A Special Experts Committee To Finalize Constitutional Reforms

By Chandra Jayaratne –MAY 28, 2018

Chandra Jayaratne

Ms. Yuresha Fernando,

Additional Secretary to the Constitutional Assembly

Constitutional Assembly,

Parliament of Sri Lanka.

Parliamentary Complex,

Sri Jayewardenepura,

Kotte.

Dear Madm,

A Special Experts Committee to Finalize Constitutional Reforms

I address this note consequent to a media report stating that the Prime Minister, following an appeal by the Leader of the Opposition, has instructed the special Experts Committee of the Constitutional Assembly to finalize the Constitutional Reform proposals, taking account of the six experts sub-committee reports already received.

I take the liberty of making this repeat submission, setting out in summary 10 points, which I firmly believe to be essential areas of reform, critical in assuring socio economic good governance and thus must be reflected within the finalized constitutional reforms submissions of the special Experts Committee:

1. Reforms Defining the Independence, Role, Responsibility and Accountability of Chief Accounting Officers/Ministry Secretaries

There is a need to clearly define and separate by way of a Constitutional amendment, the role, responsibilities and accountability division between the head of department (the Ministry Secretary /Chief Accounting Officer) and the political head (called the ‘executive authority’ being either the Minister or the Deputy Minister or even the Cabinet of Ministers).

The executive authority is responsible for setting out policy choices and desired outcomes, while the chief accounting officer develops essential concepts in support of selected policy choices, plans and implements the policy /guidelines set by the political authority. It is the accountability of the Chief Accounting Officer to take all executive decisions in the implementation of plans; and take all other steps and issue executive orders, which leads to the realization of the outcomes. For this purpose, the Chief Accounting Officer assumes responsibility for delivering the outputs defined in the departmental budget. Thus the Constitution must empower the chief accounting officers by unambiguously conferring on them a clear set of responsibilities. The chief accounting officer prepares the departmental budget (specified in terms of measurable objectives) for the Minister to approve and present to the legislature for voting. The chief accounting officer is then responsible for implementing and managing the budget.

In pursuit of above essential reform:

a) Amend the provisions of Article 52(2) of the Constitution to ensure that, the Ministers will henceforth only engage in setting policy; and will not discharge the expanded responsibilities of direction and control endowed in them post the 1972 Constitution; and thus ensure that Ministers will leave all responsibilities connected with the supervision, direction and control of the Ministries, Departments and other Institutions under the Ministry to the Secretary of the Ministry, who will henceforth be duly accountable for such expanded responsibility.

b) Amend the provisions of Article 52(3) of the Constitution whereby, the Secretaries of Ministries will not be changed with every change of the Cabinet of Ministers; or with the change of a Minister.

c) Amend the provisions of Article 55(2) of the Constitution to assure that, the appointment, promotion, transfer, disciplinary control and dismissal of all Heads of Departments shall, vest in the Cabinet of Ministers, but be subject to the transparent and due independent evaluation and recommendations of the Public Services Commission and the Constitutional Council.

2. Correctly Represent the Duties and Functions of the Auditor General, determined based on the English version of the Article 154 of the Constitution, thereby amending the wrong and restrictive interpretation given in the Sinhalese version.

3. In Chapter VIII of the Constitution dealing with the Cabinet of Ministers and Secretaries, include new provisions to require that

a) all members of the Cabinet ( including the President where he holds office concurrently as a Minister) and the Secretaries of Ministries be required to declare to the Secretary to the Cabinet, a complete schedule of personal and family ( family being the spouse, children, step children, brothers, sisters, parents and in-laws ) interests in businesses, professions, contracts, etc and all related party entity interests, connected to the member and his family; and undertake to make a declaration, where ever a conflict of such interests arise or is deemed likely to arise, in connection with any state business, appointment or transaction, either directly or indirectly connected to the Minister and/ or his family. The Secretary to the Cabinet shall duly maintain the relevant Register of Interests.

b) All members of the Cabinet ( including the President where he holds office concurrently as a Minister) and the Secretaries of Ministries to undertake annually by sworn affidavit submitted to the Secretary to the Cabinet, that they will not receive, collect, claim, make arrangements for accommodation/collection, or facilitation either directly or indirectly, of any payments, funds, investments, assets, transfer and holding of beneficial interests, benefits, perks, gratuitous receipts in kind or otherwise, from the State, any Ministry, Department, Public Corporation or Company of the state, directly or indirectly, whether fully or partly owned by the State, or any private entity or any other form of corporate entity, local or overseas, with whom the state has any business or other connections; and that any such benefits received or held to the beneficial interests will be duly reported to the Secretary to the Cabinet and copied to the Auditor General, by the Minister and or his family members and by any individual or institution making such benefits available to the Minister or family

c) Any member of the Cabinet( including the President where he holds office concurrently as a Minister)  or any Secretary who knows or has reason to believe from information or other matters connected to or obtained by him in the course of carrying on his responsibilities and functions of office, that any or regulation for the time being in force has been violated or is likely to be violated or that any property owned or held in beneficial interest by any person has been derived or realized from any unlawful activity, any such member of Cabinet or any Secretary shall disclose his knowledge or belief as soon as is practicable, to the Secretary to the Cabinet who shall deal with that information in terms of the laws, regulations and rule of law enforcement stipulations.

4.  Amend Article 55 (2) to read as “The appointment, promotion, transfer, disciplinary control and dismissal of all Secretaries, Heads of Department and any persons holding office at the level of an Ambassador, High Commissioner,  Director, Chief Executive, Departmental Head (including a position of a Deputy or Assistant Departmental Head) of the State, a Ministry, a Department, Public Institution, Public Corporation, Public Private Partnership Company or Regulatory Body, shall, vest in the Cabinet of Ministers  upon such appointment promotion, transfer, disciplinary control and dismissal being reviewed and recommended by the Constitutional Council.

5. Annual Certification by Chief Accounting Officers/Heads of Functions

In order that all key Chief Accounting Officers and Office Holders specified in Article 52 (4) of the Constitution duly discharge their Accountability for Public Finances, State Assets and Liabilities management, upholding principles of transparency, good governance in compliance with codes of ethics and conduct befitting their office and in compliance with laws and regulations require such Chief Accounting Officers and key Public Officials to file before the Secretary to the Cabinet a Certificate annually, in the form of affidavits stating that they together with their key supporting Officers, have in the course of the discharge of their duties and responsibilities of office have to the best of their knowledge and belief acted as “fit and proper” persons.

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