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Proposals of the Liberal Party for a new Constitution 
IntroductionThe Liberal Party welcomes the decision of the government to introduce changes to the Constitution. When the government first brought forward its proposed package of changes, the Liberal Party was strongly supportive of them, in particular the sections about devolution, because it believed the changes represented a move towards the affirmation of plurality and the entrenchment of protection for all segments of the population. These principles the Liberal Party believes are essential in a Liberal Democracy. Though the Package contained several laudable ideas, the Liberal Party believes that in the present context it is necessary to go further and engage in a fundamental revision of the Constitution. In this respect it welcomes the government proposal to introduce further changes. It also welcomes the recognition by the United National Party that the 1978 Constitution requires fundamental changes if the sovereignty of the People, that was so sadly abused under that Constitution, is not to continue in danger. The recognition by the UNP of the need for independent institutions that are not subject to the power of government, i.e. of temporary majorities, is a major step. We trust that the parties of the government too, which suffered in the past from UNP abuse of governmental power, will recognize the need to institutionalize the protections that the nation as a whole needs. It is in this spirit that the Liberal Party offers its own proposed alterations. These are so comprehensive that in effect they amount to a proposal for a new constitution. This we feel is to be welcomed, in that it is clear that the 1978 Constitution, made in a spirit of ruthless majoritarianism, practically provokes those in power to excess. The assertions of the present government when in opposition that changes were essential is paralleled by the anxieties of the opposition now. Given how volatile the situation in this country is, we trust that both major parties, and all others will welcome our suggestions and pay due heed to them in advancing their own proposals. We plan therefore over the coming weeks to issue suggestions as well drafts of chapters that we hope other parties will take into account in making their own proposals. These will not follow the present structure of the Constitution, since we hope each week to address both areas in which consensus seems likely as well as those in which far-reaching changes would be in the end beneficial to all parties. ForewordOne of the most important objectives of a Constitution should be its Norm Setting Function. In the 1978 Constitution it seems to have been thought that a Chapter on Directive Principles would suffice. This however is insufficient, coming as it does after Chapters on The People, The State and Sovereignty, Buddhism, Fundamental Rights, Language and Citizenship. On the contrary, all these should be subject to Basic Principles’ ie. A Constitution should be a value laden document enshrining values and principles by which a country is to be governed. As the Constitutional Expert Rohan Edirisinha suggests, a chapter similar to the first Chapter of the South African Constitution, which is entitled Founding Provisions should be included. Chapter one of the Constitution should include Founding Provisions which include basic values and principles such as accountability, transparency, responsiveness and openness, equality, non-racialism and non sexism, the supremacy of the Constitution and the Rule of Law, and a multi-party system of representative government. The current first chapter includes statements of what purport to be fundamental facts without examination of the principles on which such ‘facts’ are based. It moves on to some practicalities, again without reference to principles. Finally it goes on to details about the trappings of sovereignty without explaining what such sovereignty is designed to achieve. The Liberal Party proposes therefore that the First Chapter should include norms and clauses that ensure the furtherance of those norms and the protection of Constitutional Rights. Amongst these perhaps the most important in the present context is the enshrinement of the independence of the Judiciary. While deferring for the moment our detailed proposals for the chapter on Basic Norms, we would draw attention to amending the present clause that says that the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law. The highlighted sections (‘by Parliament’ and from ‘except...’ to the end) should clearly be deleted. Furthermore, the chapter on the Judiciary should be amended in the light of international norms and modern developments in Constitution making. The power of the Executive to appoint judges should be curtailed. A Judicial Services Commission consisting of the stakeholders in an independent judiciary should nominate persons for appointment to the superior courts of the land. Parliament should not have the power to investigate allegations of misbehaviour against judges. Before that however, the Constitution should in its second chapter deal with Fundamental Rights and their justiciability. It is only after such principles have been established that chapters on Citizenship and Language should be placed. The Constitution should then go on to the Legislature, before referring to the Executive, since it should be manifest that the former should act as a check on the latter. Again, our detailed proposals on the Legislature will follow. We will begin here however with some suggestions with regard to the Executive, again not the Presidency, as to which more debate might be anticipated, but the Cabinet. In this respect, we would remind the President of her pledge to reduce the size of the Cabinet. Without finding fault, we accept the fact that, in the present political context, it is difficult to act in a statesmanlike fashion in such areas. It is for that reason that we believe Constitutional safeguards are essential. It is in that spirit that we offer the following far-reaching but we believe generally acceptable proposals, as amendments to the current chapter on The Cabinet. Notes on important changes follow - Chapter on the Executive1. The President shall be responsible to Parliament of the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security. 