Photo courtesy ConstitutionNet
We wish to present the following proposals for the Constitution
Nature of the State
The Sri Lankan Constitution should provide the basis for a strong constitutional commitment to plural democracy, multiculturalism, gender equality and justice, secularism, the rule of law and the devolution of political power to the Provinces. The state should be inclusive of all the communities and their cultures in the country and without such an inclusiveness they do not feel that they belong to this country. The state should protect and foster the values of plural democracy as a hallmark of the Sri Lankan state. The Sri Lankan state should underpin the values of gender equality and justice and this is essential owing to the fact women now represent more than half of the Sri Lankan population. The Sri Lankan state should reclaim its previous constitutional status of secularism, which disappeared in the 1972 Republican Constitution. No one religion should have a special constitutional favor. Such constitutional guarantees discriminate other communities and faiths and that would affect the harmony essential for the peaceful coexistence of the multi-cultural and multi- religious communities in the country. The Sri Lankan state should be committed to the rule of law and the Constitution should make strong provisions to protect our people’s right to exercise the rule of law.
Due to the centralization of political power at the center during the colonial times and its continuation after independence despite the opportunities of dismantling it we have paid a heavy price. Both the Constitutions of 1972 and 1978 failed to address the issues of centralization and its harmful effects on community cohesion as far as the regional democratic aspirations are concerned. Therefore, regional power sharing needs to be non- reversible part of the state and the Constitution should make a strong commitment to power sharing.
Form of Government
We would like to propose the abolition of the executive presidential system of government. Any effort to replace it with an executive prime minister would result in the same political disaster experienced in the executive presidential system of government. The country has given a clear mandate to abolish the executive presidential system in the 2015 elections.
However we would also like to propose the appointment of a non-executive President and a Vice President by the members of Parliament in order to carry out certain functions. We would like to see the constitution making recommendations in relation to the ethnic sensitivity in this regard. If the President is appointed from the majority community the Vice President should be appointed from a minority community. If the President is appointed from a minority community the vice President should from the majority community.
With the abolition of the current executive presidential system we also propose that the leadership and power should be given to the prime minster and the cabinet. The ministries should be empowered to act as executive committees and it is important to consider the possibility of appointing independent scholars who are competent enough in the their respective fields to act in these cabinet committees. These appointments should be non-partisan.
We propose that a similar system should be adopted in relation to the functioning of provincial councils.
Citizenship, Religion, Fundamental Rights and Duties, Language Rights, Individual and Group Rights, Directive Principals on State Policy.
The Sri Lankan Citizenship should be awarded in line with the internationally agreed principals. All those who have lived in Sri Lanka continuously are eligible to apply for Sri Lankan citizenship. They should be eligible to apply for dual citizenship. The children who were born in Sri Lanka irrespective of their parents’ immigration status automatically become Sri Lankan citizens.
Prior to the 1972 Constitution Sri Lanka had a secular constitution and we would like to restore the same position in the proposed new Constitution. No religion should be given any special status. The government in line with the Constitution should protect all religions and faiths without any special favor or discrimination.
Fundamental Rights and Duties
Our people need to have access to the fundamental rights and values enshrined in the following United Nations Covenants and Conventions:
- The Covenant on Economic, Social and Cultural Rights (ICESCR)
- The Covenant on Civil and Political Rights (ICCPR)
- The Convention of Elimination of Racial Discrimination (CERD)
- The Convention on Elimination of all Forms of Discrimination against Women (CEDAW).
- The Convention on Rights of the Child (CRC)
- The Convention Against Torture (CAT)
- The Convention on Migrant Workers and Their Families (MWC)
Any person who wishes to make complaint to any institution of the government should be able to do so in his/her own language. It is the responsibility of the state to have a translation of the complaint not the complainant.
All schools should teach all three languages, Sinhala, Tamil and English. The state is responsible for the provision of free education and it should safeguard the educational rights for all the children up to the degree level.
Individual and Group Rights
All the individual rights guaranteed by the Constitution need to be available to groups too.
Directive Principals on State Policy
The policy of legitimacy should be the basis of the state policy.
All the institutions of national social life should successfully establish and protect a socials system on the basis of social, economic, and political justice.
End to inappropriate use of economic and social privileges, differences and of human labor.
Fair equal distribution of physical resources and social power.
To ensure a reasonable living standard including adequate food, clothing, housing and medical facilities to the entire citizen and their families.
To ensure social security and welfare.
Protection of natural resources.
Rules that govern the administrative functions of the state are incoherent and unclear, this needs to be looked at and a single administrative structure has to be prepared for the whole country.
The administrative service and its activities in the country are still fraught with some feudal rules and it would be necessary to redraft the financial and institutional regulations on the basis of democratic principals.
