By Chandra Jayaratne –

Chandra Jayaratne

Priority Need to Advocate for Constitutional Reforms – Re: Power of Recall

You are kindly requested to garner the support of a select group of eminent counsel, who are members of the Bar Association of Sri Lanka, and following critical review, analysis and debate to develop urgent constitutional reforms to embed the power of recall within the present constitution of Sri Lanka; and to present such proposals to the leaders in governance, legislature and the society at large; and thereafter to advocate for its adoption and implementation following due process as a matter of priority.

For your initial review, the writer has taken the liberty to develop an amateur citizen’s suggested outline of a first draft set of reform provisions that may form a skeleton for benchmarking in the recommended reform process review:

* The new provisions to apply with immediate effect, notwithstanding any other provisions to the contrary in the present constitution

* Any elected person, selected by popular democratic votes of citizens, having assumed the office of the President, Prime Minister, Cabinet Minister, Legislator of the Parliament, or as members of any Provincial Council, Municipality, Pradeshiya Sabah, be subject to recall by the same group of persons whose votes such person was elected to such office, provided that in respect of the:

President by 10% of the persons entitled to vote at the election where he was elected

Prime Minister, any Cabinet Minister and any Legislator of the Parliament by 20% of the persons entitled to vote at the election where such persons were elected

Any legislator of a Provincial Council, Municipality, Pradeshiya Sabah by 30% of the persons entitled to vote at the election where such persons were elected by duly attested petitions call for the recall of such person from his elected office on the valid grounds of being subjected to any one or more of the disqualifications as set out  hereinafter and a duly established court following investigation and hearing determines that the charges leveled in the petitions have been proven and established and are valid grounds for such recall, such elected representative will forthwith cease to be an elected person

* A duly established court to hear petitions involving any persons elected to the office as the President, Prime Minister, Cabinet Minister, Legislator of the Parliament shall be any Superior Court and in the case of a duly established court to hear petitions involving any legislator of a Provincial Council, Municipality, Pradeshiya Sabah shall be the District Court

* Any such elected person becomes disqualified from holding office on account of:

Being found to have submitted or published any false or untrue statements or submitted any affidavits or certificates which are untrue during the process of obtaining formal nominations

Being found to be a person who is not a ‘fit and proper person’ for such election

Being of unsound mind or other physical or mental incapacity to hold effected office

Being a person guilty of Intentional violation of any provision of the constitution

Failure to duly discharge responsibilities and accountability endowed by any written law or regulation

Being associated with any acts of oppression or violence against citizens

Being associated with mismanagement or misdirection of the economy

Being associated with any acts connected with illicit financial flows and cross border capital flows

Being guilty of bribery,

Being guilty of misconduct or corruption involving the abuse of the powers of office,

Being guilty of any offence under any law, involving moral turpitude

Being associated with any acts of terrorism, extremism and violence against citizens

Being associated with any acts causing or promoting ethno religious disharmony and strife

Failure to abide by the rule of law and or non compliance with laws and regulations

Failure to uphold fundamental rights and democratic principles in governance

Failure to abide by any applicable codes of conduct and ethics

Being associated with any acts of smuggling

Being associated with or promoting the use and trading in narcotics and dangerous drugs

Being associated with any acts that lead to environmental damage and destruction

Being found guilty of murder and or causing grievous injury or bodily harm

* Any such petition shall be duly supported by required evidence and other supporting material and shall be investigated under the directions of the applicable court with such investigations being completed within 3 months and the determination of the court be issued within six months from the date of registration of the relevant petition

* The relevant court to have the power to make interim orders upon receipt of the petition, including such orders temporarily suspending such person from holding office during the period of investigation and court determination and also making interim transfer of accountability to a person or persons deemed best by the relevant court

* Where a petition is upheld and recall becomes confirmed the vacancy created shall be filled in accordance with the applicable law in dealing with vacation of such office

* All persons making the petition be required to make a relevant deposit to cover costs and expenses as determined by the relevant court and be subjected to such deposit being forfeited in the event of it not being upheld by the relevant court and there will in addition be a sum determined by such court as damages payable to the persons charged in the petition

This suggestion will be circulated to a select group of eminent counsel with a request to write directly to you in this connection with their endorsement or other opinions and or any critique and alternative suggestions.

Trust that you and your office bearers will accept the essential nature of the reform as suggested and support this request with commitment.