Opinion

Forming the New Constitution

13 Oct 2015 - {{hitsCtrl.values.hits}}

The Constitution of the Democratic Socialist Republic of Sri Lanka has been the constitution of our country since its original promulgation in 1978. It is Sri Lanka’s second republican constitution and its third since the country’s independence in 1948.

The first constitution that provided a parliamentary form to Sri Lanka was the Soulbury Constitution in 1947. It introduced a bicameral legislature (Two-house Parliament) which was headed by the Governor General. While minority rights were safeguarded constitutionally, a Judicial Service Commission and Public Service Commission were established.

The first republican constitution was drafted during the office of Prime Minister Sirimavo Bandaranaike. This constitution provided for a unicameral legislature called the National State Assembly (NSA) and the sovereignty was entirely vested in it. A nominal president was named as head of state, where the prime minister was head of the government and the Cabinet of Ministers.

The existing constitution of Sri Lanka provided a unicameral legislature and an executive president. The constitution provided for an independent judiciary and guaranteed fundamental rights, providing for any aggrieved person to invoke the Supreme Court for any violation of his or her fundamental rights. It consists of 196 members (subsequently increased to 225 by the 14th Amendment to the constitution).

As of April 2015 it has been formally amended 19 times out of which the 13th, 17th 18th and 19th Amendments brought about significant change to the country’s political system.

The 13th Amendment decentralised the power of the central government by creating provincial councils. It also made Sinhala and Tamil the official languages of the country and English as the link language.

The 17th Amendment, passed in 2001, was meant to ensure more transparency with the creation of a constitutional council and independent commissions.
The 18th Amendment removed the sentence that mentioned the limit of the re-election of the president and to propose the appointment of a parliamentary council that decides the appointment of independent posts like commissioners of election, human rights, and Supreme Court judges

The constitution was amended a 19th time where the 18th Amendment was annulled while replacing the outdated 17th Amendment to establish the independent commissions. Executive presidential powers were removed and the term of office for the president was limited to five years while the president continues to function as the head of state and head of security forces.

On June 16, a gazette notification was published for the 20th Amendment, however, Parliament was divided over passing the Bill and an adjournment debate was also objected by the Opposition.

Although the constitution may have progressed over the years, the need for an entirely fresh constitution setting aside all complications and drawbacks has been a key reformation discussed in the country.

The UNP and the SLFP signed a memorandum of understanding on the 21st of August 2015 where it was agreed to establish commissions in accordance to the 19th Amendment to the constitution and also compile a new constitution to strengthen democracy and human rights in the country.

The prime minister in an interview with The Hindu has expressed the need of a mixed proportional system to bridge the gap between the two main parties, and to increase the share of the smaller parties.

The TNA has demanded that the country framed a new constitution which will give a solution to the “Tamil problem”.

Although former President Mahinda Rajapaksa pledged to enact a new constitution by converting Parliament to a constituent assembly, if he was re-elected to power, the opportunity for his promise is now lost.

So, what exactly should be included in the new constitution in order to overcome the drawbacks of the existing one? We decided to speak to a few veterans in the political arena inquiring from them of what they feel should be the content of the constitution.

Powers of the executive should be compacted more- Wijayadasa Rajapakshe- Minister of Justice

Mr. Wijayadasa Rajapakshe , the Minister of Justice, explaining what the basic purpose of the constitution is related to its function of safeguarding the legitimacy of a country.

“It ensures the sovereignty of the people. Certain powers are asserted to the executive, legislature and judiciary through a constitution. However, a balance should be drawn among these three branches. I abide by the general criticism that excessive power is bestowed upon the president. Although it has been reduced to a certain extent by the 19th Amendment, it should be compacted more.”

Having been asked about the independent commissions meant to be re-established through the 19th Amendment, Mr. Wijayadasa Rajapakshe assured that they have already been established and was a matter of implementing, which will be done in the near future. He also told that an independent budgetary office will be set up in order to guarantee financial transparency.

A new electoral system was also an issue raised by the minister which he confirmed would be a mixed proportional system that would accommodate smaller parties.

About the participation of the minority parties in the formation of the new constitution, Mr. Rajapakshe said that it is an obligation to do so, as they do not want to risk an insurgency of any minority similar to what happened in the past.

He also said that fresh links with the civil society will be made in order to gather opinions of the public to draft the constitution.

