The Draft Constitution:  Impact on nation and state
Posted on August 2nd, 2018

By Neville Ladduwahetty

Documents relating to a draft Constitution intended for “discussion only” are now out in the public domain. These documents are the work of a panel of 10 experts. The Resolution setting up a Constitutional Assembly intended them to synthesize the opinions contained in the reports of the 6 sub-committees appointed by the Steering Committee, into a form that would embody the makings of the draft constitution. Although it was expected that there would be a single report reflecting a consensus among them, what turned up was a multiplicity of reports.

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According to media reports, since some who were not part of the expert panel had intervened and attempted to influence the outcome of the scope of the draft, only 6 of the 10 in the expert panel had signed the report. This draft contains 38 chapters and covers the full scope of what is intended to be a discussion paper. Although those who intervened have since been asked to stay out, the consequence of this direction was that there are now an additional 10 unsigned reports covering a variety of subjects.

If what is reported above is factual, the experts and interventionists have not only collectively debased the constitution making process, but have also made the debating task very complex, because members of the Constitutional Assembly would not know whether to accept opinions in the report signed by the 6 experts, or those in the 10 individual reports.

SIGNIFICANT FEATURES in the DRAFT

Despite the chicanery associated with preparation of the draft constitution, what is of great significance to the nation is the direction the draft constitution is taking judging from recommendations common to most reports. For instance, some of the specific recommendations are:

1. The State would cease to be Unitary. Instead, it would be described as being ‘undivided and indivisible’. The Legislative, Executive and Judicial powers of the People shall be exercised as per the Constitution. The territory of Sri Lanka would be its geographical territory including the Provinces, thus identifying the territory in terms of the Province. The National Anthem is to be sung in 2 languages.

2. The President to be elected by two chambers of Parliament. President’s powers diluted to that of a figurehead to the point that he acts on the advice of the Prime Minister.

3. A second chamber represented by 5 members from each Province and 10 others.

4. The powers of the Governor of each Province diluted to the point that he acts on the advice of the Chief Minister.

5. The Executive and Legislative powers of the Province shall be exercised by the Chief Minister and the Council.

6. The Central Government shall be entitled to the use of State land only in the Capital Territory, and every Provincial Council shall be entitled to the use of all other State land.

7. The provision for two or three adjoining Provinces to merge based on a referendum limited to each Province concerned.

In summary, the draft constitution weakens the powers of the President elected by two chambers of Parliament and makes the Prime Minister the head of the Executive, the consequence of which is to weaken the powers of the Governor, strengthen the Province with Legislative and Executive powers and recognize the Province as the unit that describes the territory of Sri Lanka, with a provision also for 2 or 3 Provinces to merge, based on a referendum limited to each Province concerned.

DIRECTION of the DRAFT CONSTITUTION

The first paragraph of the Resolution establishing the Constitutional Assembly states that the President “…in his desire to give effect to the will of the People expressed at the aforesaid Presidential Election by enacting a new Constitution that, inter alia, abolishing the Executive Presidency…..”.

Abolishing the Executive Presidency is therefore justified on the basis of giving “effect to the will of the People”. The question is: Which “People”? In this instance the “People” has to mean those who elected the President. Considering that the President is committed to “give effect” to several issues during the run up to the election, how legitimate is it to single out an issue such as abolishing the Executive Presidency out of the many issues pledged, and justify it on the basis that it gives effect to the “will of the People”, without an exclusive referendum.

In the absence of such clear and definitive determination the need to abolish the current Executive Presidential system is nothing but the fulfillment of a personal commitment of the political leadership regardless of whether it serves the interests of the Nation and State. As far as the leadership in the North is concerned, the direction of the draft constitution facilitates the inexorable movement towards federalism to start with, and a separate State at a time of their choosing, encouraged by the provision in Article 176 for 2 or 3 adjoining Provinces to merge based on a referendum limited to each Province concerned.

VIOLATION of FUNDAMENTAL RIGHTS

What the draft embodies is a diabolical attempt to dismantle the core values of what is of significant importance to the Sri Lankan nation as a whole, and replacing it with aspirations of a segment of the population, thereby violating the right that “All Peoples” have, namely, the right of self-determination of the collective nation to determine its form of government and its political arrangements.

The 13th Amendment with the Province as the unit was definitely not such a collective determination. Furthermore, no opportunity was given by successive governments for the nation to exercise its right to self-determination regarding devolution as a concept, with its unit as the Province. That denial has compelled the nation to accept a form of government at the periphery that is operationally dysfunctional, and at a cost that diverts much needed funds for human development from the nation as a whole.

