Colombo Telegraph

Representative Democracy & Constitution Making

By Nagananda Kodituwakku

Nagananda Kodituwakku

Sri Lanka has suffered heavily in the hands of dishonest and self-centred people who have highjacked the governance of this island nation for decades since the British rule was withdrawn in 1948.

What the people have experienced since then was not a ‘representative democracy’ but a ‘pseudo democracy’ that provided a group of dominant individuals to thrive at public expense, particularly since the introduction of the 1978 Republican Constitution. This deplorable state of affairs have effectively discouraged and sidelined the honest, respectable and learned people from entering into mainstream politics.

The former Auditor General Mr Sarath Mayadunne, in his inaugural and final speech made on 03rd Sep 2015 in the Parliament, has well exposed the dangers faced by the people in this country, unless the current destructive political trends are reversed, if the people with honesty and integrity to be integrated into national politics.

Therefore, on behalf of the people this set of proposals are presented for the consideration of the committee assigned to accept such proposals for the formulation of a vibrant Constitution that would reflect a true character of representative democracy.

The preamble of the existing Republican Constitution recognises that the Government of Sri Lanka shall respect and honour the principles of REPRESENTATIVE DEMOCRACY in which people are vested with the inalienable sovereign rights, which include the power of government, including their FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY.

However, in practice these noble values are not given due recognition at all. The primary cause has been that the people’s representatives elected to the Parliament that exercises people’s legislative power purely on trust [(Article 4(3)] claims that the Parliament is the supreme body over all other organs, which is absolutely a misconception. The truth is that no organ has a right to claim supremacy over the other branches of the government. However, this country has experienced the opposite, which has resulted in the break down of law due to the absence of a Judiciary free from any encroachment.

Therefore, what is paramount important in the given circumstances is to pay due respect to the Constitutional norm of ‘representative democracy’, and enact a vibrant Constitution with the participation and approval by the people at a referendum.

The Constitution shall not be a piece of legislation permitting corrupt politicians to meddle with it, as Presidents Jayewardene and Rajapaksa have done with the enactment of 14th amendment in 1988 and the 18th Amendment in 2010 respectively. The Constitution shall be designed to withstand any eventuality, permitting no such abuses such as abuse of people’s franchise and judicial power.

Therefore, with due recognition of the Constitutional norm of separation of power, the new Constitution shall ensure the establishment of an independent judiciary, which shall also include the power of judicial review of any legislation that is inconsistent with the supreme law of the country, the Constitution.

Proposal No 1 – Freeing the Judiciary from Control of other two Organs

Article 4 (c)] of the existing Constitution, shall be reformed to read as ‘judicial power of the people shall be exercised by the Judiciary’.

The principle of separation of powers requires that the executive, legislative, and judicial powers of the people shall be exercised by the three entities (the legislature, executive and judiciary) absolutely free from any encroachment between the organs. Absolute power vested in one organ has always proved corruption at its best.

Therefore, the major emphasis here is for freeing the Judiciary, which is vested with Constitutional obligation to protect foster and uphold sovereign rights of the people (Article 105), from clutches of other two organs.

As recognised by the Constitution (1978) only people are supreme and not any organ of the government. Therefore [Article 4 (c)] of the existing Constitution, which states that ‘the judicial power of the people shall be exercised by the Parliament through the Judiciary’ shall be reformed to read as ‘judicial power of the people shall be exercised by the Judiciary’.

With the enactment of 19th Amendment in May 2015, the Executive President is empowered with the authority to make appointments to the Court of Appeal and the Supreme Court (Article 107), which is perceived as a direct conflict with the norm of separation of power. The people do not want this practice to be continued unabated, permitting the executive to have a hold in any manner on the composition and the appointment process of judges.

Proposal No 2 Creating a Ceremonial Head of State

There shall be a provision to create a ‘ceremonial head of the state’, who shall be vested with powers to make all judicial appointments as recommended by the Constitutional Council, guaranteeing the establishment of a vibrant judiciary free from any Executive control.

Proposal No 3 – power of franchise vested in the people

Sovereign power of election of MPs shall be exercised only by the people at elections.

Sovereign powers of the peoples include the franchise (Article 3) which shall be respected and be exercised by the people and not by any other person or body with power to elect MPs to the legislature. Therefore the respective clause in the Article 99A, which empowers the Secretaries of the political parties to elect MPs through the National List, shall be removed.

