Sri Lanka: Constitutional Framework 

Contribution towards setting up a Modern Democratic Constitutional Framework for a thriving Sri Lanka

by Jude Perera MP

( October 16, 2017, Victoria, Sri Lanka Guardian) The Sri Lankan Government and the people of Sri Lanka are in the middle of a debate about a new constitution. An interim report has already been produced. Therefore, rather than being a bystander I have duly decided to make a contribution to the debate.

This is my contribution.

This article will make a few suggestions that will enhance the democratic rights for all and subsequently bring harmony among its citizens that would be the necessary ingredients for a modern constitution in which is aiming to the uplifting physical quality of life in all Sri Lankans irrespective of their present situation.

Executive President

The establishment of democracy will not be complete until we do away with the Presidential system and move into Parliamentary system – with the executive authority vested in the Cabinet led by the Prime Minister and subsequently answerable to the Parliament, the supreme body in a representative democracy.

The Prime Minister can remain as the Prime Minister only so long as he can command the confidence of the Assembly. It is not helpful to have either the President or Prime Minister who can ride roughshod over the people and therefore first of all, over the people’s representatives.

Recent history has proved that the concentration of power on one person has not only denigrated the Assembly but also the whole Cabinet. There is no evidence to support the misguided belief that an executive authority vested in a single person helps to maintain the geographical integrity of Sri Lanka. People should not be conveniently forgetting that the Executive Presidential system prevailed since 1978. The civil war ended in 2009 that is after 31 years of this unsavoury Executive Presidential system.

There was no Executive Presidential powers at play when the incumbent government took control of the 1971 April uprise in weeks.

However, under the Presidential system the country has unfortunately experienced Dictatorial regimes with the disappearance of  journalist and other dissenting voices. There are many allegations against those who were at the helm of the political power.  

Size of the cabinet

It should be enshrined in the Constitution that there should not be more than 25 members of the Cabinet and a maximum of 25 Parliamentary Secretaries.

Second chamber

As canvassed in the interim report, it is a good idea to establish a second chamber, a Senate. This Chamber, the Senate should act as a house of scrutiny. However, the Senators should be representatives of each Province. As suggested in the interim report, five Senators from each province would be about the right number. However, the best method would be to assign a Senate quota for each Provincial Council depending on the number of Provincial counsellors.

One method of selecting them is by all provincial counsellors voting in a proportional representative method in the Council. The Chief Minister in consultation with the Leader of the Opposition will present to the Council not more than ten candidates. Alternatively, a simpler method would be for the Provincial Government nominating three Senators and the Provincial Opposition nominating two Senators.

Ideally, the candidates should not have a partisan political involvement in the past ten years. They should be representatives of the Province rather than a Political party and should be currently residing in the actual Province. The Senate should be a place where scrutineering of Legislation is carried out in non-partisan way.

The Constitution can recognise Bipartisan Parliamentary Investigatory Committees

It is vital to set up Bipartisan Parliamentary Investigatory Committees to investigate on current issues and understand what the citizens of the country expect of the Parliament and Government. The Ministers and the Parliament can provide references for each Committee to investigate on matters of public importance and make recommendations. Each Committee should be supported by a Secretariat. The details of the committees will be decided through legislation.

It would be a good idea to set up a special investigatory committee to identify ongoing projects needed to be funded. This committee could work with overseas resident Sri Lankan organisations to attract funding for identified projects. Happy to assist if this leads to further discussion.

The committee is required to report on the enquiry with recommendations presented to the Parliament. The government of the day will be required to respond to the report within six months indicating which recommendations the government will take on board and which ones will be rejected, and in both cases articulating the reasons. This is a method for drafting appropriate legislation and government decisions to reflect public aspirations.

It would be a good idea to set up a special investigatory committee to identify ongoing projects needed to be funded. This committee could work with overseas resident Sri Lankan organisations to attract funding for identified projects. Happy to assist if this leads to further discussion.

It is important to enshrine setting up of a Budget Office (IBO)

An Independent Budget Office needs to be established in the Parliament. One of the roles of the IBO will be to assess funding commitments of political parties in the lead up to an election and publicise a report for the public to know which commitment is deliverable and which one is not. During the term members of Parliament, especially the Opposition members of Parliament can seek assistance of the IBO to cost government policy announcements and their own policies. The IBO will definitely cut down in a big way the fake promises made by political parties. The IBO will always be reporting to the Parliament and not to the Government. It will publicize an official report on deliverability of each promise of all political parties in the lead up to a General Election and as and when required.

