Constitutional Assembly should get its priorities right
Posted on January 10th, 2016

Courtesy Ceylon Today

Last Saturday, it was said in Parliament that a special session of Parliament would be held tomorrow (12) where Parliament is expected to give its approval to transform itself into a Constitutional Assembly. This decision was made in light of several political parties submitting last minute amendments to the resolution to convert Parliament into a Constitutional Assembly.

Converting Parliament into a Constitutional Assembly is for introducing a new Constitution which was one of the major pledges of the present government. Accordingly, the members of the Legislature, as members of the Constitutional Assembly will specifically focus on drafting a new Constitution and will have very much less focus on duties outside policymaking.
Drafting a new Constitution is not an easy task. Most importantly, drafting a Constitution which has the ability to replace the existing Constitution and satisfy needs of those whose opinions differ from one to another is even more difficult. Already, various opinions and views are expressed by various groups. Some had called for a Federal State while certain groups had strongly objected to that. The Joint Opposition had claimed that there are attempts to challenge the Unitary State through making a new Constitution. However, such changes require a referendum in addition to the 2/3rds majority in the Parliament.
One of the major reasons as to why there is a need for a new Constitution is the unlimited executive powers concentrated in the President. It was often claimed that such unlimited powers concentrated in the President ended up in abusing of power as the country witnessed for three decades. Although, getting rid of these powers was the major pledge of President Maithripala Sirisena, it was not that easy to do so. The 19th Amendment to the Constitution had only reduced the executive powers of the President and as highlighted in the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka, taking away all the powers of the President requires a referendum.
This brings us to an important junction. Are we transferring all the executive powers to the Constitutional Council? In such scenario we would replace the Executive President by an Executive Prime Minister. That does not seem to be the solution. Any system is based on the Legislature, the Executive and the Judiciary and checks and balances, between each arm is very vital. More importantly, assigning too much power to one institution or an individual would keep the issue as it is. Therefore, the new Constitution needs to ensure a balance of power as well as proper and effective devolution of power. In that context, the Legislature should give prominence to its job of making laws which seems to have not been prioritized during the last few decades. Advanced democracies have clearly specified the boundaries of the Executive, Legislature and the Judiciary and it is time for Sri Lanka to do the same.
It is often said that the law is made by the people, but once the law is made it will govern the people, not the individuals who made the law. A well made law is a result of many discussions. Yet, two previous Constitutions were made by politicians without a proper consultation with the public. The fate of the new Constitution should not be the same. So far, the government has taken initiatives to gather opinions of the civil society and it must continue.
In most countries of the world the Constitution is supreme. However, it is not the case in Sri Lanka in which the law is supreme and the law can override the Constitution. This is a very important aspect that requires to be changed in the new Constitution. Article 16 of the Constitution states that all existing written law and unwritten law, shall be valid and operative, notwithstanding any inconsistency with the preceding provisions of this Chapter. That is a fundamental weakness of the existing Constitution which requires to be addressed in the new Constitution.
Therefore, in the process of making a new Constitution the Constitutional Assembly should get its priorities right. While allowing the people to contribute with inputs, the government should be firm on its priorities and thereby needs to be firm on the views it accommodates. On the other hand, the people should be pragmatic too and should be enlightened that all opinions cannot be accommodated. It is always ‘balancing the act’.

One Response to “Constitutional Assembly should get its priorities right”

  1. Dilrook Says:

    This raises a very important point.

    [Quote] Article 16 of the Constitution states that all existing written law and unwritten law, shall be valid and operative, notwithstanding any inconsistency with the preceding provisions of this Chapter. [Unquote]

    This is the biggest weakness of the constitution. No law must be allowed to stand that is inconsistent with any part of the constitution.

    However, the issue about executive prime minister is faulty. Almost all democratic countries are headed by a prime minsiter. Executive powers rest with the Cabinet of ministers. This is what Sri Lanka too needs. Going by happenings in 1987 and 2010 to 2016, executive presidency is a threat to national security during times when there is no on going war.

    Public views are sought by the select committee. All nationalists must put their money where their mouth is and write to it. Submissions are taken now.

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