Principles and proposals for political and constitutional reform for democracy: Part III

A welcome trend is that more citizens and civic organisations are coming forward to challenge Bills before the Supreme Court

We propose a Code of Conduct applicable to Judges of Superior Courts. Allegations of serious infractions of the Code of Conduct shall be inquired into by a panel of three retired Judges of the Constitutional Court or the Supreme Court. They will be appointed by the President on the recommendation of the Constitutional Council

We propose that the Chapter on fundamental rights be improved to include universally recognised rights. The scope of civil and political rights will be broadened. The right to life, human dignity, bodily integrity, and privacy will be guaranteed. The right of access to justice and the right to fair State action will be recognised. Social and economic rights, cultural rights, rights of women, children, the aged and the disabled, as well as group, environmental and development rights, would be recognised as judicially enforceable rights

To ensure citizens’ easy access to justice, the Court of Appeal will conduct its sittings in each Province. It will have an original fundamental rights and language rights jurisdiction. An appeal would lie to the Supreme Court with leave from the Court of Appeal or special leave from the Supreme Court. The civil appellate jurisdiction of the Provincial High Courts shall be transferred to the Court of Appeal sitting in the Provinces

Sinhala, Tamil, and English shall be the official languages of Sri Lanka. A person would be entitled to communicate or transact business with any official in Sinhala, Tamil, or English and to receive a response from such an official in the language in which the person communicated. The right to obtain a copy of a document in Sinhala, Tamil, English, or a translation will be guaranteed

•  Democratic governance and people’s rights

By Collective for Democracy and Rule of Law

Constitutional Council 

A Constitutional Council was set up mainly due to civil society pressure to curb the excessive powers of the executive presidency and to depoliticise the state and public service. It was also expected to function as a system of checks and balances to curb governmental power. We also view the Constitutional Council as an instrument for achieving a national consensus on high-level appointments and propose its retention even under a parliamentary system of government. At present, while members of independent commissions are appointed on the recommendation of the Council, appointments to high positions are made on the nomination of the President, subject to approval by the Council. We propose that both categories be appointed on the recommendation of the Council.

We propose that the Constitutional Council will consist of: 

(a) the Prime Minister;

(b) the Speaker, who will be the Chairperson of the Council;

(c) the Leader of the Opposition in the House of Representatives;

(d) the Chair of the Senate;

(e) five persons appointed by the President on the nomination of both the Prime Minister and the Leader of the Opposition; and

(f) one person appointed by the President upon being nominated by Members who do not belong to the respective political parties or independent groups to which the Prime Minister and the Leader of the Opposition belong.

In nominating the five persons referred to in subparagraph (e), the Prime Minister and the Leader of the Opposition will need to consider nominations made by national professional bodies and civic organisations. They should also consult the leaders of political parties and independent groups represented in Parliament. They are obliged to ensure that the Constitutional Council reflects the pluralistic character of Sri Lankan society, including professional and social diversity. The five persons referred to in subparagraph (e) and the person referred to in subparagraph (f) should be persons of eminence and integrity who have distinguished themselves in public or professional life. They should not be members of any political party. Parliament must approve their nominations.

Judiciary

The procedure for the appointment and removal of Judges of Superior Courts and the appointment of the members of the Judicial Service Commission has a direct bearing on the independence of the Judiciary. We are of the view that the independence of the Judiciary would be better assured if such appointments were on the recommendation of the Constitutional Council rather than with its approval as at present. 

A welcome trend is that more citizens and civic organisations are coming forward to challenge Bills before the Supreme Court. We have, elsewhere, proposed that post-enactment judicial review of laws and Provincial statutes be permitted. With complex constitutional issues being raised in courts, it is best that they be adjudicated by a specialised Constitutional Court. 

We make the following proposals:

Judges of Superior Courts

Appointments to the Constitutional Court, Supreme Court and Court of Appeal would be made by the President on the recommendation of the Constitutional Council. The Constitutional Council will consider the views of the Chief Justice and the two senior-most Judges of the Supreme Court.

Allegations of misbehaviour or incapacity contained in a resolution for the impeachment and removal of a Judge of a Superior will be inquired into by a panel of three retired Judges of the Constitutional Court or the Supreme Court. They should be appointed by the Speaker on the recommendation of the Constitutional Council. 