2. There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic. The number of Members of the Cabinet shall be restricted to a maximum of 12 and shall included Ministers with responsibility for the following functions - a) Finance 3. Ministers shall be appointed by the President with the approval of Parliament, and they shall be individually and collectively responsible and answerable to Parliament. They may be dismissed by the President, who shall appoint a successor subject to the approval of Parliament. Members of Parliament appointed to Cabinet Ministries shall be required to resign from Parliament before taking up Cabinet office. 4. The President shall be the Head of the Cabinet of Ministers but shall not be in charge of any particular subject. However the President shall be responsible for overall Policy and Planning. 5. There shall be a Secretary to the Cabinet of Ministers who shall be appointed by the President. The Secretary to the Cabinet shall, subject to the direction of the President have charge of the office of the Cabinet of Ministers, and shall discharge and perform such other functions and duties as may be assigned to him by the President. 6. (1) There shall be for each Ministry a Secretary who shall be appointed by the Minister concerned with the concurrence of the Public Service Commission. (2) The Secretary to the Ministry shall, subject to the direction and control of his Minister, exercise supervision over the departments of Government or other institutions in the charge of his Minister. The Secretary may be dismissed by the Minister, who shall appoint a successor subject to the approval of the Appointments Commission. The Commission may appoint anyone who has held office as Secretary to a Ministry to any other post in the Public Service. In the case of anyone who, prior to his appointment as Secretary was in the Public or Local Government Service or in the service of any public corporation, he/she shall be deemed to have been temporarily released from such service and shall be entitled to revert to such service without loss of seniority upon his so ceasing to hold office as Secretary. NotesThe principle change enunciated above is the separation of the Executive and the Legislative by removing Ministers from Parliament. This principle is in fact accepted in other countries with an Executive Presidency, such as the United States and France. Unfortunately Prof. A. J. Wilson did not, in his sadly naive book on the 1978 ‘Gaullist’ Constitution as he called it, examine why J R Jayewardene ignored that aspect of Gaullism although he had praised it earlier. The answer is simple. By placing Ministers subject to the President within Parliament he ensured the total subjection of the Legislature to the Executive. Ministerial position becomes the height of ambition for parliamentarians; naturally their examination of legislation, their budgetary deliberations, their monitoring of expenditure, all are performed in the shadow of the greater authority. In France however, and in particular in America. there is a true separation of powers, and therefore genuine mutual control. In such a situation the Judiciary too can be more independent, without being overwhelmed by the Executive Branch. For that reason it is only logical, inconvenient though it would be for an all-powerful executive head such as the 1978 Constitution envisaged, to remove the Executive Branch in its entirety from Parliament. Other proposals above include the limitation of the size of the Cabinet. It is clear now that, when this is not done Constitutionally, even the best intentioned executive head, as the current President in 1994, is subjected to various pressures. When a President decides to use to the full the powers of patronage the present situation allows, the result is a vast number of Ministers of all sorts, all maintained with their entourages at State expense. Very few of them however fulfil a function, apart from that of patronage, which would not be more efficiently performed by non-political officials. The following suggestions reaffirm the Liberal commitment to plurality, by reintroducing a second chamber in which the regions shall have increased representation. The proposals specify the system on which elections to the House of Representatives should be held. Though reference has been made elsewhere to the mixed German system, in fact what we have now, and what is proposed in the Government package, is a small number from the national list that does not help to make the whole House proportional to votes cast. As is explained below, the German system is designed to create a chamber that strictly represents the proportional will of the people, while also allowing for Constituency MPs who will provide a close personal link with the voters. The Senate is to be elected under the Single Transferable Vote system which puts a premium on individual popularity while also allowing parties to have more than one representative. The system ensures that anyone elected has the support of at least 25% of the electorate in preference to other candidates. Presiding officers of Parliament shall also be elected on this system, to ensure plurality. The proposals also reintroduce the idea of Committees that are designed to ensure a stronger involvement in administration on the part of legislators. In particular they should monitor all activity, and should be empowered to call up Ministers and officials to respond to their queries. THE CENTRAL LEGISLATUREParliament(1) There shall be a Parliament which shall consist of two chambers. The premier chamber shall be designated the House of Representatives and the second chamber shall be designated the Senate. (2) The House of Representatives shall be elected for a period of four years. Elections to the House of Representatives shall take place at a fixed period every four years. The House of Representatives shall be in session for a period of at least eleven months each year. It shall be prorogued each