We have now completed our discussion on the 5 main components found in art.

3 & 4 of the constitution, which are the

5 ways in which people exercise their sovereignty.

Powers of Government
1. Legislature
2. Executive
3. Judiciary
4. FR
5. Franchise

Now we are going through some of the things that have been introduced after the original formation of the 1978
constitution. Art. 3 & 4 have not been amended since the original constitution, but we’ve seen certain additions coming
into the constitution with the amendments. And here we will look at one such set of institutions which are called the
fourth branch institution aka in constitutional theory as guarantor institutions.

FOURTH BRANCH INSTITUTIONS

In the Sri Lankan constitution, we see this mechanism being introduced with the 17th amendment and they have seen
change in the 18th, 19th and 20th amendments. So we’ve been going back and forth in terms of the mechanism in terms
of these fourth branch institutions, so much so that if you look at Dinesha Samararathne’s writings on the 4th branch
institution in Sri Lanka, she would call it that, we are going through constitutional ping pong.

WHAT ARE GENERALLY REFERRED TO AS THE FOURTH BRANCH INSTITUTIONS?

In the Sri Lankan context, the 4th branch institutions would be the independent commissions and also appointed by
(depending on the amendment you’re looking at) the constitutional council or the parliamentary council. Currently,
under the 20th amendment to the constitution, we have a parliamentary council and a set of commissions appointed by
the parliamentary council and the parliamentary council. In addition to that appoints several key offices are mentioned
by art. 41 b) of the constitution. So, therefore, what we generally refer to as the fourth branch institutions are these
independent commissions and also generally the commissions appointed by the council.

In the general constitutional theory, the fourth branch institutions are therefore those that are institutions like the
elections commissions, human rights commissions, commissions against bribery and corruption and commissions
deciding on financial matters.

And they are called the fourth-branch institutions because, the understanding in constitutional law is that the
constitutions are to remain for a certain period of time. Then if a constitution is to be in effect for a long period of time,
the principles/norms in the constitution has to also be protected/guaranteed.

Therefore if you look at the constitutional norms, some of the constitutional norms are what Prof. Kaisen calls, non-self-
enforcing norms. Meaning, that there are some constitutional norms which are either against the personal interest of
the powerful actors or basically the powerful political actors don’t have any incentive to protect/uphold these norms.
Therefore these constitutional norms, say the norm of ensuring a free and fair election, there’s no incentive really for
political actors to ensure this. In fact, it might be in their partisan political interest to in some way tamper with the free
and fair elections. Therefore, that kind of norms where the political actors do not have the incentive or the need to
protect in fact, they might benefit more from frustrating these norms, the traditional branches of the state will not have
the capacity to guarantee those norms on their own. Obviously the parliament provides for elections with law and the
executive will provide the necessary background but them on their own, are not best placed to protect and ensure that
the free and fair elections take place. And also courts are not in a position to hold elections. They can only hear
petitions, they cannot conduct an election. It’s not within their institutional capacity.

Therefore when traditional branches are unable to uphold these constitutional norms concerned because they don’t
have the institutional capacity like the courts or because there is a conflict of interest like the executive and the
legislature. In those instances, we need an independent mechanism, but also having the expertise and the capacity to
provide the set guarantee to uphold a free and fair election. And also at the time, while being accountable through
certain mechanisms to the legislature, executive and the judiciary. So therefore they are accountable but they are also
independent of the traditional branches of the state and they have the expertise and the capacity required to upholding
the guarantee.

So those are what we called the fourth branch institutions/ guarantor institutions.

WHAT IS THEIR SIGNIFICANCE IN A CONSTITUTIONAL DEMOCRACY?

They uphold constitutional norms like the guarantee of a free and fair election ensuring the secret ballot, and if it’s the
Human Rights Commission upholding and protecting human rights. If it’s the commission against bribery and corruption
– combating corrupt practices and bribery in governance.

Therefore, they are all upholding constitutional norms that are of significance that the three traditional branches of the
state on their own are equipped enough to uphold to the fullest extent. Therefore they are complimenting or adding to
the three branches in upholding constitutional norms which require special protection.

WHAT ARE THE GENERAL FUNCTIONS IN A CONSTITUTIONAL DEMOCRACY?

1. As neutral guardians
2. Vigilant monitors
3. Autonomous administrators

As neutral guardians – in the sense that they safeguard procedural fairness and integrity of the political system. So this
neutral guardian function is very much seen in the work that the election commissions do.

And they also act as vigilant monitors – meaning that, in relation to a certain policy area or a thematic area these
institutions can track and report on the government performance and give recommendations to the government,
engage with the government by monitoring the government progress on a certain matter. And key example of fourth
branch institutions being vigilant monitors would be in the case of Human rights commissions. (in other countries
gender commissions and minority commissions)

Autonomous administrators – In the sense, they might be tasked with certain kind of functional and operative autonomy
so that they can take certain decisions for the sake of good governance, continuity, long term planning and technical
competence. For these reasons they need to be kept at arms length from the politicians. Therefore, to take decisions
autonomously in relation to certain technical functional areas to promote important constitutional norms like good
governance, long term planning, continuity, technical competence. E.g – finance commissions, central banks ( not
necessarily in the SL context)

It's in relation to performing these broad functions that we see the fourth branch institutions being introduced by the
state.
INDEPENDENT COMMISSIONS UNDER THE CONSTITUTION OF SRI LANKA 1978
APPOINTMENT MECHANISM – To ensure their independence

If we look at the mechanism it has changed in this way through the 4 amendments,

17th amendment – out of the members 3 of them were political members (Speaker, PM & the leader of the opposition
and the others were to be appointed from outside of the parliament and that was to ensure that the constitutional
council had a majority of non political members thereby ensuring the independence of the constitutional council from
the political process).