Proposal No 4 – Making provisions to broaden the fundamental rights

i. Right to Life shall be recognised as a fundamental right.

In this country killing of suspects in the police custody is a very common occurrence. This needs to be stopped with a strict liability provision enacted by law to discipline the police and all other law enforcement agencies.

Therefore, Right to Life shall be given a foremost place in the protection of rights of the people and in all cases of violation of this right shall be made a serious criminal offence with stringent sanctions, which may include automatic dismissal from office by operation of law, plus adequate compensation awards which shall be made by the right violators in their personal capacity.

ii. Right to equality before law and equal protection of law

This right shall be further advanced with specific provision provided by law, which may stipulate that violation of this right shall include discrimination of ethnic minorities with the word of mouth in any manner with a stringent penal sanctions imposed by law.

iii. Right to liberty and security

Everyone arrested or detained in accordance with law shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time.

There shall be a provision in the proposed Constitution, permitting the initiation of legal proceedings against any enforcement agency, which deprives the liberty of citizens by unlawful arrest or detention and also guaranteeing speedy disposal of such cases

Any person who becomes a victim of arrest or detention in contravention of the law shall also be made entitled for a enforceable right to compensations.

iv. Right to private and family life – Everyone shall have the right to respect for his private and family life, his home and his correspondence.

Fundamental Rights of the citizens as recognised by the Constitution shall be respected and advanced collectively by all organs of the government and any person found guilty for violation of such rights shall be appropriately dealt with stringent punishments. All compensation awards made against any person found violating fundamental rights of citizens shall be made to pay in violator’s personal capacity and no tax payers money shall be allowed to be used for payment of such compensation, with automatic dismissal from any public office by operation of law.

Proposal No 5 – National Day

National day shall be an appropriate date, which shall not be the date on which the British withdrew its colonial rule on its own initiative, retaining several colonial vestiges for another 24 years.

Proposal No 6 – Reduction of Public Holidays appropriately

It is proposed to reduce the number of pubic holidays with equality guaranteed to all communities coupled with wage increases in proportionate to the extra number of hours people are made work.

Countries that are concerned with well being of people and their quality of life want people to work for their own good with a minimum hourly rate guaranteed by law. This objective cannot be fulfilled with a lengthy schedule of public holidays as seen in Sri Lanka, which has a tremendous effect on the economic growth. In the UK, total number of public holidays is only seven days, as opposed to Sri Lanka’s 25 public holidays.

Proposal No 7 – Constitutional Protection given to Buddhism shall be removed

In the Constitutional history of Sri Lanka there was no such protection given to Buddhism until such a protection was given in 1972 Republican Constitution. Sri Lanka’s political history since then demonstrates that the said Constitution protection has done more harm than any good to Dhamma as people of other religious faiths believe that Dhamma is another form of religion which is given a preferential treatment, over other religions. This is clearly a misconception, as Dhamma is all about the noble truth and a philosophy based on the rule of nature and not a religious faith at all.
If one is concerned in protecting what Samma Sambuddha has taught what needs to be done is to take right measures, discouraging all pseudo disciples who are causing tremendous damage to Dhamma. In this regard the Constitutional protection for ‘Dhamma’ is just a futile exercise, as law can no way protect Dhamma, which refers to a code of ethics based on natural law of cause and effect.

As Samma sambuddha has taught, his rediscovery of ‘noble truth’ would stands on its own eternally, regardless of people who practice it would disappear. Samma Sanbuddha has taught that with the perception on false beliefs that the purpose of life is all about pleasing of senses, driven by passion for attachment to all forms of pleasure, (regardless of such pleasures brings only a moment of pleasure but infinite paid and suffering), the Dhamma is bound to disappear, resulting the ultimate disappearance of it in the foreseeable future.

Proposal No 8 – Make obligations of state an enforceable right

The law (Article 29 of Chapter VI) shall be amended to the effect that the obligations of the state as an enforceable legal right.

Proposal No 9 – Office of the Executive President

Remove the office of the Executive President and instead create a ‘Ceremonial Head of State’, before whom those who are appointed to offices created by the Constitution to take their Constitutional oath of allegiance.

