A Critical Analysis Of The Draft Constitution Doc By 6 Members Of The Panel Of Experts 

By Ruwan Laknath Jayakody –AUGUST 6, 2018

Ruwan Jayakody

Certain Members of the Panel of Experts (six out of 10) have presented a confidential, for discussion purposes only, document, for the consideration of and discussion by the Steering Committee of the Constitutional Assembly, a document which seeks to facilitate the formulation of a Draft Constitution Bill by the Steering Committee.

The Panel of Experts consists of persons nominated and appointed by the political parties represented in the Parliament. 

In critically analyzing it, one finds that the application of any approach taken under the various rules of statutory construction or interpretation would not absolve the travesty that is the attempt at Constitutional reforms made by the Six Members of the so called Panel of Experts, who are political appointments, as exemplified in their simple minded and misguided stab at amending the Constitution to suit certain aspirations. Nowhere is this legally unsound, utterly unpragmatic and blatantly obnoxious in terms of the reckless (or perhaps even willful) disregard of national realities more evident than in the case of their attempted undoing of the pivotal provisions of Articles 1 to 5 found in Chapter I of the Constitution which deals with nothing short of the ‘The People, The State and Sovereignty’. It seems that the monkeys have got the razorblades and therefore if by some stroke of woe, lunacy prevails, and the wordings put forward by the Six Members of the said Panel in their reformulations (proposed as Articles 1 to 4 in their document) which are consistent with that of a delusional pipe dream, are adopted, it would precipitate the eventual undoing of this nation. In short it constitutes not Constitutional reforms with qualitative improvements or value additions but a Constitutional perversion.     

The Constitution

Chapter I of the Constitution in Articles 1 and 2 deals with the nature of the State while Articles 3 and 4 concern the social contract and the vesting of sovereignty in the various administrative arms of the State, specifically the legislature/the Parliament, the Executive (the President) and the judiciary, and Article 5 defines the territory of the country.

Constitutional Maledictions 

The State and its Nature

The nature of the State is, in the present Constitution, held to be one that is a Free, Sovereign, Independent and Democratic Socialist Republic that is also Unitary. 

On the other hand, the particular Experts Panel formulation retains the references to a Free, Sovereign and Independent Republic, omits the mention of ‘Democratic Socialist’, and explains that the State “is an aekiya rajyaya/orumiththa nadu (defined in the formulation as being “undivided and indivisible”), consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution”. The new formulation retains that the power to amend or repeal or replace the Constitution is with the legislature and the people as per the manner provided in the Constitution. 

Firstly, the references to democracy and socialism are vital are they relate to aspects pertaining to the civil, political, economic, social and cultural life of the people in the country, not to mention the cherished value systems (including the existence of aspects pertaining to a welfare State) under which life is lived. It serves as a constant reminder on how we should treat each other, including the rules and regulations governing the relations between the Government and the body politic. Thus any omission is unthinkable, not to mention unnecessary. 

Also, the references to “the institutions of the Centre and of the Provinces” in the new formulation in reality concern aspects pertaining to the administrative apparatuses of the State, and should therefore not be construed as constituting the nature of the State and thereby conflated with such. It is a formulation that should appropriately be brought within the domain of the Article that deals with the ‘territory’ and not one that deals with the ‘nature of the State’. 

Furthermore, the case of ‘unitary’ being changed to ‘undivided and indivisible’ is a wholly unwarranted aberration, which also beggars the question as to whether the aforementioned Six have an ulterior agenda albeit even insidiously sinister motive beyond their perceived clever adjective riddled phraseology or word play. Despite the caveat against separatism or secession in Article 4 as proposed in the new formulation, it is no small wonder that the grim spectre of a federalism bordering on separatism as pointed out by other critics, looms, writ large in this particular word manifestation. The aforementioned caveat in this precarious context is tantamount to a case of volunteering innocence when the question of guilt was not raised. 

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