RESTORING SOVEREIgNTY

9 April 2015 05:38 am

By Dr. S.Sivakumaran
The present Presidential election has brought into focus the need for urgent amendments to our Constitution. As a lay member of the public I wish the following points will be given consideration when amendments are proposed. Proposed Constitutional Amendments:



Constitution
The Constitution is  the supreme law of the country
Though the Executive President takes the oath to abide by the Constitution there have been instances where the constitutional provisions have been flouted by the President.

A Constitutional Court (CC) shall be established to protect the Constitution against any violation
Constitutional Court (CC)

Shall have the sole prerogative of interpreting the Constitution
* Any Parliamentary  or Provincial act can be declared unconstitutional by the Constitutional Court if it feels that the act violates the constitution
Functions of the CC

• Guardian of the Constitution
• Enforcement of fundamental rights 
• Defender of the devolution of power to people in the provinces and the villages

1. Democratization of Governance
Sovereignty, the power to govern, lies with the people. They only vest this power with their elected representatives. This should not be vested 


With an individual .
At present the President enjoys all the powers and can dissolve the Parliament of 225 MPs at his will, one year after a parliamentary election.
Executive power should be vested with the Cabinet and Parliamentary system of  governance restored



2. President of the Republic 
A - Powers and responsibilities

• Shall be the head of armed forces and responsible for the unity, integrity and sovereignty of the country and good governance
• Shall appoint Governors to PCs in consultation with the Chief Ministers
• Shall have the power to dissolve PCs in consultation with the PM  and in accordance with the Constitution.
• One of the key functions would be calling the leader of the party which wins at the general election to form the government
• Shall foster unity among all ethnic and religious groups 
• Spreading hatred shall be a punishable offence and shall come under the direct purview of the President.
• Apart from the above, shall be mainly  ceremonial and one of dignity and honour

B. Election

• Presidential candidate shall  be independent(without any party affiliation)
• Shall have a minimum stipulated educational qualification
• To be elected by an electoral college consisting of members of   Parliament and Provincial Councils
• 3Term: 5 years
• 3Maximum term: 2

3. Government
Tiers of Government
i.  Central Government
ii. Provincial Council (PC)
iii. Local Government (LG)        

• PCs and LCs shall have clearly defined devolved powers
• PCs shall have both legislative and Executive powers to the extent spelt out in the Constitution
• LCs shall have executive powers and powers to enact by-laws in the subjects allocated to them       
• Improvements to 13th Amendment  with the objective to, establish effective democratic Provincial Governance  remove any ambiguities and streamline the administration and

eliminate wasteful and duplicated  expenditure, have balanced Provincial Development to facilitate people participation at local levels - devolve more powers to Pradeshiya Sabhas.

The administrative unit is a province, and the main objective of the system is to devolve powers to periphery. The provision for two adjoining provinces to merge does not have any relationship to these objectives. 

Proper long term functioning of PCs depend on people’s support. Objection to the PC system is likely to diminish if this provision is repealed.



Government of the Republic (Central government)

• Legislative power of the People exercised by the Parliament 
• Executive power exercised by the Cabinet accountable to the People through the Parliament
• Judicial power exercised by an independent Judiciary

    Structure of the Central Government

• President
• Legislature 

Parliament- Jana  Sabah
Second Chamber - Jireshda Sabah (new proposal) 

Parliament - Jana sabah

• Term- Five years
• Elections to Parliament

   Shall be on the basis of a mixed system 
i.constituency based-first past the post(about70%)
ii.Electoral district-based -  proportional representation (about 30%)

• First past the post- Political parties and independent candidates can contest in the constituencies

Proportional representation
1. Only political parties are entitled for seats under this system. (Electoral district-based proportional representation).
2. Seats will be allocated to the parties in proportion to the votes they polled in the electoral district.
3. Total number of seats a party wins  in the electoral district (including the number of constituencies it wins) will be in proportion to the votes it polled in the electoral district.
There will also be few seats referred to as grace and bonus seats

• Grace seats   

Party/Parties which polled over 2.5 % of the all island relevant votes but did not win any seat in the Parliament will be allocated one seat each. 

• Bonus seats

These (5) will be allocated to the party which had obtained the highest number of seats, all island. These will only be offered to eminent Professionals/Academics  to enrich the parliament Candidates  defeated in the election will not be eligible
No National List (avoiding the use of  same votes twice)
MPs under proportional representation  
These seats in a polling district shall be allocated to the best losing candidates from the party entitled for this/these seat(s)
Once declared elected under this system, all MPs shall be designated to an appropriate constituency by the Election commissioner (in consultation with the elected MPs of the district)


Speaker
Is an honoured and free position and should be occupied always by persons of outstanding ability and impartiality.
The candidate for the post of speaker shall preferably be agreed upon by the PM and the Leader of the Opposition. In the case of an election it shall be by secret ballot. 
On election to the office the speaker shall resign from any party to which they may belong to and remain separate from political parties even in retirement.
Speaker’s electoral obligations shall be delegated to an MP elected on the proportional representation from that district. 


Cabinet
The size of the cabinet shall be limited to 25.(It is there to meet the  aspirations of the people and  not that of the  Parliamentarians)
It shall have at least one member from each province.
If there is no elected MP suitable for Cabinet post in any province, the PM  has the option to use the bonus seats.


