Forming the New Constitution

The Constitution of the Democratic

Socialist Republic of Sri Lanka has
been the constitution of our
country since its original
promulgation in 1978. It is Sri
Lankas second republican
constitution and its third since the
countrys independence in 1948.

2015-10-14
The first constitution that provided a parliamentary form to Sri Lanka was
the Soulbury Constitution in 1947. It introduced a bicameral legislature
(Two-house Parliament) which was headed by the Governor General. While
minority rights were safeguarded constitutionally, a Judicial Service
Commission and Public Service Commission were established.
The first republican constitution was drafted during the office of Prime
Minister Sirimavo Bandaranaike. This constitution provided for a unicameral
legislature called the National State Assembly (NSA) and the sovereignty
was entirely vested in it. A nominal president was named as head of state,
where the prime minister was head of the government and the Cabinet of

Ministers.
The existing constitution of Sri Lanka provided a unicameral legislature and
an executive president. The constitution provided for an independent
judiciary and guaranteed fundamental rights, providing for any aggrieved
person to invoke the Supreme Court for any violation of his or her
fundamental rights. It consists of 196 members (subsequently increased to
225 by the 14th Amendment to the constitution).
As of April 2015 it has been formally amended 19 times out of which the
13th, 17th 18th and 19th Amendments brought about significant change to
the countrys political system.
The 13th Amendment decentralised the power of the central government
by creating provincial councils. It also made Sinhala and Tamil the official
languages of the country and English as the link language.
The 17th Amendment, passed in 2001, was meant to ensure more
transparency with the creation of a constitutional council and independent
commissions.
The 18th Amendment removed the sentence that mentioned the limit of the
re-election of the president and to propose the appointment of a
parliamentary council that decides the appointment of independent posts
like commissioners of election, human rights, and Supreme Court judges
The constitution was amended a 19th time where the 18th Amendment was
annulled while replacing the outdated 17th Amendment to establish the
independent commissions. Executive presidential powers were removed
and the term of office for the president was limited to five years while the
president continues to function as the head of state and head of security
forces.
On June 16, a gazette notification was published for the 20th Amendment,
however, Parliament was divided over passing the Bill and an adjournment
debate was also objected by the Opposition.
Although the constitution may have progressed over the years, the need for
an entirely fresh constitution setting aside all complications and drawbacks
has been a key reformation discussed in the country.
The UNP and the SLFP signed a memorandum of understanding on the 21st
of August 2015 where it was agreed to establish commissions in accordance
to the 19th Amendment to the constitution and also compile a new
constitution to strengthen democracy and human rights in the country.

The prime minister in an interview with The Hindu has expressed the need
of a mixed proportional system to bridge the gap between the two main
parties, and to increase the share of the smaller parties.
The TNA has demanded that the country framed a new constitution which
will give a solution to the Tamil problem.
Although former President Mahinda Rajapaksa pledged to enact a new
constitution by converting Parliament to a constituent assembly, if he was
re-elected to power, the opportunity for his promise is now lost.
So, what exactly should be included in the new constitution in order to
overcome the drawbacks of the existing one? We decided to speak to a few
veterans in the political arena inquiring from them of what they feel should
be the content of the constitution.
Powers of the executive should be compacted more- Wijayadasa
Rajapakshe- Minister of Justice
Mr. Wijayadasa Rajapakshe , the Minister of Justice, explaining what the
basic purpose of the constitution is related to its function of safeguarding
the legitimacy of a country.
It ensures the sovereignty of the people. Certain
powers are asserted to the executive, legislature
and judiciary through a constitution. However, a
balance should be drawn among these three
branches. I abide by the general criticism that
excessive power is bestowed upon the president.
Although it has been reduced to a certain extent
by the 19th Amendment, it should be compacted
more.
Having been asked about the independent
commissions meant to be re-established through the 19th Amendment, Mr.
Wijayadasa Rajapakshe assured that they have already been established
and was a matter of implementing, which will be done in the near future.
He also told that an independent budgetary office will be set up in order to
guarantee financial transparency.
A new electoral system was also an issue raised by the minister which he
confirmed would be a mixed proportional system that would accommodate
smaller parties.

