A Constitution for the People or for our

"Rulers"?

by Dr A.C.Visvalingam-January 4, 2016, 12:53 am

President, CIMOGG

The government is planning to have a fresh

Constitution for Sri Lanka and has indicated that the current crop of 225
MPs will function as the members of the Constitutional Assembly (CA). It
was announced some weeks ago that the governments proposals would be
revealed on 9 January 2016 and that citizens and interested organizations
would be allowed six weeks to study these proposals and call for whatever
changes they deem desirable. Subsequently, it has been reported that the
Prime Minister has obtained Cabinet approval for a 24-member Committee
(of persons selected by him, with a pre-named Chairman) "to obtain
proposals for a new Constitution from political parties and the general
public". This phase of the work will presumably have to be completed
within six weeks and "these proposals will be handed over to the Cabinet
Sub-Committee which is appointed to compile a revised Constitution". How
long the Cabinet Sub-Committee will take is anyones guess. It is only then
that the Cabinet will give the CA the final draft. Allowing six months in all,
as indicted by the Prime Minister, the CA will have to complete its work by

9 July 2016, including obtaining the formal approval of Parliament. The

version of the Constitution passed by Parliament will then be subjected to
a referendum and, if accepted by the people, will become Sri Lankas new
Constitution.
Based on Sri Lankas constitution-writing precedents, the Cabinet draft
may be expected to be a compromise between the competing demands of
the main political parties, and focus on enhancing the benefits that would
accrue to Parliament, the individual MPs, the Ministers and the Prime
Minister. The interests of the public and the forging of a united nation will,
we are quite convinced, be accorded a much lower priority. The Citizens
Movement for Good Governance (CIMOGG) fears that, despite the token
(?) exercise to ascertain proposals from the public, the Cabinet has already
decided what the new Constitution should contain. The Cabinet will
assuredly reject any amendments that would reduce the powers,
privileges, rewards, perquisites and money-making-opportunities that MPs
increasingly want for themselves. Solely for public relations purposes, a
few cosmetic changes may, of course, be made.
CIMOGG has for long urged that at least one year would be needed for a
properly-constituted CA to ascertain the views of key stakeholders and
then negotiate the compromises required to produce a sound Constitution
that will safeguard the interests of the people. We may mention here that,
in one B5-sized book about the 1978 Constitution and its 17 Amendments,
the bare text alone occupies 290 pages. Based on this, we may expect that
the initial Cabinet draft would contain, perhaps 250-350 pages text.
Needless to say, it would have been approved by all the members of the
Cabinet, many of whom would not have read, let alone understood, its
contents. Would it be fair or democratic to expect concerned citizens to
examine and critique, within six weeks, the huge amount of legally-binding
text that the Cabinet draft would contain, considering that top lawyers
argue for days in the Supreme Court about the precise meaning of one
word or phrase or sentence in the Constitution?
The Cabinet draft will, of course, include provisions for entities like the
Committee on Public Enterprises (COPE), the Committee on Public
Accounts (COPA), the Auditor-General, Bribery Commission and
Independent Commissions (ICs), all formulated so as to provide certain
checks on the executive arm. The reality is that the powers of these
entities may be weakened, wittingly or unwittingly, by the inclusion of
innocuous sounding articles elsewhere in the Constitution. For example,

the Constitutional Council (the CC; not the CA), which is responsible for
most important appointments in the public sector, is comprised of seven
politicians and only three laypersons. This makes the CC highly susceptible
to political bargaining and loss of independence. Whereas the
constitutional articles that refer to the ICs would probably remain little
changed from what we already have, the independence of the appointees
to the ICs will, in practice, be adversely affected by the politicallycontrolled CC.
The CA, being effectively dominated by government MPs, will be
subservient to the Cabinet. As it will be presented with a finalized Cabinet
draft, the scope available to the CA as a whole to change anything
significant would, therefore, be minimal.
One theoretically possible way of getting over this difficulty would have
been to expand the CA by the inclusion of 225 selected representatives of
key stakeholders so that there would be a fair balance in the CA between
the interests of the people as against the interests of the Cabinet,
Parliament and the MPs. Practically, however, such a large crowd would not
be able to function efficiently. On the other hand, those with a professional
education and training have the necessary "clout", knowledge and
discipline to work collectively to pressure the government to give the
people adequate time to study the draft and have their views considered
seriously. Those in the essential services could do likewise. Another
influential group would be academics who are not politically strongly
aligned. These non-political stakeholders should take it upon themselves to
get together, and then identify and sponsor up to a total of, say, 25
persons of distinction and integrity to form a strong Peoples Committee
that would scrutinize the Cabinet draft from the point of view of the
peoples concerns and forestall wrongful exploitation of the public trust.
Their recommendations, when made, should be quickly and widely
publicized so that ordinary citizens, too, could add their voices to those of
the said Peoples Committee.
We need to look at this problem from another point of view as well.
If you had to appoint a manager to look after your business, would you let
him run it as he pleases? Would you allow him to make rules that would
give him more power than yourself? Would you watch helplessly while he
sells your goods or assets at an artificially low price so that he and the
middle-man buyer, working in collusion, could make a huge profit for

themselves? No responsible person would allow such things to happen.

Yet, the citizens of this country delegate their powers to MPs, Ministers and
Presidents and watch helplessly whilst these individuals write constitutions
and laws which, inter alia, allow them to exploit for their private benefit
the rich resources of the country during their period of office, perpetrating
large-scale breaches of the public trust.
Going a little further, which of the present MPs could you count on to run
your business in your interests if that ever became necessary? Not many,
we should guess. If so, why should the people let themselves be inveigled
into entrusting all their national assets indiscriminately to a set of MPs
instead of insisting on having a Constitution that lets the people monitor
and control how these MPs perform their fiduciary obligations? Why should
the people have to wait for the next set of elections to throw out those
who rob the country? Why should there not be provisions in the
Constitution that would permit their earlier recall, after following due
process? It is in order to tackle questions like these that it is essential for
the public to call for enough time to coordinate their efforts to get a
Constitution that will establish the Rule of Law and Good Governance.
If we are not mistaken, the most recent amendment to the US Constitution
allows the members of the House of Representative (HoR) to propose and
approve various benefits for their members and Senators but on one
condition, viz. that such benefits shall not accrue to the current
representatives but only to their successors after the next elections.
Compare this with the manner in which MPs are being incentivized
(bribed?) by enormous increases covering every aspect of their
remuneration and their official perquisites to carry out the Cabinets will
without resistance, the latest being a proposed 4,000% increase in their
committee sitting allowance.
For the sake of Sri Lankas future, those with the expertise and resources
to mobilize public opinion should rapidly draw the attention of our citizens
to those features of the draft Constitution that will give license to the
peoples representatives to misappropriate public assets subtly in the many
forms that have been developed over the years, and urge the citizens to
resist the incorporation of any such features in the fundamental law of the
land.
Posted by Thavam