Saturday, October 7, 2017

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New Constitution: Are we on the right path?

By Gamini Abeywardane

As we celebrate the seventieth anniversary of our Parliament it is more than a coincidence that a new set of proposals forming the basis of a new Constitution for the country is ready for its consideration. Though seven decades have elapsed since we gained independence from the colonial rule we have terribly failed in the task of drafting a proper Constitution acceptable to all communities.

In this matter we are sadly behind India which succeeded in replacing the British given Constitution with a document of their own within three years of their independence in 1947. India, though a single state, is in reality a subcontinent with diverse races, religions and languages and much cultural diversity, yet for all, they managed to come up with a constitutional document acceptable to all. There have been several amendments, but no one is demanding an entirely a new Constitution.
On the contrary, Sri Lanka which has a much less complicated situation with just a few races, languages and religions, is still struggling to draft a Constitution acceptable to all communities and that too after fighting a long and bitter internal war fueled by racial, religious and linguistic factors. As such, the need for a new Constitution is more than clear and, in fact, the incumbent government was voted into power with the full backing of all minority communities with the task of drafting a new Constitution as one of its electoral promises.

However it is rather unfortunate that in Sri Lankan politics there still is a certain segment of people who believe that there is no need for a new Constitution and the current document in force has solutions to all the problems, despite claims to the contrary by the minorities, particularly the Tamils. In this situation, it is interesting to examine why we as a country have failed to come up with a proper Constitution for so long.

Personal agendas

The main reason appears to be that both our locally made or autochthonous constitutions were tailor made not for the people of this country but for the political groups that were in power in the respective periods. This is clear from the constitutional history of our country.

Independent Ceylon’s first constitution popularly known as the Soulbury Constitution was accepted by all the communities in the country as minorities were given some sense of protection. Safeguard was provided for the minorities by Article 29(2) of the Constitution which prevented the Parliament from conferring benefits on the majority community and imposing disabilities on the minorities. With some minor amendments it lasted for a quarter of a century probably because it was drafted after consultation with all the communities over a period of about three years.
Then came the first Republican Constitution of 1972 and it is a well-known fact that the Constitution was adopted by the Constituent Assembly without the participation of the Tamil community for whatever reasons. Probably the leaders at the time were in a hurry to bring about a rapid change in the country having great socialistic ethos in their minds and failed to give much thought to the idea that a Constitution is a consensus document which binds all the communities together.

Then came the second Republican Constitution of 1978 which introduced the executive presidential system. President J R Jayawardene, the architect of the Constitution tailor-made it for himself. The proportional representation was introduced mainly because he knew that even when the UNP was electorally defeated under the first past the post system they often had the majority vote count.  
With the new system in force JRJ thought that his party would never be defeated. One may argue that PR system is a far more democratic system because all minority groups also get their fair share of representation. Yet, it is clear that JRJ’s immediate motive was not to give more democracy to the masses but to perpetuate the dominance of his party.

This attitude is quite clear from the way he centered near-absolute power around the presidency with him in the chair. All the great values of democracy – rule of law, independence of the judiciary, the police and the public service were compromised under the might of the executive presidency.

After becoming the executive president he had the audacity to say that he had power to do everything other than making a man a woman and woman a man. If 1972 constitution had erred in not providing adequately for the minorities he could have well corrected that with his five sixth majority in Parliament. Yet, he failed to do so until he was forced to devolve power under Indian pressure. All that showed he too had a personal agenda behind his effort to introduce a new Constitution.
The seventeenth amendment which provided for setting up of a constitutional council to recommend appointments to independent commissions covering vital areas of government such as the judiciary, public service, police, elections etc. was, however, an exceptional piece of legislation as it received the consent of all political parties in the parliament.

However, at the same time that was a classic example of a piece of legislation that was rushed through the parliament without adequate time for debate. There was a great loophole in not providing for a quorum for constitutional council and as a result when a vacancy occurred due to death or resignation of a member the entire council became non-functional.

