{"id":237915,"date":"2024-07-28T09:45:33","date_gmt":"2024-07-28T04:15:33","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=237915"},"modified":"2024-07-29T06:31:52","modified_gmt":"2024-07-29T01:01:52","slug":"senior-academics-professionals-call-for-reimagining-a-democratic-constitution-for-sri-lanka","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/senior-academics-professionals-call-for-reimagining-a-democratic-constitution-for-sri-lanka\/","title":{"rendered":"Senior Academics & Professionals Call For Reimagining A Democratic Constitution For Sri Lanka"},"content":{"rendered":"

The Collective for Democracy and Rule of Law (CDRL), comprising senior academics, professionals, and activists, has made far-reaching proposals for a new constitution for Sri Lanka under the title \u201cPrinciples and Proposals for Political and Constitutional Reform for Democracy\u201d.\u00a0 <\/span>CDRL advocates the complete replacement of the present Constitution with a democratic constitution that will give effect to the people’s hopes. Prominent among the proposals are restoring parliamentary democracy, a bi-cameral legislature, a mixed electoral system, stricter anti-cross-over provisions, and promotion of local democracy based on power-sharing, subsidiarity, and citizens’ participation. The right of recall and direct democracy have been agreed to in principle. A stronger fundamental rights chapter, post-enactment judicial review and a Constitutional Court have also been proposed. A set of ‘Constitutional Principles’ that will guide the new Constitution as well as future judicial interpretation have been included.<\/p>\n

The following are the CDRL\u2019s proposals in full:<\/p>\n

Principles and Proposals for Political and Constitutional Reform for Democracy\u00a0<\/b><\/span><\/p>\n

\"\"

Prof. Jayadeve Uyangoda<\/p><\/div>\n

2024 is a year of elections to choose a new President and possibly a new Parliament. In that context, the theme of political and constitutional reforms has once again begun to draw the attention of the citizens, civil society movements and political parties. It is necessary to recognise that any constitutional reform effort should have two main goals. They are (a) restoring the country’s parliamentary democracy and (b) replacing, not just reforming, the existing 1978 Constitution with a new and democratic constitution. A new constitution should also give effect to the democratising hopes of the people of Sri Lanka.<\/p>\n

Therefore, an agenda for restoring democratic government calls for major changes in the Constitution as well as the system of government.<\/p>\n

The proposals for constitutional change and democratisation offered in this document embody the following principles and goals:<\/p>\n

* Restoring parliamentary democracy and freeing it from the control of the President and the executive.<\/p>\n

* Restoring the public trust and faith in the Constitution, Parliament, institutions of government and democracy.<\/p>\n

* Ensuring people’s right to hold the government and the elected representatives accountable through new mechanisms. The aim is to make the principle of popular sovereignty meaningful to the people who are the bearers of sovereignty in a democracy.<\/p>\n

* Preventing the government from using the political power to misuse the Constitution and the law for arbitrary and tyrannical objectives.<\/p>\n

* Deepening democracy through citizens’ participation in the process of government.<\/p>\n

Constitutional Principles and Sovereignty<\/b><\/span><\/p>\n

The proposed official name of the country is ‘Sri Lanka’ instead of the long name, ‘Democratic, Socialist Republic of Sri Lanka.’<\/p>\n

\"\"

Dr. Deepika Udagama<\/p><\/div>\n

The republican character of the state of Sri Lanka is to be retained with the new description: ‘Sri Lanka is one, free, sovereign, democratic, and independent Republic.’<\/p>\n

The Sri Lankan people are sovereign and free citizens of a modern republic. They are equal members of an independent and democratic political community, valuing their ethnic, cultural, and social diversity.<\/p>\n

A set of ‘Constitutional Principles’ will be included in the Constitution. They will be described as ‘immutable and inviolable values of democratic republicanism.’ These principles will embody the fundamental constitutional values that guide the new Constitution as well as future judicial interpretation of any of its clauses.<\/p>\n

The following are proposed as Founding Constitutional Principles and Values in accordance with which the Constitution is founded and interpreted:<\/p>\n

Sr<\/span>i L<\/span>an<\/span>ka is one, fr<\/span>ee<\/span>, so<\/span>ve<\/span>r<\/span>e<\/span>ig<\/span>n, democratic an<\/span>d ind<\/span>e<\/span>pe<\/span>nd<\/span>e<\/span>nt R<\/span>e<\/span>pu<\/span>blic founded on the following immutable and inviolable values of democratic republicanism and consociationalism:<\/em><\/p>\n

(a) human dignity, social justice, economic justice, equality and the advancement of human rights and freedoms;<\/span><\/p>\n