About the participation of the minority parties in the formation of the new
constitution, Mr. Rajapakshe said that it is an obligation to do so, as they do
not want to risk an insurgency of any minority similar to what happened in
the past.
He also said that fresh links with the civil society will be made in order to
gather opinions of the public to draft the constitution.
Judiciary should be cleaned from politics; Shibly Aziz, PCPresidents Counsel Mohamed Shibly Aziz, a member of the recently formed
Constitutional Council and an eminent lawyer who has served as the
Attorney General, the head of the Official Bar and also as the president of
the Bar Association of Sri Lanka (BASL)-- head of the unofficial bar
expressed his concern with the legal system. He suggested that several
amendments should be considered when drafting
a new constitution to improve the delivery of
justice in our court system. Broadly speaking of
the subject, he said that the system of appointing
judges, especially to higher courts should be
improved and the present obstacles which impede,
delay or otherwise stand in the way of efficacious
resolution of cases which have piled up should be
removed.
I would also suggest that the judiciary, in view
of its important role, should be identified as a special branch which requires
further protection. The existing constitutional provisions should be further
enhanced by considering the need or the advisability of having a high
ranking committee drawn from the judicial and legal fraternity (wholly or
largely) to be given the task of recommending the nomination of judges of
the superior courts with very limited discretion given to the appointing
authority to reject such nomination. This will achieve the necessary
transparency and make the judges perform their role in a manner which will
command that they perform their role in a manner acceptable, not only to
politicians but those others before whom they perform their functions. One
important aspect is for the need or the advisability of placing a bar (with or
without needed exceptions) on retired judicial officers holding public places
of profit after retirement, at least for a period of two to three years after
they relinquish their role as judicial officers so as to prevent them from
serving, by coercion otherwise, the interests of the political matters then in
power.

In addition, Mr. Aziz suggested removing the power to make a just and
equitable relief in respect of a fundamental rights application, which in his
experience occasionally has pushed the judges into the political field. If the
FR jurisdiction is to remain in the Supreme Court we should insert a right of
Appeal or revision from any order made by the Supreme Court on a
fundamental rights petition to a divisional bench of the Supreme Court. The
better course of action would be to confer the fundamental jurisdiction to
the Court of Appeal and permit a quick appeal to the Supreme Court on an
important question of law by which the Supreme Court can set out the law
regarding these rights in a general manner, as done in the United States
and other jurisdictions. Another amendment which should be considered is
making available settlement by mediation he may at any stage of the
action. This will alleviate the tremendous delays which are now seen in our
court.
Democracy pluralism must be safeguarded; D. Sidthadthan- TNA
Parliamentarian
Mr. D. Sidthadthan, the PLOTE head and TNA parliamentarian for the Jaffna
District said that the unitary nature of the constitution should be done away
with. Although he would prefer a federal constitution, knowing the
impossibility of passing such a proposal, Mr. Sidthadthan said that he would
prefer a meaningful devolution of power, so that the North and North East
provinces would be able to look after their assets and manage their
activities without interference from the central government. He then
notified that he referred to assets like education, health and development
and not issues like defence, finance etc.
Having being questioned about the electoral
reformation which has been promised by the prime
minister to be amended in the new constitution,
Mr. Sidthadthan said that any proposed electoral
reform must guarantee fair representation of
minorities.
As a whole, Mr. D. Sidthadthan that democracy
and pluralism must be safeguarded by the new
constitution. I do not mean that the presidential
system should be removed, but the strength of the Parliament should be
improved. He also said that the human rights chapter has not at all been
useful in protecting the citizens of the country, and therefore, measures
should be brought in to improve it.

Childrens rights, womens rights, the economic and cultural rights

as enforceable rights should be included; Dr. Jayampathi
Wickramaratne, PC
Presidents Counsel Dr. Jayampathi Wickramaratne said the new
constitution must be able to address the present challenges and rights of
the citizens.
In my view it should not be merely a new constitution, it must be a new
and modern constitution, which meets up to the challenges of present. It
should also take in to the consideration developments in the democratic
world such as democratic issues, issues relating to economy, rights of
citizens etc, he said.
When Daily Mirror inquired about his opinion on provincial councils which
was introduced by the 13th Amendment, on the
claim by many critics that they are white
elephants, Dr. Wickramaratne said that provincial
councils are not white elephants.
Provincial councils are not white elephants and I
have written widely on this subject. It is easy to
say that they are white elephants but none of the
people who say so have studied about them. There
are two are three very good reports on the
experiences of the provincial councils. These
studies show that it is the central government that wants to make the PCs
white elephants, he said.
He further said that the constitution needs include childrens rights, women
rights and also it is important to pay attention to other constitutions which
include these.
The present constitution has only civil and political rights. And they are
also restricted. In most modern constitutions including the developing
countries have expand the scope of civil and political rights and also include
childrens rights, womens rights, the economic and cultural rights as
enforceable rights. You find them in the South African constitution, very
significantly in one of the least developing countries which is a comparative
new state- east Timor. The provisions of all human rights treaties that East
Timor has signed up to have being made part of the domestic law. I think it
is the strongest Bill of Rights in our part of the world. We need to study
them, he said. - See more at: http://www.dailymirror.lk/91161/forming-thenew-constitution#sthash.H6QdXUnp.dpuf
Posted by Thavam