The Constitution should recognise setting up of a Parliamentary Remuneration Tribunal

It is unethical for Parliamentarians to make decisions on their remuneration. It would be important to set up a Parliamentary Remuneration Tribunal (PRT) to review salaries, allowances and other conditions of all members of the Parliament including Ministers and the Prime Minister. The members of the national Parliament should have a full time commitment for their role. When the Parliament is not sitting, they should be involved with committee work and constituency work. The constituents should have access to their local member more often than it is now and the Members of Parliament can only achieve that if there is a full-time commitment. The tribunal may take into consideration the work, number of hours put in by the members of Parliament and comparable salaries in the public and private sectors.

Female representation can be enshrined in the Constitution

As suggested in the interim report it is a good idea to have around 50% female representation in the Parliament. One way to achieve that is to double the size of electorates and therefore half the number of electorates, and elect two representatives for each electorate – one being a male and the other female.

For a modern vibrant democracy Exhaustive Preferential Voting method should be enshrined in the Constitution

The first past the post method (FPP) would not accurately reflect the voting intentions of the constituency. As a matter of fact, it is one of the most undemocratic systems of election. The election of 233 members for individual electorates proposed in the interim report should be elected on an exhaustive preferential voting method.

That is everybody marking 1, 2, 3…… and so forth as opposed to ticking a single box. In the first round of counting only “1” votes which is called the primary votes, are counted and the candidate gets lowest number of “1” votes will be eliminated from the race and his or her “2” preferences will be added to others as a full vote. Then continue with the elimination process and distributing the preferences. This way the winner will always get more than 50% of the polled formal votes after all preferences are distributed.

A good example of the disaster created by FPP was the result of 1960 March election result in Sri Lanka. The 1960 July election outcome produced entirely different result to 1960 March election result, because of the no contest pact between the SLFP, LSSP, CP. This preferential system is much superior,  much more democratic election method,  sometimes giving a similar end result to a non-contest pact between parties deem to be on the same side of the political spectrum. The 1960 July election result was a true reflection of public voting intentions. This superior method of election would give the people the confidence to cast their primary vote to the party of choice without fearing their actions would result in the worst outcome they would like to see.

A fair representation – Periodical Electoral Redistribution needs to be enshrined in the Constitution

The periodical electoral redistribution is very important to make every electorate have more or less equal number of electors. The vastly uneven population size of electorates could end up giving a result of parties winning elections with the highest number of seats but not the highest number of votes. It could be enshrined in the Constitution that after every second or third election or based on a  population growth formula, the electoral boundaries will be redrawn to make electoral voter population more or less even. This should be done by an independent body such as Electoral Commission.

For political and economic certainty Fixed Parliamentary Terms should be enshrined in the Constitution

It has a strong case to enshrine in the Constitution for fixed Parliamentary terms. A fixed Parliamentary term of 4 years is not too long, but long enough for a Government to deliver on its commitments. This will provide certainty to departments, private sector, public agencies, social enterprises and potential foreign and local investors. This will end the leaders and governments manipulating election dates to their advantage.

It could be enshrined in the Constitution, a certain day as the actual Election Day in every four years or whatever the term is decided. For example, if the election is held every four years, say on the last Saturday in November.

If the incumbent Government loose a no confidence motion on the floor of the house, then the President should call upon the persons who got the confidence of the House to form a Government. If nobody commands sufficient support to form a government, the Parliament will be dissolved and a bye election will be held to elect a government for the rest of the term. The Parliament will be automatically dissolved on the appropriate day to have an election. This day will be based on the original fixed calendar dates of the elections. This method will discourage bringing in unnecessary no-confidence motions. 

For maximum Democratic participation, Compulsory Voting has to be enshrined in the legislation 

There is no excuse for not taking the trouble to turn up at the polling booth to express their voting preference. Voting at elections is a civic responsibility of all citizens.

If a particular voter is unhappy of all candidates or political parties in the contest, they can vote informally. That will indicate their preferences or rather disapproval of all candidates/political parties on offer. The Parliament should pass legislation to issue infringement notices for those who have not voted.