(b) ethnic, gender and social equality;<\/p>\n

(c) the supremacy of the Constitution and the Rule of Law;<\/p>\n

(d) regular, uninterrupted, free and fair elections and a multi-party system of democratic government;<\/p>\n

(e) non-concentration of state power in one individual or institution;<\/p>\n

(f) the assurance of accountability, responsiveness and transparency at all levels of governance;<\/p>\n

(g) public authorities hold and exercise powers in accordance with the doctrine of public trust.<\/p>\n

Legislature<\/b><\/span><\/p>\n

The new Constitution will embody a framework that will facilitate the shift of political power from the Executive President to Parliament. This will ensure that the abolition of the executive presidential system should lead to restoring parliamentary democracy.<\/p>\n

\"\"

Dr. Jayampathy Wickramaratne PC<\/p><\/div>\n

We agree in principle with the proposal that was made during the Aragalaya<\/i> that citizens should have the right to initiate legislation. The proposal merits a deeper study as there is also the possibility of abuse, as was the case in the initiative to ban the construction of minarets in mosques in Switzerland.<\/p>\n

The new Constitution will create a Second Chamber, a Senate. It will augment the Parliament’s representative function. The Second Chamber will also strengthen the principle of power-sharing by giving representation to the provinces in Parliament. This will lead to establishing closer linkages between the Centre and the periphery.<\/p>\n

The House of Representatives consists of 200 members elected on the following basis:<\/p>\n

* One hundred and thirty members will be elected from territorial constituencies. They will include multi-member and smaller constituencies carved out to facilitate the representation of social groups of shared interest. <\/span><\/p>\n

* Sixty members will be elected based on proportional representation at a national or provincial level. <\/span><\/p>\n

* Ten seats would be filled through national-level proportional representation from among parties that have not secured a seat through territorial constituencies or the sixty seats mentioned above. This will enable small parties with significant national presence without local concentration to secure parliamentary representation.<\/span><\/p>\n

* Appropriate provisions will be made to ensure adequate representation of women, youth and underrepresented’ interest groups.’ <\/span><\/p>\n

In order to prevent undemocratic manipulation of the process of government formation after an election, it is proposed that <\/b>if the Prime Minister appointed after the conclusion of a general election does not win a vote of confidence at the first sitting of the new House of Representatives, s\/he will be deemed to have resigned.<\/p>\n

\"\"

Prof. Navaratna Bandara<\/p><\/div>\n

The Prime Minister will also be considered to have resigned if, at any time during the duration of Parliament,\u00a0 <\/span>a vote of no-confidence is passed against her\/him, the Budget is defeated, or the Statement of Government Policy is defeated. Both cases will result in a new Prime Minister being appointed. If the new Prime Minister does not win a vote of confidence within fourteen days, the House of Representatives shall be dissolved by the President as the House is no longer viable.<\/p>\n

The House of Representatives will also stand dissolved if a motion in the name of the Prime Minister to that effect is passed. Such a motion will need the agreement of the Leader of the Opposition and the leader of the third-largest party in the House of Representatives, the latter’s agreement being required to prevent a ‘deal’ between the other two.<\/p>\n

The PM should not have the power to advise the President to dissolve the legislature as s\/he would do so when it best suits them.<\/p>\n

Right of recall, cross-overs, expulsions, by-elections<\/i><\/strong><\/span><\/p>\n

Restoration of public trust in Parliament, as well as Members of Parliament, is another key task in rebuilding parliamentary democracy in Sri Lanka. The existing practices concerning crossovers of MPs are seen by the people as being enmeshed with the pervasive culture of political corruption. Generally, it is a practice resorted to by leading parties to secure parliamentary majorities by unethical and unlawful means.<\/p>\n

\"\"

Dr Paikiasothy Saravanamuttu<\/p><\/div>\n

Rectifying this distortion of Sri Lanka’s parliamentary democracy is a significant reform expectation of the citizens. It requires a mechanism for the MP’s accountability and moral obligation to the party and the voters.<\/p>\n

An issue that was raised during the Aragalaya<\/i> is the right of voters to recall an MP who has violated the mandate given to him\/her. We agree in principle and suggest that a deeper study be done on how this could be incorporated into the Constitution while preventing its abuse.<\/p>\n

We propose the following:<\/p>\n

A Member of the House of Representatives will lose her\/his seat when:<\/p>\n

(a) The MP votes in violation of a decision of the Party, or without permission of the Party, or,<\/span><\/p>\n

(b) Declares his\/her support for or joins another party, the seat of such Member shall become vacant. <\/span><\/p>\n

However, there would be safeguards for those MPs who have contested as coalition partners or under a memorandum of understanding.<\/p>\n

\"\"