We propose a bi-cameral system or a senate, as it would ensure the further protection of plural democracy. We believe that Tamil,, Upcountry Tamils of Indian Origin, Muslim and women’s representation should be more than 51%. Women should consist of one-third of the total representation. The Vice President should chair the Senate. Each provincial council should nominate two independent representatives to the Senate. Each District Council should send one representative. No representation is needed from the Parliament. It would be highly important to appoint some eminent people with exceptional caliber to serve in the Senate.
Supremacy of Constitution or Parliament
The constitution is supreme .The constitution is the supreme law of the country. The Parliament is unable to undermine the Constitution.
Separation of Powers
We accept the theory of separation of powers. We believe that separation of power should be done on the basis of the rule of law.
The laws and regulations required by the Constitution should be done under the separation of powers. The Legislature, the Judiciary and the Executive should have similar powers that would be conducive to joint working and will not be able to dominate one institution over the other.
Independence of the Judiciary and Courts Structure
There should be checks and balances in the Constitution to safeguard the independence of the judiciary.
We would like to suggest some changes to the current structure. We also suggest that there should be an appeal court to determine the appeal functions. This should facilitate the local appeal hearings without going to High Court in Colombo. All the high courts(appellate jurisdiction) should be empowered to entertain right petition applications of any fundamental rights applications and human right issues.
We propose to establish a Constitutional Court in order to interpret the constitutional matters and resolve constitutional difficulties arising out of power sharing. The Constitutional Court should protect the supremacy of the Constitution. It should be able to give judgments on important principals in relation to gender justice and plural democracy.
Power Sharing, Devolution and Local Government
Due to the critical nature of the political climate at present we envisage that any programme of devolution of power would encounter difficulties. Therefore we should move away from Unitary or Federal models of devolution. However, we advocate devolving power as much as possible to the provinces including land and police powers. This should accompany a clause that would make any attempt to cession illegal. We also propose to establish Grama Rajya instead of regional councils.
The administrative officers appointed by the central government need to work with the regional administrative structures of the regions and the central government should not be able to influence on their work. The central government should interfere only in the administrative matters that are agreed in advance. The regional institutions should govern the police force. At least, there should be two operational branches of police force: one within the central government and the other within regional councils. The Parliament should make laws and regulations in relation to the police force. If any regional police force fails to undertake any particular investigation appropriately, the central government can obtain a court order to carry out an investigation.
We also propose a power sharing arrangement with the Upcountry Tamils of Indian origin.
Sharing Power at the Centre
If the powers available at regional level are listed the central government can keep the rest of the powers. When the central government make systems to be implemented on various matters the regional bodies should make laws and implement them. The laws made by parliament would be accepted and implemented by the provincial bodies. Provincial Councils are responsible for land, health service, education, transport, collection of regional income tax, and other kinds of taxes. Similarly, if the trade services generate tax within the region, that should belong to the region. In collecting these taxes, the region should do it in line with the tax standard set and followed by the central governments as well as other provinces. Any higher taxes in the Province should be collected by the central government.
Constitutional councils and independent commission
The Constitutional Council should appoint a Commission for Separation of Powers. This would take a quasi-judicial form and those who are not in agreement with its decision should get the opportunity to go the Supreme Court.
All the commissions must be empowered to carry out their activities.
We also urge to appoint a National Women Commission.
In order to ensure their independence no political appointments to be made to the Constitutional Councils and other Independent Commissions
There should be a Commission to protect environment and national resources.
We also expect to have a fair representation of women in appointing these commissions.
The electoral system needs to be reformed to include both the current proportional representation and the first-past-the post system. We believe that this would help to represent the minority communities in the country. This should also strengthen and protect people’s democracy. The current electoral system should be revised to make a reasonable representation of the Upcountry Tamils of Indian Origin. We believe that the Upcountry Tamils of Indian Origin is not appropriately represented in Parliament on the basis of their numbers.
Judicial review of legislation
Any previously approved legal act approved the Parliament can be observed and re-interpreted by the Constitutional Court.
Powers of President under the Parliamentary System
After a general election the President must give the first opportunity to form a government to the party leader who has obtained a highest number of parliamentary seats.
The President should be given the opportunity express his views regarding any act of parliament before sending it for approval. These ideas should be given due consideration by the Cabinet. The President should not have any ministry under him as the Head of the Armed Forces.
We propose to retain the Public Security Act with less rigid regulation. The Prevention of Terrorism and the Emergency Regulations Act need to be abolished. If there is a situation that would need the Emergency Regulations Act the Parliament should take a period of not more than two weeks to approve it with two third majority for a limited period. In addition to these regulations people have the right to challenge new regulations in High Court.
Any other issues
There should be an affirmative action to uplift socio, economic and educational standard of the Upcountry Tamils of Indian Origin
There should be A Bill of Rights in line with the United Nations Covenants and Conventions
If necessary, people should have the right to recall any Member of Parliament.
The armed forces and police should be reorganized in order to represent all communities in the country.
There should be fair representation of minorities within the public administration.
On Behalf of the People’s Democratic Centre (PDC)
Dr. Richard Perera