If there is no such commitment from the people, it is hard to establish participatory democracy. If you do not vote, you do not have a right to grumble about government decisions.

It should be enshrined in the Constitution that hindering the voting process in any way, shape or form as a criminal offence. The sentencing laws should be amended to make it a punishable offence with imprisonment.

Independent senior public service should be recognised in the Constitution

The senior public servants should be apolitical, and involvement in any political activity in any way shape or form would be a disqualification to hold the public office. All senior public servants should be loyal to the government of the day irrespective of their personal political beliefs. I hope that this recognition would lead to passing legislation to this effect if that were not enshrined in the legislation.

Independence of Parliament is must to be enshrined in the legislation for a true and complete democracy.

An important principle underpinning all democracies is the separation of powers. This is to reduce the abuse of power and prevent tyranny or oppression from occurring, as might be the case under a dictatorship of an undemocratic and elected government hold power. According to this principle, the three main institutions of Government: the Legislature, Executive and Judiciary, are maintained as separate entities in order to provide effective checks and balances upon each other, thus preventing power from becoming centralised in any one entity.

Unfortunately, in Sri Lanka, in the recent past there has been Executive creep into the judiciary. This created a dangerous precedence. However, it looks like the situation has improved under the present regime. It is important to restore complete independence of Judiciary and Legislature from the Executive arm of Government.

However, the Executive creep into Legislature has always been there in Sri Lanka’s system of Government. The powers of the Executive place a great deal of pressure on Parliament to deliver good governance. This has significantly reduced Parliament’s capacity to scrutinise the executive.

The Sri Lankan Parliament or in any Parliament, should not be subject to control or direction by the Executive. The Executive should not determine the level of funding and how much funding is allocated to Parliament or its independent officers of Parliament such as Auditor General, Budget Office, Broad-Based Anti-Corruption Commission and any other bodies.

Unfortunately, in Sri Lanka, in the recent past there has been Executive creep into the judiciary. This created a dangerous precedence. However, it looks like the situation has improved under the present regime. 

For good governance, it is time to consider a separate Parliamentary service model such as a Parliamentary Corporate Body. The Parliament should be controlling and determining its own funding through this body and initiating its own money bill through its presiding officers.

The Parliamentary Corporate Body could be set up as follows;

  • Chaired by the Speaker of the house
  • Membership reflect the aggregate membership of the house, and to include the Prime Minister (or nominee) and Leader of the Opposition (or nominee).
  • Include the clerk of the Parliament and the Secretary, Department of Parliamentary Services.
  • Request the Executive to provide forward estimates of Government revenue (as to be reported in Budget Papers) before the PCB makes recommendations.
  • Report its recommendations to the house on budget day.
  • Issue recommendations for Parliamentary appropriation, which would be automatically appropriated under, is rejected or amended by the house.
  • The appropriation should include funding for the Legislative Assembly, Department of Parliamentary Services, Independent Officers of Parliament, Budget office, Election Commission and office of the opposition. 

Provincial councils

Provincial Council should be enshrined in the Constitution as independent jurisdictions. The National Government should only take over the powers of the provincial councils only when there is a threat to the sovereignty of the country.

The Constitution should give powers to the Election Commission to determine periodically how many Provincial Council seats will be allocated to each Council depending on the voting population of the province.

The Provincial Council Governors will have a fixed term and no person affiliated to a political party in the past ten years should be appointed as a Governor of a PC. It is preferable to appoint somebody apolitical, who has contributed to society in some form or another, and against whom allegations of abuse of his/her authority have not been raised.

The Chief Minister should appoint the Governor and it should be a ceremonial role. The current system of President appointing the Governor, the nominal head of the state is completely undemocratic. With such arrangements, talking about the devolution of power is nonsensical.

The Provincial Council’s should also have fixed terms and all Council elections should be is scheduled to have on the same day. In the longer term, it is in the best interest of the country to plan to coincide with the National Elections with the Provincial Council elections. This is how it is in USA. Presidential Election and Congress elections are on the same day.

A body, which I will temporarily name as Council of Governing Entities of Sri Lanka (COGESL), needs to be enshrined in the Constitution for the National Government and Provincial Councils to work together. The central government representative will always chair these meetings. For example, the Prime Minister will chair Chief Ministers’ meetings and portfolio ministers meetings will be chaired by the relevant minister in the central government.

