Whose baby is the new constitution?

This Government has taken several important steps towards the new constitution. As the first step of the process the Government established the Public Representations Committee on Constitutional Reform headed by Lal Wijenayake. After conducting number of sessions of public consultations the Committee issued the report in May 2016. Thereafter the Parliament met as a constitutional assembly with the powers of Parliamentary Select Committee to draft the new constitution.

There are 21 Members of the Parliament in the Steering Committee of the Constitutional Assembly which is headed by the Prime Minister. The purpose of this Committee is to prepare the draft constitutional proposals. The Steering Committee wanted further public consultations and based on those Public Representations Committee published another report in July 2016. 

In May 2016 the Constitutional Assembly appointed members representing all parties in the parliament to six sub committees covering the areas of Fundamental Rights, Judiciary, Law and Order, Public Finance, Public Service and Centre-Periphery Relations to assist Steering Committee. All the reports of the sub committees are published now. The intention of all these sub-committee reports was to improve the productivity by devolving and at certain points centralising the power. However, the Steering Committee did not publish the draft constitution yet.

Steering Committee

The Steering Committee headed by the PM comprises Lakshman Kiriella, Nimal Siripala De Silva, Rauff Hakeem, Wijeyadasa Rajapakshe, Susil Premajayantha, Rishad Bathiudeen, Champika Ranawaka, D.M. Swaminathan, Mano Ganeshan, Malik Samarawickrama, R. Sampanthan, Dilan Perera, Dinesh Gunawardena, Jayampathy Wickramaratne, M.A. Sumanthiran, Thusitha Wijemanna, Bimal Rathnayake, Prasanna Ranatunga and Douglas Devananda.

It was decided by the Steering Committee that the Matters covered by Chapter 1 and 2 of the present Constitution, Nature of the State, Sovereignty, Religion, Form of Government, Electoral Reforms and Principles of Devolution and land will be dealt directly by the Committee.

Fundamental Rights

The report of the sub-committee on Fundamental Rights stated as follows. “The Bill of Rights which incorporate civil and political (first generation rights) economic, social and cultural (second generation rights) and environment and development rights (third generation rights). Some constitutions, which are noted for their progressive and innovative Bills of Rights, include South Africa (1997), East Timor (2001) Ecuador (2008), Bolivia (2009), and Kenya (2010).” The first generation rights are in the existing constitution and the sub-committee recommended to have second and third generation rights as well in the constitution. These days there is a debate on this. 

The issue is how to implement although those rights can be accepted in principle. Economic and social decisions should be taken by the Government and by including those into the constitution there is a space created for the Judiciary to interfere in governance about which Judiciary knows little. Hence it can direct the governance into a wrong path. 

Prior to include these rights to the law the society should come to that economic and social level. Thereafter those rights can be incorporated into the law. Social development evolves throughout an extended period and that development cannot be done overnight by court orders. We should not accept the developments in other countries as a fashion. Therefore law makers should be careful in this aspect.

Judiciary

Sub-committee on Judiciary reported that in the existing constitution there are no methodology defined to secure the independence of the Judiciary which is essential. It was also recommended that the judicial power of the people should be vested in the Judiciary rather than through the Parliament. We can remember how the Parliament tried to exercise judicial power soon after the 1978 Constitution was adopted. 

Sub-committee recommended that the judges of the superior courts should be appointed by the President on the recommendations by the Constitutional Council which has received nominations from a panel of former judges of the Supreme Court. This further limit the powers of the President and the Constitutional Council which is a welcome move. Sub-committee also dealt with the structure of the courts and recommended a Constitutional Court.

Law and Order

Sub-committee on Law and Order recommended that the Sri Lanka Police should comprise the Sri Lanka National Police and Sri Lanka Provincial Police. Sub-committee recommended the responsibilities of all three. Sub-committee also recommended a National Police Commission and a Provincial Police Commission and the responsibilities of those commissions. Responsibilities of IGP and Provincial Police Commissioners were also defined. Recommendations were also made about the National Security Council and the Criminal Investigations Department and the procedure to declare an emergency. 