year for a period not exceeding one month. All matters which, having been duly brought before Parliament, have not been disposed of at the time of the prorogation of Parliament, may be proceeded with during the next session. (3) The Senate shall be elected for a period of four years. Elections to the Senate shall take place two years after elections to the House of Representatives, and at a fixed period every four years. The Senate shall sit continuously during the period for which it has been elected. (4) Parliament shall have powers to make laws as allowed in the Constitution. Laws need to be passed by both houses of Parliament save that any law passed by the House of Parliament in three successive years shall be deemed valid even if it has not received the assent of the Senate. House of Representatives(5) The House of Representatives shall consist of two hundred members, half of whom shall be elected on a constituency basis, and half of whom shall be elected on a basis of proportional representation. Members selected on the basis of proportional representation shall be chosen from party lists so as to ensure that the total representation in the House shall be in proportion to the choice of the people. (6) For the purposes of election on a constituency basis, the country shall be divided into constituencies divided on the basis of population within each District. (7) For the purposes of election to the House of Representatives each elector shall exercise two votes. The first vote shall be for an individual to represent the constituency. The second shall be for a political party. The elector may vote for a party other than that of the individual for whom he votes to represent the constituency. (8) The votes cast for individuals shall be added up on the basis of each constituency, and the candidate with a plurality of votes shall be declared elected as the representative of that constituency. (9) The votes cast for political parties shall be added up for the country as a whole. Each party shall be entitled to seats in parliament as a whole on the basis of the proportion of votes it obtains in the country as a whole. (10) According to the entitlement of each party, seats shall be allocated from its national list to make up the required figure, having taken into account the number of seats each such party has obtained from the various constituencies. NoteThe system prescribed above is that known as the German system, which allows for individual constituencies while ensuring that parliament represents the wishes of the voters proportionately. The 100 members elected on the constituency basis will thus have a close tie with their constituents and be individually responsible for a particular area. To give an example of the way the system works — Assume Party A wins 60 of the 100 constituencies but obtains only 40% of party votes nationwide, whereas Party B wins 20 of the 100 constituencies but obtains 35% of party votes nationwide. Party C, which is a regional party, wins 15 seats but obtains only 10 % of the vote, while Party D, also a regional party but one that has some national backing too, obtains 5 seats but also gets 10% of the party vote. Party E gets no seats but obtains 5% of the national vote. On the national percentage, Party A should have 40% of 200 representatives! ie 80 representatives. Party B should have 35%, ie 70, Party C 10%, ie 20, Party D also 10%, ie 20 and Party E 5%, ie 10. From the national list Party A then gets 20 seats, which together with its 60 constituency seats gives it 80 altogether. Party B gets 50 seats from the national list, Party C gets 5, Party D gets 15 and Party E gets 10. The final composition of the House then is in accordance with the proportions of party preferences expressed by the voters. The Senate(11 ) The Senate shall consist of 40 members, of whom 36 shall be elected on the basis of 4 members for each Province. Such members shall be elected on the system of Single Transferable Vote. Electors shall mark up to 2 preferences for candidates for election. The qualifying number for election shall be the total number of valid votes cast divided by 4, plus 1. The first preferences of all candidates shall be counted first. Candidates obtaining first preferences equal or more than the qualifying number shall be declared elected on the first ballot. Votes in excess of the qualifying number shall be deemed ‘Surplus votes’. (12) The second preferences of candidates with surplus votes shall then be counted, and if they are cast for a candidate not elected, shall be allocated in proportion to the surplus. (13) Any candidate who reaches the qualifying number at this stage shall be declared elected, and his surplus votes distributed as above. (14) If vacancies still remain, the candidate with the lowest number of votes shall be eliminated, and his second preferences counted insofar as they are cast for any of the candidates not yet declared elected. If no remaining candidate obtains the qualifying number, the candidate with the next lowest number of votes shall be eliminated and the above procedure followed. This shall be done until the number of candidates not eliminated equals the number of vacancies remaining, whereupon such candidates shall be declared elected. (15) 4 members of the Senate shall be appointed by the President, with the concurrence of the President of the Senate, to represent interests under-represented in the Parliament. Such members shall not have voting rights. Former Presidents and former Speakers of the House of Representatives shall be entitled to sit in the Senate but shall not exercise a vote. Presiding Officers(16) The House shall, at its first meeting after a General Election, elect by the system of Single Transferable Vote a Speaker and a Deputy Speaker and a Speaker’s Committee of 5 members. The Speaker or in his absence the Deputy Speaker shall preside over meetings of the House. The Speaker shall not exercise a deliberative vote but may, in the event of a tie, exercise a casting vote. Members of the Speaker’s Committee may preside in the absence of the Speaker or Deputy Speaker and shall otherwise assist the Speaker in the performance of his