We propose a Code of Conduct applicable to Judges of Superior Courts. Allegations of serious infractions of the Code of Conduct shall be inquired into by a panel of three retired Judges of the Constitutional Court or the Supreme Court. They will be appointed by the President on the recommendation of the Constitutional Council. 

New steps need to be taken to further enhance the independence and integrity of the judges. Therefore, we propose that the Constitution provide for the economic security of retired Judges of the Superior Courts by appropriate means, including a pension equivalent to the salary, perquisites, and emoluments of a sitting Judge. Retired Superior Court Judges shall not perform any function which would bring them monetary gain, advantage or benefit, except as authorised by the Constitution or by written law or with the written consent of the President.

Constitutional Court 

The Constitutional Court will consist of seven Judges appointed by the President on the recommendation of the Constitutional Council. Judges will be chosen from among persons who have distinguished themselves in the Judiciary, the legal profession or legal education/research with specialised knowledge of Constitutional Law. They would be appointed for a term of five years and would not be eligible for reappointment. Any matter falling within the jurisdiction of the Constitutional Court arising before any court will be referred to the Constitutional Court. Therefore, a question of the Constitutional Court overruling another court will not occur. 

The exclusive jurisdiction of the Constitutional Court will be as follows: interpretation of the Constitution; judicial review of Bills and Acts of Parliament and draft Statutes and Statutes of Provincial Councils; the validity of a Proclamation relating to the intervention by the Centre in a Provincial Council; disputes between the Centre and Provincial Councils and between Provincial Councils; review of its judgments; inquiries into allegations of violations of fundamental rights by the Office of the Attorney-General, Office of the Public Prosecutor and the Office of the Public Defender. 

To ensure citizens’ easy access to justice, the Court of Appeal will conduct its sittings in each Province. It will have an original fundamental rights and language rights jurisdiction. An appeal would lie to the Supreme Court with leave from the Court of Appeal or special leave from the Supreme Court. The civil appellate jurisdiction of the Provincial High Courts shall be transferred to the Court of Appeal sitting in the Provinces. 

Offices of Attorney-General, Public Prosecutor and Public Defender

The Office of the Attorney-General will have to be an independent entity. The Attorney-General will be the Chief Legal Officer of the Republic. The person holding that office must uphold and safeguard the sovereignty and rights of the People and the public interest. An independent Office of Public Prosecutor and an independent Office of the Public Defender will also be set up. 

The Attorney-General, Chief Public Prosecutor, and Public Defender will be appointed by the President on the recommendation of the Constitutional Council. 

Fundamental Rights

The global trend is to give constitutional recognition to (a) civil and political (first-generation rights), (b) economic, social and cultural (second-generation rights), and (c) environmental and development rights (third-generation rights) as judicially enforceable rights. 

We propose that the Chapter on fundamental rights be improved to include universally recognised rights. The scope of civil and political rights will be broadened. The right to life, human dignity, bodily integrity, and privacy will be guaranteed. The right of access to justice and the right to fair State action will be recognised. Social and economic rights, cultural rights, rights of women, children, the aged and the disabled, as well as group, environmental and development rights, would be recognised as judicially enforceable rights. 

Social and economic rights would include the right to education, right to health, right of access to sufficient food, clean water, sanitation, adequate housing and shelter, appropriate social protection and decent employment, freedom from exploitation, the right to the enjoyment of just and favourable conditions of work, and consumer rights. Every person has the right to a clean and healthy environment, including the right to have the environment, biodiversity and ecosystems protected for the benefit of present and future generations.

Article 12(1) of the present Constitution or its equivalent in a new Constitution, which assures all persons equality before the law and equal protection of the law shall have the following proviso: Special provision made by law, subordinate legislation or executive action, for the advancement of women, children, disabled persons, disadvantaged groups or communities shall not be deemed to violate the rights guaranteed by this sub-Article.

Fundamental rights shall be interpreted in the light of the Directive Principles of State Policy but without in any manner restricting the scope of fundamental rights and with due regard to the international legal obligations of Sri Lanka and other sources of international law. 

Public interest litigation will be expressly recognised. Applications filed within a reasonable time would be entertained. The Public Defender can institute a fundamental or language rights application in the public interest. 