Public Finance

Finance Sub-committee recommended that 25% of Government revenue should be allocated to Provincial Councils and Local Government Institutions, being 18% and 7% respectively. Also it was recommended that the Head of State should not hold the portfolio of Finance. In this aspect, we had several confusions under two Heads of State.  Recommendations were made in respect of the responsibility of the Parliament of Public Finance, structuring of the budget process, control over public expenditure, control over borrowing and contingent liabilities and marginalisation of provincial and local finance. Proposals were made to empower more the Auditor General and Government Audit.

Public Service

Sub-committee on Public Service has given various proposals in respect of the definition, values and principles of the public service, National Planning Commission and staff. It recommended to create a Senior Management Group and the appointments for senior public service positions should be filled with them. Identified senior positions should be filled by the President with recommendations from the Public Service Commission and Constitutional Council. Importantly the sub-committee recommended that the Ministers who give orders should take the responsibility of those order which does not happen now. 

Establishing a Public Corporation Service Commission is also recommended to oversee the activities of Public Corporations. Sub-committee defined the structure of Public Administration and parliamentary overseeing procedure. It dealt with Provincial Public Service Commission and Local Government Service. It was mentioned that certain offices do not take decisions due to the fear of audit and hence the sub-committee proposed to appoint two additional senior officers to the Audit Commission.

Centre-Periphery Relations

The foremost problem of the country is to find a solution to the ethnic problem. Therefore the sub-committee report on Centre-Periphery Relations is important. There is a popular conception among the Sinhalese in the country that the Tamils and Muslims in north and east want devolution of power and especially Tamils in the North want to have a separate state through power sharing. This view was negated by the Public Representations Committee on Constitutional Reform and the Sub-Committee on Centre-Periphery Relations. Chief Ministers of the SLFP who gave evidence before the sub-committee wanted more powers and especially some of them wanted to curtail the powers of the Governors drastically. Chief Minister of the North Central Province wanted to abolish the post of the Governor. 

This sub-committee mainly gave recommendations on the powers of the Provincial Councils and the Governors, administrative structures, role of the District Secretaries and Divisional Secretaries, and collection of revenue. Sub-committee has pointed out that due to the role of District and Divisional Secretaries three is a dual authority created in the province. It was recommended that all of them should be placed under the Provincial Councils and there should be a mechanism to carry out the activities of the Central Government in the Provinces. It was also recommended that all the Local Government authorities within the Province should come under the Provincial Council.

Baby of the people

Delay of publishing the draft constitution is due to the political differences between the main parties of the Unity Government. SLFP which did not contribute to the change of the President at the last presidential election is of the view that changes to the constitution should be limited to the changes which can be done without holding a referendum. 

When they say this, they know very well that based on the judgement of the 13th Amendment to the Constitution there is no possibility of devolving power further without a referendum. Similarly they know very well that based on the judgement of the 19th Amendment there is no possibility of pruning presidential powers further without a referendum. Therefore the intention is to maintain the status quo depriving the aspirations of the people who contributed to defeat the incumbent President at the last presidential election. 

Also the SLFP seems to think that at present it is advantageous for them to keep the office of the President rather than abolishing it. The very same party repeatedly promised to abolish the presidential system in the past elections repeatedly. This is nothing else but placing petty party objectives ahead of national objectives. This crime was committed by all the political parties that have governed the country. It appears to be that the leaders of the Government are not going to take ownership of the new constitution in front of the people although unprecedented work has been done in this direction. Based on the discussions held and the reports published we should get a well-refined constitution. It was the people who wanted a new constitution. Therefore it is the baby of all of us. Civil society who emphasised the need for a new constitution should take the lead of taking this to the people and those who work against it for petty political gains should be exposed. 

(The reports are available in the internet in all three languages and the link for the English version is http://english.constitutionalassembly.lk/)