A completely new constitution would be best, but since that could take time, there should be swift reform of the worst features of the current constitution.
2. “Ensure the independence of the judiciary whilst promoting transparency with regard to appointments” is what you have said regarding judicial appointments. This is a bit vague. Do you think the President of the Republic should have the ability to directly appoint Judges of the Supreme Court after seeking the recommendations of the Parliamentary Council which will invariably not oppose presidential nominations? This effectively means the President has direct control over Supreme Court appointments. Is this conducive or should this power be curbed in a potential new constitution?
There are three separate issues with regard to the Judiciary. The first is independence with regard to the decisions it makes, which must be absolute. As I put it in the series on Constitution Reform now on my blog, www.rajiva.wijesinha.wordpress.com, ‘there should be no interference, by individuals or any other branch of government, with regard to the content of the decisions it makes’.
The second is procedure, as to which the Judiciary must conform to laws, and make rules for itself where the law is silent. I have written at length about the inconsistencies in the way in which judges give out sentences, and how they fail to fulfill their basic obligations of checking on prisons etc.
The third is appointments, where usually on a Presidential system the President appoints. However this should be subject to controls. Requiring the consent of the legislature or a component of it would be good, but consultation also can be effective in preventing hasty or inappropriate appointments. Such consultation should be transparent, which the 18th Amendment permits, because it does not require the Parliamentary Council to maintain confidentiality.
In a Westminster style Constitution, where the Head of State makes appointments, but on the recommendation of the Prime Minister, there is usually no rejection of a recommendation, but the very fact of a second entity being involved makes the Prime Minister careful. So too, if the Parliamentary Council functioned now, the President would necessarily be careful about not putting forward names of those who might cause him embarrassment. Both Shirani Bandaranaike and Mohan Peiris could have fallen into this category, and in fairness to both of them, they should not be subject to rumours but their conduct should have been subject to transparent scrutiny.
3. Should a term –limit be imposed on a Superior Court Judge and the Chief Justice or should they be allowed to continue service until the retirement age of 65? If so how many years of service should be allowed for the Chief Justice?
I don’t think term limits are necessary, but a very young Chief Justice should not be appointed, since too long a tenure of a very powerful position which has insufficient checks can lead to arbitrary decisions. Going on to 65 seems reasonable given the need for maturity, but I would suggest a Chief Justice should not be appointed under the age of 58. In any case there should be guidelines for Judicial appointments, which should be known publicly.
4.The President currently appoints the Bribery Commission, Police Commission etc.. This has no doubt created the appearance of partiality in said institutions. Should these Presidential powers be changed? If so why?
Again, the advisory powers of the Parliamentary Commission should be exercised actively in such areas, with public awareness of criteria adopted in selections. That will raise the bar to acceptable levels.
5. You have stated that “the current controversy over provincial councils can be resolved if we accept the Provincial Councils should not be abolished.” Does this mean that you accept that the 13th Amendment should persist in a new constitution?
Absolutely, because it is symbolic of recognition by the Sri Lankan state, after years of pussy footing, about the need for devolution. However the Amendment itself is a shoddy piece of work, and clarifications are needed. At the Committee negotiating with the TNA, Mr Sumanthiran and I produced a formula about land that was in accordance with the Constitution in general, and satisfied all concerns. However the spoilers on both sides destroyed this. Otherwise he and I could have also sorted out something about Police to ensure that security concerns on the one hand, and accessibility to the public and local concerns on the other, were both addressed. Unfortunately the combination of intelligence and sensitivity to the concerns of others, essential for achieving compromise, is lacking in our traditional politicians.
6. Should the 13th Amendment be modified or left as it is in a new constitution? Is the problem more to do with implementation of its provisions than actual legislation?
It needs clarification, together with new measures to empower the people more effectively, which means strengthening local government. People forget that we followed an Indian model in 1987, and are stuck there, whereas India moved further with the strengthening of local government in the nineties. We should do that, and promote greater accountability to the people, with clear guidelines for all levels and mechanisms for consultation.
7. Should the 18th Amendment be repealed in a potential new constitution?
No, since it is more consistent with a Presidential system than the 17th amendment, but ensuring an active Parliamentary Council is essential, by emphasizing the need for all members to contribute to a written report on all matters brought before it.
8. As a member of the ruling UPFA can you comment on if the government is indeed drafting a new Constitution?
I have no idea, and I would like to believe the Leader of the House, who said this is not the case. Unfortunately there are elements in the country, more in the Opposition than in the Government but you cannot discount connivance for different motives, to get the President to sacrifice three years of his term and have an early election, simply to strengthen the party for other elections. Such manoeuvers prevent a government concentrating on actually making things better, and taking a few unpopular decisions that will be fruitful in the long term. Perhaps the most insidious effect of President Jayewardene’s tampering with the electoral system, and allowing all elections to be staggered, is that winning elections has become an end in itself, with no attempt to actually work towards long term national goals.
9. Your work does not hint at the abolishment of the Executive Presidency directly yet you have advocated for the reduction of Presidential powers. Should the Executive Presidency be totally abolished in a new constitution?
No, because in any case, even in Prime Ministerial systems, the power of individual leaders is much greater than it used to be when the Westminster system was developing. However there should be some reduction, and more important much more accountability.
10. You have advocated for the creation of a second chamber in Parliament, a kind of Senate. In the US with the recent Fiscal Cliff and now the gun control issue we saw how difficult it is to actually push through legislation in such a dual system. Do you not think that having a second chamber will create undue difficulty in pushing through legislation and render the legislative process far too cumbersome?
No, because you should have mechanisms to resolve problems through joint sittings of the two Chambers as happens in Germany. The point of a Second Chamber is to encourage the enunciation of different perspectives. Remember the Fiscal Cliff is entirely a problem of the House of Representatives. The American Senate does not have powers over money.
11. Does the current constitution allow for clear separation of powers? Is not should this be a top priority in a new constitution?
Not at all, in fact we are the least consistent Constitution in the world in this regard, because everywhere else where you have a directly elected Executive President, the Cabinet is outside Parliament. Where Parliamentarians are appointed, they resign their Parliamentary seats, because the functions of a Cabinet and a Legislature are different. Unfortunately we are still stuck in the British model, where the two are combined, but there – and in India – there are strong Committee systems which allow some independent assessments for the Legislature, whereas Sri Lanka has the most preposterous Committee system in any country purporting to have a serious Legislature.
Ceylon Today 15 May 2013 – http://www.ceylontoday.lk/59-32368-news-detail-guidelines-necessary-for-judicial-appointments.html and http://www.ceylontoday.lk/59-32365-news-detail-righting-the-wrongs-in-1978-constitution.html