Good governance is the talk of the town today. Within the framework of the 100-day programme, legislation is being prepared speedily, with attempts to obtain the approval of Parliament to enact laws such as the National Medicinal Drugs Regulatory Policy and the Right to Information Act, aiming at the establishment of good governance.
The socio-political discourse brought forward by independent intelligensia and civil activists over a long period of time has injected the stimulation needed for the present government to direct its course towards good governance, involving a reform process that includes relevant social dialogue.
This discourse included a number of positive initiatives such as the formulation of a constitution that transfers power to Parliament by abolishing the Executive Presidency, as well as enactment of the official languages policy.
However, people are in the dark about the actual contents of the Act. Legislative draftsmen have not sought the views of citizens- the actual recipients/users of medicinal drugs.
For the first time in the history of the country along with the emergence of a new government, a social dialogue on good governance has emerged, instead of a government based on promises. If this notion gets translated into real action it certainly will mark a turning point in the politics of Sri Lanka. However, some matters are currently proceeding in a manner where people may lose faith in what they believed would dawn and it is important for civil activists, independent thinkers and citizens themselves to take action to put things straight without delay. This is because people’s participation is a mandatory component in the process of constitution formulation and drafting various laws as well as enacting them, as they are meant for people. Further, such a process should take place in a highly transparent manner. The National Medicinal Drugs Regulatory Policy Bill which had been subject to much controversy has now received the Cabinet nod, as we all know. However, people are in the dark about the actual contents of the Act. Legislative draftsmen have not sought the views of citizens- the actual recipients/users of medicinal drugs.
What is more worrying is that this Act has been compiled entirely in the English language akin to a top secret, keeping it away from the majority Sinhala and Tamil-speaking public, although they have a right to know what it contains and its implications.
It has to be pointed out here that article 23 (1) of the Constitution of the country ensures this right of the people:
23. (1) All laws and subordinate legislation shall be enacted or made and published in Sinhala and Tamil, together with a translation thereof in English.
Accordingly Acts should be made in both Sinhala and Tamil, an English translation being a secondary step.
In drafting the National Medicinal Drugs Bill the Government has therefore, violated the Constitution. It has been a practice for the Government to translate an Act into Tamil or Sinhala just a day or two before its presentation in Parliament, leaving no space for discussion among people or media, although admittedly the English language media does discuss it to some extent. It is now clear that the Right to Information Act too has been drafted that way. We now hear that this piece of legislation made without the participation of intellectuals, media personnel and citizens whose views nourished the law, is being discussed by a certain panel of persons. However, due process has not been followed in this regard.
Provincial Councils make their statutes and local government bodies make their by-laws in Sinhala and Tamil. In implementing them there are often impediments from the Attorney General’s Department as they are not translated into English. Even though the compilation of laws in the Provincial Councils and Local Government institutions meets with the constitutional requirement of compiling them in Sinhala and Tamil, the people in those areas are in the dark about their contents as they are not consulted in the compilation process. If there is some level of public consultation in the process of compiling statutes and by laws, it will appease public anger about this, to some extent.
What is more worrying is that this Act has been compiled entirely in the English language akin to a top secret, keeping it away from the majority Sinhala and Tamil-speaking public, although they have a right to know what it contains and its implications
The Draft Constitution of 2000 during the tenure of President Chandrika Kumaratunga incorporated a considerable level of public participation in it and can be cited as an instance which provided for wider social dialogue. Movements such as Thawalam, Pothai Gadolai and Sudu Nelum movement gave the process wide propaganda though it did not go through the passage in Parliament. However we do not see the current process of constitutional compilation taking place on a broader spectrum.
The Elections Commission, Human Rights Commission, Police Commission, Public Services Commission and the Bribery and Corruption Commission, promised by this government to be implemented within the 100-day programme should be subjected to sufficient public discourse. There was no public discussion about the defects of these institutions when the 17th Amendment was passed. This social discourse does not happen unless the media gives it sufficient publicity.
Formulating a constitution is a complicated process as it should reflect the views and aspirations, as well as the safety of people of all races and religions.
In the ormulation of a new constitution the licence for the President to “seek the views of” the Supreme Court should be definitely revoked.
Article 129(1) of the constitution reads thus.
129. (1) If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.
The powers vested in the Supreme Court by Article 129 (4) make this process even more draconian.
(4) Every proceeding under paragraph (1) of this Article shall be held in private unless the Court for special reasons otherwise directs.
Even the National Medicinal Drugs Regulatory Authority Bill under the present Government has been referred to the Supreme Court by the President in private and the Supreme Court has in turn informed the President and the Speaker that it is consistent with the Constitution. This government which came into power on the lofty promise of good governance has planned to present this Bill in Parliament on March 4, without Sinhala and Tamil translations.
Let’s think for a moment whether this is all for public good. Can a government which promised good governance act in this manner?
If this Bill had been referred to the Supreme Court in terms of Article 121 of the Constitution, interested individuals would have had the opportunity of making their submissions in this regard in the Supreme Court. However, there is no such room for that in regard to this Bill. So what is more frightening now is that those very individuals who fostered the view that the powers of the Executive Presidency should be curtailed, are in the process of espousing them.
This writer has filed a petition in the Supreme Court regarding a hundred and sixty Acts which directly involve citizens but have not yet been translated into Sinhala and Tamil. We propose that laws relating to issuing open verdicts by the Supreme Court as well as laws pertaining to public discourse should be made in the compilation of a new Constitution.
We have had a number of negative experiences with regard to the mysterious nature of the so-called process of the Executive President seeking the view of the Supreme Court.
It is also ironic to seek the views of the Supreme Court, the judges of which are politically appointed individuals. The President, on the pretext of seeking the view of the Supreme Court can get the Court to give the verdict of the President’s choice.
Therefore a new constitution should do away with such provisions. The independence of the Judiciary can only be restored by clipping the wings of the Executive President.
The process of drafting laws and enacting them as well as formulating constitutions should be done with the participation of the citizens; any other way is detrimental to the country.
Therefore it is important to pay prompt attention to this and to ensure transparent policy too. A reform process limited to lawyers and so called pundits will not meet the aspirations of the people.
Centre for Policy Alternatives