Drafting the New Constitution

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In 2020, an eminent lawyers’ committee appointed by the Cabinet was required to submit a draft report on the proposed new Constitution. Thereafter, in 2021 a Parliamentary Select Committee (PSC) of 14 MPs was appointed to identify appropriate reforms for Sri Lanka’s Election laws and electoral system. Both Committees invited proposals from the public. However, past experience shows that such Committees with a few members are not geared to handle large numbers of public proposals effectively.

Be that as it may, the writer thinks it fit that citizens must first be made aware of the existing procedure for the passage of the proposed New Constitution outlined as follows by Nihal Seneviratne, former Secy. General of Parliament.

“These eminent lawyers would sift through the representations and memorandums received and prepare a draft report which is expected to be submitted to the President. The President is expected to submit the report and draft to the Speaker and the Speaker would submit this report and thereafter appoint a Select Committee comprising members from both the Government and the Opposition. The Select Committee following the usual established procedure would invite representations from the public and would study all these memorandums and submit the report back to Parliament with their recommendation. It would deliberate at length studying all the representations made and submit its final report to Parliament.”

The phrase ‘usual established procedure’ to invite public representations connotes that it is a hackneyed traditional ritual or an ‘Eye wash’ at its best. The reality is, such public representations are totally ignored and the Parliamentarians as so-called Representatives of the sovereign voters acting in collusion will as usual usurp the powers of the Supreme voter ‘Principals’, and bulldoze their way through the ‘Parliamentary Select Committee’ to change the ‘Draft Report’ to ensure that their privileges and selfish interests especially in relation to ‘Electoral Reforms’ are duly protected. The process will continue as usual with a  2/3rd Parliamentary majority followed by the final ‘Eye wash’ of a ‘Referendum’( If necessary ) where the innocent and simple voters will be  asked to say ‘Yes’ or  ‘No’ to a question framed according to the whims and fancies again of the egoistic Politicians!

Thus, it is evident that the sovereign voters who as ‘Principals’, elect politicians as their ‘Agents’, have completely lost their supremacy in ‘Principal over Agent’ relationship. The root cause is the existing Media culture that makes ‘demi Gods’ of politicians with highly disproportionate hype, publicity and attention given to empty utterances and false promises of corrupt and  unprincipled politicians ignoring valid suggestions and proposals from the sovereign voters in regard to several areas affecting Country/Public interest. As if adding insult to injury, even some civil organisations dedicated to protecting the rights of sovereign voters as well as some officials and adhoc Review-Committees appointed to guide the politicians have contributed to the failure to develop a simple, rational, transparent and a cost-effective ‘Electoral system’ that suits the simple, genuine voters of this small country for the last 74 years! The current frustrations emerging from the youth are mainly due to the absence of a robust and transparent procedure to consult the people, at least through the mass media prior to legalising the basic Law of the country viz, A New Constitution including ‘Electoral Reforms’!

As such, while fully appreciating the sentiments expressed by KC Vignarajah, with special reference to his introductory paragraph, the writer proposes to respond with a formalised step-wise transparent and a practical procedure to implement ‘System changes’, as listed hereunder to ensure achievement of his/mine and the peoples’ wishes to produce such a Constitution, using the relevant chapter- ‘Franchise and Electoral Reforms’ in the proposed Constitution as an example.

Procedure for ‘System changes’ for a   ‘Constitution by the Citizens’

1) As has already been proposed, the Cabinet on the advice of the Independent National Elections Commission (NEC) shall set up a ‘Permanent Citizens’ Task force for ‘Electoral Reforms’ comprising, NEC recommended eminent retired Judges and the Academia possessing the requisite expert knowledge together with, ‘Sovereign voter dedicated’ Organisations (like ‘Paffrel’, CaFFe, CMEV) and other concerned civil rights Organisations and Civil Activists possessing practical knowledge as its members. Since matters such as Eligibility criteria, Selection, nomination procedure and allocation of seats for MPs are some of the crucial aspects in Electoral Reforms, they would fundamentally be barred from membership in this Task force owing to the obvious ‘Conflict of interest’ and the operation of ‘The Law of Agency’ in correct spirit as aforesaid. Besides, the majority of them lack a thorough knowledge in Constitution-making. The sad plight of the previous Parliament sitting as a ‘Constitution Assembly’ for 4 ½ years with zero result bears ample testimony to this fact.

2)    The Task force shall study the relevant section of the ‘Eminent Lawyers’ Draft Report’ and also the Report of the Parliamentary Select Committee and prepare its own Draft to be included under the relevant chapter- ‘Franchise and Electoral Reforms’ and submit to NEC.

3)    The NEC in turn will whet the Draft and in keeping with the principles of ‘People based Governance’, place its own Draft recommendations before the people through the mass media in all 3 languages for their final comments and clearance within a specified time frame.

4)    Thereafter, the NEC will consider the proposals and comments from the public and prepare its final draft and submit same to the Legal Draftsman.

5) On receipt of the 1st legal Draft, the NEC will submit same to   Supreme Court for clearance with copy to Legal Draftsman.

6)    On receipt of the same 1st legal Draft together with Comments/recommendations of the Supreme Court, the NEC shall submit same to Legal Draftsman for preparation of the 1st final draft of the relevant Chapter in the new Constitution.

7)   Considering the potential for so-called ‘slips’ occuring between the ‘Cup and the lip’, at different levels, such Final Draft of the Chapter prepared by the Legal Draftsman as per 6 above, should be placed before the people again through the mass media for their final clearance, within a specific time frame.

8) Thereafter, the ‘People approved Chapter’ shall be submitted to the  Speaker of Parliament by the NEC Chairman.

 NOTE: The writer further  proposes that the above transparent method be duly adopted in respect of all other relevant Chapters of the New Constitution within specified time frames to ensure a  real ‘Citizens’ Constitution’.

    9)    Thereafter, the Final Constitutional document containing all chapters (though separately cleared by the Supreme court) should be placed again before Supreme Court by the Speaker for final  approval in totality. 

   10) Such final document with comments from the Supreme Courts shall be tabled in Parliament through the Cabinet solely for formal approval/gazette purposes and thereafter, if necessary, go for a ‘Referendum’ on the recommendation of Supreme Court.

 As regards, his proposal Nos. 14 (a), 14(b) and 15, the writer has already submitted alternate proposals to the aforesaid 2 Govt. appointed Committees.

As a ‘Spin-off’ of this transparent exercise, the people and the politicians themselves will become more conscious and aware of the basic law of the country.

About the Author: 

Bernard Fernando is a Retired Deputy General Manager-Bank of Ceylon

By Bernard Fernando