Dr. Kalana Senaratne<\/p><\/div>\n

Wher<\/span>e a Membe<\/span>r elected from a constituency ceases to be a member of the party that nominated her\/him, the seat will become vacant. If this happens due to expulsion, the MP may challenge her\/his expulsion in the Supreme Court within one month. The Supreme Court must rule on the application within two months. <\/span><\/p>\n

When the seat of a Member elected from a constituency becomes vacant, a by-election will be held to fill the vacancy.<\/p>\n

When the seat of a Member elected based on proportional representation becomes vacant, it can be filled by the Party only from among those nominated on the original PR list.<\/p>\n

The Senate<\/i><\/span><\/strong><\/span><\/p>\n

In many countries, a Second Chamber serves as an institution of power-sharing, ensuring representation of the provinces. It also promotes closer linkages between the Centre and the periphery.<\/p>\n

The Senate can also function as a mechanism to rectify possible imbalances of representation in the House of Representatives. Acting as an in-built mechanism against arbitrary or hasty legislation and legislation that may adversely affect the provinces will enhance the role of the Senate as an institution of democratic checks and balances.<\/p>\n

\"\"

Lal Wijenayake<\/p><\/div>\n

T<\/span>h<\/span>e<\/span> Senate<\/span> will<\/span> consi<\/span>s<\/span>t<\/span> of<\/span> fifty <\/span>m<\/span>e<\/span>m<\/span>bers.<\/span> E<\/span>a<\/span>c<\/span>h<\/span> Provincial Council<\/span> will <\/span>elect five<\/span> m<\/span>em<\/span>bers who have distinguished themselves in public life, based on<\/span> proportional representation<\/span>.<\/span> This would facilitate the representation of different communities and political parties. At least two such members shall be women. <\/span><\/p>\n

Five members shall be appointed to the Senate by the President to represent unrepresented or underrepresented group interests or identities.<\/span> Their appointment will be on the joint nomination of the Prime Minister and the Leader of the Opposition in the House of Representatives. <\/span><\/p>\n

All B<\/span>ills would<\/span> be ref<\/span>erre<\/span>d t<\/span>o th<\/span>e Senate<\/span> to obtain i<\/span>ts views before t<\/span>h<\/span>e S<\/span>ec<\/span>ond R<\/span>ea<\/span>di<\/span>ng<\/span>. When the Senate does not agree to a Bill other than a Money Bill, the Bill would be referred to a Joint Parliamentary Legislative Committee for consideration. The Committee will submit its report to both Houses within one month.<\/p>\n

\"\"

M.A Sumanthiran PC<\/p><\/div>\n

A Bill seeking to lay down national policy or standards on a subject or matter in the Provincial Council List that would be binding on Provincial Councils must be passed by the Senate as well, with at least two Senate members representing each province voting in favour. This will function as a safeguard to protect the powers of the Provincial Councils from the unilateral intervention of the Centre.<\/p>\n

A C<\/span>onstitu<\/span>tion<\/span>a<\/span>l Am<\/span>endm<\/span>ent must be passed by <\/span>both the House of Representatives and the Senate with a two-thirds majority<\/span>. This will give the provinces a say in constitution-making and constitutional reforms.<\/p>\n

The public and citizens\u2019 organisations must be afforded more opportunities to be involved in the activities of the legislature. The Constitution should mandate public participation in law-making through mechanisms such as opportunities to comment on draft legislation, consultation meetings, and public hearings. Proceedings of Sectoral Oversight Committees should be broadcast online. This should be extended to Provincial Councils as well.<\/p>\n

The Executive<\/span><\/strong><\/p>\n

\"\"

Saliya Pieris PC<\/p><\/div>\n

Abolishing the ‘Executive Presidential’ system of government and its associated constitutional order is a longstanding and unfulfilled demand of the people of Sri Lanka. It has also generated widespread agreement among the people and political parties. As clearly articulated during the Aragalaya in 2022, <\/i>the ‘executive presidency’ is the main obstacle to democracy and democratisation in Sri Lanka. Thus, an agenda for returning to parliamentary democracy in Sri Lanka calls for re-constituting the balance of power between the President and the legislature.<\/p>\n

Making the President the nominal head of the executive while retaining the position of Head of State is a critical democratising measure proposed in this reform package.<\/p>\n

It is proposed that the President be elected by an electoral college comprising members of the House of Representatives and the Senate.<\/p>\n

Sri Lanka’s democratic consolidation as a multi-ethnic and pluralist democracy calls for sharing higher-level political office between ethnic communities. Therefore, a position of Vice President from a community other than the community to which the President belongs, elected by the same electoral college, is proposed.<\/p>\n

\"\"

