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The construction of a conducive and comprehensive Constitution

02 Dec 2021

  • Which changes should be prioritised in the proposed Constitution?
BY Sumudu Chamara Decisions taken by past governments being shortsighted or unfit to deal with the prevailing circumstances is a common view most political parties and governments share, and reversing or trying to rectify those is a common promise in every government’s manifesto. During the past few years, Sri Lanka saw two constitutional amendments – i.e. the 19th Amendment to the Constitution and the 20th Amendment to the Constitution, brought by the former United National Front (UNF)-led Government and the incumbent Sri Lanka Podujana Peramuna (SLPP)-led Government, respectively – which the two Governments said was aimed at rectifying the questionable provisions in the Constitution included by former governments. In fact, amending or reforming the Constitution was one of the key promises the two Governments put forward, and the changes the two Governments brought about were notably different as far as the country’s national-level issues are concerned. Even though how well the previous amendments, especially the most recent two, addressed the country’s burning issues, such as devolution, the powers of the Executive, the Legislature, and the Judiciary, and fundamental rights, among others, remains a question, Sri Lanka will soon see major constitutional reform, or an amendment, according to the Government.  Ongoing constitutional reforms process A draft of a new Constitution is scheduled to be presented to the Parliament next month, according to Foreign Minister Prof. G.L. Peiris, and it is aimed at changing the Constitution according to new needs, while addressing the gaps in the 1978 Constitution.  This process is led by an expert committee headed by President’s Counsel (PC) Romesh De Silva, comprising Gamini Marapana PC, Manohara de Silva PC, Sanjeeva Jayawardena PC, Samantha Ratwatte PC, Dr. A. Sarveswaran, Prof. Wasantha Seneviratne, and Prof. G.H. Peiris, among others. The ongoing constitutional reform process is a part of President Gotabaya Rajapaksa’s national policy framework, “Vistas of Prosperity and Splendour”. Under its 10 key policies, it proposes to form a new Constitution that fulfils the people’s wishes, and it includes several activities such as reviewing the executive presidency, the mixed electoral system and the provincial councils, strengthening the independence of the Judiciary, ensuring the foremost place to Buddhism, establishing religious freedom, and securing fundamental rights. Last year, Justice Minister M.U.M. Ali Sabry PC had invited the public to submit their suggestions or opinions under several topics, including the nature of the State, fundamental rights, language, the directive principles of state policy, the Executive (the President, the Cabinet of Ministers, and the public service), the Legislature, the franchise and elections including referenda, the decentralisation and devolution of power, the Judiciary, public finance, public security, and any other area of interest. Pressing needs and changes To look into what a new Constitution should prioritise, and what type of an approach can be employed to achieve a people-friendly Constitution, The Morning spoke to several persons who have knowledge about the matter.  Former Parliamentarian Dr. Jayampathy Wickramaratne PC, who played a key role in the drafting of the 19th Amendment to the Constitution, said that the Constitution requires a number of changes in order to make it what he referred to as a “modern constitution” which is on par with the constitutions of other countries that give greater emphasis to different types of rights.  He told The Morning: “We have fundamental rights, which are restricted to civil and political rights. The South African Constitution, which can be identified as one of the leading modern constitutions, has a broader bill of rights. Social and economic rights, cultural rights, women’s rights, children’s rights, environmental rights, and the rights of the disabled and the elderly, are now being included as judicially enforceable fundamental rights. We have seen the same in recent constitutions of countries like East Timor, Nepal, Kenya, and most of the new Latin American constitutions. So, I think that we must keep up with what is happening in the international arena, and have a modern Constitution.” He emphasised that a new constitution must provide for a very democratic and inclusive state structure, and that that is the main requirement. He added, however, that with an executive presidential form of government, like the one Sri Lanka has at present, that is not possible, and that Sri Lanka needs to have structures in place to ensure that governance is democratic.  Dr. Wickramaratne PC stressed that the Constitution must not concentrate power on an individual, adding that that is why he supports returning to a parliamentary form of government.  