Judiciary should be cleaned from politics; Shibly Aziz, PC-

President’s Counsel Mohamed Shibly Aziz, a member of the recently formed Constitutional Council and an eminent lawyer who has served as the Attorney General, the head of the Official Bar and also as the president of the Bar Association of Sri Lanka (BASL)-- head of the unofficial bar expressed his concern with the legal system. He suggested that severa

l amendments should be considered when drafting a new constitution to improve the delivery of justice in our court system. Broadly speaking of the subject, he said that the system of appointing judges, especially to higher courts should be improved and the present obstacles which impede, delay or otherwise stand in the way of efficacious resolution of cases which have piled up should be removed.

“I would also suggest that the judiciary, in view of its important role, should be identified as a special branch which requires further protection. The existing constitutional provisions should be further enhanced by considering the need or the advisability of having a high ranking committee drawn from the judicial and legal fraternity (wholly or largely) to be given the task of recommending the nomination of judges of the superior courts with very limited discretion given to the appointing authority to reject such nomination. This will achieve the necessary transparency and make the judges perform their role in a manner which will command that they perform their role in a manner acceptable, not only to politicians but those others before whom they perform their functions. One important aspect is for the need or the advisability of placing a bar (with or without needed exceptions) on retired judicial officers holding public places of profit after retirement, at least for a period of two to three years after they relinquish their role as judicial officers so as to prevent them from serving, by coercion otherwise, the interests of the political matters then in power.”

In addition, Mr. Aziz suggested removing the power to make ‘a just and equitable relief’ in respect of a fundamental rights application, which in his experience occasionally has pushed the judges into the political field. “If the FR jurisdiction is to remain in the Supreme Court we should insert a right of Appeal or revision from any order made by the Supreme Court on a fundamental rights petition to a divisional bench of the Supreme Court. The better course of action would be to confer the fundamental jurisdiction to the Court of Appeal and permit a quick appeal to the Supreme Court on an important question of law by which the Supreme Court can set out the law regarding these rights in a general manner, as done in the United States and other jurisdictions. Another amendment which should be considered is making available settlement by mediation he may at any stage of the action. This will alleviate the tremendous delays which are now seen in our court.”

Democracy pluralism must be safeguarded; D. Sidthadthan- TNA Parliamentarian

Mr. D. Sidthadthan, the PLOTE head and TNA parliamentarian for the Jaffna District said that the unitary nature of the constitution should be done away with. Although he would prefer a federal constitution, knowing the impossibility of passing such a proposal, Mr. Sidthadthan said that he would prefer a meaningful devolution of power, so that the North and North East provinces would be able to look after their assets and manage their activities without interference from the central government. He then notified tha

t he referred to assets like education, health and development and not issues like defence, finance etc.
Having being questioned about the electoral reformation which has been promised by the prime minister to be amended in the new constitution, Mr. Sidthadthan said that any proposed electoral reform must guarantee fair representation of minorities.

As a whole, Mr. D. Sidthadthan that democracy and pluralism must be safeguarded by the new constitution. “I do not mean that the presidential system should be removed, but the strength of the Parliament should be improved.” He also said that the human rights chapter has not at all been useful in protecting the citizens of the country, and therefore, measures should be brought in to improve it.

Children’s rights, women’s rights, the economic and cultural rights as enforceable rights should be included; Dr. Jayampathi Wickramaratne, PC

President’s Counsel Dr. Jayampathi Wickramaratne said the new constitution must be able to address the present challenges and rights of the citizens.
“In my view it should not be merely a new constitution, it must be a new and modern constitution, which meets up to the challenges of present. It should also take in to the consideration developments in the democratic world such as democratic issues, issues relating to economy, rights of citizens etc,” he said.
When Daily Mirror inquired about his opi

nion on provincial councils which was introduced by the 13th Amendment, on the claim by many critics that they are white elephants, Dr. Wickramaratne said that provincial councils are not white elephants.

“Provincial councils are not white elephants and I have written widely on this subject. It is easy to say that they are white elephants but none of the people who say so have studied about them. There are two are three very good reports on the experiences of the provincial councils. These studies show that it is the central government that wants to make the PCs white elephants,” he said.

He further said that the constitution needs include children’s rights, women rights and also it is important to pay attention to other constitutions which include these.

“The present constitution has only civil and political rights. And they are also restricted. In most modern constitutions including the developing countries have expand the scope of civil and political rights and also include children’s rights, women’s rights, the economic and cultural rights as enforceable rights. You find them in the South African constitution, very significantly in one of the least developing countries which is a comparative new state- east Timor. The provisions of all human rights treaties that East Timor has signed up to have being made part of the domestic law. I think it is the strongest Bill of Rights in our part of the world. We need to study them,” he said.

Opinion

Forming the New Constitution

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