Dear Secretary General
I have now had a chance to go through the consolidated version of the draft 19th Amendment, which was given to us by the Hon Prime Minister yesterday. The amendments he has included, which will I presume be introduced at the Committee Stage, assuage some of my worries but others remain.
I would therefore like to propose the following amendments at the Committee Stage. These are a consolidated version of what I have sent before, omitting those concerns that have been already addressed. The bold numbers are those in the draft amendment, numbers not highlighted are the relevant section in the Constitution. The highlighted and italicized section below any proposed amendment gives the reason for such amendment.
I hope this schedule can be made available to all Members on the day the debate begins, and that sufficient time will be given to present them when amendments are taken up.
Rajiva Wijesinha, MP
I would like to propose the following amendments to the clauses as numbered below of the proposed Bill to amend the Constitution, in the latest version issued in Parliament on April 21st 2015, but dated March 16th 2015.
1(2) Instead of current text, replace with ‘This Act shall come into force following the amendment of Sections 95 to 99 of the Constitution, save that Sections 11, 17, 19, 24 shall come into force on the date of first meeting of Parliament after the General Election held under the new system introduced by the above amendment’
This is to ensure that electoral reform occurs simultaneously with the introduction of these new elements into the Constitution.
2. Amend the first sentence of 14 A (1) (d) to read ‘ being information that is required for the exercise or protection of the rights of any citizen or the public good
Amend Section (a) to read ‘established or created or recognized by or under any law’
To extend the right to information to cover the public good and to ensure that Non-Governmental organizations functioning officially are subject to this Right.
4. (2) Instead of amending 31 (3A) Delete the whole of 31 (3A)
The President should not be allowed to bring forward his election. This is not a privilege enjoyed by other elected Presidents, and leads to confusion as with the winner of such election taking office at different times depending on who wins.
5. Replace 33 3 (c) with To summon and prorogue Parliament
The President should not be able to dissolve Parliament, nor should we allow Parliament to be dissolved before the end of its five year terms. I think we agreed on fixed terms all round
Insert a new 5A – Delete the words ‘where any offender shall have been condemned to suffer death by the sentence of any court’
It was decided at the meeting of party leaders in March that there should be controls on the President’s power to pardon, and that this should be on the basis of consultation.
10 Instead of the proposed Chapter VIIA have
Parliamentary Oversignt with regard to public positions
41A There shall be a Parliamentary Advisory Committee chaired by the Speaker and consisting of twelve persons selected by the membership of Parliament from a list of nominees put forward by members, provided that any nomination should be by at least 10 members of Parliament. The selection shall be by Single Transferable Vote. The Speaker shall be the Chairman of the Committee. Every member shall hold office for a period of three years. In the event of any vacancy, Parliament shall appoint a member to fill up the remaining term.
(This is to ensure that this is not a body dominated by the two main parties. STV means that any group of 20 can select a member).
(This is to ensure that this is not a body dominated by the two main parties. STV means that any group of 20 can select a member).
The Committee shall examine the credentials of any members recommended by the President for appointment to any of t0he positions mentioned in schedule A or to any of the Commissions mentioned in Schedule B. The Committee may, if it is not satisfied with any individual nominee, or any nominee to a Commission, request the President to reconsider.
The Committee shall submit a report on all nominees to the relevant Consultative Committee in the case of the Commissions in Schedule A, and to the High Posts Committee in the case of individuals. The Standing Orders of Parliament shall ensure that the Chairs of all such Committees shall be members of the opposition. Any Member of Parliament may make representations to the High Posts Committee with regard to individuals nominated for positions in Schedule A.
No nomination shall be made by the President except with the approval of the relevant Consulrative Committee, ratified by Parliament. The Consultative Committee shall prepare a report on its recommendations to Parliament, incorporating the views of any members who submit written acquiescence or rejection of any nominees.
The Reports of both the Parliamentary Advisory Committee and of any Consultative Committee shall be public document.
In the event of the Consultative Committee or Parliament rejecting any nominees, the President shall submit fresh nominations. In the event of the Consultative Committee or Parliament rejecting nominees of the President more than three times, the Committee shall select nominees who shall, subject to ratification of Parliament, be appointed to such positions or Commissions by the President.
The Chief Justice and Judges of the Supreme Court
The President and the Judges of the Court of Appeal
The members of the Judicial Service Commission
The Secretary General of Parliament
The Auditor General
The Attorney General
The Parliamentary Commissioner for Administration (Ombudsman)
The Inspector General of Police
The Elections Commission (CC on Defence and National Integration)
The Public Service Commission (CC on Public Administration)
The National Police Commission (CC on Public Order)
The Audit Service Commission (CC on Human Rights and Good Governance)
The Human Rights Commission (CC on Human Rights and Good Governance)
The National Procurement Commission (CC on Finance)
The Commission to investigate Allegations of Bribery and Corruption (CC on Justice)
The Finance Commission (CC on Finance)
41B The Secretary General of Parliament shall nominate an officer of his staff to act as Secretary to the Advisory Committee, and other such officers as the Speaker, in consultation with the Secretary General, deems necessary. The Speaker shall preside at meetings of the Committee and, in his absence, a member elected by the Committee from its membership. Any member may contribute individual comments to reports prepared by the Committee. The Council may make its own rules of procedure, subject to ratification by Parliament.