duties. (17) The Senate shall at its first meeting elect a President of the Senate who shall preside over all meetings of the Senate. The President may exercise a deliberative vote as well as a casting vote if necessary. The Senate shall also elect by STV a panel of three members who shall deputize for the President in his absence and otherwise assist him in his duties. Committees of Parliament(18) The House of Representatives shall divide itself into Committees that shall monitor the work of each of the Ministries specified in the Constitution. Each Committee shall consist of 40 members, half of whom should be constituency members and half of whom national list members. A member should serve on 2 Committees. Members may opt to serve in Committees as they choose. If Committees are oversubscribed, allocations shall be made by the Speaker’s Committee. (19) Members of the Senate should join in the deliberations of the House Committees, up to a maximum of 5 per Committee. Each member of the Senate shall be entitled to serve on 3 committees, and the President of the Senate shall decide on allocations in the event of any House Committee being oversubscribed. Executive and Legislative Powers of the Region (1) Executive powers shall be exercised within each Province in subjects specified in the Schedule. They shall be vested in a Governor who will be directly elected by the people, except with regard to subjects that shall be devolved to Zonal Councils elected as specified in the schedule. The Governor shall not hold any other office or place of profit. (2) Legislative powers as to matters with respect to which a Province has power to make statues shall be exercised by a Provincial Council made up of Representatives from Zonal Councils elected by such Councils from their membership on the Single Transferable Vote system. (3) The Governor shall appoint Secretaries for specific subject areas as set out in the Schedule, subject to ratification by the Provincial Council. (4) Members of each Provincial Council shall divide themselves into Executive Committees that shall monitor and advise with regard to the Executive functions of the Governor and shall exercise financial controls with regard to such subjects. (5) The governor shall be elected for a fixed term of four years. Zonal assemblies shall be elected at the same-time as the governor. (6) From the commencement off the new Constitutional arrangement Parliament shall not enact legislation on subjects on the two Provincial lists. The Provincial Council cannot exercise authority over the subjects set out in the ‘Reserved List’. (7) If conflicts arise with respect to the division of power between the Central government and the Provinces, the matter shall be referred to the Devolution Commission which shall resolve such conflict. If the Devolution Commission is unable to do so, the matter shall be referred to the Supreme Court for adjudication. The Devolution Commission shall be responsible for all matters which require consultation and co-ordination between the Central Government and the Province. The Devolution Commission shall consist of an equal number of members of the national parliament and of the provincial councils, elected by Single Transferable Vote. (8) Judges of the Provincial High Courts, including President of the High Court, shall be appointed by the Governor subject to ratification by the Provincial Council. The Governor will appoint a person eligible to be a Judge of the High Court to be the Provincial Attorney, General subject to ratification by the Provincial Council. (9) In the event of the office of Governor becoming vacant, it shall be filled for the remainder of the term by a member of the Provincial Council or any Zonal Council within the Province, elected by the Provincial Council. (10) The Provincial Council will consist of as many members as may be determined by the Devolution Commission. The Provincial Council shall elect, by the system of Single Transferable Vote a Chairperson and a Deputy Chairperson to oversee the affairs of the Council. (11) Finance: a) A constitutionally guaranteed amount of financial resources including a sum of foreign exchange will be transferred by the Central Government from the Consolidated Fund to the funds of the Provincial governments. This amount may be calculated as a percentage of the GNP of the Annual Budget. In addition financial resources will accrue to Provincial Governments from grants, taxes, financial institutions and foreign aid. b) A Finance Commission shall allocate the funds referred to in 1) above as a block grant to each Province taking account of the needs of and disparities between the provinces. c) The detailed expenditure of the block grant to each province shall be determined by its Assembly. This will include block grants to each of the zonal assemblies with the province, subject to compliance with guidelines as to ratios laid down by the Finance Commission. d) Provincial Governments shall have authority to set up financial institutions and to negotiate foreign assistance in consultation with the Centre. (12) Law and Order: a) A Provincial Police Force shall be constituted in each province. The Provincial Police Force shall be headed by an officer of the rank of DIG and appointed by the Governor on the recommendation of the IGP. The DIG shall be responsible to an under the control of the Governor. Training of the Provincial Police Force shall be the responsibility of the Central Force. b) The appointment, transfer, dismissal and disciplinary control of Police Officers shall be the responsibility of the Provincial Government acting in consultation with the IGP. c) The police forces of the country, central as well as provincial, shall be enlisted to reflect the multi-cultural and plural nature of Sri Lanka and its provinces. (13), Language - Sinhala, Tamil and English shall be the official languages and shall have equal status for all purposes. (14) Land- a) There shall be a Land Commission which shall allocate land to the Central Government for Central Government purposes. All remaining land may be allocated by the Provincial Councils. b) The Land Commission shall consist of an equal number of persons