Public Commission for Good Governance

The struggle of the people of Sri Lanka to take our country forward requires “zero” tolerance for any form of corruption, violation of rights and liberties and failure of diligence and performance by the State and its representatives – Pic by Shehan Gunasekara 

We the people should seriously consider that the majority of politicians in Sri Lanka carry a history of deceptive, self-serving, and often criminal behaviour riddled with corruption and mismanagement. In these circumstances, we must stand by our motherland by ensuring that some form of legislature authorises and permits the people, Sri Lanka’s sons and daughters, to act as a “watchdog” and guide Sri Lanka in these challenging times for a better future for generations to come

• A legislative framework for good governance and accountability 

By Citizens Centre for Accountability and Policy Sri Lanka

What began as a stand against mismanagement and injustice by candlelight on a Kohuwela roadside, has after three months of hard work, become a proposed legislative act by the people, for the people. Its primary aim is to ensure that our beloved country never again sees a time such as what we are experiencing right now. We have stayed true to the goal and developed a structured legislative act that with your support, will guarantee that good governance by any publicly elected official is a non-negotiable factor moving forward.

This legislation is designed to overcome many of the weak checks and balances responsible for the current state of crisis in Sri Lanka. It aims to enable a true participative democracy as well as provide adequate force and investigative powers to keep all public servants in check and mandate standards, consistent execution of policy, transparency of governance, and quality of outcomes.

This legislature, developed by ordinary citizens, like yourselves, comes in a backdrop of recent mass public uprising as a result of our politicians’ inability and/or failure to successfully govern Sri Lanka since its independence.

The struggle of the people of Sri Lanka to take our country forward requires “zero” tolerance for any form of corruption, violation of rights and liberties and failure of diligence and performance by the State and its representatives.

We strongly believe that the “change” we seek in the current system cannot be achieved unless we have the correct people with character, knowledge, expertise, and experience who, without any criminal record and free from the shadow of nepotism and favouritism entering parliament on their merit. That is the dream for Sri Lanka.

Remember that power corrupts. Corruption has not been limited to State institutions but also private businesses and professionals underscoring the need for strong transparency and accountability in the interest of good governance. In the past not only State institutions but also private businesses and professionals too have actively contributed to this warranting strong oversight in the interest of good governance.

A vital focal point this legislation tackles is the stabilisation of national policy exceeding the standard term of parliament, ensuring that Sri Lanka remains in a stable direction in spite of political upheaval.

Further, we must understand that constitutional amendments, if any, will not change the politicians and poorly governed systems that have failed the country under various parties.

Politicians have conducted superficial inquiries over the last several decades only to act out exaggerated dramatisations but deliver little to no result and virtually zero consequence. The primary weakness being that inquiring bodies are not vested with the required powers and/or independence to take suitable action.

We the people should seriously consider that the majority of politicians in Sri Lanka carry a history of deceptive, self-serving, and often criminal behaviour riddled with corruption and mismanagement. In these circumstances, we must stand by our motherland by ensuring that some form of legislature authorises and permits the people, Sri Lanka’s sons and daughters, to act as a “watchdog” and guide Sri Lanka in these challenging times for a better future for generations to come.

Over the past three months citizens engaged in the fields of law, information technology, economics, consulting, civil activism, human rights, finance, corporate management, medicine and healthcare, manufacturing and services came together to work on this draft legislation under the banner of The Citizens Centre for Accountability and Policy (CCAP).

The Citizens Centre for Accountability and Policy (CCAP) is an association of likeminded citizens who have joined together with the goal of advancing participative democracy and policymaking among citizens through proposing legislation, frameworks, and technology.

Participation creates value, and therefore we strongly call for active participation in our democracy through this historic occasion where the people have actively drafted and proposed legislation to ensure good governance, which indeed is a strong sign that the change we all seek is a reality well within our reach. We have the means to effect lasting change, the people must come together to stand behind it.

Following is the proposed draft. 

Public Commission for Good Governance

An Act to make provisions for the establishment of a Commission for Good Governance to provide for its functions, powers, and privileges and to promote good and effective governance.

1. This Act shall be cited as the Commission for Public Commission for Good Governance Act.

2. The composition, functions, powers, privileges, and other matters of the Public Commission for Good Governance (hereinafter the Commission) shall be regulated by the provisions of this Act.

3. The Commission shall be a body corporate with perpetual succession and by that name shall sue and be sued.

4.

(a) The objectives of the Commission shall be to ensure that every public officer, holder of public office, and any government institution exercises powers and responsibility in public trust and be the catalyst for creating policies and laws for ensuring effective and accountable governance.

