part of the collective. Hence, there should be constitutional provisions that inhibit collective to take decisions to harm citizen individuals. Carl Friedrich once remarked: “The core objective of constitutionalism is that of safeguarding each member of the political community as a political person possessing a sphere of genuine autonomy. The constitution is meant to protect the self in its dignity and worth. The prime function of a constitutional political order has been and is being accomplished by means of a system of regularized restraints imposed upon those who wield political power.” Independent commissions are one of the means of a system of regularized restraints. May be the most important one. The cabinet secretary in the BBC tele drama used skillfully the “rule book” conception of rule of law (the term used by Dwarkin) in order to keep the system intact. In other words, the protection of citizen rights is designed not to enhance and extend the elected principle, but to superimpose non-elected bodies. Hence, my argument is two-fold.

First these superimposed independent commissions are not neutral. This is the case mainly in developed liberal democracies. J A G Griffiths of the London School of Economics in a book, The Politics of Judiciary has shown that several recent decisions of the House of Lords were political decisions although it tried to establish that the decisions were taken on the basis of legal and technical grounds not on political grounds. Such decisions are oftentimes biased towards powerful and elitist elements of the society. Secondly, those independent commissions, whatever the rule book says are not allowed to act freely. As recent investigations on Easter Sunday attacks on three Christian churches have revealed, the members of independent commissions claimed that they were not allowed to act freely by the elected representatives. This is the case mainly in illiberal democracies. So, my conclusion is that the correction should not be imposed by limiting the elective principle but strengthening it. In other words, not making the system elitist but making it more and more subaltern.

Lessons from Paris Commune of 1871

We do not have many experience or theoretical arguments on how such a system be established? Nonetheless, I believe that the short-lived Paris Commune offered us valuable lessons to resolve this conundrum. Three elements may be specified. First, micro-level bodies should be given more power and should adopt as far as possible direct representative system. Second, the citizens should be given right to recall the delegates they had elected. They were not called representatives. Third, the salaries and perks of the elected representatives should not exceed that of a skilled worker. Marx once advised people to look at the Paris Commune of 1871 if anybody wants to know the modalities of the workers’ and peasants’ government.

Political Economy of Constitutional Change

As a student of political economy, I feel imperative to say at least a few words on the economic dimension of constitutional amendments. It has been argued by many commentators that the objective of the 19th amendment was to enhance and expand democracy. I have a different view. When Maithreepala Sirisena was made the president, it was natural and somewhat logical to think that he was not the best person to handle “necessary” neo-liberal reforms prescribed by the international financial organizations. In this backdrop, Ranil Wickramasinghe, a neo-liberal fundamentalist wanted more powers as the prime minister so that an implementation of neoliberal agenda in its most rigorous fashion could be done. Of course, there were many objectives in introducing the 19th amendment, but this economic need was, in my opinion, paramount. What has been done through the amendment was to make his idea of executive prime minister operative, de facto if not de jure. Now the new government wants to swing the pendulum once again towards the executive president.  

System Resilience

My third point is directed against our own weaknesses. We tend to think that system has been about collapse underestimating system’s resilience. So, we want to take urgent actions to demolish the system. It is true that the capitalist system is in the verge of collapse. Similarly, the governments that are in power tend to concentrate power to establish authoritarian regimes. This tendency towards the collapse of the capitalist system and end of democracy does not mean that the system would automatically leave from the platform of history. It will stay on the stage unless and until they were thrown out of the stage. Not only that the systems know how to adapt to the changing situation.      

This is the English Text of the talk given in Sinhala at the Book Launch, ශ්‍රීී ලංකාවේ ස්වාධීීන රාජ්‍ය කොමිශන් සභා by Dhamma Disanayaka and Jagath Liyanarachchi                               

The writer is a retired teacher of political economy at the University of Peradeniya.