Proposal No 10 – Cabinet of Ministers

There shall be a cap on the number of portfolios in the Cabinet of Ministers to not more than 12 in number and the number of Deputy or State Ministers also to 12 in number.

Proposal No 11 – Parliament & Election Commissioner

i. There shall be a provision in the Constitution empowering the Commissioner of Elections to remove the names of candidates who fail to make a formal declaration of assets within a specified period. And also to publish such asset declarations of the candidates in the government gazette for the information of the constituents.

ii. There shall also be a provision in the Constitution imposing a blanket ban in any form of political advertising, except a limited party broadcasts in the run up to the election.

In the run up to the Presidential Election 2015, the people of this country witnessed disproportionate political advertising campaigns, with billions of rupees wasted, in which public funds too were abused by the party in power.

All candidates contesting elections seek a mandate from the people to serve the nation and hence there is no need or reason to spend billions on election campaigns.

iii. Commissioner of Elections shall also be empowered to call for detailed election budget from all political parties and independent groups with names of donors declared who makes significant contributions declared, and shall be made available to the Commissioner with the nominations. There shall also be a stipulation to furnish final audited accounts to the Election Commissioner; with a right granted to the citizens have access to such information.

iv. Commissioner of Election shall also be empowered to bar any person engaging in any form of business involving the government or any government agency from contesting any public office. If any candidate makes a false declaration and in the event being elected to office such candidates shall forfeit the office by operation of law.

v. There shall be mandatory educational qualifications imposed by law with a minimum qualification of a degree from a recognised university to contest for any public office.

People want the best out of best people and do not want uneducated to hold any public office that makes important decisions. Since the withdrawal of British colonial rule in 1948 people of this country faced several social unrests and uprisings as a result of politicians without proper education and common sense holding public office and making important decisions that effectively degenerated the standard of administration, after the British allowed self-rule in 1948.

vi. It is also proposed to reintroduce Westminster style of governance with all members to the legislature to be elected on an electoral system based on first-pass-the-post.

vii. There shall also be a provision in the Constitution introducing a recalling mechanism to help restore people’s faith and confidence in politics and politicians similar to the ‘Recall the MPs Act’ in the UK.

This gives power to the people to recall the politicians who fail to deliver and make them accountable for their actions. The power to recall MPs shall mean that an MP who is found guilty of serious wrongdoing is forced to stand down and face a by-election. The recall mechanism shall give constituents to have a say about the actions of MPs, where their behaviour has fallen below the standards expected of an MP.

Proposal 12 – Abuse of public funds for unjust enrichment shall be stopped

There shall be provision in the Constitution for removal of any MP who found guilty of in any form of fraud or wrongdoing causing a loss to the Government.

Under the existing law the MPs are allowed to abuse the office for unjust enrichment Example:- Customs Law, (Section 19A), permits the Minister of Finance to exempt charging of levies on imported goods by certain individuals, provided the minister deems that granting of such tax exemptions are expedient in the ‘public interest’.

This provision of law is being blatantly abused by lawmakers to defraud the government revenue, chargeable on motor vehicles causing a colossal loss of revenue to the government.

Proposal 13 – Interference with pubic bodies by those holding public office

It is proposed to create an office by law for a Parliamentary Liaison officer to communicate and serve as liaison between the members of pubic and members of parliament on matters relating to government business.

Law shall forbid members of Parliament to interfere with the affairs of any government department or agency in any manner, which shall be made a punishable offence leading to dismissal from office.

The law shall also provides legal protection for public officers who expose abuse of office by any member of parliament or any member holding any Cabinet portfolio for interference with affairs of the government department or agencies.

Proposal No 14 – Pay and Pension rights to lawmakers be scarped

It is proposed that provisions for pension rights or pay to lawmakers be scrapped with retrospective effect, with a stipulation introduced in the Constitution that the people’s approval for such perks is made mandatory before their implementation. The law shall provide a stipulation that the approval of the people shall be obtained at a general election or at a referendum for granting of salaries, pensions, other emoluments such as tax-free permits and decentralized budget allocations to MPs to be spent at the pleasure of the MPs.

Up until the Republican Constitution was enacted in 1978 those who were prepared to sacrifice their time, energy and money for public good entered the politics and the supreme law did provide no form of returns or perks for the contributions made by the politicians whose contributions however were valued and appreciated by the people. Since then the floodgates were open for all forms of frauds and corruption involving politicians, which shall be stopped forthwith for pubic good.

