Recent Law Reforms contributing to Reconciliation and Good Governance | Sunday Observer

Recent Law Reforms contributing to Reconciliation and Good Governance

13 January, 2019

Ranil Wickremesinghe, making a speech at Temple Trees, after the swearing-in as the new Prime Minister said, “during the three-and-a-half year we have done a lot to the country”. He said, it is due to progressive steps, such as, the establishment of independent commissions that many institutions including the Judiciary could act independently. He admitted there are things the Government could not implement, while some could not be finalised, and stressed that the new Government is determined to rectify the shortcomings. In this article, I attempt to deal with some progressive law reforms effected by the Ranil Wickremesinghe – Maithripala Sirisena coalition Government with the objective of bringing about post-war reconciliation, good governance, preserving democracy and rule of law and eliminating corruption and fraud.

19th Amendment

The 19th Amendment to the Constitution provides for the establishment of a Constitutional Council (CC) with the power to recommend persons for appointment as Chairman and members of the Commissions specified in the Schedule to Article 41 B. Following are the Commissions specified in the Article: Election Commission, Public Service Commission, National Police Commission, Audit Service Commission, Human Rights Commission of Sri Lanka, Commission to Investigate Allegations of Bribery or Corruption, Finance Commission, Delimitation Commission, National Procurement Commission, University Grants Commission and the Official Languages Commission. Section 41 C states that no person shall be appointed by the President to any of the offices specified in the Schedule unless it has been approved by the CC upon a recommendation made to the Council by the President.

The offices in the Schedule are, the Chief Justice and Judges of the Supreme Court, President and Judges of the Court of Appeal, members of the Judicial Service Commission other than the Chairman, the Attorney General, the Auditor General, the Inspector General of Police, Parliamentary Commissioner for Administration (Ombudsman) and the Secretary General of Parliament.

With the introduction of the 19th Amendment, the 18th Amendment to the Constitution was abolished. The latter was enacted by the former Government to enable the President to assume discretionary power regarding the appointment of members to the said Commissions and other administrative and judicial officers. The authority of the CC to recommend persons to be appointed to Independent Commissions and give approval to the appointment of persons to offices in Article 40 C contribute to ensure that these Commissions and Administrative and Judicial officers are able to act independently without being subjected to political influence and interference. In other words, 19 A made a significant contribution to the restoration of a corruption free governance. These provisions also contribute to the reduction of the powers of the President substantially.

Office on Missing Persons

During the 30-year-war in Sri Lanka, more than 20,000 people were reported to have gone missing. In the North, relatives of missing persons have been protesting against the failure of the Government to take tangible steps to find the whereabouts of their loved ones. Many complain that their children were handed over to the military during the war, but there is no information as to what happened to their loved ones. Tamil political and civil society organisations have been insisting on the establishment of a mechanism for finding missing persons, which should be given priority in the reconciliation process. The Government responded to their demand by passing the Office on Missing Persons Act No.14 of 2016. The Commissioners of the Office on Missing Persons (OMP) were appointed by the President in February this year, on being nominated by the CC.

This Office was established to take measures to search and trace missing persons, including those missing as victims of abduction, missing in action or missing in connection with armed conflicts, political unrest and civil disturbance, and to protect the rights and interests of them and their relations, ensuring non – recurrence. The OMP, in its recommendations in the interim report handed over to the President, has referred to several urgent matters the Government should attend to. The publication of a list of all detention centres and detainees is one of them.

Enforced Disappearance

Sri Lanka has been noted as a country where there are thousands of victims of enforced disappearance, by Amnesty International. The Sri Lankan Government was under pressure from the international community to address the question of forced disappearance of persons during the war.

According to international law, an enforced disappearance occurs when a person is arrested, detained, abducted or otherwise deprived of his or her liberty by agents of the State, or by persons or groups of persons acting with authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the whereabouts of the disappeared person.

International pressure on the Government resulted in the enactment of the International Convention for the Protection of All Persons from Enforced Disappearance Act No 5 of 2018. By this enactment, the Government has ratified the International Convention.