(b) Public trust shall include to mean the exercise of power and discharge of duties:

i. in achievement of the objectives contained in the directive principles of state policy enumerated in Article 27 of the Constitution of the Democratic Socialist Republic of Sri Lanka:

ii. in a manner that demonstrates respect for the people;

iii. which brings honour to the nation and dignity to the office and the government institution;

iv. which promotes public confidence in the integrity of the office and the government institution;

5. The general objects for which the Commission is constituted are hereby declared:

(a) to ensure that every public officer and government institution exercises powers and responsibility in public trust;

(b) to vest with the public officers the responsibility to serve the general public, and hold them accountable for the exercise of power;

(c) to establish an Independent Commission, protected from undue influence, with adequate powers and resources to undertake its’ responsibilities;

(d) to strengthen the integrity of governance and increase accountability;

(e) to enhance public confidence in government and strengthen public participation;

(f) to ensure the highest standards of ethical conduct;

(g) to maintain and uphold accountability;

(h) to formulate and submit national policies to the Parliament for the purpose of implementation;

(i) to make recommendations to the government on responses to the economic and humanitarian crises in the country and to review and assess the effectiveness of the policies adopted by the government and the Central of Sri Lanka in response to thereof.

6. The Commission shall carry out the following functions:-

(a) to ensure that every public officer and public official exercises powers and responsibility in public trust;

(b) to promote as guiding principles of leadership and integrity of public officers and the management of government institutions including the following:-

i. selection based on personal integrity, competence, and suitability, or election in free and fair elections;

ii. objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives, or corrupt practices;

iii. selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties and the declaration of any personal interest that may conflict with public duties;

(c) to account to the public for decisions and actions and discipline and commitment in service to the people;

(d) to play a catalytic role in proposing laws, regulations, and policies to strengthen and uphold the rule of law, accountability, and prevent the abuse of power by public officials;

(e) to hold public inquiries from time to time on its motion or by public request on the efficiency and efficacy of public officials and government institutions and as to whether the prevalent laws ensure and effectively uphold the rule of law, promote accountability, and prevents abuse of power;

(f) To vet the suitability and integrity of the appointments to Government Institutions and as public officers and issue reports and scorecards;

(g) To formulate and issue key performance indicators to enable the evaluation discharge of their duties and responsibilities and accountability of public officers and government institutions;

(h) To function as a policy incubator in the formulation of the national economy, trade, public health, national security, tourism, agriculture, industry, information technology, services, and foreign policy and to invite public representation whenever necessary and hold necessary inquiries in pursuance thereof;

(i) Oversight of Assets and Liabilities and the Asset declaration of the President, Prime Minister, Members of Parliament, and other Public officers and to inquire into the factual veracity of the contents thereof;

(j) To examine accounts of all government institutions, corporations, and companies that are controlled and/or directed by the government;

(k) To make recommendations to reduce government expenditure;

(l) To make a recommendation to reduce expenses and other benefits of Members of Parliament and Public Officers;

(m) To make recommendations to enable government institutions to provide efficient services to the public;

(n) To propose and formulate legislation to further the objectives of this act.

(o) To make and issue action plans for public officers and government institutions after due consultation;

(p) To make and issue guidelines, directions, and regulations to government institutions and public officers and enforce regulations and issue directions in pursuance thereof with the objective of:

i. to ensure that a public officer shall not act in any manner which will bring his interest into conflict with public duty or which compromises his office;

ii. to prevent the compromising of any public and/or official interest in favour of personal interest or demeaning the office which the public officer holds;

iii. to promote as guiding principles of leadership and integrity including the following:-

aa. selection based on personal integrity, competence, and suitability, or election in free and fair elections;

bb. objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives, or corrupt practices;

cc. selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties and the declaration of any personal interest that may conflict with public duties;

dd. to account to the public for decisions, actions, discipline, and commitment to service.

m. To make and enforce regulations that ensure financial probity.

n. To make recommendations to the government and issue regulations and guidelines to fulfil the general objectives of the commission

o. To promote and ensure the adherence to the following values and principles by the Public Service.

aa. high standards of professional ethics;

bb. efficient, effective, and economic use of resources;

cc. responsive, prompt, effective, impartial, and equitable provision of services;

dd. involvement of the people in the process of policy making;

ee. accountability for administrative acts;

ff. transparency and provision to the public of timely, accurate information;

gg. fair competition and merit as the basis of appointments and promotions;

hh. affording adequate and equal opportunities for appointment, training, and advancement, at all levels of the public service, for men and women, the members of all ethnic groups, and persons with disabilities.

p. Without prejudice to the generality of the function of the Commission to monitor, investigate and report to the Parliament and the public every three months, on the compliance by public officers and government institutions with the directions, guidelines, action plans, and achievement of key performance indicators formulated by the Commission;

q. To make recommendations to the government on suitable candidates to be appointed as public servants in senior positions;

r. To investigate and inquire into any form of political interferences with public officers and their function;

s. To investigate and inquire into any form of malpractices in Government institutions;

7. The Powers of the Commission

(1) The Commission may, by notice in writing, require any person to–

(a) appear before the Commission, to be questioned by the Commission;

(b) produce to the Commission, any document or thing in the possession or control of that person and specified in such Notice.