Elections and elected bodies
 All elected bodies shall run its full term unless defeated in the floor of the House or dismissed (as per provisions in the constitution – not dissolved).Parliament will have no right to dissolve pre-term. The Government can resign accepting inability to govern.


Elections to all provincial councils and local bodies shall be held at the same time.
Elections shall be called only within 3 months of the end of the term of that body.


 Care taker Cabinet for general elections
·   The parliament shall remain dissolved 3- months prior to election. 
· Care taker Cabinet having equal representatives from both the Government and Opposition headed by the President/ Speaker shall administer and help the independent election commission.
 

• Election Expenditure

There shall be maximum amount allowed as expenses by a candidate for an electorate and party for an electoral district, which shall be fixed by the Commission. Any failure to comply shall lead to   disqualification of the candidate/party (for the relevant district) 
Candidates


Declaration of assets
All candidates shall declare their assets by the nomination day. Any undeclared asset belonging to the candidate shall be forfeited.
Assets declared, including any previous declarations in an election shall be made available to the voters (right to information)

• a minimum percentage ( to be fixed)of females and young candidates  shall be fielded by political parties in all the elections.
• There shall be larger percentage of young candidates for PCs and LCs.
• There shall be no party politics in Pradeshiya Sabhas. All candidates shall be independent and committed to work together with others  when elected.

Members of Elected bodies
All shall attend courses in politics, public relations and management annually and the speaker/chairperson shall ensure this.



Defection
Any elected representative, who defects to another party or vote against any directive issued by his party or abstains or wilfully absent from voting (except conscience voting) is considered to have cheated the voters and shall be disqualified from being an elected representative. 
 If the MP had been elected on a first past post system then a by- election shall be held.
Bar of jurisdiction of courts.-Notwithstanding anything in this constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this schedule



3.Judicial Authority

• Shall be vested in the courts. 
• The courts shall be fully  independent and subject only to the Constitution

• No person or organ of state may interfere with the functioning of the courts. 
• An order or decision issued by a court binds all persons to whom and organs of state to which it refers to
• Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, dignity and effectiveness of the courts. 

Removal of Judges
Judge of the supreme court can only be removed on charges of proven misbehaviour , misconduct or incapacity
 An impeachment motion for the above reason brought in the parliament needs to be inquired into.
 

• Inquiring Committee shall  consist of three members- 2 constitutional court judges and one distinguished jury .These members shall be appointed  by the speaker with the consensus of  the PM and Opposition Leader 
• If the  committee finds the judge  guilty, the Judge is expected to tender the resignation failing which the President shall remove the Judge.

4. Freedom of Expression

• Individuals 
• Associations
• Media
• Establishment of an effective self-regulatory body through an act of parliament  with adequate punitive  powers
• May be referred to as Sri Lanka Media Commission( replacing  present Press Complaint Commission ) .
• answerable  only to the Parliament
• The composition, procedure of appointments, and powers to be vested shall be worked out by a Committee of  MPP (Appointed by the speaker -equal number of Govt. and  Opposition MPP) in consultation  with all stakeholder representatives
• Ensuring safety of Journalists and of those who hold different and critical views

5. De-politicization of  Public Service

• Ndependent Councils appointing authority (ICAA)
• Establishment of Independent Commissions

• All Public Servants to be given their Job description and weekly time table
• Public Holidays to be revised 
• Fully transparent system of recruitment and Promotions with right to appeal

6. Bill of Rights
 a. Right to Information
Citizens should have the right to secure access to any information,

• Held by the state/public authorities
• Held by another person and that is required for the exercise or protection of any rights guaranteed by the constitution

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in a democratic society based on human dignity, equality and freedom, taking into account all relevant factors except as provided in provision of the Constitution.
No law may limit any right entrenched in the Bill of Rights.
It should be mandatory to have a timely response to requests for information under this provision with appropriate penalties for delays.


b Right to service

• Rights to various basic services by the state shall be guaranteed with maximum period  before which such services shall be provided specified

c  Right to work
At least one member in every family which has no breadwinner or has a monthly income below a limit (to be fixed) shall be offered  a  minimum number of  unskilled work in a government or semi-government project or dept.



Jireshda Saba-Second Chamber
In order to have input from professionals, academics and the like, who may not belong to any political party and are not inclined to enter the electoral political field a second chamber shall be constituted 
Members shall be those with special knowledge, experience and achievements in field of Art, Literature, Science, Law, Medicine, Engineering, Administration, Social Service etc.



Members
 Total number may be 1/4th of the MPs (around 60) 
Shall have elected and appointed members. 

• Elected - 45 elected
• By the PCC  (by free secret vote)   - 5 from each Province

15  appointed   

• By a committee chaired by the President and consisting of the Speaker, Prime Minister, Opposition leader and the Chairperson of the ICAA
• Appointed Members shall  be those who have made significant contribution  to the Nation and  not belong to or affiliated to or had been identified with any political party
• At least one each to represent the Burghers, Malays and any other minority communities who the committee feels that the community is not adequately represented in the legislature).

(The writer is a senior consultant, physician at the Dr. Neville Fernando Teaching Hospital.)