Dr. Sakuntala Kadirgamar<\/p><\/div>\n

The President and Vice-President shall be responsible and accountable to the national legislature.<\/p>\n

While the President will be the nominal head of the executive, the Cabinet of Ministers will exercise such executive power and be answerable to the People via Parliament. The President would exercise powers on the advice of the Cabinet of Ministers conveyed to him\/her by the Prime Minister, who will be the Head of the Cabinet of Ministers. The Constitution will expressly provide any exception to this rule.<\/p>\n

The President would appoint as Prime Minister the Member of Parliament who, in the President‘<\/span>s opinion, is most likely to command the confidence of the House of Representatives. However, the President would not have the power to remove the Prime Minister.<\/p>\n

Reducing the size of the Cabinet of Ministers and the number of other ministers is also a long-unfulfilled popular demand to reduce political corruption and inefficient governance. Therefore, the maximum number of Ministers proposed is twenty. Of them, at least five are to be women. Also, not less than five ministers need to belong to communities other than the majority community. There will be a Deputy Prime Minister chosen from among the ministers. However, she\/he must belong to a community other than the community to which the Prime Minister belongs.<\/p>\n

The total number of State Ministers and Deputy Ministers will be limited to twenty. Among them, not less than five will be women. Similarly, not less than five should belong to communities other than the majority community.<\/p>\n

Secretaries of Ministries will be appointed by the National Public Service Commission in consultation with the Prime Minister.<\/p>\n

Devolution and Local Democracy<\/b><\/span><\/p>\n

Devolution of power deepens democracy by bringing government closer to the people. The Constitution should promote local democracy based on power-sharing, subsidiarity, and citizens’ participation.<\/p>\n

\"\"

Dr. Mario Gomez<\/p><\/div>\n

The allocation of subjects and functions will be guided by the above principles to enable lower levels of government to ensure maximum efficiency and accountability to the People. Accordingly, subjects and matters that could be more efficiently handled by the lowest tier should be vested in such tier.<\/p>\n

Establish Grama Sabhas in every local authority ward to empower people and deepen democracy by bringing citizens’ participation to the lowest local government level. It will also help overcome the alienation and separation between the local government institutions and the citizens.<\/p>\n

The following reform measures are proposed:<\/p>\n

The right to vote <\/i><\/span><\/strong><\/p>\n

The right to vote at elections to Provincial Councils and local authorities will be included in the description of ‘franchise’ in Article 4(d), with constitutional provisions ensuring elections are held regularly for Provincial Councils and local authorities, with no room for arbitrary interventions by the Centre.<\/p>\n

Provincial Councils<\/i><\/span><\/strong><\/p>\n

The Provincial Council system should be maintained and strengthened in recognising devolution as a framework for a workable approach for offering power-sharing as an essential component of a solution to the country’s ethnic problem with broad acceptance.<\/p>\n

\"\"

Bhavani Fonseka<\/p><\/div>\n

The Constitution would provide the circumstances in which Parliament may prescribe national policy on matters contained in the Provincial Council List. The approval of the Senate is necessary for such legislation as Provincial Councils would have to work within national policies so made. In making national policy, the Central Government must adopt a participatory process with the Provincial Councils.<\/p>\n

Parliamentary legislation and national policy on a subject in the Provincial List would not have the effect of the Centre taking over executive or administrative powers, which would remain with the lower-level tier concerned.<\/p>\n

The Governor shall appoint as Chief Minister the member of the Provincial Council who, in his opinion, is best able to command the support of a majority of the members of the Council and appoint the other Ministers on the Chief Minister’s advice.<\/p>\n

If a Provincial Council passes a motion of no-confidence in the provincial administration or if the Draft Appropriation Statute (Budget) or the Statement of Policy is defeated in the Provincial Council, a multi-party administration with the parties that wish to participate in the Board of Ministers will be formed. A nominee of the party that polled the most votes at the last election would be appointed the Chief Minister. Ministries will be apportioned among parties that agree to join in proportion to the votes polled by them.<\/p>\n

However, the Provincial Council stands dissolved if the Council passes a motion of no-confidence in the multi-party administration, or the Draft Appropriation Statute (Budget) or the Statement of Policy of the multi-party administration is defeated in the Provincial Council. Where the Provincial Council is dissolved, the Board of Ministers will continue until a fresh election is held.<\/p>\n

\"\"

Geoffrey Alagaratnam PC<\/p><\/div>\n

The President shall appoint the Governor of a Provinces on the recommendation of the Constitutional Council and approval by the Senate. A Governor should not have been affiliated with any political party for three years immediately before appointment. S\/he must not be involved in politics during the period of office.<\/p>\n