He explained: “When it comes to an inclusive, democratic governance, in the context of a multicultural nation, it requires that state power is not concentrated in one place, and that the various communities that live in the society are also entitled to their due share of state power. Sri Lanka has both concentrated minorities and dispersed minorities. For example, the Muslims are dispersed, but again, although the Sinhalese are the majority in the country as a whole, they are a minority in the north and in the east, and therefore it is very complicated. Even the upcountry Tamils are also dispersed. So, we have to have a structure which provides for them to exercise state power. They must be included in the exercise of state power, not just included in the nation for namesake. That is why there must be a strong, devolved structure, and I would say that even the local government institutions must be recognised as a third tier of government. They can function under the provincial councils, but the central government and the provincial councils should be permitted to hand over to the local government the execution of certain laws and provincial statutes. I am not saying that they should be making laws, but the execution of certain laws and statutes can be given to the local government also, so that there will be three layers of governance, which will ensure inclusivity in governance. Inclusivity must also be in the exercise of state power.”  Meanwhile, the Centre for Policy Alternatives (CPA) – a public policy research and advocacy think tank that has been very active during the UNF-led constitutional reform process – Executive Director Dr. Paikiasothy Saravanamuttu, said that as far as the immediate changes to the existing Constitution are concerned, attention should be paid to getting rid of the executive presidency, and that the country should bring back independent state authorities like within the 19th Amendment to the Constitution and also bring back a proper Constitutional Council (CC). “We should be increasing the checks and balances on the exercise of Executive power, and that could be key to the abolition of the executive presidency,” he told The Morning. When queried about what provisions in the existing Constitution should be removed, he responded that the validity of the laws that precede the Constitution should go away.  “Getting rid of the powers of the President given via the 20th Amendment to the Constitution, including the concentration of power in the office of the President, should receive priority. Also, the 20th Amendment to the Constitution says that there should be a Parliamentary Council for various appointments and that that Council only makes observations; that is totally unacceptable,” Dr. Saravanamuttu said, adding that what Sri Lanka needs is a less strengthening of the President and more sharing of power in general. The election monitor People's Action for Free and Fair Elections (PAFFREL) Executive Director Rohana Hettiarachchi, meanwhile, identified three main aspects of the current Constitution that need to be changed.  “First of all, we must acknowledge that several ethnicities live in this country, and therefore, we have to reform the Constitution in a way that protects everyone’s rights, because the Constitution is the country’s foremost law. Secondly, in a context where various issues have arisen with regard to the Constitution, when forming or reforming laws, we have to look at finding solutions to those crises as well. However, we have to prioritise making the constitutional reform process a process that is free of people trying to gain political advantages. Thirdly, provisions in the Constitution should be formed with a focus on the future, at least in the next four to five decades, in order to prevent frequent changes following an amendment or reform.” Recent amendments The 19th Amendment to the Constitution, which came after a lengthy process that involved getting the people’s opinion through the Public Representation Committee (PRC) appointed during the UNF-led Government’s tenure, and the 20th Amendment to the Constitution, which reversed a number of changes the 19th Amendment to the Constitution brought about, have had a significant impact on the present state of the country, especially when it comes to governance and independent state institutions.  Speaking in this regard, Dr. Wickramaratne PC, who was a key figure behind the 19th Amendment to the Constitution, described the technical and practical aspects relating to the 19th and 20th Amendments to the Constitution. He added that the 19th Amendment to the Constitution made the governing system a democratic one to a certain extent with the establishment of independent commissions and the CC, which he said is very important to ensure that there will be a national consensus on very important appointments, the independence of the Judiciary, and also the independence of the various commissions having constitutional status, which are expected to act independently like the Election Commission (EC) and the Human Rights Commission of Sri Lanka (HRCSL). “Our Constitution has created one of the strongest presidential forms of government. It is the President who is strong, not the people. So, to that extent, we don’t have a strong Constitution. But it has created a politically strong President, and with the 20th Amendment to the Constitution, the powers of the President have been increased again. The 17th Amendment to the Constitution made some gains, which were negated by the 18th Amendment to the Constitution, and then came the 19th and 20th Amendments to