nominated by the Central Minister in charge of the subject and the Provincial Councils respectively. Each Provincial Council shall have at least one nominee on the Land Commission. Notes:There are two main reasons for devolution. The first is to provide an efficient and informed administration for different areas within a country, without having to rely on centralized planning and decision making that often takes no account of local requirements. The second is to ensure that people feel empowered with regard to policies and practices affecting their day to day lives. These are necessities in a democratic society, and for that reason liberals have always supported devolution. We have adhorred the creation of ethnic enclaves, but we recognize that empowerment at local levels will provide each group with the security that all people need with regard to their identity. It will also facilitate decision making based on the needs of the people affected. It is clear however that the present system of devolution has failed in these respects. Large provincial councils provide members of political parties with political power that reduplicates what parliamentarians already possess. None of them in fact possess authority, except in terms of their membership of a political party. Meanwhile the executive in the provinces is hampered by continued control by the centre in all respects. The institutionalization of a concurrent list has meant that, in many areas where local decisions are desirable, the central government stranglehold continues. The appointment of the chief administrative office of the Province, the Provincial Secretary, by the central government obviously promotes divided loyalties. The benefit to the country of vast numbers of Provincial Council members meanwhile has been negligible. Damage however has been considerable in addition to the excessive salary (and perks) bills, the pressure on administrators to serve several masters has multiplied abuses. Even the elections themselves are destructive. Apart from the gigantic cost to the country, the cost to individuals is often compensated for through corrupt practices. Perhaps more seriously, the artificial creation of jobs to secure votes will be as damaging to the country as political violence has been in the past. The Liberal Party’s proposals therefore advocate the following changesa) The division of government functions for administrative purposes into three clear-cut lists, the first the responsibility of the central government the other two the responsibility of provincial governments. Of these latter, one contains subjects that shall be managed by a directly elected Provincial Governor and his Executive Secretaries. The Liberal Party however advocates a third list subjects which are best administered at the level of an even smaller unit, to ensure that local needs are fully taken into account. This is in accordance with the principle of Subsidiarity, originally instituted in Switzerland, whereby any matter which a unit can handle without trespassing on the rights or requirements of another until should be left to as small a unit as possible to handle. Thus administration of education along with appointments, should be done through small units where the stake holders have some sort of involvement - though guidelines can of course be laid down at higher levels. For this purpose the term Zonal Council is used above, though this may refer to Pradeshiya Sabhas or Municipalities and demarcated at present Cooperation between such Zones will be possible for administrative purposes, though policy will generally be the responsibility of the Provincial Executive. b) It should also be noted that in many areas mentioned the state or the province or the zone should not have a monopoly as to activity, but rather a purely regulatory role to ensure that services are available to all sections of the community. Maximum participation by the private sector should be encouraged in all areas where this will improve the quality of services. c) The governor shall appoint Executive Secretaries in a limited number of areas (eg. Social Development, Infrastructural Development, Economic Development). They may be from the Civil Service or the ranks of professionals etc. With the proviso that they will hold office subject to ratification by the provincial assembly. This (a clear separation of powers, on the lines of the system, practised in the United States) will streamline the administration and allow for coherent and effective policies, subject to monitoring as outlines below. d) Vesting the legislative power of the people of a province, and the financial authority, in a provincial assembly made up of representatives elected by each zonal assembly. This will allow for all communities in a province to be represented in the assembly. The need for compromise and consensus will arise from the budgetary requirements of the Zones as well as the provincial authority. A system of committees will encourage careful monitoring of the activities of provincial ministers. e) Short fixed terms parallel to those of the central government are recommended to ensure responsiveness to the people, and to minimize electoral abuse. e) There shall be an independent Central Public Service and Provincial Public Services which shall be responsible to the Central Government and Provincial Governments respectively. g) There shall be an independent Judicial Service Commission that will advise the President and the Provincial Governors on the appointment of judges. h) The Schedule given below is of course only a set of suggestions. Provision will also have to be made for allocation of responsibility with regard to areas not included in the schedule, perhaps in terms of permitting powers of arbitration and decision making to the Devolution Commission. Schedule Lists: (1) Reserved List of Subjects entrusted to the Central Government 1. Defence, the Army, Navy and the Air Force (11) Provincial List of Subjects entrusted to Provincial Governors and Councils1. Provincial Planning and Finance (111) Provincial List of Subjects with regard to which administration and appointments shall be entrusted to Zonal Councils. 