By The Friday Forum
The peoples’ verdict at the presidential election of January 2015 reflected the mandate of the people for a new constitution to remedy democratic deficits in Sri Lanka’s governance arrangements, nearly 40 years after the enactment of the current Constitution.
A year later, after the Parliamentary election of the same year, the process for the enactment of a new constitution was initiated on 9 March 2016 with the passing of the Framework Resolution for the appointment of the Constitutional Assembly. This assembly was a representative body consisting of all 225 members of Parliament sitting as a committee to draft proposals for a new constitution, chaired by the Speaker.
The Constitutional Assembly appointed six sub-committees composed of Parliamentarians to submit draft proposals on the topics – Fundamental Rights, Public Service, Judiciary, Public Finance, Law and Order and Centre Periphery Relations. In contrast with the undertaking of the Government in the Framework Resolution, there was very poor public information and engagement about the subsequent process of drafting, raising serious concerns about both its transparency and legitimacy.
By end 2016, all six sub-committees had submitted their draft proposals. The Constitutional Assembly also appointed a Steering Committee, chaired by the Prime Minister, which is widely representative of all political parties. The mandate of the Steering Committee was to present a draft proposal for a new constitution to the Constitutional Assembly.
A profoundly important feature of the ongoing constitutional process was the open and participatory process with which it was initiated. Even prior to the passing of the Framework Resolution, a Public Representations Committee for Constitutional Reforms (PRC) was nominated by all political parties and appointed by the Cabinet of Ministers to seek the views of the people on the contents of a new constitution for Sri Lanka. Members of the public and interested groups were able to make direct representations at the sittings of the PRC in every district of the country and also at the sittings of the sub-committees in Parliament.
This open and participatory process is in stark contrast to the passing of the 1972 and 1978 Constitutions, drafted by the political parties which had won election victories, enabling them to enact constitutions of their choosing. The public responded actively to this unprecedented opportunity, and the subsequent report of the PRC and the sub-committee reports did reflect the range of views held by Sri Lankan citizens on key elements of a future constitution. It is very regrettable that following the publication of the PRC report there has been little clarity about how the views of the people of this country have informed the subsequent process.
It is of great concern and disappointment that this process appears to have reached an impasse. The six sub-committee reports were supposed to have been debated by the Constitutional Assembly in January of this year but this was postponed indefinitely. Thereafter little or no progress has been made in resolving the outstanding issues. Developing tensions between the two factions of the so-called National Unity Government also appear to be hampering the process.
The initial timeframe for the Constitutional Assembly to debate the draft constitutional proposals is long past and no definite deadline has been set for this process. In the meantime some political parties and prominent Buddhist clergy have publicly taken the position that a new constitution is unnecessary. It is extremely disheartening that these groups seek to override the will of the people.
Contentious issues to be resolved in the draft constitution include the abolition of the Executive Presidency and the extent of power sharing between the centre and the provinces. There has been a long-standing need to replace the powerful Executive Presidency with a more democratic Parliamentary system that ensures the sovereignty of the people through the undisturbed parallel functioning and the separation of powers of the three pillars of Government, i.e. the Executive, the Legislature and the Judiciary.
Strengthening the independence of the Judiciary is an absolute necessity, and must include provisions on the appointment and dismissal of judges. We also must not overlook the need for an equally independent, fearless and professional public service that must have the capacity to run the country without being subject to the direction, oversight and control of ministers and without interference from them. The powers of the ministers must be limited to policymaking, and implementation of policies must be left to professional public servants.
Further, meaningful power sharing and strengthened human rights is critical for rebuilding the political structure of the country, and is long overdue, nearly eight years after the end of the war. The new constitution must fulfill the need to ensure good governance, rule of law, the dignity of every citizen, national unity and meaningful reconciliation. The supremacy of the constitution and the sovereignty of the people must be embedded in its provisions.
A new constitution has been mandated by the people and lawmakers must give it the highest priority. Any attempt to subvert this process for cheap political gain by those elected by the people, cannot and must not be tolerated. We urge the Prime Minister and members of the Steering Committee to ensure that the draft constitutional proposals are put before the Constitutional Assembly within the next three months at least, and are also made available to the public.
We also urge all representatives of the people in Parliament, both in government and the opposition, to consider the proposals positively and in the best interests of all the people of this country. We acknowledge that the task of drafting a new constitution is not an easy one, given the multi-ethnic-religious constituency of the island nation. It is nonetheless imperative that the process is followed through to the end, and the voice of the people, made clear at the last two elections, be heard.
The Friday Forum is an informal group of concerned citizens pledged to uphold norms of democracy, good governance, rule of law, human rights, media freedom and tolerance in our pluralist society. Members include Dr. A.C. Visvalingam, Prof. Savitri Goonesekere, S.C.C. Elankovan, Faiz-ur Rahman, Rev. Dr. Jayasiri Peiris, Danesh Casie-Chetty, Dr. Upatissa Pethiyagoda, Pulasthi Hewamanna, Chandra Jayaratne, Ananda Galappaththi, Prof. Gameela Samarasinghe, Javid Yusuf, Prof. Arjuna Aluwihare, Dhammapala Wijayanandana, Prashan de Visser and Shanthi Dias.