The 19th Amendment to the Constitution



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by R.M.B Senanayake


Parliament passed the 19th Amendment to the Constitution in March this year making provision for the public’s right to Freedom of Information and the setting up of independent commissions including the Elections Commission.


The Constitution of the Democratic Socialist Republic of Sri Lanka (hereinafter in this Act referred to as the "Constitution") is hereby amended by the insertion immediately after Article 14 thereof of the following new Article: -


14A. (1) Every citizen shall have the right of access to any information as provided for by law, being information that is required for the exercise or protection of a citizen’s right held by: - (a) the State, a Ministry or any Government Department or any statutory body. This is a victory for civil society activists who campaigned for the right to information- a right recognized in other countries including India. It will assist the civil society activists to monitor the activities of State institutions and enable the media to exercise their function to obtain information as a matter of right rather than at the benevolence of the State officials.


For the first time the right of the public to obtain information is being enacted. But unfortunately these provisions will come into force only after the next general election. It provides as follows: the coming "into force upon the conclusion of the General Election held immediately after the date on which this Act comes into operation". The Act establishes the Constitutional Council in the law itself and there is provision for this Council to hold office despite the dissolution of Parliament. But now we have the General Election to be held in August without the setting up of these commissions. As far as I can see there is provision for the Constitutional Council to appoint the members of the independent commissions despite the dissolution of Parliament. But it is unlikely that such independent commissions would be set up. An independent Elections Commission would be particularly helpful in monitoring the forthcoming general election.


Civil society has been clamoring for the Right to Information and the setting up of these independent commissions at least from 2004. The Center for Policy Initiatives took the initiative then. But the public had to wait for another five years. The politicians don’t seem to want these independent commissions at least during their tenure. They are not enthusiastic about any controls over their power.


Civil society has been clamoring for a Freedom of Information Act and an Audit Commission Act at least from 2004.It seems to have been conceded by this law, which provides that 14A. (1) Every citizen shall have the right of access to any information as provided for by law, being information that is required for the exercise or protection of a citizen’s right held by:- (a) the State, a Ministry or any Government Department or any statutory body short title and date of operation.


There is the Insertion of a new Article 14A in the Constitution of the Democratic Socialist Republic of Sri Lanka titled "Right of access to information by the Nineteenth Amendment to the Constitution established or created by or under any law; (b) any Ministry of a Minster of the Board of Ministers of a Province or any Department or any statutory body established or created by a statute of a Provincial Council; (c) any local authority; and (d) any other person, who is in possession of such information relating to any institution referred to in sub-paragraphs (a) (b) or (c) of this paragraph." (2) No restrictions shall be placed on the right declared and recognized by this Article, other than such restrictions prescribed by law as are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals and of the reputation or the rights of others, privacy, prevention of contempt of court, protection of parliamentary privilege, for preventing the disclosure of information communicated in confidence, or for maintaining the authority and impartiality of the judiciary. (3) In this Article, "citizen" includes a body whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens."


This is an important victory for those in civil society who have campaigned for the Right to Information. It also provides for the setting up of the Constitutional Council which will make appointments to the independent commissions. Hitherto all such appointments were vested with the Minister in charge. But if we want independence for the members of such independent commissions their appointments should also be freed from Ministerial control for otherwise these members feel beholden to the respective Ministers who appointed them and that affects their sense of independence.


Appointments to the independent commissions will be made by the President but only on the recommendations of the Constitutional Council. The independent commissions include the Public Service Commission, the National Police Commission, the Human Rights Commission, and the Commission to investigate Allegations of Bribery and Corruption and the Finance Commission.


A new commission to be set up is the National Procurement Commission whose task is to formulate, fair and equitable transparent competitive and cost effective procedures and guidelines for the procurement of goods and services by all government institutions. A government institution includes a public corporation, a local authority and any institution of the government carrying out a business activity of the government. A company where the government holds more than forty percent of the shares is also covered.


This is the first time that the procurement procedures in public corporations are being subject to monitoring by a superior independent authority instead of the Minister in charge. Most of the malpractices have been in these corporations and they have not been held accountable to any other government authority in the name of autonomy required for the conduct of business activities. Unfortunately their freedom has been misused and the Ministers have taken cover under such autonomy to ensure their accountability. The World Bank prepared a draft Public Management law in 2004 but it was not passed by the then government or any subsequent government


Passing laws however is only the beginning. The institutions must be set up and they should develop expertise to carry out their functions. This is something that seems for the future. But unless the institutors begin to function the mere passing of the law is of little value.


 
 
 
 
 
 
 
 
 
 
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