1. Education, including Library Services Appointments to Public Officers/Administrative Procedures The following suggestions are not simply confined to constitutional changes. They deal also with other aspects of public policy and in particular the need to change the whole culture of public service in keeping with the requirements of modern society. Unfortunately the Sri Lankan public service is still governed by colonial principles. This is not a criticism of that system — it was quite reasonable for a colonial power to entrench procedures that affirmed hierachichal domination; and in the first half of this century when communication and the retrieval of information were difficult it was understandable that elaborate procedures were prescribed. What is appalling is that after more than fifty years of self government nothing has changed. The AR and FR (Administrative and Financial Regulations) laid down by the British still dominate our public servants. Claim forms designed a century ago are still in use — travel claims for instance, still have a space to enter the amount paid for ‘Hiring of a Horse’. Archaic tender procedures still operate, which, as a former Secretary to the Treasury put it, prevent him from ordering a stapler, but can be circumvented to enable millions to be spent without any precautions. Underlying all this is the unwillingness to allow power and responsibility and accountability to go together. The absolute domination of those at the top has grown more pernicious as the scope of power expands with increasing centralization and better communications. The refusal to take decisions at lower levels, which are those the public has to deal with, has meant that the public service serves not the public but only politicians and their favoured bureaucrats. What the following suggestions aim at is: 1) A structure that makes clear the broader responsibilities of public
servants and in particular that
they are accountable not to a government in power but to the public
at large Not all the following belong in a Constitution, but they will be placed together for convenience. The Executive — The Public Service etcThe Appointments Commission1. There shall be an Appointments Commission which shall make appointments to the Public Service Commission, the Judicial Service Commission, the Human Rights Commission, the Land Commission and any other Government Commissions for which particular schemes of appointment are not specified in the Constitution. (i.e. the Devolution Commission will be appointed in a different way). 2. The Appointments Commission shall consist of the President, who will act as its Chairman, the Speaker and Deputy Speaker, the Chairman and Deputy Chairman of the Senate and three representatives of the Governors of Provinces chosen from amongst themselves by Single Transferable Vote. 3. The Appointments Commission shall make appointments to the Commissions under its purview by consensus. Where consensus has not been achieved, appointments shall be by the method of Single Transferable Vote. The Public Service Commission4. Appointments to senior positions in the Public Service shall be made by the Public Service Commission. The Public Service Commission shall consist of 3 members appointed by the Appointments Commission, who shall hold office for a fixed term of two years. 5. Appointments specified in a Schedule shall be subject to the approval of the House of Representatives and/or the Senate. 6. The Secretary to a Ministry shall be appointed by the relevant Minister subject to the approval of the Public Service Commission. Procedures for members of the Public Service7. All public servants shall be required to prepare work plans for each calendar year, subject to the approval of the officer to whom they report. Such plans shall in general be available to the public. 8. Public servants shall also prepare monthly reports incorporating targets achieved in the preceding month as well as projections for the coming month. Specificity with regard to time and resources shall be recorded as precisely as possible. 9. Officers responsible for public finances shall be allocated budgets over which they shall exercise control, subject to satisfactory accounting practice each calendar month. 10. Institutions may be required to establish monitoring committees that will oversee efficiency, expenditure etc prepare monthly reports that shall be available to the public. 11. Cadre positions shall be fixed at a minimum in public offices. Within a specified budget additional positions for particular duties may be filled on contract. Such positions may be reserved for members of the public service, though they may if sufficient cause be shown be advertised publicly. Apart from core allocations, the allocation of additional funds for such purposes within a particular institution shall be decided on the basis of monitoring committee reports. 12. Amongst efficiency measures that shall be implemented will be the requirement that all public queries be dealt with within a specified period. Liberal Party proposals for a New Constitution - 6At the commencement of this series of proposals, the Liberal Party suggested that a Constitution should commence with a chapter on Norms, i.e. the principles that the State should pursue, and in terms of which it exercises its authority. We postponed going into this however, until particular ideas had been advanced with regard to various issues. Having looked at several areas where reform is urgently needed, we return now in this final article to the Norms that we believe should be enshrined at the beginning of the Constitution. For this purpose we have drawn heavily on the new South African constitution, which is a document that was designed to promote principles that would bring people together after years of bitter hostility. We make no apology therefore for including several aspects from that Constitution that we feel would be especially useful here in the current context. With regard to the second chapter, we include only extracts from what must inevitably be a much fuller document. While we note all areas that the South African constitution deals with, which we feel must be replicated