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Some years back the Council for Liberal Democracy produced an influential book called ‘Ideas for Constitutional Reform’, edited by Chanaka Amaratunga. A shorter version of this was issued a few years back, and I have now put together a brief outline of further Ideas for Constitutional Reform, based on principles that have emerged in recent consultations with regard to a National Reconciliation Policy, and on the needs expressed in Divisional Secretariat Reconciliation meetings. These are given below, and will be followed by brief articles on the various topics covered.

  1. Electoral Reform

To ensure responsibility of members for a limited area and accountability to a constituency

And

To ensure that Parliament as a whole is proportionate to the wishes of the electorate

The House of Representatives shall consist of two hundred Members elected on a mixed system. One hundred of them will be elected on the basis of constituencies in which the electors shall be similar in number. Such constituencies shall be prescribed by a Delimitation Commission which shall combine the Grama Niladhari Divisions into Constituencies which have commensurate numbers or as near commensurate as possible.

Voters shall vote for individuals in these constituencies. They may give up to three preferences in order, of which only the first shall be counted initially. This is in accordance with the alternative system of voting. After the first count, unless a candidate has received over half the votes cast, the candidate with least first preferences will be eliminated, and such candidate’s preferences redistributed. The process shall be repeated until one candidate shall have received 50% plus one of the total votes cast.

Voters will also cast a second vote for a political party. The remaining hundred members of the House of Representatives shall be chosen so as to reflect the proportion of votes obtained by each party. Each party shall submit a list known as the Party List. After the constituency representatives are declared elected, parties shall receive an allocation that brings up their total representation in Parliament to the proportion they received in the Party vote. .

In the event of a party receiving more seats on the Constituency Vote than the proportion it receives on the Party Vote, it will not receive any seats on the Party Vote, but the surplus shall sit in the House of Representatives which, for that Parliament alone, may have more than 200 members. If independent candidates are elected on the Constituency Vote, without being part of any Independent Group obtaining Party Votes, they too may constitute a surplus for the life of that Parliament.

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I have now had an opportunity to go through the report of the Parliamentary Select Committee that looked into the conduct of the Chief Justice, and its contents amply confirm the position I have advanced, namely

  1. Shirani Bandaranayake has not always acted properly
  2. She should not be impeached

With regard to the first point, the main problem is her getting rid of other judges and appointing herself to head a Bench looking into Trillium matters. It was quite improper that, following a request for a ruling on a very different matter, she should arbitrarily have put herself in charge of those cases instead of a senior judge of proven competence. And it was particularly deplorable that she should have done this when engaged in business deals with concerned parties.

One problem with regard to which the Select Committee finds her guilty does not seem at all appalling. To accuse her of misconduct because she is in overall charge of judicial procedures at a time when her husband might be subject to them is not at all reasonable. Had she tried to influence the judiciary in such a situation, she would certainly have done wrong, but to find her guilty because she is in a position to do wrong is a strange interpretation of justice. All she need do to ensure nothing improper occurs is recuse herself from decision making with regard to cases involving her husband.

The other point on which she has been found guilty is not declaring various accounts in her annual declaration of assets and liabilities. Several other improprieties in this connection are also noted in the Report, some of which also seem reprehensible. However, there is provision for prosecution for any serious misdemeanours in this regard. Given that there is a judicial process laid down for those suspected of offences, it is best that that process be followed. For Parliament to sit in judgment on such matters, without ensuring due judicial process, is inappropriate, and worries in this regard have been increased by the haste with which the Parliamentary Select Committee went about its business.

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Rajiva Wijesinha

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