Proposal For New Constitution: Progressive Forum’s Submission

March 1, 2016

The Progressive Forum has submitted the following proposal to the Committee on Constitutional Reforms:

This submission is with special reference to the problems faced by the minorities under the present Constitution.

General Submissions

1) We support the formulation of a new or revised Constitution that abolishes the Executive Presidency at a specified date in the future, restores a Westminster form of Parliamentary Governance, and provides for genuine and substantial devolution of powers to the Provinces inhabited by the minority communities, as well as to all other Provinces.

2) We can seek guidance from the Indian and other constitutions when drafting a revised constitution for Sri Lanka. The population sizes involved is not very relevant to the principles guiding a draft constitution. For example large countries like USA or India have devolved powers under a fully federal or quasi -federal constitution to regional communities. Switzerland with a population of about 8 millions has also devolved powers to 26 Cantons under a federal constitution.

3) Racial relations in a country like Sri Lanka with  provincial per capita income varying from USD 2500 to USD 6000 may be fragile in many aspects,  In such a situation, it is administratively convenient to adopt units of devolution based on a combination of. Territorial and or ethnic considerations. This is unavoidable in Sri Lanka’s present context when we are recovering from the negative impact of a 30 year armed ethnic conflict.

4) The politically contentious use of the words federal or unitary to describe our Constitution may be avoided. The intentions of the makers of the Constitution can be made clear by use of ordinary words instead. This practice will allow the national Supreme Court to interpret the provisions of the Constitution in an unambiguous manner that serves the best interests of the majority and minority communities as social political and economic transformations in the country face inevitable challenges in the future.

5) We could follow the excellent example set by those who framed the Indian Constitution which avoids the use of words unitary and federal. When India Gandhi dismissed the Karnataka State Government without due cause, the Chief Minister’ appeal to the Supreme Court was taken, and after an year of judicial inquiry , the court reinstated the State Government on the grounds that the hybrid Constitution of India was federal to the extent that powers devolved cannot be arbitrarily taken back by the Centre( S.R.Bommai v. Union of India, Supreme Court of India, 1993) .
6) A further refinement that we may or may not adopt is multiple levels of devolution. In India, Jammu and Kashmir is the most devolved with a Prime Minister, not a Chief Minister. There are also semi-autonomous territories that are mostly tribal, without the status of a State. Yet another refinement that we may or may not adopt is discontinuous territories like Goa (Portuguese territories) and Pondicherry (former French territories) these refinements may have some advantages especially for Muslims in this country but also some disadvantages. There are also a large number of tribal reservations under both the Indian and the federal constitution of the USA.    Read More