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Sri Lanka: Constitutional Framework

Contribution towards setting up a Modern Democratic Constitutional


Framework for a thriving Sri Lanka
by Jude Perera MP-Oct 16, 2017

( 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 peoples 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 Lankas
system of Government. The powers of the Executive place a great deal of
pressure on Parliament to deliver good governance. This has significantly reduced
Parliaments 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 Councils 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 arms 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 Prosecutors 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 Prosecutors 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.
Posted by Thavam