A lesson in how not to draft a constitution

New draft constitution - Part 8

By C. A. Chandraprema-August 26, 2018, 10:23 pm 

(Continued from last Monday)

We traced the contours of the government’s new draft constitution in seven parts over the past several weeks. What becomes obvious, at first sight, with regard to the present government’s attempts at constitution making, is that it has been trying to do too much at the same time. It has sought to abolish the executive presidency, change the system of elections, create a federal state out of a unitary state by giving the provinces more powers and whittling down the powers of the centre, devolve police and land powers, completely change the structure of the judiciary and place the provinces and the centre on an equal footing with regard to public finance. Even J. R.Jayewardene with a five-sixth majority in Parliament would not have attempted as radical change as that. The only new feature that Jayewardene introduced was the executive presidency which was a very radical change, no doubt, but that was done while retaining elements of the old parliamentary system of governance as well. Even the introduction of the presidential form of government was done piecemeal with the institution being introduced as an amendment to the 1972 Constitution before it was incorporated in the 1978 Constitution.

But what we have now in the present constitution making process is an attempt to erase Sri Lanka as we know it and to design it anew, which is overambitious. If this government had concentrated on the two main political pledges they gave the public at the 2015 presidential election––abolishing the executive presidency and reforming the electoral system––during its election campaign, it would have made a lot of political capital, which may have facilitated further reform.

During the early years of this government, to have captured power by hoodwinking the public and then reneging on their main promise, may have seemed a mighty clever thing. But by such subterfuge this government frittered away its political capital and that has affected the constitutional reform process as well.

While the constitution making process was hampered by yahapalana perfidy from the beginning, another factor which is hampering the process is the scarcely disguised bias in the whole exercise towards the northern Tamil lobby. For example, even this latest draft of the constitutional proposals, incorporates one of the prime demands of the that lobby––a provision for the merging of the Northern and Eastern provinces after holding referendums in the relevant provinces. This despite the stiff resistance that this proposal has encountered from the Muslim and Sinhala population in the North and East for the past thirty or more years. We see in the drafters of this new constitution have gone out of their way to uphold the articles of faith of the Northern Tamil lobby, which is not going to endear the process to the other communities in this country. Witness the manner in which Section 190 the draft constitution has brought in an unelaborated provision whereby two or more provincial councils may ‘cooperate’ with one another in ‘implementing their executive functions’. Though it has not been explained how exactly this ‘cooperation in implementing executive functions’ is to take place in practice, this can be recognized as a hardly disguised attempt to provide a way for the merger of the North and East through the back door if the referendum goes against the formal merger of the provinces.

Indeed, one could say that other than the provisions to abolish the executive presidency and to reform the system of elections, all other provisions are aimed at placating just the Northern Tamil lobby. There is the change, proposed in the public security laws, making it near impossible to continue a state of emergency beyond three months or a period of 90 days within a period of 180 days unless Parliament votes in favour of it with a two-thirds majority. This combined with other provisions in the draft constitution which envisages the creation of provincial, ethnicity-based police forces bearing weapons of their choice, would give an indication of where things are heading. On top of all these is the provision which makes even a declaration of emergency subject to judicial review which would make it almost impossible for a government to handle any kind of disturbance in the country.

One cannot but observe that there is an element of revenge taking inherent in this whole process of drafting a new constitution. On the one hand this government which was elected to power through a majority provided by the North and East, has been imprisoning members of the armed forces on flimsy pretexts. Then through the constitution making process we see an attempt to dismantle the entire legal framework which enabled the armed forces to defeat the separatist terrorist group in the North.

Most people would naturally come to the conclusion that these processes are interlinked. As we pointed out in our previous article, the proposed draft constitution seeks to make the provincial Council the key arbiter in the use and disposal of state owned land while, at the same time, creating a parity between the central government and the provinces when it comes to public finance. What we have in the form of this draft constitution is a complete change in Sri Lanka’s status as a nation state.

Even the colonial powers never tried to make as radical a change of this nature, in the structure of the state and the manner Sri Lanka was governed. Such unrealistic and impractical ambitions are the result of the gung-ho attitude that prevailed within the yahapalana camp after the unexpected victory at the 2015 presidential elections. The victorious coalition divided up the government and the opposition among themselves with the SLFP and the UNP taking over the government and the TNA and the JVP taking over the opposition. Both sides working together stuffed the 10 member Constitutional Council with their supporters and these cronies in turn filled all high positions and independent commissions with yahapalana supporters. The present government has committed outrages against democracy, hitherto unseen in this country, and are probably unprecedented in the democratic world. The proposed draft constitution is a product of this mindset – that they can do just about anything and get away with it.

A Constitutional Assembly has been constituted but there is no transparency in the process that has been going on. There is an attempt by a cabal within the constitution making process to nudge things in the direction it desires. Secret drafts are being circulated among a limited group while the wider public is kept in the dark. What we have seen here is a prime example of how NOT to make a constitution.

(Concluded)