in ours, we have gone into detail in areas where at present our own practice, as well as the current Sri Lankan constitution, seem woefully inadequate. Chapter 1 - Founding Provisions Republic of Sri Lanka1. The Republic of Sri Lanka is a sovereign democratic state based on the following values - a) Human dignity on the basis of the equality of all citizens regardless of sex or race or religion b) Supremacy of the constitution and the rule of law c) Universal adult suffrage with regular elections and a multi-party system of government to ensure accountability, responsiveness and openness d) The advancement of human rights and freedoms and the development of the potentiality of all citizens through equality of opportunity Supremacy of the Constitution2. This Constitution is the supreme law of the Republic. Law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. Citizenship3. a) There is a common Sri Lankan citizenship. b) All citizens are - i) equally entitled to the rights, privileges and benefits of citizenship ii) equally subject to the duties and responsibilities of citizenship Languages4. The official languages of the Republic are Sinhala and English and Tamil. 5. The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as whole or in the province concerned, provided that these governments must ensure provision for the use of at least two of the official languages, so as to allow citizens a choice of these two 6. Zonal authorities must take into account the language usage and preferences of their residents 7. The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. All official languages must enjoy parity of esteem and must be treated equitably. 8. A Pan Sri Lankan Languages Board established by national legislation must a) promote and create conditions for the development and use of all official languages b) encourage the teaching of all languages in schools and through adult education c) encourage the publication and distribution of books and other reading material in all official languages Chapter 2- Bill of Rights9. a) The Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. b) The state must respect and promote and fulfil the rights in the Bill of Rights Limitation of rights10. The rights in the Bill of Rights may be limited only in terms of law and general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality before the law and freedom, taking into account all relevant factors including a) the nature of the right 11. Except as provided in section (10) and (13), no law may limit any right entrenched in the Bill of Rights. 12. All limitations on the rights laid down in the Bill shall be justifiable. States of emergency13. a) A state of emergency may be declared only in terms of an Act of Parliament and only when i) the life of the nation is threatened by war, disorder, natural disaster or other public emergency ii) the declaration is necessary to restore peace and order b) A declaration of a state of emergency and any legislation enacted or action taken in consequence may be effective only i) prospectively ii) for no more than 21 days from the date of the declaration unless the National Parliament resolves to extend the declaration. Such extension shall be for no more than a month at a time. The first three such extensions shall require a resolution supported by a majority of members of both houses of Parliament. Subsequent extensions shall require the support of at least 60% of the members of both houses of Parliament. c) Any competent court may decide on the validity of i) a declaration of a state of emergency d) Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that i) the derogation is strictly required by the Emergency e) No Act of Parliament authorizing a declaration of a state of emergency and no legislation enacted or other action taken in consequence of such may permit or authorise i) indemnifying the state or any person in respect of any unlawful act ii) any derogation from this section iii) any derogation from any entrenched rights as laid down in a schedule Equality14. a) Everyone is equal before the law and has the right to equal protection and benefit of the law f) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons disadvantaged by unfair discrimination may be taken. g) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. h) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of sub-section c). i) Discrimination on one or more grounds listed in sub-section c) is unfair unless it is established that the discrimination is fair. Life15. Everyone has the right to life. Freedom and Security of the person16. Everyone has the right Privacy17. Everyone has the right to privacy including the right not to have, subject to due process of law, their person or home or property searched, their possessions seized or the privacy of their communications infringed. Freedom of religion, belief and opinion18. Everyone has the right to freedom of conscience, religion, thought, belief and opinion. 19. Religion observances may be conducted at state or state-aided institutions provided that a) those observances follow rules made by appropriate public authorities b) they are conducted on an equitable basis Freedom of expression20. Everyone has the right to freedom of expression which includes a) freedom of the press and other media b) freedom to receive or impart information or ideas save that these rights do not extend to i) propaganda for war iii) advocacy of hatred based on race, ethnicity, gender, religion or any other ground noted in Section 14 sub-section c). Freedom of association21. Everyone has the right to freedom of association Labour relations22. Everyone has the right to fair labour practices. 23. Every worker has the right to form and join a trade union, to participate in the activities of a trade union, and to strike. 24. Every employer has the right to form and join an employers’ organisation and to participate in its activities 25. Every trade union, employer and employers’ organisation has the right to engage in collective bargaining. Environment26. Everyone has the right a) to an environment that is not harmful to their health and well-being b) to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that i) prevent pollution and ecological degradation Property27. Everyone has the right to private property. 