Oct 18

The Citizens’ Movement for Good Governance (CIMOGG) is greatly relieved to learn from the media that our two largest political parties, the UNP and the SLFP, with a view to helping resolve the so-called National Question, have agreed on a common approach in respect of six or seven subjects, the scope of which will, no doubt, be elaborated over a period of time.  We fervently hope that all the other parties in Parliament will also soften whatever extreme views that they may have held in the past in the interest of making every Sri Lankan feel that his future prosperity lies in a united Sri Lanka where he is ensured the same rights as any other citizen, irrespective of race, caste, religion, class, gender, occupation, political affiliation or other divisive classification.

It is CIMOGG’s view that there are some critical issues which must be addressed and agreed by an appropriate majority in Parliament if the National Question is to be resolved properly without creating further problems.  Just as much as a building needs a sound, properly-designed foundation, if the superstructure is to remain intact, the politico-economic structures created to solve the National Problem must be underpinned by firmly strengthening the Rule of Law.  We believe that some relatively small changes to a few articles of the Constitution and a small number of related laws would help greatly to remove certain particularly grave shortcomings which have surfaced over the years during which the present Constitution has been in force.  In other words, there are some important issues on which joint action must be taken in Parliament if whatever is proposed as a solution to the National Question is not to end in failure during implementation.  It is urged most strongly, therefore, that immediate action should be taken to prepare and pass certain straightforward amendments to the Constitution and other laws, in respect of the subjects referred to below, so as to ensure that whatever consensus is achieved on the National Question will not be negated by other factors.

Presidential Immunity – An amendment should be made to the Constitution stating that, notwithstanding anything to the contrary in the Constitution, every Presidential act of commission or omission shall be in strict conformity with the Constitution and shall be justiciable.  The President shall necessarily continue to be personally immune from facing legal action while he is in office.  He shall, however, be bound to conform rigorously to decisions given by the courts where his acts are challenged.

Constitutional Council (CC) – An amendment should be passed to the effect that the President shall appoint within a period of two weeks any member who has been duly selected to be a member of the CC by the relevant party or parties in Parliament.  If he does not do so, the Speaker shall declare forthwith that such member has been duly appointed.  It shall be the responsibility of the Speaker, with the assistance of the Secretary-General of Parliament and the Secretary to the CC, to anticipate at least three months ahead the vacancies which are likely to arise in the CC and to activate the parties involved to make their choices well in time so that the President could make the required appointments without leaving things to drift into limbo as in the past.  If there should be a dispute about the filling of the vacancy by the minority parties, the Speaker should be empowered to hold a secret ballot of the members of all minority parties in Parliament (that is, other than those belonging to the main party in government and the main party in the opposition), to decide who should be the person to be recommended to the President for appointment.  One or more vacancies in the CC shall not be a bar to the CC meeting and taking any decisions within its purview as long as a quorum is available.

Independent Commissions – The present Aindependent commissions should be dissolved and reconstituted as provided for in the 17th Amendment.  There should be no bar to any of the present members being considered for reappointment provided that the CC is satisfied that they are distinguished persons of uncompromised integrity.

All independent Commissions covered by the 17th Amendment shall be put in place by 31 January 2007, at the latest.

Appointments to be made Forthwith – All appointments recommended by the CC shall be made by the President within two weeks unless he furnishes reasons acceptable to the CC that any of their recommendations should be reconsidered.

Code of Conduct for Judicial Officers – The Law should be amended so as to make it incumbent upon all judicial officers to conform to the provisions of the BANGALORE PRINCIPLES OF JUDICIAL CONDUCT.

Judicial Services Commission (JSC) – The membership of the JSC should be expanded to seven.  The Chief Justice and the two most senior Supreme Court Judges, together with four persons distinguished in the field of law and appointed by the CC, shall form the full JSC.  The quorum shall be five.

Promotion to Chief Justice – Promotion to the position of Chief Justice shall automatically devolve on the most senior member of the Supreme Court who has at least 18 months of service left before retirement.  The Attorney General shall also be entitled to be considered for the post of Chief Justice subject to his seniority being counted from the date of his appointment as the AG.

Media Freedom – Urgent steps should be taken to reduce the insecurity felt by the media in reporting news which those in power would prefer to hide.  Parliament must help to loosen the secret grip on the media that is complained of by many commentators and the media themselves.  There should be equity in the allocation of government advertisements so that all shades of opinion may be disseminated without fear of losing income or being closed down under emergency or business acquisition laws.  As a corollary, any false allegations by newspapers should be challenged forcefully in the courts but under non-criminal libel laws.

Incitement to Hatred – All attempts to foment hatred between those belonging to different groups of citizens should be dealt with rigorously.  UK laws on this subject would be a good model to follow in fortifying our existing laws in this area.

International Covenants – An amendment should be introduced to the effect that all international instruments signed by the President shall be considered to have been signed by him as the properly delegated representative of the sovereign people of Sri Lanka.  If the necessary legislation is not passed by Parliament within 12 months of such signing, all the provisions of such instruments should be deemed, by default, to have become part and parcel of Sri Lankan law.  The justification for doing so is that, just as much as the people delegate some of their sovereignty to the legislature, the executive and the judiciary, without alienating their own sovereignty, the people may, through the agency of their delegated representatives, delegate yet another part of that sovereignty to the relevant international bodies.  As laymen, we do not put it beyond the genius of our numerous constitutional experts to find a way whereby the legal concepts of dualism and monism may be considered to operate without conflict for the purposes of this exercise.

Funding of CC and Independent Commissions – Parliament, and not the Treasury, shall have the power to determine the funding required by the CC, the Independent Commissions and all other bodies which are required to act as monitors of good governance.

Conclusion – The actions recommended above appear to be among the most critical in the short term and the minimum required to ensure that the solution proposed for the National Question does not fail on account of a lack of a good foundation.  Once the Rule of Law and good governance are enhanced by the government taking the above steps, and the public gains confidence in their access to the truth and to apolitical public and police services, the mood of despair which envelopes the country may be confidently expected to disperse rapidly.  The long retarded acceleration of the economy and the attack on poverty will follow with much less direct effort on the part of the government and more from those outside government.