According to the provisions of this Act a person who commits the offence of Enforced Disappearance shall be punished with imprisonment for a term not exceeding 20 years and also be liable to a fine not exceeding one million rupees and shall be further liable to pay compensation to a victim. A superior who permits or has knowledge of the involvement of his subordinates to commit the offence of enforced disappearance, but fails to act to prevent them, is liable to a similar punishment. A person who aids or abets the commission of this offence too is liable to be similarly punished.

National Audit Act No.19 of 2018

A highly commendable step taken by the Government is the enactment of the National Audit Act No.19 of 2018 which came into operation on August 1, 2018. The Auditor General (AG) has wide powers under this Act. He has power to audit all income and expenditure of the Consolidated Fund. The scope of the audit carried out by the AG includes examining the accounts, finances, financial position and prudent management of public finance and properties of auditee entities.

After each financial year, the AG shall submit a report to Parliament on the results of the audits carried out by him during the year. There is also a requirement for the annual report of the Ministry of Finance along with the financial statements of the Government, prepared by the Secretary to the Treasury, together with the AG’s opinion thereon, to be tabled in Parliament at the end of each financial year.

There is provision for the Audit Service Commission to report to the Chief Accounting Officer of the auditee entity if it finds any deficiency or loss in any transaction of an auditee entity due to fraud, negligence, misappropriation or corruption of those involved in that transaction.

Thereafter, the Chief Accounting Officer of the auditee entity has to take steps to charge the specified amount from any person responsible for the loss or deficiency. This Act provides for the establishment of the National Audit Office and the Sri Lanka State Audit Service to assist the AG to discharge his duties and responsibilities.

The Judicature Amendment Act of 2018 by which the Judicature Act No. 2 of 1978 was amended is another significant reform made in the legal procedure to expedite the hearing of cases on very serious financial crimes involving misuse, abuse and misappropriation of public funds regarding which there is public interest. The first High Court established under this Act has already commenced proceedings. The Special High Courts have authority to hear criminal cases on a daily basis. This piece of legislation is intended to address an endemic malady in our legal procedure resulting in inordinate delay in hearing cases.

According to the preamble of this Act, the purpose of enacting this legislation is to give effect to the right of access to information which is an essential requirement for the people to fully participate in public life through combating corruption and promoting accessibility and good governance. According to Section 3 of the Act, every citizen shall have the right of access to information which is in the possession, custody or control of a public authority.

The Act provides for the establishment of a body called the Right to Information Commission. According to Section 23, every public authority shall appoint one or more Information Officers and a Designated Officer. Any person desirous of obtaining information under this Act, has to make a request to the Information Officer. If such request is refused there is provision to appeal to the Designated Officer. A citizen who is not satisfied with the Designated Officer’s decision can thereafter appeal to the Commission.

The Commission has wide powers such as, holding inquiries and requiring any person to appear before it. Another salient provision in the Act is the imposing of a duty on the Minister of the Central Government or the Provincial Council to whom the subject pertaining to any project has been assigned, to inform the public generally, and of any particular persons likely to be affected by such projects, and all information available with the Minister relating to the project.

This provision is significant because we are aware there are many projects on which the Government has invested massive amounts without any feasibility study, ultimately resulting in loss and disaster to the people.

The Office For Reparations Bill was passed in Parliament on October 10, 2018. This Act provides for individual and collective reparations for ‘aggrieved persons’. According to the definition ‘aggrieved persons’ mean persons who have suffered a violation of human rights or humanitarian law, their relatives and missing persons. This is another piece of complementary legislation enacted to address the grievances of the victims of the conflict in the North and the East.

The government has already drafted a new Act called the Counter – Terrorism Law to repeal the Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979 and reform the law in adherence to international standards prevalent in other democratic countries.

The draft Counter – Terrorism Law had been approved by the Cabinet and presented to Parliament. Drafting of the new Constitution also has reached the final stage, but unfortunately, was not presented to Parliament due to strong opposition by some parliamentarians.