A draft statute passed by a Provincial Council shall be presented to the Governor for assent, who shall either assent or refer it to the Constitutional Court within one month for a determination that it is not inconsistent with the provisions of the Constitution. Where the Constitutional Court determines that the statute is consistent with the Constitution, the Governor shall, on receipt by him\/her of the Court’s determination, assent to the statute. Where the Constitutional Court determines that the statute is inconsistent with the provisions of the Constitution, the Governor shall withhold assent to the statute. Where the Governor neither assents nor refers the draft statute to the Constitutional Court within one month, the draft statute shall be deemed to have been assented to. We propose this change as there have been instances of Governors neither assenting to a draft statute nor the President referring it to the Supreme Court as provided by Article 154H(4) of the Constitution.<\/p>\n

The National Public Service Commission would appoint the Chief Secretary of a Province with the concurrence of the Chief Minister and Secretaries of Provincial Ministries in consultation with the Chief Minister. The Provincial Public Service Commission would appoint heads of departments in consultation with the Chief Minister and the Chief Secretary.<\/p>\n

The appointment, promotion, transfer, dismissal, and disciplinary control of officers of the Provincial Public Service would be vested in the Provincial Public Service Commission (PPSC) constituted for each Province.<\/p>\n

The Governor would appoint the members of the PPSC on the joint nomination of the Chief Minister and the Leader of the Opposition of the Provincial Council. Where there is no agreement, the Constitutional Council shall make the nominations after consulting the Chief Minister and the Leader of the Opposition.<\/p>\n

A Chief Ministers’ Conference, presided over by the Prime Minister, will meet regularly to discuss issues of common concern and promote inter-provincial and Centre-Province cooperation.<\/p>\n

Local Government <\/i><\/strong><\/span><\/p>\n

The Constitution shall recognise the local government as the third tier with its list of subjects and responsibilities.<\/p>\n

Local authorities would have the powers and be provided with resources to initiate and implement development programs.<\/p>\n

Additionally, local authorities should be constitutionally recognised as an implementing agency about specified functions in specified laws of the Centre and statutes of Provincial Councils such as environmental, coast conservation, social welfare programs and pre-schools.<\/p>\n

Grama Sabhas<\/i><\/span><\/strong><\/p>\n

A Grama Sabha would be established for each local government ward to empower the people through participation. They would be elected from among those nominated by recognised citizens\u2019 organisations in the area. Nominations by political parties are not accepted.<\/p>\n

Participation is recognised as a measure with two critical democratic functions at the local level, namely (a) allowing citizens to be actively engaged in the affairs of the community and voting at local elections and (b) offering citizens an active role in local self-government.<\/p>\n

The people would periodically elect them and have the power to contribute to decisions about governmental activities in their area, including development activities. They could also play an advisory, supervisory, and regulatory (watchdog) role in the functioning of the local government institutions. Local authorities would be statutorily obligated to consult Grama Sabhas in all matters of policymaking and planning relevant to the ward.<\/p>\n

Grama Sahas should be able to notify the authorities of maladministration, injustices, waste, bribery, and corruption. Such authorities would be required to respond to such communications.<\/p>\n

Grama Sabhas shall provide forums to enable the people to contribute directly, through participation, to local development planning, program implementation, and governance.<\/p>\n

Representatives of Grama Sabhas within a Divisional Secretariat area would form a Divisional Grama Sabha and contribute to the decision-making process at such a level.<\/p>\n

Safeguards against secession<\/b><\/span><\/p>\n

While power-sharing through devolution has successfully met secessionist challenges in many countries, many opposed to devolution have spread fear among the people that devolution would eventually lead to secession. There has been secession in some countries despite devolution. It has occurred not because of devolution but due to a devolved unit using its powers, such as powers relating to law and order, to secede forcibly. Such secession is almost wholly due to historical reasons. However, as there are fears among some that devolution might lead to secession, we suggest that safeguards against secession be included in the Constitution.<\/p>\n

The following is proposed: Where a pr<\/span>o<\/span>vi<\/span>ncial adminis<\/span>t<\/span>r<\/span>ation is pr<\/span>omoting a<\/span>r<\/span>med r<\/span>ebe<\/span>ll<\/span>ion or ins<\/span>ur<\/span>r<\/span>ec<\/span>tion or engagin<\/span>g in an intention<\/span>al viol<\/span>ation of the C<\/span>ons<\/span>titutio<\/span>n, and there is a clear and p<\/span>r<\/span>es<\/span>ent danger to the terr<\/span>itorial integr<\/span>ity and s<\/span>ove<\/span>r<\/span>eignty of the R<\/span>epublic, the Centre can intervene. This would be by a Proclamation by the President on the advice of the Prime Minister. The President may take over all or any of the functions of the provincial administration. Where necessary, the Provincial Council can be suspended.<\/p>\n

