A Constitutional Framework for Sri Lanka

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By 2017-10-23

By Jude Perera

The 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 article will make a few suggestions that will enhance the democratic rights for all and subsequently bring harmony to its citizens.

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 Parliament, the supreme body in a representative democracy. The Prime Minister can remain so only as 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 were no Executive Presidential powers at play when the incumbent Government took control of the 1971 April uprising, in weeks.

Presidential system

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

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.

As canvassed in the Interim Report, it is a good idea to establish a second chamber, a Senate. 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 councillors.

One method of selecting them is by all provincial councillors 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 10 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 10 years. They should be representatives of the province rather than a political party and should be currently residing in the province. The Senate should be a place where scrutineering of legislation is carried out in a non-partisan way.

It is vital to set up bipartisan parliamentary investigatory committees to investigate into current issues and understand what the citizens of the country expect of Parliament and the Government. The ministers and Parliament can provide references for each committee to investigate into 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.

The committee is required to report on the enquiry with recommendations presented to 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.

special Investigatory committee

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.

An Independent Budget Office (IBO) needs to be established in 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 publicize 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 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.

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 Parliament including Ministers and the Prime Minister. The members of the national Parliament should have a full time commitment for their role. When Parliament is not sitting, they should be involved with committee and constituency work. The constituents should have access to their local members 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.

Interim report

As suggested in the interim report it is a good idea to have around 50 per cent of female representation in Parliament. One way to achieve it is to double the size of electorates and therefore half the number of electorates, and elect two representatives for each electorate, one a male and the other a female. The First-Past-the-Post method (FPP) would not accurately reflect the voting intentions of the constituency. 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 per cent 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 July 1960 Election outcome produced entirely different result to March 1960 Election result, because of the no-contest pact between the Sri Lanka Freedom Party (SLFP), Lanka Sama Samaja Party (LSSP) and Communist Party (CP). This preferential system is much superior and a 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 July 1960 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.

Population growth

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 an Electoral Commission. It has a strong case to enshrine in the Constitution for fixed Parliamentary terms. A fixed Parliamentary term of four 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 loses 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, Parliament should be dissolved and a bye election held to elect a government for the rest of the term. 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.

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.

Infringement notices

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. 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 donot 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 acriminal offence. The sentencing laws should be amended to make it a punishable offence with imprisonment.

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 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.

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 governments hold power. According to this principle, the three main institutions of the 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.

Dangerous precedent

Unfortunately, in Sri Lanka, in the recent past there has been Executive creeping 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 the Judiciary and Legislature from the Executive arm of government.

However, the Executive creeping 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.

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 .

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

The PCB could be set up as follows;

Chaired by the Speaker of the House

Membership should reflect the aggregate membership of the House, and include the Prime Minister (or nominee) and Leader of the Opposition (or nominee)

Include the Clerk of 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 Councils should be enshrined in the Constitution as independent jurisdictions. The 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 10 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 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 general elections with the Provincial Council elections. This is how it is in USA. Presidential Election and Congress elections are held on the same day.

A body, which I will temporarily name as the 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. If law and order is not restored, it will be almost impossible to implement any policy 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 Parliament including members of the Cabinet, or Provincial Councils members to interfere with Police operational matters.

Independent Police Monitor

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

It is vital to address widespread corrupt practices prevailing in Sri Lanka. It can only be done through establishing an Independent Broad-Based Anti-corruption Commission (IBAC). It should have coercive powers to compel an individual to participate in its enquiries.

No citizen of Sri Lanka regardless of his position, will be able to dishonour a subpoena served by IBAC. IBAC should report to Parliament periodically. 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 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 will 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 operation matters.

Police Commissioner

The Police Commissioner will be making a criminal offence if he 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 Parliament.

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.

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. It is the responsibility of every 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 the government needs to give consideration to setting up greenhouse gas emission targets and work through ways to achieve that. 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 are theowners of the organization who would make important decisions such as appropriation and distribution of profits.

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 recognized 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.

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 four terms in any comparable jurisdiction outside Sri Lanka.

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