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Drafting a new Constitution: Extension sought for review process

01 Jan 2022

  • President to receive final draft by end of this month 
By Skandha Gunasekara With the draft of the new Constitution being finalised and set to be presented to the President by the end of January, The Sunday Morning looks at the recent major legislative changes in Sri Lanka leading up to it. A nine-member Expert Committee was appointed on 3 September 2021 in a two-step process to bring in or repeal legislation the incumbent Government saw as necessary, and to draft a new Constitution of the country. The Committee is headed by President’s Counsel (PC) Romesh De Silva and comprises of Manohara de Silva PC, Gamini Marapana PC, Sanjeewa Jayawardena PC, Samantha Ratwatte PC, Prof. Nadeema Kamurdeen, Prof. G.H. Peiris, Prof. Wasantha Seneviratne, and Dr. A. Sarveshwaran. It was tasked with drafting the 20th Amendment to the Constitution, which has now been enacted. Previous attempts at a new Constitution Prior to this, another attempt was made to formulate a new Constitution under the former Yahapalanaya Government. In January 2015, former Prime Minister Ranil Wickremesinghe presented a resolution to Parliament to set up a Constitutional Assembly and a Steering Committee consisting of 17 members to draft a new Constitution. The resolution stated that there would be a Committee of Parliament referred to as the “Constitutional Assembly” which shall consist of all Members of Parliament, for the purpose of deliberating on and seeking the views and advice of the people on a new Constitution for Sri Lanka, and then to prepare a draft of a Constitution Bill for the consideration of Parliament. Accordingly, the Speaker of Parliament would be Chairman of the Constitutional Assembly while seven Deputy Chairs would be elected by the Constitutional Assembly. The Steering Committee would be chaired by the Prime Minister and comprise of the Leader of the Opposition, Leader of the House, and Minister of Justice, while 11 other members of the Constitutional Assembly would be appointed. While this process was initiated it was never completed as a result of objections from the Opposition and the subsequent change in Government. Amendments in the last decade The current Constitution has been amended 20 times thus far with the 18th, 19th, and 20th Amendments enacted in the last decade being of significance. The 18th Amendment to the Constitution was enacted in September 2010 during the second term of President Mahinda Rajapaksa and brought in the controversial changes to the powers of the Executive, which were criticised by many as being undemocratic. Consequent to the 18th Amendment, the President could seek re-election any number of times. Further, the 10-member Constitutional Council was replaced by a five-member Parliamentary Council, independent commissions were brought under the authority of the President, while it also enabled the President to attend Parliament once in three months and entitled him to all the privileges, immunities, and powers of a Member of Parliament other than the entitlement to vote. In short, it created what was coined at the time by many in the Opposition as an “all powerful” Executive President. In April 2015, during the Yahapalanaya Government, the 19th Amendment to the Constitution was passed by the Parliament. This was seen as an attempt to curtail the power of the Executive which was expanded by the 18th Amendment, and pass on said power to the legislature. Key changes of the 19th Amendment were reducing the term of President from six to five years, reintroducing the two-term limit on the number of terms a person could hold the office of President, abolishing the power of the President to remove the Prime Minister at his discretion, limiting the scope of the President’s immunity to civil or criminal proceedings, and reintroducing the Constitutional Council. The 19th Amendment was seen by many rights groups and civil society as a progressive step for democracy. However, soon after President Gotabaya Rajapaksa was elected, the nine-member Expert Committee was appointed to draft the 20th Amendment, which was subsequently tabled and passed by Parliament on 22 October 2020. The 20th Amendment undid the reforms introduced by the 19th Amendment and once again empowered the Executive; including making the President immune from all legal proceedings during his/her tenure, replacing the Constitutional Council with the Parliamentary Council which could only advice the Executive, allowing the President to remove the Prime Minister, and increasing the powers of the President over the Cabinet of Ministers. Thereafter, the Expert Committee began its task of drafting a new Constitution as the second step of the Government’s plan to bring in new legislation. The Committee sought the views of the public in their drafting process as well as the submissions made by the Centre for Policy Alternatives (CPA) in this regard. CPA and TISL recommendations In its submissions, the CPA called for the abolition of the Executive Presidency. “We advocate the complete abolition of the Executive Presidential system of government. Civil society has long campaigned for this, in view of the authoritarianism, maladministration, and corruption that this institution has fostered ever since its introduction. We strongly urge the return to a fully-fledged Westminster model as was reflected in our independence constitution from 1947 to 1970. The reinstatement of parliamentary democracy will ensure the constant political accountability of the Executive to the Legislature, together with such other legal safeguards for constitutional rights, good government, pluralism, and devolution. In such a system, we wish to see the restoration of Parliament to a central place in national life as the main institution of representative democracy and political accountability. Accordingly in the new Constitution, the President of the Republic would be a ceremonial Head of State while the Prime Minister will be the Head of