And they had two functions,

1. Make recommendations to independent commissions

2. To approve mandatorily appointments of key officers (Judges of the SC and COA, AG, Auditor General etc.)

Art. 41 a) b) – have a look at how it has been changing over the amendments

18th Amendment – Parliamentary council with all members being members of the parliament including in all instances,
the Speaker, PM, leader of the opposition and 2 other members of the parliament. In relation to appointment of
independent commission members the power to appoint commission members is given directly to the President under
the 18th amendment. And where necessary the President shall have capacity to seek observation of the parliamentary
council and the understanding is that their not binding. Similarly, the President makes appointments to key officers and
the parliamentary council gives observations which are not binding.

19th amendment – Constitutional council being backed again but then the appointments to the constitutional council is
different or the composition of the constitutional council is different in the sense that there are 7 members from the
parliament and 3 non political members. And initially that would be seen as the majority are from the political process,
and that affects in a way the constitutional council and its integrity.

But recently Dinesha Samararatne making this argument, the rationale of the 19th amendment was to bring the power
back to the parliament, therefore it is in line with that broader rationale of the 19th amendment to reduce the executive
power and to vest that power with the parliament. Therefore this is also in line with that broader rationale of the 19 th
amendment. (therefore it could be seen as justified but of course it can be argued)
So once again, they could issue binding recommendations also mandatory approval in relation to appointments of key
officers.

20th amendment – shift again towards the parliamentary council. With the Executive having the main power in relation
to making appointments to both these independent commissions as well as high officers.

Therefore, 17th amendment if we look broadly, was using this mechanism to limit the powers of the executive. 18th
amendment expanding the powers of the executive by limiting the powers of the council. And 19th amendment again
limits the powers of the executive by expanding this council and its powers. And the 20th amendment expanding the
powers of the executive and limiting the powers of the council. (Constitutional ping pong)

INDEPENDENT COMMISSIONS

In our shift from the 19th amendment to the 20th amendment, we have lost two commissions as highlighted.

Want to highlight a few points on the Audit Service Commission as well as The National procurement Commission.

When we compare the schedules that are mentioned in art. 41 a) you will see the current schedule in the 20th
amendment, so the list of commissions that are within the purview of the appointment mechanism of the parliamentary
council, the schedule 1 to the art. 41 a) has this list I’ve cited in the slide.

So when we compare it with the 19th amendment, we don’t see the Audit service commission and the national
procurement commission. Therefore the 19th amendment, in addition to saying that the constitutional council will
appoint the audit service commission there is this art. 153 a) of the constitution as amended up to the 19th amendment
containing provisions relating to the appointments of the audit service commission. And then 153 a,b,c it contains the
meetings and the powers and functions of the commissions.

Acc. To art. 153 c) the audit commission is supposed to exercise the power of appointment, promotion, transfer,
disciplinary control and dismissal of the members belonging to the Sri Lanka state audit service. And then, the
commission therefore broadly handles the matters relating to SL audit service and also prepares the annual estimates of
the national audit office. Those are some of the key functions of the audit service commission. Therefore, this entire
commission established by art. 153 a) stands repealed at the moment. So art. 153 a) onwards the rest of the articles
relating to the audit service commission is no longer there.
The same has happened to the National procurement commission.According to the 19th amendment to the constitution.
Art. 156 b) onwards which provides for the establishment of the national procurement commission. And its functions
was to formulate fair, equitable, transparent competitive and cost effective procedures and guidelines for the
procurement of goods and services, works, consultancy services and information systems by gov institutions. Therefore
the procurement commission was to lay out the guidelines and ensure that all procurements done relating to the areas
mentioned by the gov services would be thereby standardized.

Therefore with the change towards the 20th amendment, we see in that way not only the parliamentary council, the
appointing body has weak powers in terms of independence and the membership and the capacity that they have been
limited only to be giving non binding observations, we see the number of independent commissions also being limited.
And also if you look at, for example the National Police Commission, their functions are also limited, as compared with
the functions that the 19th amendment gave.

Therefore we see, not just in terms of the appointment body, but also in terms of the number and the functions of the
independent commissions, those have been restricted by the 20th amendment.

KEY OFFICES

End note – when the scholars debate about what’s the best system, is it parliamentarism, presidentialism, semi
presidentialism. There are scholars who are argue that parliamentarism is the best but they also argue that it is
parliamentariasm that is supported by a system of fourth branch institutions and also an independent judiciary.

REFERENCES
Elliot Bulmer, Independent Regulatory and Oversight (Fourth-Branch) Institutions
https://www.idea.int/sites/default/files/publications/independent-regulatory-and-oversight-institutions.pdf