the Constitution. The unfortunate thing is that there are some MPs who have voted for all these amendments.” Dr. Wickramaratne PC explained the practical challenges the passing of the 19th Amendment to the Constitution involved, and how they relate to Sri Lanka’s existing governing system. “The 19th Amendment to the Constitution democratised the State and the form of governance, through the CC procedure, for example. For the CC, it is possible to appoint members from the Government, the civil society, the Opposition, and even one (member) nominated by smaller parties. Unfortunately, even though the original proposal was to have three politicians and seven non-MPs, that, however, was changed, because the Government of the day did not have a two-thirds majority. The 19th Amendment to the Constitution definitely strengthened the Parliament, and to that extent, weakened the presidency. But the 19th Amendment to the Constitution was a compromise.  “The original 19th Amendment to the Constitution Bill, which I helped to draft, was approved by the Cabinet-appointed Sub-Committee and was handed over to the Cabinet as a draft. Had that been passed, some of the issues that cropped up in the enforcement of the 19th Amendment to the Constitution wouldn't have arisen. But, because the Government did not have even a simple majority in 2015, they had to compromise, and the original 19th Amendment to the constitution draft was diluted. The country should not have two competing centres of power at the apex of the State. We had to pay attention to balancing the power between the presidency and the Parliament, and because of the two centres of power, we had various crises under the 19th Amendment to the Constitution. That has to be resolved, and the governance has to be either presidential or parliamentary. We have had very bad experiences with the presidential form of Government, and that is why I advocate a truly parliamentary form of governance.” Voters and politicians Strengthening democracy, or giving the people more power as far as the country’s governance is concerned, is a key matter in every discussion around constitutional reforms. Making the process of appointing public representatives, or voting, a more systematic process that makes politicians more accountable for their words and actions has been a pressing need for decades. In this regard, Hettiarachchi noted that the Constitution should be strengthened to make politicians more accountable and responsible as far as the latter’s words and actions are concerned, and to ensure that voters have a greater power than politicians, who are essentially public representatives, do. He emphasised that it would not only strengthen the existing governing system, but will also help restore the people‘s trust in politicians, which has been blunted in recent times. “Public representatives have damaged the trust the people have placed in them. We have plenty of examples to say that politicians work according to their political agendas and that they don’t represent the people,” he said, adding that the quality of public representatives being accountable to the people is at a very weak state, and that therefore, the Constitution must look into establishing that accountability. To achieve that accountability, Hettiarachchi proposed making election manifestos a legally binding document, and establishing a recalling system. He explained: “Manifestos are the main document between voters and the politicians, and theoretically, the voters vote for the manifestos (what is said in them). Therefore, manifestos should be documents that are legally binding, and they should be documents that are submitted to the EC along with the nominations. The people should be able to challenge politicians in the event the latter do not fulfil the promises mentioned in the manifestos. In other words, the people should be able to take action, including legal action, if the promises they voted for are not fulfilled.” Hettiarachchi also said that in order to bring about such change, manifestos need to be more methodical and specific, and not include vague promises. He explained that manifestos should mention what the politician or candidate presenting it will do in a particular period of time, how the resources would be allocated for that purpose, and how exactly those promises would be implemented, adding that only that type of a document can be monitored. With regard to a recalling system, he said: “There should be a mechanism to recall elected politicians, if they are not fulfilling their promises. Even though some countries have such laws and policies, when we look at those countries’ political cultures, there is a question as to how applicable and practical such mechanisms are in the Sri Lankan context. However, not only introducing new reforms, the implementation of these reforms is also extremely important, because even if we bring the right amendments to the country’s supreme law, if those are not implemented properly, it can negatively affect the entire system.” He further added that abolishing the 20th Amendment to the Constitution is also a priority due to several reasons including the fact that it provides for the appointment of a dual citizen as a MP, which raises concerns of accountability. Constitutional reform process The ideal way to