Territorial integrity is another determination that is sacrosanct to the majority of the nation. The proposal for 2 or 3 adjoining Provinces to merge based on a referendum limited to each Province concerned is a violation of the right of self-determination of the rest of the country. The architecture that would result from this provision is to create a single political unit consisting of the Northern and Eastern Provinces. Territorially such a unit would consist of one-third of the land mass of Sri Lanka and two-thirds of its coast line with Legislative and Executive powers, beside 7 separate Provincial units in the rest of the country. Words in a Constitution such as “undivided” and “indivisible” would not protect the territorial integrity of Sri Lanka under such a set-up.

The fact that the draft is a discussion paper, and therefore, this particular proposal or any other could be rejected, is not the issue. The issue is the fact that the ‘expert panel’ did not mind the denial of fundamental rights such as the right of self-determination embodied in international law, in instruments such as the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights, which form the very bedrock of Human Rights. The least one would expect from such a panel is for them to bring to the attention of the Steering Committee the implications involved, while fulfilling its primary function of synthesizing the opinions in the 6 sub-committee reports.

EXECUTIVE PRESIDENCY

The other all important issue is the abolition of the Executive Presidency. What needs to be understood is that an Executive Presidential system in the context of Sri Lanka and its many Peoples is not another political arrangement of governance. It goes far beyond and symbolizes the unitary nature of the State, because the President, as a person elected by the whole nation is therefore a unifier; a concept that cannot be replaced by words such as “undivided and indivisible”. Consequently, the Presidential system is inextricably linked with the unitary character of the State.

A nationally elected President is the protector of the integrity of the State in terms of its physical territory, and ideologically the protector of the core values enshrined in the entrenched Article that includes Article 4 of the 1978 Constitution. Such traditions are an integral part of the memory of Sri Lanka’s heritage in the form of the ruler who was the guardian of the State and the religion. This tradition has to continue with safeguards to meet evolved concepts such as separation of powers between Legislative, Executive and Judicial powers. Such separation of powers is represented at the periphery by the Governor who is responsible for executive action, and as the President’s representative in the periphery, is responsible for guarding the integrity and unitary character of the State in the manner in which the Provinces operate.

CONCLUSION

While the expert panel of 10 was expected to synthesize the opinions in the 6 sub-committee reports into a single unified report, what transpired was a botched up job due to the intervention of a few persons unassociated with the process, with the result that there is now one report signed by only 6 of the 10 experts, and 10 other unsigned reports covering various aspects relating to this draft constitution. The fact that the draft constitution in its present form has been seriously compromised means that the task of debating issues would become a daunting challenge.

Abolishing the Executive Presidency although justified in order to “give effect to the will of the People”, has many direct political beneficiaries. One set would be those who are constitutionally barred from contesting a Presidential election. Another set would be those who are unsure of securing a majority at a national Presidential election. For the Tamil leadership it would be an opportunity to weaken the power of the Governor to the point of him acting on the advice of the Chief Minister and the Board of Ministers, thereby transferring Legislative and Executive power to the Council; a process that would be the first step towards federalism (by eliminating the concurrent list), and to eventual separation. The losers would be the People in whose name all this is being done.

The genesis for these incrementally progressive developments is the 13th Amendment with the Province as the peripheral unit. The concept of devolution and its unit of devolution – the Province, never were and have never been the seeking of the nation as a whole. This is a violation of the fundamental right of self-determination that “All Peoples” are entitled to and recognized in the International Instruments that form the bed rock of Human Rights. It is nothing but a top down approach whose cost effectiveness cannot be justified. This injustice has to be corrected not only because it compels a majority to be governed under a system that is not of their choosing, but also the fact that the system is operationally complex because of 2 parallel systems which function at a cost that diverts much needed funds from human development of the collective nation. This too is a violation of Human Rights.

The hope of those whose interests have hitherto been ignored is that at least a third of the Members of Parliament led by a strong leader would have the courage to oppose the draft constitution on moral grounds, because it not only violates fundamentals of justice and equality, but that it also does not represent the core values cherished by the nation as a whole. However, opposition for the sake of opposition is not right either. Therefore, those opposing the draft constitution should follow up and propose an alternative that in principle is for the three major communities to share Legislative and Executive powers at the center with the District as the principal operating unit in the periphery. The nation is waiting for a leadership that would set aside their personal ambitions and fulfill the nation’s long awaited dream of doing what is right by them as a whole, and in the interest of the entire country as well as the generations to come.

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