Therefore, it is proposed that those who enter politics shall be made to do so as an honorary service to the nation and not as a business with enormous money making options made available by the system.

Proposal 15 – Decentralised budget allocations for MPs

In the interest of good governance with due regard and respect to the rule of law, it is proposed to abandon this improper practice altogether.

The role of the lawmakers is not to engage in any other business except dedicating themselves with the parliamentary business.

There is a decentralised budget allocation system for MPs. This has now been increased from 10 million to 15 million. This is not subjected to audit by the Auditor General and hence open for abuse for unjust enrichment.

Proposal No 16 – Constitutional Council

There shall be no members of parliament, who exercise people’s legislative power of the people, in the Constitutional Council that is empowered in the selection process of judges to the superior court system.

The Government should pay due respect to the principle of separation of powers and the law shall provide no provision for one organ to encroach or influence the affairs of other organs, such as appointments and selection processes.

Proposal 17 – People’s judicial power & independence of the Supreme Court

17.1 It is proposed that the number of judges in both the Court of Appeal and the Supreme Court be increased to 15, guaranteeing mandatory 4 regular sittings in the Supreme Court and 7 regular sittings in the Court of Appeal.

Sri Lankans as at present experience severe delays in dispensing justice and one is the inadequacy of number of judges in the superior court system.

17.2 All appointments and the selection process of judges to the Superior Court system shall be vested in the Constitutional Council. The law shall provide all serving judges to be qualified for consideration without any application being made to the council. The Council shall also be empowered by law to call applications for any vacancies in the superior court system from the senior most lawyers from the private bar, the process, which shall be triggered at least three months before the date of retirement of a judge serving in the Superior Court system. The short-listing of the candidates and final determination of appointments shall solely be in the hands of the Constitutional Council. The same process shall also be applied for the appointment of President’s Counsels.

17.3 The retirement age of the Judges serving in both the Court of Appeal and the Supreme Court shall be increased to 65 years subject to regular screening for mental and physical competence, after completion of 60 years in their judicial career.

If there had been a similar system in operation, irreparable damages caused to the judiciary by the judges with deranged mental conditions would have avoided.

17.4 The law shall provide a stipulated tenure of 3 years for all judges in the Superior Courts, including the Chief Justice. However, with a provision for consideration for reappointment, strictly on the basis of proven evidence of competence and efficiency in dispense of justice. This process is proposed as a deterrent to ensure all judges discharge their duty efficiently and effectively leaving no room for inordinate delays in the dispense of justice.

17.5 The rules made by the Supreme Court under the power vested in it by the Constitution to make rules may also include rules specifying time scales within which hearing and disposal of cases shall be done with a mandatory case management hearing, barring unnecessary postponements unless allowed only under ‘exceptional circumstances’. The failure on the part of the lawyer to be present in Court or to take steps as required by rules, shall not be a ground for postponement of cases.

17.6 It is proposed to introduce a provision of law with specific direction to the Supreme Court and the Court of Appeal to hear and determine all fundamental rights applications and writ applications within two months from the date of filing such applications in Court.

Under the existing Constitution the Supreme Court is required by law [Article 126(5)] to hear and dispose of any Right Petition within two months of the filing of such petitions, including writ applications filed against the Election Commissioner (Article 104). However the Supreme Court that is established to observe the rule of law has failed to honour its duty as required by the Constitution.

Writ applications are filed before the Court of Appeal and in some cases also in the Supreme Court, hoping speedy disposal of justice. Yet it is observed that a large number of cases are lagging behind for over five years.

Proposal 18. Judicial Review of all statues

It is also proposed that the Supreme Court shall be vested with power to review any legislation for consistency with the Constitution and also with power to declare any law, which violates the Constitution void.

This is extremely important at a time where the Supreme Court has failed to exercise people’s judicial power as required by law.

For instance Article 82 (6) of the Constitution provides that any law enacted in violation of the Chapter 12 of the Constitution shall be void ab initio and shall not be construed as valid law. However, the Supreme Court that exercises people’s judicial power on trust has shown its ineffectiveness to declare that laws enacted in violation of Chapter 12 of the Constitution have no legal effect in terms of Article 82(6) of the Constitution.