(2)

(a) Every person who fails, without reasonable cause to appear before the Commission when required to do so by a Notice sent to him under paragraph (1);

(b) appears before the Commission in compliance with such a Notice, but refuses without reasonable cause, to answer any questions put to him by the Commission; or

(c) fails or refuses, without reasonable cause, to produce any document or thing which he was required to produce by a Notice sent to him under paragraph (1),

shall be guilty of an offense and shall on conviction be liable to a fine not exceeding one hundred thousand rupees or to imprisonment for a term not exceeding seven years, or to both such fine and imprisonment.

(3) To institute legal proceedings against any government institutions and public officers who fails to comply with the directions and regulations of the Commission

8. The Commission shall consist of –

(1) The Commission shall consist of not less than 11 members and not more than 17 members, who shall be appointed by the President on the recommendations of professional associations and civic organisations (e.g. to represent farmers/trade unions/civil activists/chambers of commerce/industry representative bodies) that represent practitioners in the field of law, accounting and auditing, financial sector, economics, medical and health sector, engineering sector, agricultural sector, education and training sector, human resources sector, environment and sustainability, psychology and other sectors that make contributions to the economy and the wellbeing of the public.

(2) The professional associations and civic organisations that make recommendations should be duly registered and should have a membership of not less than 20 members and have in place a duly approved framework, standards and a code of ethics that the members required should abide by.

(3) The members of the Commission shall appoint by majority vote a member of the Commission to function as the Chairman of the Commission for a period of two years or for the tenure of that member’s membership in the Commission;

(4) Every member of the Commission shall hold office for ten years.

(5) Every member should be below 55 years of age to be eligible to be appointed to the Commission.

(6) Every member should not be a member of any political party and/or should not have held any position in any political party and/or held any position in any government institution by a political appointment;

(7) The office of a member shall become vacant –

(a) upon the death of such member;

(b) upon such member resigning such office by writing addressed to the President;

(c) on the expiration of his term of office.

(d) upon such member being removed from office on any ground specified in the below section.

(8) A member of the Commission may be removed from office –

(i) if pronounced insolvent by a Court of competent jurisdiction;

(ii) engages in any paid employment outside the duties of his office, which in the opinion of the majority members of the Commission, conflicts with his duties as a member of the Commission;

(iii) if he/she is declared to be of unsound mind by the Court;

(iv) absents himself from two consecutive meetings without obtaining leave of the Commission or absent from more than 30% of the meetings held per calendar year.

(v) by resolution of Parliament supported by two-thirds of the majority of members of parliament including those not present on the grounds of proven misbehaviour or incapacity

(9) Any member who vacates his office, otherwise than by removal under the above section, shall be eligible for re-appointment.

(10) The Chairman may resign from the office of Chairman by letter addressed to the Constitutional Council

(11) If the Chairman of the Commission becomes, by reason of illness or other infirmities, or absence from Sri Lanka temporarily unable to perform the duties of his office, the majority of the members of the Commission may appoint any other member of the Commission to act in his place.

9. No act or proceeding of the Commission shall be deemed to be invalid by reason only of the existence of any vacancy among its members, or defect in the appointment of any member thereof.

10. The Chairman of the Commission shall be its Chief Executive Officer and shall preside at all meetings of the Commission. In the event of his/her absence from any meeting, the members of the Commission present at such meeting shall elect one from amongst themselves to preside at such meeting.

11. A quorum for a meeting of the Commissions shall be 51% of the persons holding the membership of the Commission at a given time.

12. The Chairman of any meeting of the Commission shall, in addition to his vote, have a casting vote.

13. Subject to the other provisions of this Act, the Commission may regulate and issue regulations on the procedure regarding the conduct of the meeting of the Commission, and the transaction of business at such meetings.

14. There shall be an Executive Secretary of the Commission who shall be appointed by the Chairman of the Commission with the consent of the majority of the membership of the Commission from among persons holding or who have held a senior position in the service of the Government.

15. The Executive Secretary, shall -

(a) be responsible for the carrying out of the policy decisions of the Commission and the day-to-day administration and management of the affairs of the Commission

(b) be responsible for arranging the business for and the recording and keeping of the minutes of all decisions and proceedings of the Commission at its meetings; and

(c) perform any other function assigned to him/her by the Commission or by or under any written law.

16. The Secretary shall unless in any particular case the Commission otherwise directs in writing, attend all meetings of the Commission but shall have no vote on any matter falling to be decided by the commission at any such meeting.

