Whose baby is the new constitution?

Thursday, 15 June 2017

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/)
Posted by Thavam