Resolution for the appointment of Constitutional Assembly

By Neville Ladduwahetty-January 24, 2019, 12:00 pm 

On March 9th, 2016, the Parliament of Sri Lanka resolved that:

"There shall be a Committee of Parliament referred to as the Constitutional Assembly which shall consist of all Members of Parliament, for the purpose of deliberating and seeking voices and the advice of the People on a new Constitution for Sri Lanka, and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of its powers under Article 75 of the Constitution".

The present version of the Resolution, having followed several revisions and amendments to the above, reads as follows:

"Parliament resolved to set up a Committee of the whole Parliament for the purpose of preparing a draft of a Constitution Bill for the consideration of Parliament under provisions of Article 75 of the Constitution."

Paragraph 5 (a) of the March 2016 resolution states:

"A Steering Committee consisting of the Prime Minister (Chairman), Leader of the House of Parliament, Leader of the Opposition, the Minister of Justice and not more than seventeen (17) Members of the Constitutional Assembly to be appointed by the Constitutional Assembly".

The present version of the Resolution, in referring to the Steering Committee, is as follows:

"A Steering Committee consisting of twenty-one Members of Parliament appointed by the Constitutional Assembly …one of whom shall be the Chairman…shall be responsible for the business of the Constitution Assembly and for preparing a Draft of a Constitution for Sri Lanka".

The Constitutional Assembly also appointed six Sub-Committees each with not more than eleven Members of Parliament including the Chairman as supporting bodies to the Steering Committee in May 2016.

The fields covered by the six Sub-Committees are: Fundamental Rights; The Judiciary; Law and Order; Public Finance; Public Service; Center Periphery Relations.

The Sub-Committees were mandated to develop constitutional principles for consideration of the Steering Committee in respect of the designated subject areas. Special regard was to be given by the Sub-Committees to the views of the public received through the Public Representative Committee.

Paragraph 7 of the March 2016 Resolution, in appointing the Constitutional Assembly stated:

"The Prime Minister shall at the first meeting of the Constitutional Assembly present a Resolution for adopting by the Constitutional Assembly calling upon the Steering Committee to present a Resolution proposing a Draft Constitution for the consideration of the Constitution Assembly, prior to the submission to the Cabinet of Ministers and Parliament".

Paragraph 9 stated: "The Steering Committee may seek the services of any institution which services are necessary for carrying out the objects of the Constitutional Assembly or any Committee thereof".

Paragraph 10 stated: "The Steering Committee may appoint other experts to aid and advise the Constitutional Assembly and/or its various Sub-Committees".

Paragraph 17 stated: "Upon the consideration of the Reports of the Sub-Committees…and the report of the Public Representative Committee, the Steering Committee shall submit a Report to the Constitutional Assembly. Such Report may be accompanied by a Draft Constitution".

The wording in the commitment undertaken above is nearly identical to the wording in Paragraph 16 of the revised version of the Resolution.

However, the March 2016 Resolution contained thirty-four (34) paragraphs, while. the revised version has twenty-three (23) paragraphs. Furthermore, the list of ex-officio members listed in the Mach Resolution have been deleted and paragraph 13 of the revised version states: "Unless suspended by Parliament, the Standing Orders of Parliament shall apply …subject to the provisions of this resolution". All of the above indicates the extent to which the March 2016 Resolution has been revised.

REPORT of the STEERING COMMITTEE

Despite the obligation of the Steering Committee to submit a Report and a Draft Constitution to Parliament for debate as required by the March 2016 Resolution as well as the revised version of the Resolution, the Chairman of the Steering Committee tabled some Sub-Committee Reports and a Report by the "Panel of Experts" containing 400 paragraphs with a proviso on every page that states "DRAFT FOR DISCUSSION ONLY". The cover page of the Report by the Panel of Experts further states:

"A report prepared by the Panel of Experts for the Steering Committee is based on the interim Report, six Sub-Committee Reports, the Report of the ad hoc Sub-Committee set up by the Steering Committee to look into the relationship between the Parliament and the Provincial Councils. The Chapters on Fundamental Rights and Freedoms, Language Rights and Directive Principles of State Policy contained in the report are those proposed by the Sub-Committee on Fundamental Rights. Chapter on Citizenship is reproduced from the present Constitution".

THE STEERING COMMITTEE and its OPERATIONS

As required by the March 2016 Resolution, the Steering Committee is made up of the Prime Minister (Chairman), Leader of the House of Parliament, Leader of the Opposition, the Minister of Justice and not more than seventeen (17) Members of the Constitutional Assembly appointed by the Constitutional Assembly. Apart from the four ex-officio members the remaining seventeen members were made up of two each from the Joint Opposition (JO), the Tamil National Alliance (TNA and Jathika Vimukthi Peramuna (JVP) with the balance eleven being made up of Members of the "National Government" that functioned as the official government until October 26, 2018.

With time, the ex-officio members continued to be part of the Steering Committee, albeit not in their official capacity but as members of the Steering Committee with an elected Chairman.

The ten-member Expert Panel consists of one member each nominated by the JO, TNA and the JVP and other seven by the "National Government", which functioned until October 26, 2018.

In view of the fact that the "National Government" is now defunct and furthermore that the Opposition which was represented by the TNA is now replaced by the UPFA as the official Opposition, it must necessarily follow that the representation and the composition of the Steering Committee, the Sub-Committees and the Expert Panel has to change in a manner that is representative of the current formation in Parliament. Under these altered circumstances, the weighted representation in the Steering Committee and in the Panel of Experts, which existed has to be revised to represent the current formation in Parliament. This means that debating recommendations proposed or alternatives offered in respect of the relationship between the Parliament and the Provincial Councils in particular, in the report of the Panel of Experts, would not have any relevance since under current formations in Parliament the representation in the Steering Committee, the Sub-Committees and in the Expert panel would be more evenly balanced, thereby making the recommendations vastly different. This means that if the operations of the Constitutional Assembly are to have any legitimacy, current operations need to cease and the entire process has to be restarted with fresh formations and representations in the Steering Committee, the Sub-Committees and the Panel of Experts.

CONCLUSION

The process of transforming a Committee of the whole Parliament into a Constitutional Assembly was initiated for the express purpose of preparing a draft of a Constitutional Bill for the consideration of Parliament. Whether a fresh Constitution is needed or not is not the issue at this point in time. Instead, the issue is that the process was started during the formation of a "National Government". It was such a government that created a Steering Committee with six Sub-Committees and a Panel of Experts to guide and advise the Constitution making process. Consequently, the representation of the government in the Steering Committee, the Sub-Committees and in the Expert Panel was heavily skewed in favour of the government of the time. That "National government" ceased to exist on October 26, 2018. As a consequence, all the work undertaken by the Steering Committee, the six Sub-Committees and the Panel of Experts has no relevance in the context of the current "Minority government" in Parliament. Therefore, all efforts expended thus far should be abandoned and a fresh start initiated if the constitution making process is to go forward, starting with a re-formed Steering Committee together with any others to assist. Considering that there is only one year left for this, it would be foolhardy for the government to engage in such an exercise.

The "National Government" that initiated the constitution making process in March 2016, has been since October 26, 2018, replaced with a minority government that survives with the support of the TNA which at that time, i.e., 2016, was the recognized Opposition. Considering that previous attempts to introduce constitutions were undertaken by governments which secured either two-thirds or five-sixths majorities, for a minority government to even consider such an exercise is clearly morally indefensible and constitutionally wrong, without having had a mandate from the People.