28. No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property 29. Property may be expropriated only in terms of law of general application for a public purpose and public interest and subject to compensation, the amount and time and manner of payment of which have either been agreed by those affected or decided and approved by a court Housing30. Everyone has the right to have access to adequate housing. 31. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. 32. No one may be evicted from their home, or have their home demolished, without an order of court made after consideration of all relevant circumstances. Health care, food, water and social security33. Everyone has the right to have access to health care services including reproductive health care, sufficient food and water and social security including appropriate social assistance in the event of inability to support themselves and their dependents 34. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. 35. No one may be refused emergency medical treatment. Children36. Every child has the right to a) a name and nationality from birth b) family or parental care, or appropriate alternative care when removed from the family environment c) basic nutrition, shelter, health care, education and social services d) be protected from maltreatment or neglect and from exploitative labour practices e) not be required or permitted to perform work or provide services that are inappropriate for the child’s age or place at risk well-being, education, physical or mental health, and social development f) not be required or permitted to marry g) not be used in armed conflict and be protected in times of armed conflict 37. A child’s best interests are of paramount importance in every matter concerning the child 38. In this section ‘child’ means person under the age of 16. Education39. Everyone has the right, which must be fulfilled by the state if necessary, to a basic education, including adult basic education 40. Everyone has the right to further education which the state, insofar as its available resources permit, shall make progressively available and accessible 41. Everyone has the right to receive education in the official language or languages or their choice in public educational institutions where such education is reasonably practical. In order to ensure effective access to this right, the state must consider all reasonable educational alternatives. 42. Everyone has the right to establish and maintain at their own expense independent educational institutions that do not discriminate on the basis of race or religion and maintain standards that are not inferior to standards at comparable public institutions. State subsidies to such institutions are not precluded provided they are conducive to the fulfilment of other rights under this heading. Language and Culture43. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights Access to information44. Everyone has the right of access to information held by the state Just administrative action45. Everyone has the right to administrative action that is lawful, reasonable and procedurally fair, and to be given written reasons regarding administrative actions affecting him or her 46. Legislation must be enacted to promote an efficient administration, and to give effect to the rights in this section and to provide for review of administrative action by a court or an independent and impartial tribunal Access to courts and due process of law47. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or where appropriate another independent and impartial tribunal or forum 48. The state shall enact legislation to establish public bodies to assist citizens to settle disputes through arbitration and negotiation where this is practicable and acceptable. Arrested, detained and accused persons49. Everyone who is arrested for allegedly committing an offence has the right a) to remain silent and to be informed of this right b) not to be compelled to make any confession or admission that could be used in evidence against him/her c) to be brought before a court as soon as possible and in any case no later than 48 hours after the arrest d) to be charged on first appearance before a court, or to be informed of the reason for the detention to continue, or to be released e) to be released from detention if the interests of justice permit this subject to reasonable conditions 49. Everyone who is detained, including every sentenced prisoner, has the right a) to be informed promptly, and in writing, of the reason for detention b) to choose and to consult with a legal practitioner, and to be informed of this right c) to have a legal practitioner assigned by the state and at state expense if substantial injustice would otherwise result d) to challenge the lawfulness of the detention before a court e) to conditions of detention that are consistent with human dignity f) to communicate and be visited by spouse or partner, next of kin, chosen religious counsellor and chosen medical practitioner 50. Every accused person has a right to a fair trial which includes the right a) to be informed of the charge in sufficient detail to respond b) to adequate time and facilities to prepare a defence c) to public trial before an ordinary court d) to be present during the trial e) to choose and be represented by a legal practitioner f) to have a legal practitioner assigned by the state at state expense if substantial injustice would otherwise result g) to be presumed innocent, to remain silent, and not to testify during proceeding h) to adduce and challenge evidence i) to be tried in a language he/she understands, or if that is not practicable, to have the proceedings interpreted j) not to be convicted for an act or omission that was not an offence either national or international law at the time of action or omission k) not to be tried again in the event of a previous acquittal or conviction for the same alleged action or omission l) of appeal to, or review by, a higher cour. |
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