R<\/span>e<\/span>as<\/span>on<\/span>s for t<\/span>he mak<\/span>ing of s<\/span>uch Pr<\/span>oclamation need to be given. Such a Procl<\/span>ama<\/span>tion will be su<\/span>bj<\/span>e<\/span>ct to approval by both Houses of Parliament. It may also be reviewed by the Constitutional Court. <\/span>Such Proclamation will be valid for three months. It may be extended, su<\/span>bj<\/span>e<\/span>ct to approval by both Houses of Parliament and j<\/span>ud<\/span>ici<\/span>al rev<\/span>iew<\/span>.<\/p>\n

Constitutional Council <\/b><\/span><\/p>\n

A Constitutional Council was set up mainly due to civil society pressure to curb the excessive powers of the executive presidency and to depoliticise the state and public service. It was also expected to function as a system of checks and balances to curb governmental power. We also view the Constitutional Council as an instrument for achieving a national consensus on high-level appointments and propose its retention even under a parliamentary system of government. At present, while members of independent Commissions are appointed on the recommendation of the Council, appointments to high positions are made on the nomination of the President, subject to approval by the Council. We propose that both categories be appointed on the recommendation of the Council.<\/p>\n

We propose that the Constitutional Council will consist of:<\/p>\n

(a)\u00a0<\/i>the Prime Minister;<\/p>\n

(b) the Speaker, who will be the Chairperson of the Council;<\/p>\n

(c) the Leader of the Opposition in the House of Representatives;<\/p>\n

(d)\u00a0the Chair of the Senate;<\/span><\/p>\n

(e) five persons appointed by<\/span> the President on the nomination of both the Prime Minister and the Leader of the Opposition; and<\/p>\n

(f) one person appointed by the President upon being nominated by Members who do not belong to the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong.<\/span><\/p>\n

In nominating the five persons referred to in subparagraph (e), the Prime Minister and the Leader of the Opposition will need to consider nominations made by national professional bodies and civic organisations. They should also consult the leaders of political parties and independent groups represented in Parliament. They are obliged to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society<\/span>, including professional and social diversity<\/span>. The five persons referred to in subparagraph (e) and the person referred to in subparagraph (f) should be persons of eminence and integrity who have distinguished themselves in public or professional life. They should not be members of any political party. Parliament must approve their nominations.<\/p>\n

Judiciary<\/b><\/span><\/p>\n

The procedure for the appointment and removal of Judges of Superior Courts and the appointment of the members of the Judicial Service Commission has a direct bearing on the independence of the Judiciary. We are of the view that the independence of the Judiciary would be better assured if such appointments were on the recommendation of the Constitutional Council rather than with its approval as at present.<\/p>\n

A welcome trend is that more citizens and civic organisations are coming forward to challenge Bills before the Supreme Court. We have, elsewhere, proposed that post-enactment judicial review of laws and Provincial statutes be permitted. With complex constitutional issues being raised in courts, it is best that they be adjudicated by a specialised Constitutional Court.<\/p>\n

We make the following proposals:<\/p>\n

Judges of Superior Courts<\/i><\/strong><\/span><\/p>\n

Appointments to the Constitutional Court, Supreme Court and Court of Appeal would be made by the President on the recommendation of the Constitutional Council. The Constitutional Council will consider the views of the Chief Justice and the two senior-most Judges of the Supreme Court.<\/p>\n

Allegations of misbehaviour or incapacity contained in a resolution for the impeachment and removal of a Judge of a Superior will be inquired into by a panel of three retired Judges of the Constitutional Court or the Supreme Court. They should be appointed by the Speaker on the recommendation of the Constitutional Council.<\/p>\n

We propose a Code of Conduct applicable to Judges of Superior Courts. Allegations of serious infractions of the Code of Conduct shall be inquired into by a panel of three retired Judges of the Constitutional Court or the Supreme Court. They will be appointed by the President on the recommendation of the Constitutional Council.<\/p>\n

New steps need to be taken to further enhance the independence and integrity of the judges. Therefore, we propose that the Constitution provide for the economic security of retired Judges of the Superior Courts by appropriate means, including a pension equivalent to the salary, perquisites, and emoluments of a sitting Judge. Retired Superior Court Judges shall not perform any function which would bring them monetary gain, advantage or benefit, except as authorised by the Constitution or by written law or with the written consent of the President.<\/p>\n