Restoring Law and order should be stated in the Constitution in detail and setting up of IPM & IBAC should be enshrined

If law and order is not restored, it will be almost impossible to implement any policy position in Sri Lanka. I will articulate few initiatives below.

A complete independence of the police from political interference needs to be as enshrined in the Constitution. The legislation should be passed in Parliament to make it a criminal offence for any member of the Parliament including members of the Cabinet, or Provincial Councils members to interfere in with police operational matters.

An Independent Police Monitor (IPM) should be established to investigate any possible corrupt practices or use of undue influence within the police force. The Parliament with consensus should appoint members of the IPM. The IPM should report to the Parliament instead of the Minister. It should be made mandatory for the IPM to present periodical (period to be determined) reports to the Parliament. It is the role of the government to provide sufficient resources to the IPM to fulfil their responsibilities.

It is vital to address widespread corrupt practices that are prevailing in Sri Lanka. It can only be done through establishing an Independent Broad-Based Anticorruption Commission (IBAC).

IBAC should have coercive powers to compel an individual to participate in its enquiries.

No citizen of Sri Lanka regardless of the position that citizen holds will be able to dishonour a subpoena served by IBAC.

IBAC should report to the Parliament periodically (period to be specified). A bipartisan Parliamentary committee should be established to oversee the activities of IBAC. A Secretariat should be appointed to assist the Parliamentary committee.

Anybody could report to IBAC regarding misconduct of government agencies or private agencies where government officials are involved. IBAC should have powers to undertake investigation of their own motion enquiries. Legislation needs to be enacted making it a criminal offence to interfere with IBAC enquiries. The sentencing with regard to interfering with IBAC proceedings in any way shape or form by any Government official or otherwise could even include imprisonment.

Anybody should be able to a report to the IPM about police misconduct. Any misconduct of the IPM too can be reported to an Independent Broad-based Anti-Corruption Commission (IBAC).

The main involvement of the Minister in charge of Police with the police force should be about providing resources to and discussing issues, the police force is confronted with. The Minister might from time to time articulate the Government vision on policy matters, but he needs to keep at arm’s length of all operational matters.

The Police Commissioner/Officer will be making a criminal offence if he or she stops short of reporting to IPM of any political interference on police operational matters.

It is worth considering setting up a Public Prosecutor’s Office. This is an Independent office where prosecution will be carried out on behalf of the Police and IBAC. It is worth exactly finding out what current procedures are in place. The Public Prosecutor’s office will not report to the Minister but to the Parliament.

A new Police Force structure should be enshrined in the Constitution

It should be enshrined in the Constitution that a national police force and the regional police force to be established.

This day and age, every country needs a sophisticated national police force with combat training, anti-terrorism training, narcotic investigation skills, and training on espionage work and border protection. Sometimes international training could be required to get the sophisticated skill levels. This could be a big investment. It is a waste of resources to use this highly trained Police force in minor matters such as petty theft and family disputes etc.

The local minor matters should be the responsibility of the regional Police who does not have that level of sophisticated training. They would be ideally suited for offences such as theft, physical violence, crowd control and traffic etc.

Environmentally Sustainable Development should be recognised in the Constitution

It is the responsibility of every global citizen to contribute to reducing greenhouse gas emissions to mitigate climate change for the sake of future generations.

It is important to state in the constitution that governments need to give consideration to setting up greenhouse gas emission targets and work through ways to achieve that.

Social Economy should be recognised in the Constitution

It is important to state in the Constitution that it supports the social economy.

The social economy is basically made up of the enterprises where workers, farmers and consumers etc are the owners of the organisation who would make important decisions such as appropriation and distribution of profits etc.

This is one of the fastest growing sectors in Europe. In Europe, Governments of all political persuasions support the social economy. The social economy is recognised in the article 45 of the Italian Constitution and references are made in some European constitutions including Spain.  The International Cooperative Alliance is the United Nations of the cooperative movement.

Author: Jude Perera MP, Member of the Victorian Parliament in Australia for the past 15 years. The first, and so far, only Sri Lankan born and Sri Lankan educated person, to be elected to any lower house of Parliament in Australia. Probably the only person to hold such elected office for consecutive 4 terms in any comparable jurisdiction outside Sri Lanka.

Author: Sri Lanka Guardian

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