Proposal 19. Remove the regulatory power of Lawyers from the Supreme Court

It is proposed that the regulatory powers of the legal profession by the Supreme Court shall be removed with a creation of an independent regulatory authority to regulate the legal profession.

The existing Constitution empowers the Supreme Court to make rules, to regulate the legal provision. However, it has failed to create a strict regulatory mechanism to discipline the lawyers and to win the trust and confidence of the people.

Proposal 20. Transitional provision to reconstitute judges in Superior Courts

It is proposed that there shall be a transitional provision in the proposed Constitution to cease all the offices in the Court of Appeal and the Supreme Court from the date of commencement of the operation of the proposed Constitution with a right guaranteed to those holding office at the superior court system to be considered for reappointment purely on merits, impartiality and competence.

There are several judges in the Supreme Court and the Court of Appeal, appointed to office purely at the whims and fancies of the former President Mahinda Rajapaska with no due process being followed for their appointments.

Considering the recent (30th Jan 2015) statement made by the Prime Minister in the parliament, wherein the disgraceful conduct of the serving Chief Justice was revealed to the nation, that the Chief Justice callously compromised the judicial power of the people with the Executive, agreeing to make any Court Order to please the executive and also to appoint judges to please the executive, it is strongly proposed that the insertion of transitional provision in the proposed constitution to reconstitute the composition of the judges in the Superior Court system is of paramount importance to restore people’s trust and confidence in the judiciary. This fact has been already conceded (paragraph 6) by the Government of Sri Lanka in the UN Human Rights Counsel Resolution (A/HRC/RES/30/1) adapted on 01st October 2015 without a vote.

Proposal 21 – Provisions to strengthen the Office of the Auditor General

It is also proposed to empower the office of the Auditor General with adequate authority to regulate the public finance, ensuring accountability by all persons and public authorities for all their actions.

The Auditor General shall also be vested with power to call for any records, as the Auditor General may deem appropriate, making failure to comply with the directions of the Auditor General a punishable office with strict disciplinary actions for none compliance.

Proposal 22 – Abolition of the Provincial Council System

It is also proposed to enact a provision in the new Constitution, abolishing Provincial Council system, which has fatally failed to discharge the desired objective.
This system was introduced as a remedial measure to address the issues faced by the people domiciled in the Northern and Eastern Provinces. However, this system has since been abused to install provincial councils in other provinces to provide extravagant life style for second tier politicians of the political parties at the expense of taxpayers’ money. This has now become a bane to the national economy with no value for money spent on them is justified.

Proposal 23 – Measures for logical Re- demarcation of Provinces

There shall be a provision in the Constitution to re-demarcate the Provinces of Sri Lanka with equal economic, social and political opportunities afforded to the people, ensuring no discrimination any ethnic group.

The demarcation of provinces and districts in Sri Lanka was made in 1832 by the British to suit their colonial administration, which was not based on any logic whatsoever, and without considering the needs of the people belonged to different ethnic groups domiciled in the respective regions. The present demarcation has contributed to the ethnic conflicts between the different ethnic groups.

Proposal 24 – Provision to appoint Ministers for Northern and Eastern Provinces

It is proposed to make provisions in the proposed Constitution for the creation of Ministers for Northern and eastern Province, who shall be a MP elected to office with the highest number of votes polled at the General Election either from Northern or Easter Province. They shall be Ex Officio members in the Cabinet of Ministers representing the people of Northern and Eastern Province. The said Ministers shall be empowered to oversee all Government business in the said provinces with a proportional distribution of government income, investments, expenditure, welfare and all state sponsored infrastructure development projects in the said provinces guaranteed by law.

The Ministers for Northern Province and Eastern province, with the concurrence of the government, shall also have a liberty to negotiate foreign aids for the development of the respective regions and in the event the government concurrence is denied for unjustified reasons to challenge the same in the Court of law.

Proposal 25 – Provision for independent Police Complaints Commission

It is also proposed to make a provision for a new Independent Police Complaints Commission, which shall be a non-departmental public body with additional powers and responsibilities for overseeing the system of handling public complaints made against the police Department, improving the way public complaints are handled. This commission should also have powers to handle appeals made by public about the way their complaints were dealt with by the police department.

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