Constitutional Court <\/i><\/span><\/strong><\/p>\n

The Constitutional Court will consist of seven Judges appointed by the President on the recommendation of the Constitutional Council. Judges will be chosen from among persons who have distinguished themselves in the Judiciary, the legal profession or legal education\/research with specialised knowledge of Constitutional Law. They would be appointed for a term of five years and would not be eligible for reappointment. Any matter falling within the jurisdiction of the Constitutional Court arising before any court will be referred to the Constitutional Court. Therefore, a question of the Constitutional Court overruling another court will not occur.<\/p>\n

The exclusive jurisdiction of the Constitutional Court will be as follows: interpretation of the Constitution; judicial review of Bills and Acts of Parliament and draft Statutes and Statutes of Provincial Councils; the validity of a Proclamation relating to the intervention by the Centre in a Provincial Council; disputes between the Centre and Provincial Councils and between Provincial Councils; review of its judgments; inquiries into allegations of violations of fundamental rights by the Office of the Attorney-General, Office of the Public Prosecutor and the Office of the Public Defender.<\/p>\n

To ensure citizens’ easy access to justice, the Court of Appeal will conduct its sittings in each Province. It will have an original fundamental rights and language rights jurisdiction. An appeal would lie to the Supreme Court with leave from the Court of Appeal or special leave from the Supreme Court. The civil appellate jurisdiction of the Provincial High Courts shall be transferred to the Court of Appeal sitting in the Provinces.<\/p>\n

Offices of Attorney-General, Public Prosecutor and Public Defender<\/b><\/span><\/p>\n

The Office of the Attorney-General will have to be an independent entity. The Attorney-General will be the Chief Legal Officer of the Republic. The person holding that office must uphold and safeguard the sovereignty and rights of the People and the public interest. An independent Office of Public Prosecutor and an independent Office of the Public Defender will also be set up.<\/p>\n

The Attorney-General, Chief Public Prosecutor, and Public Defender will be appointed by the President on the recommendation of the Constitutional Council.<\/p>\n

Fundamental Rights<\/b><\/span><\/p>\n

The global trend is to give constitutional recognition to (a) civil and political (first-generation rights), (b) economic, social and cultural (second-generation rights), and (c) environmental and development rights (third-generation rights) as judicially enforceable rights.<\/p>\n

We propose that the Chapter on fundamental rights be improved to include universally recognised rights. The scope of civil and political rights will be broadened. The right to life, human dignity, bodily integrity, and privacy will be guaranteed. The right of access to justice and the right to fair State action will be recognised. Social and economic rights, cultural rights, rights of women, children, the aged and the disabled, as well as group, environmental and development rights, would be recognised as judicially enforceable rights. Social and economic rights would include the right to education, right to health, right of access to sufficient food, clean water, sanitation, adequate housing and shelter, appropriate social protection and decent employment, freedom from exploitation, the right to the enjoyment of just and favourable conditions of work, and consumer rights. Every person has the right to a clean and healthy environment, including the right to have the environment, biodiversity and ecosystems protected for the benefit of present and future generations.<\/p>\n

Article 12(1) of the present Constitution or its equivalent in a new Constitution, which assures all persons equality before the law and equal protection of the law shall have the following proviso: Special provision made by law<\/span>, subordinate legislation or executive action, for the advancement of women, children, disabled persons, disadvantaged groups or communities shall not be deemed to violate the rights guaranteed by this sub-Article.<\/p>\n

Fundamental rights shall be interpreted in the light of the Directive Principles of State Policy but without in any manner restricting the scope of fundamental rights and with due regard to the international legal obligations of Sri Lanka and other sources of international law.<\/p>\n

Public interest litigation will be expressly recognised. Applications filed within a reasonable time would be entertained. The Public Defender can institute a fundamental or language rights application in the public interest.<\/p>\n

All existing laws would be read subject to the Constitution, including the Chapter on fundamental rights.<\/p>\n

International law<\/b><\/span><\/p>\n

At present, the executive enters into treaties without any reference to the legislature. We propose that The Constitution should require that every treaty, along with a memorandum explaining its implications, be tabled in the House of Representatives at least one month before ratification. The House of Representatives may adopt a resolution recommending ratification, reservations or even non-ratification. The executive would be bound by the terms of such resolution. Parliament shall be informed of the ratification of every such treaty forthwith.<\/p>\n

Sri Lanka has accepted human rights obligations, but the people have not had the benefit of all such obligations, which remain on paper domestically. We propose that provisions of a human rights treaty shall become a part of the domestic law on the expiry of a period of two years reckoned from the date of ratification. The House of Representatives may, by resolution, extend such period by one year or reduce such period. Any further extension of the period, not exceeding one year at a time, would require a two-thirds majority. Where the House of Representatives passes a law incorporating a part but not the entirety of a treaty before automatic incorporation, the unincorporated provisions would become domestic law at the end of the period concerned.<\/p>\n