All existing laws would be read subject to the Constitution, including the Chapter on fundamental rights. 

International law

At present, the executive enters into treaties without any reference to the legislature. We propose that the Constitution should require that every treaty, along with a memorandum explaining its implications, be tabled in the House of Representatives at least one month before ratification. The House of Representatives may adopt a resolution recommending ratification, reservations or even non-ratification. The executive would be bound by the terms of such resolution. Parliament shall be informed of the ratification of every such treaty forthwith.

Sri Lanka has accepted human rights obligations, but the people have not had the benefit of all such obligations, which remain on paper domestically. We propose that provisions of a human rights treaty shall become a part of the domestic law on the expiry of a period of two years reckoned from the date of ratification. The House of Representatives may, by resolution, extend such period by one year or reduce such period. Any further extension of the period, not exceeding one year at a time, would require a two-thirds majority. Where the House of Representatives passes a law incorporating a part but not the entirety of a treaty before automatic incorporation, the unincorporated provisions would become domestic law at the end of the period concerned.

In relation to human rights treaties to which Sri Lanka is a party at the time the new constitutional provisions come into effect, the two-year period shall begin to run from such time.

Directive Principles of State Policy

Directive Principles of State Policy should provide that budgetary allocations for education, health, housing, etc., be guided by internationally accepted criteria. Directive Principles of State Policy, while not justiciable, should be inviolable.

National policy making

The Constitution shall provide for the establishment of a National Policy Commission to ensure policy continuity to the extent possible, better policy-making and consensus across party lines in key areas.

Language

Sinhala, Tamil, and English shall be the official languages of Sri Lanka.

A person would be entitled to communicate or transact business with any official in Sinhala, Tamil, or English and to receive a response from such an official in the language in which the person communicated. 

The right to obtain a copy of a document in Sinhala, Tamil, English, or a translation will be guaranteed. The Constitution will also ensure (a) the right to give information regarding any birth, death, or marriage in Sinhala, Tamil, or English, (b) to receive the original certificate of such birth, death, or marriage in such language, and (c) the right to give information regarding the commission of an offence in Sinhala, Tamil, or English.

A child will be entitled to primary education in any official language of the child’s parents’ choice. The other two official languages shall be taught as subjects in the school curriculum.

The State shall provide adequate facilities for the persons with disabilities or special needs to exercise the right to communicate and seek information through all forms of communication of their choice, including augmentative and alternative means and modes of communication such as Braille, large print, sign language, visual media as well as simplified versions when exercising the administrative, educational or judicial function stated in this chapter. Sign Language shall be recognised as the language of communication for the deaf community, and its use should be promoted. 

The State shall provide facilities to preserve or foster a language used by any numerically small linguistic community if the Official Languages Commission recommends that such facilities be granted. 

Public security

In the aftermath of the Easter Sunday attacks, it came to light that the National Security Council had no legal basis. The then President, while giving instructions that the Prime Minister, the State Minister of Defence and the Inspector-General of Police should not be invited to Council meetings, invited Opposition MPs belonging to his party for such meetings. 

We propose that the Constitution define the composition of the National Security Council and that its decisions, subject to national security considerations, be open to scrutiny and accountability.

National security must be pursued in compliance with the law, including Sri Lanka’s international legal obligations. National security is subject to the authority of the legislature and the national executive.

Geoffrey Alagaratnam, President’s Counsel 

Dr. A.M. Navaratne Bandara, former Professor in Political Science, University of Peradeniya

Bhavani Fonseka, Attorney-at-law, Senior Researcher, Centre for Policy Alternatives

Dr. Mario Gomez, Executive Director, International Centre for Ethnic Studies

Dr. Sakuntala Kadirgamar, Executive Director, Law & Society Trust

Saliya Pieris, President’s Counsel

Dr. Pakiasothy Saravanamuttu, Executive Director, Centre for Policy Alternatives

Dr. Kalana Senaratne, Department of Law, University of Peradeniya 

M.A. Sumanthiran, President’s Counsel

Professor Deepika Udagama, Chair Professor of Law, University of Peradeniya

Professor Jayadeva Uyangoda, Emeritus Professor of Political Science, University of Colombo

Dr. Jayampathy Wickramaratne, President’s Counsel

Lal Wijenayake, Attorney-at-law