Government. The Cabinet of Ministers would collectively constitute and be accountable to Parliament according to the principles of responsibility and confidence. The ceremonial President will be elected by the bicameral Parliament. There should be a constitutional cap on the number of Cabinet and other Ministers, and the Prime Minister will not hold any other substantive ministerial portfolio,” the submissions stated. The CPA also proposed the setting up of a National Security Council (NSC) to be tasked with policy formulation and oversight of the armed forces and intelligence agencies. “We recommend the establishment in the new Constitution of an NSC. The NSC will be chaired by the President and include the ex officio membership of the Prime Minister and the Minister of Defence. The NSC will be responsible for policy formulation and oversight of the armed forces and intelligence agencies. The NSC will be served by an independent National Security Advisor (NSA), who will be an individual with expertise in security and strategic policy and national security governance. The NSA will not be a serving or retired member of the armed forces, police, or intelligence services. There will be a clear separation between military and non-military intelligence activities. There will be no military involvement in civil administration, except in constitutionally regulated roles in aid of the civil power under formally declared states of emergency,” the CPA said in its submissions to the Expert Committee. Likewise, Transparency International Sri Lanka (TISL) made submissions to the Committee, key among them being to ensure an independent judiciary. “One of the major factors that was brought into sharp focus during the impeachment of a former Chief Justice was the conflicting views on whether the Parliament was supreme over the Judiciary due to the wording of Article 4(c) of the Constitution which reads as follows: ‘The judicial power of the people shall be exercised by Parliament through courts, tribunals, and institutions created and established…by Parliament according to law’. The concept of the Parliament being supreme over the Judiciary has not been recognised in the 1978 Constitution. However, the above provision has lent itself to multiple interpretations. There is therefore a need to clearly delineate the powers of the three arms of government, by the direct Constitutional vesting of judicial power in the Judiciary, establishing parity between the Executive, the Legislature, and the Judiciary,” the TISL said in its submissions. It also made submissions on public finance and to reinstate the Audit Service Commission. “It is proposed that the Audit Service Commission should be reinstated through the proposed new Constitution, in order to address the lacuna in the law relating to the recovery of lost state funds through surcharge due to the actions of public officials, and to restore the processes provided for by the National Audit Act,” the TISL noted.  13th Amendment controversy Another allegation made against the Government and its move to bring in a new Constitution is that it seeks to abolish the 13th Amendment or repeal aspects of it. Apart from the obvious – curtailment of democracy and preventing the devolution of power – the removal of the 13th Amendment would have geopolitical consequences for Sri Lanka, as former diplomat Dr. Dayan Jayatilleka pointed out, especially at a time when the Government is looking for financial assistance from India to resolve the ongoing foreign reserve crisis. Dr. Jayatilleka charged that repealing or removing important aspects of the 13th Amendment – such as the devolution of power – would be seen by India as a unilateral decision against the Indo-Lanka Accord. “The Indo-Lanka Accord includes the accord itself, the annexures to the accord, and the exchange of letters. If there is any unilateral move to violate that, including in relation to the devolution of power, then one runs the risk of learning whether or not these are purely internal matters,” he commented.  Progress so far According to Sanjeewa Jayawardena PC who is a member of the Expert Committee, the drafting of the new Constitution had been completed but a time extension had been requested to carry out the review process. “Most of it is finished now. We have asked for an extension to hand over the report to the President. We have to get it reviewed and then we will hand it over,” he said.  When queried as to what the new Constitution contained and whether the 13th Amendment was to be repealed, Jayawardena did not divulge much information but noted that the mechanism could not be simply done away with and that the draft was not merely a “tinkering” of the current Constitution. “I’m not at liberty to comment too much, but I don’t think you can dismantle a system in that way,” he said about the 13th Amendment, adding that: “It’s basically not just tinkering with the present Constitution but a new iteration from the ground up. It is a rights-based and very progressive Constitution.” Meanwhile, Presidential Secretariat Director General of Legal Affairs Harigupta Rohanadeera said that the final draft would be handed over to President Gotabaya Rajapaksa by the end of January. “They (the Expert Committee) had asked for an extension and they will submit their final report by the end of January. I’m not sure if they will ask for another extension but for the time being they are scheduled to hand over the final report on or before 31 January,” he noted.  Minister of Justice Ali Sabry PC noted that once the President approves it, the draft would be placed before the Parliament Select Committee. “It will probably be presented to the President within the first couple of weeks of January and thereafter the President has to make a call on it. “If the President approves it, then after that the normal process will be followed. It will be placed before the Parliament and the Parliament Select Committee has to go through it and only then will be gazetted,” the Minister explained. 


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