17. There shall be such other officers and staff of the Commission as may be appointed by the Commission.

18. The Commission in carrying on its functions as a public policy incubator as enumerated hearing shall conduct due inquiries and seek views of persons with known interests and acknowledged expertise.

19. The Expenses of the Commission shall be charged on the Consolidated Fund.

20. except as provided by the Constitution, the Commission shall be independent and the Commissioners shall not, in the performance of their functions, be subject to the direction or control of any person or authority.

21. The Government, all Ministries and Departments Public Authorities, Police and the Armed Forces, and other bodies shall provide such assistance and cooperation as may be required to ensure the effectiveness of the provisions of Section [19].

22. The Commission shall, for the conduct of an inquiry or investigations under this Act, have the power -

(a) to procure and receive all such evidence, written or oral, and to examine all such persons as witnesses, as the Commission may think it necessary or desirable to procure or examine;

(b) to require the evidence (whether written or oral) of any witness, to be given on oath or affirmation, such oath or affirmation to be that which could be required of the witness if he were giving evidence, in a court of law, and to administer and cause to be administered by an officer authorised in that behalf by the Commission an oath or affirmation to every such witness;

23. A person who gives evidence before the Commission shall in respect of such evidence, be entitled to all the privileges to which a witness giving evidence before a Court of Law is entitled in respect of evidence given by him/her before such Court.

24.

(1) Every summons shall be under the hand of the Chairman of the Commission.

(2) Any summons may be served by delivering it to the person named therein, or where that is not practicable, by leaving it at the last known place of abode of that person, or by registered post.

(3) Every person to whom a summons is served shall attend before the Commission at the time and place mentioned therein and shall answer the questions put to him by the Commission or produce such documents or other things as are required of him and are in his possession or power, according to the tenor of the summons.

25. The Commission shall not investigate-

(a) a matter which is pending before a court or other judicial tribunal;

(b) a matter involving the relations or dealings between the Government and the Government of any foreign State.

(1) The proceedings of the Commission and its decisions and any information, document, or thing produced by any person about an inquiry under this Act shall be privileged in the same manner as the proceedings and other matters before a court.

(2) No inquiry, proceeding, or process of the Commission shall be invalid on the grounds only of any error or irregularity of form and, except on the ground of lack of jurisdiction, no inquiry, proceeding, process, or report of the Commission shall be liable to be challenged, reviewed, quashed or called in question in any court.

(3) No proceeding shall lie against the Commissioners, officers, and employees of the Commission and other persons authorised by the Commission for anything done or omitted to be done in the exercise of their functions under this Act unless it is shown that the act or omission was done or omitted in bad faith.

(4) No Commissioner shall be called to give evidence in any court or any other proceedings of a judicial nature in respect of the proceedings in any inquiry or anything coming to his/her knowledge in the exercise of his/her functions under this Act.

27. Subject to the following section, proceedings during an inquiry before the Commission shall be conducted in public.

28.

(1) The Commission may, on its initiative, or on an application, take, appropriate measures and make any order it considers necessary to ensure the confidentiality of any inquiry or any part of it if, having considered all available alternative measures, the Commission is satisfied that

(a) there is a real and substantial risk that-

(i) the disclosure would Prejudice the national security or sovereignty of the State, its defence, or international relations;

(ii) a confidential source of information concerning the inquiry or the enforcement of the criminal law would be identified or compromised; or

(iii) the fairness of the inquiry is such that the need to prevent disclosure outweighs the interest of having the inquiry or that part of the, inquiry conducted in public;

(b) there is a likelihood that the life, liberty, or physical safety of a person or the interests of vulnerable persons, including children will be endangered.

(2) The Commission may Prohibit or restrict the publication of any evidence given before it or the identity of any person if it considers that the reasons for ordering such a prohibition or restriction outweigh the public interest in a public hearing and publication of that evidence or identity.

(3) Every member of the Commission and every person employed by the Commission shall take reasonable precautions to avoid disclosing any matter the disclosure of which is prohibited or restricted by the Commission under subsection (1) or subsection (2).

29. The salaries of the members of the Commission shall be determined by Parliament and shall be charged on the Consolidated Fund and shall not be diminished during their terms of office.

30. For the purpose of this Act, Public Officer, and Public Officials shall mean any person who holds any paid office or exercises any power in the name or for and on behalf of the Republic

31. In this act, “government institution” includes a Ministry, a government department, a public corporation, a local authority, any business or other undertaking vested in the Government and a Company registered or deemed to be registered under the Companies Act, No. 7 of 2007, in which the Government, a public corporation or any local authority holds more than fifty per centum of the shares and their servants and agents.”.

Every regulation made by the commission shall be published in the Gazette and shall not come into force unless approved by Parliament.

Contravention or failure to comply with a regulation made in terms of the act shall be an offense.