The principle is that oversight should be by elected representatives of the people, albeit they will require expert independent advice. To hand over power regarding important positions to an unelected body, chosen by the Prime Minister and the Leader of the Opposition gives too much power to party leaders (and to the Executive in the form of the Prime Minister) and to what will inevitably be an elite institution based in Colombo. Some Commissions in the draft have been omitted, since those work closely with particular Ministries (and will be answerable to the Consultative Committees of those Ministries). The entire Parliament should also however have the right, and the obligation, to look at the composition of Commissions that closely affect the rights of the people in terms of democracy, finance and law and order. All references to the Constitutional Council will have to be deleted in other sections of the Amendment, with consequential changes as necessary.
11. Replace (3) with The President shall be the Head of the Cabinet of Ministers, and shall hold the portfolio of Defence. The Cabinet shall consist of 25 other members whose functions shall be laid down in the 9th Schedule to the Constitution.
We are pledged to a scientifically structured cabinet and we must once and for all get rid of the idea of departments behing shifted between ministries. The following is a suggestion for the 9th Schedule, though it will also be necessary to add in the different departments that should be permanently with each Ministry.
1. Defence and National Integration
3. Foreign Affairs
4. Agriculture and Irrigation
5. Economic Development and Investment Promotion
6. Trade and Industries
8. Human Resources (Education, Higher Education, Vocational Training)
10. Energy, Petroleum and Mineral Resources
11. Housing and Construction
12. Social Services, Samurdhi, Women and Children
13. Fisheries and Livestock Development
14. Human Rights, Reconciliation and Good Governance
15. Public Order and Disaster Management
16. Transport and Highways
17. Local Government and Public Administration
19. Lands, Urban Development, Water Supply
21. Ports and Shipping
22. Labour and Foreign Employment
23. Social Amenities (Cultural Affairs, Sports, Posts)
24. Aviation and Tourism
25. Media, Telecommunications and Information Technology
26. Archaeology and National Heritage
11 continued Delete 43 (1) nd (2) and (3) and replace with ‘The President shall, in consultation with the Prime Minister, appoint from among Members of Parliament Ministers to be in charge of the Ministries, and may change the composition of the Cabinet of Ministers from time to time in consultation with the Prime Minister
11 continued Delete 44
The concept of State Ministers is unnecessary, and there should be a simple Cabinet with Deputies to match
11 continued Delete 45 (1) and (2) and replace with 44, The President may, in consultation with the Prime Minister, appoint upto 26 Deputy Ministers to assist the Ministers in the performance of their duties.
11 continued Delete 46 and replace with only A Minister or Deputy Minister shall hole office throughout the period during which the Cabinet of Ministers functions unless he or she is removed from office under the hand of the President in consultation with the Prime Minister or ceases to be a Member of Parliamen
11 continued In 47, 48 and 49 replace ‘on the advice of the Prime Minister’ with ‘in consultation with the Prime Minister’, and delete references to ‘other Minister(s) appointed under Article 44)’
11 continued In 52 add at the end ‘with the concurrence of the Public Service Commission’. Delete 52 (3)
In the interests of an independent Public Service, we need Permanent Secretaries appointed by a PSC. This obviously will not preclude special cases where someone is necessary, but the onus should be on the executive to make a good case for this, without individuals allowed to make choices for which they are not accountable.
17 Replace 62 (2) with Every Parliament shall continue for five years from the date of its first meeting and no longer, and the expiration of the said period of five years shall operate as a dissolution of Parliament.
To entrench fixed terms
19. Similarly, 70 (1) should read ‘The President may by roclamation summon and prorogue Parliament. He may dissolve Parliament prior to the fixed date of its dissolution if Parliament requests the President to do so by a resolution passed by no less that two-thirds of the whole number of Members (including those not present) voting in its favour.’ Delete 70 (5) (c)
Introduce a new section 19A as follows Add 74 (1) (iii) impeachment procedures provided that there is provision for independent judicial inquiry prior to any decision made by Parliament, and on the basis of which such decision must be made with a two thirds majority being required for such impeachment
(iv) the establishment and regulation of Parliamentary Committees, including Consultative Committees for Ministries and separate Finance Oversight Committees, the chairs of which shall be members of parties not belonging to the government
(v) ensuring that the executive responds promptly to parliamentary recommendations and questions
It was pledged that Parliament would be strengthened, and for this purpose it is essential to build up the Committee system
Introduce a new section 23 A which reads as follows Delete Section 95 (1) and replace with ‘Within one week of this amendment being carried, the President shall establish a Delimitation Commission consisting of three persons appointed by him who he is satisfied are not actively engaged in politics. The Commission shall be required to present its Report within six months of its being appointed.’