properly conduct a constitutional reform process, according to Dr. Wickramaratne PC, is to do it through a constitutional convention. “At present, a constitutional convention is working in Chile, and the Chilean Convention has agreed that the new Constitution would be approved by a two-thirds majority and approved at a referendum. Our Constitution provides for a two-thirds majority and approval at a referendum, and that procedure has to be changed. But, that also would require a two-thirds majority and a referendum. I think that ideally, the Constitution should provide for the election of a constitutional convention that is mandated to draft and approve a new Constitution. That is the ideal way. But, again, there are questions as to what is the required majority in the convention, and it cannot be just a simple majority like in the 1970-1972 process when there was no requirement of a two-thirds majority although the then Government did have a two-thirds majority.” With regard to the difference between the present constitutional reform process and the proposed process (constitutional convention), Dr. Wickramaratne PC said: “A constitutional convention will be elected by the people, and the people who are elected are for the purpose of constitution making, and therefore, there will be no politicians in this process. Political parties will support various candidates for the convention; but there will be people in the convention who don’t have a personal stake in the new Constitution. They will have a stake in the outcome, but not those of MPs. In the current process, however, constitution makers have a stake in the new Constitution because they are all MPs. So, a constitutional convention is the best way.” He opined that introducing such a method, however, is not going to be easy, because even to have a constitutional convention, a two-thirds majority and approval through a referendum, are necessary. Concerning Sri Lanka’s capacity to reform the existing Constitution to match internationally recognised standards, he noted that even though Sri Lanka can certainly learn from the constitutions and constitutional reform processes of other countries, Sri Lanka has the expertise to reform the Constitution to match the country’s needs. “There are enough and more studies and expert reports pertaining to constitutional reforms. There have been so many drafts and proposals such as the 2000 Constitution Bill, the All Party Representative Committee (APRC) report, and the interim report of the Steering Committee of the Constitutional Assembly of 2016. In 2015, we had the Lal Wijenayake Public Representation Committee, which had done a good job. Therefore, I don’t think that we need expertise from outside, and we have enough and more people who know about this matter. Of course, we have to look at what is happening in the world, and we have to learn from failures and successes. Just because something succeeded in one country it will not necessarily succeed in Sri Lanka, and just because something failed in another country it does not mean that it could necessarily fail in Sri Lanka,” he explained. Hettiarachchi, who also commented on this, claimed that the politicisation of the constitutional reform process is a matter that requires to be addressed in order to make these reforms more people friendly.   He added: “The process through which the Constitution is reformed is a major concern. Most of the laws in this country are formed to the advantage of those in power when the reforms take place. However, when making laws for a country, there is no necessity to appoint more people from the ruling party, or from the Opposition. What matters is the appointment of suitable persons, regardless of the party. I am not talking about the current and most recent constitutional reform process. We saw the same happening in the committees that were appointed during the former UNF-led Government’s tenure, and in committees that were appointed even before that. Even though the UNF-led Government initiated a constitutional reform process, which involved a public consultation, most of the members of those committees were people who shared the same ideologies as the UNF-led Government. Most of them were persons who had appeared for that Government at some point. That should not happen. Individuals’ identity is immaterial as long as they think about the country’s interests.” Hettiarachchi also raised concerns about the importance of the public’s involvement in the constitutional reform process: “The Constitution is for the people, and therefore, a dialogue that involves the people is necessary. We think that there should be enough time for the people to voice their opinions regarding the reforms following the drafting stage.” The constitutional reform process, regardless of the Government that takes the initiative to do it, is a matter that concerns every citizen, due to the power it has to affect every other law in the country. Therefore, as those who spoke with The Morning noted, the people’s engagement is crucial in this process, and while the Government has a responsibility to heed to the people’s opinion, the people have a right and a responsibility to voice their opinions. A people-friendly Constitution is the need of the hour.

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