In relation to human rights treaties to which Sri Lanka is a party at the time the new constitutional provisions come into effect, the two-year period shall begin to run from such time.<\/p>\n

Directive Principles of State Policy<\/b><\/span><\/p>\n

Directive Principles of State Policy should provide that budgetary allocations for education, health, housing, etc., be guided by internationally accepted criteria. Directive Principles of State Policy, while not justiciable, should be inviolable.<\/p>\n

National Policy Making<\/b><\/span><\/p>\n

The Constitution shall provide for the establishment of a National Policy Commission to ensure policy continuity to the extent possible, better policy-making and consensus across party lines in key areas.<\/p>\n

Language<\/b><\/span><\/p>\n

Sinhala, Tamil, and English shall be the official languages of Sri Lanka.<\/p>\n

A person would be entitled to communicate or transact business with any official in Sinhala, Tamil, or English and to receive a response from such an official in the language in which the person communicated.<\/p>\n

The right to obtain a copy of a document in Sinhala, Tamil, English, or a translation will be guaranteed. The Constitution will also ensure (a) the right to give information regarding any birth, death, or marriage in Sinhala, Tamil, or English, (b) to receive the original certificate of such birth, death, or marriage in such language, and (c) the right to give information regarding the commission of an offence in Sinhala, Tamil, or English.<\/p>\n

A child will be entitled to primary education in any official language of the child’s parents’ choice. The other two official languages shall be taught as subjects in the school curriculum.<\/p>\n

The State shall provide adequate facilities for the persons with disabilities or special needs to exercise the right to communicate and seek information through all forms of communication of their choice, including augmentative and alternative means and modes of communication such as Braille, large print, sign language, visual media as well as simplified versions when exercising the administrative, educational or judicial function stated in this chapter. Sign Language shall be recognized as the language of communication for the deaf community, and its use should be promoted.<\/p>\n

The State shall provide facilities to preserve or foster a language used by any numerically small linguistic community if the Official Languages Commission recommends that such facilities be granted.<\/p>\n

Public Security<\/b><\/span><\/p>\n

In the aftermath of the Easter Sunday attacks, it came to light that the National Security Council had no legal basis. The then President, while giving instructions that the Prime Minister, the State Minister of Defence and the Inspector-General of Police should not be invited to Council meetings, invited Opposition MPs belonging to his party for such meetings.<\/p>\n

We propose that the Constitution define the composition of the National Security Council and that its decisions, subject to national security considerations, be open to scrutiny and accountability.<\/p>\n

National security must be pursued in compliance with the law, including Sri Lanka\u2019s international legal obligations. National security is subject to the authority of the legislature and the national executive.<\/p>\n

Geoffrey Alagaratnam, President\u2019s Counsel <\/b><\/p>\n

Dr. A.M. Navaratne Bandara, Former Professor in Political Science, University of Peradeniya<\/b><\/p>\n

Bhavani Fonseka, Attorney-at-law, Senior Researcher, Centre for Policy Alternatives<\/b><\/p>\n

Dr. Mario Gomez, Executive Director, International Centre for Ethnic Studies<\/b><\/p>\n

Dr. Sakuntala Kadirgamar, Executive Director, Law & Society Trust<\/b><\/p>\n

Saliya Pieris, President\u2019s Counsel<\/b><\/p>\n

Dr. Pakiasothy Saravanamuttu, Executive Director, Centre for Policy Alternatives<\/b><\/p>\n

Dr. Kalana Senaratne, Department of Law, University of Peradeniya <\/b><\/p>\n

M.A. Sumanthiran, President\u2019s Counsel<\/b><\/p>\n

Professor Deepika Udagama, Chair Professor of Law, University of Peradeniya<\/b><\/p>\n

Professor Jayadeva Uyangoda, Emeritus Professor of Political Science, University of Colombo<\/b><\/p>\n

Dr. Jayampathy Wickramaratne, President\u2019s Counsel<\/b><\/p>\n

Lal Wijenayake, Attorney-at-law<\/b><\/p>\n","protected":false},"excerpt":{"rendered":"

[…]<\/p>\n","protected":false},"author":22,"featured_media":237916,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,2186,1,2375],"tags":[],"class_list":["post-237915","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-colombotelegraph","category-featured-news","category-news","category-stories"],"yoast_head":"\nSenior Academics & Professionals Call For Reimagining A Democratic Constitution For Sri Lanka - Colombo Telegraph<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.colombotelegraph.com\/index.php\/senior-academics-professionals-call-for-reimagining-a-democratic-constitution-for-sri-lanka\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Senior Academics & Professionals Call For Reimagining A Democratic Constitution For Sri Lanka - 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