Delete 96 (1) to (4) and replace with ‘The Delimitation Commission shall divide Sri Lanka into 150 constituencies so that the population of Sri Lanka shall be divided equitably between those 150 constituencies, with the variation between the constituency having the largest number of voters and that having the smallest number not exceeding 10%.’
Clauses 96 (5) and (6) of the current Constitution shall remain as 96 (2) and (3)
Delete 97 and replace with ‘The President shall by Proclamation publish the names and boundaries of the constituencies, which shall be the basis of elections to Parliament at the next ensuing General Election.’
Delete 98 and replace with
98 (1) At General Elections, each voter shall be entitled to cast two separate votes. One shall be for an individual, chosen from amongst those nominated for the constituency in which such voter is entitled to vote. The second shall be for a political party, from a list of those registered political parties that are contesting that election. Political parties will be deemed to be contesting the election if they have nominated candidates for at least 5 constituencies.
In addition to candidates nominated for constituencies, each Party contesting the election shall be entitled to nominate on a National List 10 candidates who are distinguished for service in any two of the following areas – Administration, Business Enterprises, Cultural Activities, Education, Social Service. Each Party, in presenting its National List to the Elections Commissioner shall indicate the qualifications of each candidate on that list.
(2) Each constituency will return as the representative of that constituency the individual who received the most votes cast within that constituency.
(3) One hundred more members will be returned to Parliament on the basis of the second party vote, such that the final composition of Parliament shall reflect proportionately the votes cast for each such Party.
(4) Each party shall be told the number of seats to which it is entitled based on the votes cast for such parties.
(5) All candidates elected under 98 (2) shall be seated in Parliament. For any vacancies that remain in the entitlement made under 98 (4), each party may nominate upto half the number of seats it is entitled to from the National List, to the maximum of 10. The remaining vacancies shall be filled by those candidates contesting individual constituencies on behalf of the Party who received the highest percentage of votes in the individual vote.
Delete 99 (1) to (12) and renumber f99 (13) as 99 (1). Delete therein, in (a), the section from ‘Or independent group’ to ‘Parliament’.
Replace (b) with ‘Where the seat of a Member of Parliament elected on the individual vote to a constituency becomes vacant, a bye-election shall be held for that constituency, with each voter being entitled to one individual vote.’
Replace (c) with ‘Where the seat of a Member of Parliament elected by means of the Party Vote becomes vacant, the political party to which such member belonged shall be entitled to fill that seat, either through nomination of a candidate on its National List, or through the next candidate of those who contested individual constituencies on behalf of the Party who received the highest percentage of votes in the individual vote.’
Delete 99 A and replace with
If any party received more seats on the basis of the constituency vote that it is entitled to under 98 (3), it may retain such seats for the duration of that Parliament, and Parliament shall during such period consist of 250 members plus such overhang.
If any party received more seats on the basis of the constituency vote that it is entitled to under 98 (3), it may retain such seats for the duration of that Parliament, and Parliament shall during such period consist of 250 members plus such overhang.’
Add 102 B
‘If the Proclamation under 97 shall not have been made at the time of the next General Election, the Elections Commissioner shall hold such election on the system described above, subject to the proviso that, instead of the 150 constituencies envisaged, he shall proceed on the basis of the current 160
Constituencies. There shall then be only 90 seats available to be apportioned under 98 (3).
This fulfils the pledge in the President’s manifesto to have a representative for each constituency while it ensures that Parliament will be proportionate to the will of the people. There is provision for small parties and for a National List too.
24 Add in the new 99 after ‘disciplinary action’ (provided such action is in accordance with the constitution of the political party or independent group, and such constitution conforms to the principles of natural justice and democracy)
This will limit arbitrary action and encourage all parties to have constitutions in accordance with the above principles.
32 In 111 H (2) change ‘may’ to ‘shall’ and add © rules to ensure that all judges and magistrates recognize the need to expedite cases and establish guidelines for this purpose
(d) provision to ensure that all judges and magistrate exercise their right to visit all places of detention and report on them with the purpose of improving conditions at such places, whilst also developing sentencing policies that limit the need for detention
(d) rules to encourage rehabilitation rather than retribution in sentencing policy;
These will contribute to making the judiciary more responsive to people’s needs
This executive control function should continue to be exercised by the President
It is too sweeping to prevent Courts looking into the actions of a police officer simply in terms of delegation of power by the Commission, since this can be misinterpreted
The Commision having power to receive complaints from the public and look into them should be specified, rather than leaving this as implicit because of what is in 49.
53 Leave the original version
The Auditor General should not be considered a Public Servant. Members of the UGC and the Languages Commission should be seen as public servants, and should not exercise active political rights (though this should also be specified in the relevant Act)
Unnecessary since the President continues by constitution to be the Head of the Cabinet