The eighteenth amendment was again another instance of strengthening one individual’s own position rather than resolving a constitutional issue. Declared intention of the eighteenth amendment was to rectify the anomaly in the seventeenth amendment and activate the constitutional council and other independent commissions.
However, President Mahinda Rajapakse used the opportunity to remove the term limit on the presidency allowing him to contest for the presidency for a third time and also took the power to appoint supposedly independent commissions into his own hand thereby making the executive presidency almost dictatorial.

Such is the history of our constitutional making where leaders responsible for drafting constitutions or amending them often acted for their own benefit ignoring democratic traditions or the well-being of the people. They have often acted as politicians and never as statesmen.

Much needed consensus
For a constitution to be accepted by all and to last long it should be drafted following sufficient public debate and India has set a fine example in this regard. India’s constitution was drafted by the Constituent Assembly, which was elected by the elected members of the provincial assemblies.

The members of the Constituent Assembly met for the first time on 9th December 1946. On 29th August 1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the Chairman along with six other members assisted by a constitutional advisor.
A Draft Constitution was prepared by the committee and submitted to the Assembly on 4th November 1947. Draft constitution was debated and over 2000 amendments were moved over a period of two years. Finally on 26th November 1949, the process was completed and Constituent Assembly adopted the Constitution and the whole process took three years.

In Sri Lanka in all previous cases of Constitution making, the process was confined to parliamentarians of the government and the final draft was bulldozed through the parliament without much attention to the views of the opposition members or the general public.
However, this time over the process that was triggered over a year ago with the establishment of the Steering Committee of the Parliament seems to be much in line with the Indian experience. Already there has been some debate over this matter both in parliament and outside coupled with public consultations.

Most of the politicians who are publicly opposing the idea of a new constitution also have participated in the process going on in the Parliament where they have not been able to rationally oppose some of the fair and reasonable proposals that have been placed across the table.
Still it is only a collection of proposals and the bulk of it has come from various quarters as ideas and cannot be attributed to the whims and fancies of a particular individual or a political party unlike in the previous instances of constitution making.

Unitary nature
There have been much heated arguments over the unitary nature of the Constitution and the place accorded to Buddhism while there seems to be some general agreement over the often controversial issue of devolution of power.

However, the bright side is that all minorities are agreeable to retaining the current constitutional provisions which give foremost place to Buddhism while assuring all other religions their due place.
The only contentious area seems to be the unitary nature of the Constitution as set out by article 2 of the present Constitution. Retention of the word ‘unitary’ has been opposed by the TNA on the basis that it might give the opportunity to a future government to take back some of the devolved powers through judicial interpretations. Instead they have agreed to have the word ‘Ekeeya’ as found in the Sinhala version of the current Constitution with specific provisions against dividing the country.

However, considering the rest of the provisions this seems to be a resolvable issue because what finally matters is the spirit of the Constitution and if everything goes well the question of taking back some of the devolved powers will not arise. What will matter to the people of this country is undoubtedly economic development and if the national question which has been hampering our progress can be resolved, every other issue will become secondary and people will have less time to concentrate on emotive issues.
Another important step that has been suggested in the current constitutional process is to present the final draft to the people through a national referendum after it has been passed by the parliament by a two thirds majority. The TNA has vigorously supported this idea as they believe that no Constitution will succeed if it has not been approved by the people.

A referendum will be the best way to ensure such public debate and discussion while any piece of legislation directly approved by the people in that manner will have the legitimacy that is needed to create some sense of permanency for such a document in the minds of the people.
With ample support from the minorities and the international community this government got the biggest ever mandate to draft a new Constitution and it would be anti-democratic to abandon it at the behest of various groups that have never backed a positive change in the past. The idea of a new Constitution should be abandoned only if people reject it at a referendum and not because some groups oppose it.







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