Constitution-making should be Open, Public and Transparent: A response

The recent public statement by an erudite group of learned persons appearing in the press was so topical and forthright that it nudged the writer as a sovereign voter and a senior citizen to pen the following procedure to ensure transparency in ‘Electoral Reforms’ under the new Constitution with a short preamble.

Preamble
It is public knowledge that a Presidential committee of legal experts was appointed to submit a draft report on the proposed New Constitution. Thereafter, a Parliamentary Select Committee (PSC) of 14 MPs was appointed this year, to identify appropriate reforms for Sri Lanka’s election laws and electoral system. Both Committees invited proposals from the public too. However, our past experience over the years has shown that such Committees with a few members are not geared to handle a large number of public responses effectively.

Be that as it may, let us look at the procedure for the passage of the proposed New Constitution outlined by Nihal Seneviratne - Former Secretary General of Parliament as follows:

“These eminent lawyers would sift through the representations and memorandums received and prepare a draft report which is expected to be submitted to the President. The President is expected to submit the report and draft to the Speaker and the Speaker would submit this report and thereafter appoint a Select Committee comprising members from both the Government and the Opposition. The Select Committee following the usual established procedure would invite representations from the public and would study all these memorandums and submit the report back to Parliament with their recommendation. It would deliberate at length, studying all the representation made and submit its final report to Parliament.”

The process will continue as usual with  a  2/3rd Parliamentary majority followed by the final ‘Eye wash’ of a ‘Referendum’ where the innocent and simple voters will be  asked to say ‘Yes’ or  ‘No’ to a question framed according to the whims and fancies again of the Politicians

The phrase ‘usual established procedure’ to invite public representations connotes that it is a mere ritual cum ‘Eye wash’. Conversely, the Politicians acting in collusion as ‘Agents/Representatives’ of the sovereign voters will also as usual usurp the powers of the ‘Principals’, and  bulldoze their way through the ‘Parliamentary Select Committee’ to change the ‘Draft Report’ to protect their privileges and vested interests especially in relation to ‘Electoral Reforms’. The process will continue as usual with a  2/3rd Parliamentary majority followed by the final ‘Eye wash’ of a ‘Referendum’ where the innocent and simple voters will be  asked to say ‘Yes’ or  ‘No’ to a question framed according to the whims and fancies again of the Politicians!

Thus, the sovereign voters who as ‘Principals’ elect politicians as their ‘Agents’, have completely lost their supremacy of ‘Principal over Agent’ mainly due to highly disproportionate hype, publicity and attention given to empty utterances and false promises of politicians by some Media, ignoring valid suggestions and proposals from the sovereign voters in regard to several areas affecting Country/Public interest. Adding insult to injury, even some civil organizations dedicated to protect the rights of sovereign voters as well as some officials and ad hoc review- Committees guiding the politicians have failed to develop a simple, rational, transparent and a cost-effective Electoral system that suits the simple, genuine voters of this small country for the last 73 years! It is due to the absence of a robust and transparent procedure to consult the people at least through the mass media before legalizing such systems.

In this backdrop, the writer wishes to propose a rational and transparent method to deal with the proposed New Constitution using its relevant chapter- ‘Franchise and Electoral Reforms’ as an example.

A transparent method to ensure sovereign voter participation in ‘Electoral Reforms’  
1) As has already been proposed, the President on the advice of the Independent National Elections Commission (NEC) shall set up a ‘Permanent Civilian Task force for ‘Electoral Reforms’ comprising, NEC recommended eminent retired Judges and the Academia possessing the requisite expert knowledge together with, ‘Sovereign voter dedicated’ Organizations (like ‘PAFFREL’, CaFFe, CMEV) and other concerned civil rights Organizations and activists with practical knowledge as its members. Since matters such as Eligibility criteria, Selection, nomination procedure and allocation of seats for MPs are some of the crucial aspects in Electoral Reforms, they would fundamentally be barred from membership in this Task force owing to the obvious ‘Conflict of interest’ and the operation of ‘The Law of Agency’ as aforesaid. Besides, the majority of them lack a thorough knowledge in Constitution making. The sad plight of the previous Parliament sitting as a ‘Constitution Assembly’ for four and-a-half years with no result bears ample testimony to this fact.

2) The Task force shall study the relevant section of the ‘Draft Report’ submitted by the President and prepare its own Draft on ‘Electoral reforms’ for submission to NEC.

3)The NEC in turn will whet the Draft and in keeping with the principles of ‘People based Governance’, place its own Draft before the people through the mass media for their final comments and clearance within a specified time frame.

4) Thereafter, the NEC will consider the proposals and comments from the public and prepare the final draft and submit same to the Supreme Courts for clearance.

5)The same final Draft together with Comments/recommendations of the Supreme Courts shall be sent to Legal Draftsman for preparation of the relevant section in the new Constitution.

6) Considering the potential for so called ‘slips’ occurring between the ‘Cup and the lip’, at different levels, such Final Draft of the section prepared by the Legal Draftsman as per the above should be placed before the people through the mass media for their final comments, if any, within a specific time frame.

7) Thereafter, the Final document should be placed before the Parliament through the Cabinet solely for formal approval and thereafter, if necessary, go for a ‘Referendum’ on the recommendation of Supreme Courts.

Further Recommendations towards New Constitution
The writer further recommends that the above transparent procedure be followed in respect of all other relevant sections of the New Constitution within specified time frames to ensure facilitation of ‘People-based Governance’ through a Constitution of their own making.

As a result of this transparent exercise, the people and the politicians themselves will become more conscious and aware of the basic law of the country too.