6 December, 2021

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Beware: The Third Readymade Constitution Is Coming Soon

By Basil Fernando

Basil Fernando

Professor G.L. Peiris has announced that the drafting process of the Constitution is over and that now, the text is ready. He further said that it is expected that in January next year, it would be presented to the Parliament. President Gotabaya Rajpaksa also, in a televised speech, referred to the Constitution being made within the course of next year.

This should be alarming news for all citizens who are concerned about their own lives and their Constitutional rights. Under the Constitution of Sri Lanka, the people are sovereign. It is the sovereign people who have the right to give themselves the Constitution. The process as envisaged by Professor G.L. Peiris and this Government completely violates the best principles of making the Constitution and also violates the notion of the sovereignty of the people.

The consequences of the proposed process is that it would have a disastrous effect on the Sri Lankan State, all of Sri Lanka’s public institutions including the public financial institutions and the entire fabric of the society in the future. This Constitution that is envisaged will not only bind the present generation but it would have an enormously adverse impact on the future generations.

The people need to intervene to stop this proposed process and insist on their rights as citizens to participate in this process and in order to bring into the Constitution the matters that they think are of vital importance to their nation as well as to each of the members of that nation who has everything at stake in the manner in which the Constitution provides for their protection and functioning in the future.

Constitutions are not made for the enslavement of the people and to trap them under various kinds of designs and formulas, by which, things that are harmful to the nation and to the people could be achieved. The struggle against the proposed process should be a struggle to prevent a serious future harm, a serious harm to the nation.

Constitutions are not made as some kind of abstract document that could be designed by Constitutional pundits. There are a few people who have designs of their own for how to exploit the national resources for their own benefits and not for the benefit of the nation. Constitutions are made to address the most pressing problems of the times in which such Constitutions are made so that a legal framework would be developed within which the future relationship within the nation could take place for the benefit of everyone within the nation. For this reason, everyone has a right to their say in the making of their Constitutions.

By now, twice, people have been cheated in the process of the making of the Constitution of Sri Lanka. First was in 1972 when a Constitution was promulgated which undermined the independence of all public institutions in favour of politicians directly running the basic institutions of the country. That Constitution also started the process of undermining the independence of the Judiciary. The second most disastrous Constitution was the 1978 Constitution which has been condemned by everybody including by the leading politicians who came to power at different times but which became a noose on the neck of the people who wanted to participate in the political and social processes to bring about the well-being of everybody. All the present disasters that are faced by the nation and which are known to everyone can be traced to these two Constitutions.

It was unfortunate that these two Constitutions were passed without strong resistance from the people. Perhaps the people did not yet understand what kind of political, economic and social disasters could be brought about by Constitutional processes which undermine the rights of the people rather than enhancing their rights. The present situation provides an opportunity for interventions in order for people to ensure that what they want is included in the Constitution.

What would the people want to include in the Constitution? In fact, this can be easily identified in terms of the natural disasters that the country is faced with now. It seems that these kinds of disasters could be prevented through proper legal frameworks in the future. Some of these major problems could be mentioned as follows.

Prevent the abuse of national finances

That a proper process of dealing with national finance should be incorporated into the Constitution so that the kind of economic malevolence that now exists will not be repeated in the future. The United States Dollar crisis clearly shows that there were no adequate Constitutional safeguards for the seeking of loans and also about the ways of monitoring such monies obtained through such loans. Regulating such loans received and processed is an essential element for the protection of Sri Lanka as a nation and also particularly of younger generations of Sri Lanka’s future. The provisions that have been made so far in the existing Constitution have proved inadequate to create the necessary facilities and limitations for the proper functioning of national institutions which are dealing with the control of finances in the country.

a) Constitutions should provide a necessary framework for creating a functional corruption control mechanism. The existing laws as well as enforcement means, for the control of corruption, have proved enormously disadvantageous to the nation. Corruption is more rampant than ever before. Mere assurances given by the President or anybody else will not change that situation. There should be a Constitutional means to ensure the development of a functioning system which could bring about the stability that is required to attract investments and also at the same time, safeguard the interests of the nation.

Ensure proper control of international agreements

The Constitution must clearly provide a process to control international agreements that have been made in order to facilitate the possibility of bringing about a healthy environment of foreign investments. These processes of the making of agreements should be transparent to an extent that the people could intervene to prevent the abuse of these processes and also all sorts of obtaining of commissions and other things of an illegal nature in entering into these agreements. Above all, the Constitution must ensure that nothing threatening the sovereignty and the territorial integrity of the nation could be brought about by entering into agreements which will have long term consequences on the sovereignty of the nation.

Ensure the protection of national resources

The protection of Sri Lanka’s national resources and the environment should find a clear provision within the Constitution so that the new laws and the law enforcement systems can be developed to ensure such protection. For example, today, there is a threat to the control of the sea around Sri Lanka. Fisher folks in Sri Lanka are threatened by the intrusion of others who virtually steal the local fishing resources and thereby threaten the livelihood of the fisher folk. Similarly, the environment is threatened throughout the country by the improper allocation of land, purportedly for development purposes but which is creating environmental disasters everywhere including concerning Sri Lanka’s water resources. All these problems which are associated with the protection of Sri Lankan resources and the environment should receive priority on the point of view of the development of an overarching framework of proper regulation on all matters concerned with this.

Protect agriculture and the people’s ownership of land and other resources

One of the most urgent issues that people are faced with is the agricultural environment in Sri Lanka. The authorities including the Government should be prevented from taking ad hoc decisions which bring about untold misery to the lives of the people. Some of these miseries are the breakdown of the agricultural sector which has already led to widespread malnutrition and which could lead to situations of starvation. The problems of the farmers and the improvement of their livelihood and stability within the framework of the law should be the basis of the modernization of agriculture as well as the introduction of new technologies into the agricultural sector. If these things are done without the proper legal protection mechanism, all these things could cause a severe catastrophe which will affect not only the farmers but also the whole nation. Associated in the areas of regulating the agricultural setup is the control of the monopolies that take undue advantage of the agricultural produces. The supreme law of the country should have provisions to provide a proper regulatory system within which competing parties could take part within an acceptable framework where all parties share the benefits of the agricultural products and the sales.

A Constitution must provide an overarching legal framework within which national policies could be developed in order to achieve the overarching goals that the Constitution is created for. Thus, such frameworks should be created into the issues relating to exports and imports and all other matters relating to commerce so that arbitrary exploitation could be prevented. And this cannot be done purely through the existing commercial laws.

Ensure the creation of a functional system of the administration of justice

Above all things, a country requires a functional system of the administration of justice. There is acknowledgement that the existing framework has been purposefully undermined in order to make unprincipled forms of exploitation possible. A country’s criminal justice system is at the lowest ebb now. In a similar way, the country’s prosecution system has suffered severe setbacks and lost the confidence of the people. The judicial role, judicial function and judicial independence have been undermined. These are all matters that have not been dealt with adequately in the Constitution. Therefore, the Constitution making process taking place now should pave the way for these matters.

Ensure media freedom and prevent repression

In terms of media freedom, the situation prevailing in the country at the moment is dangerously inadequate. This situation is a reflection that the existing Constitutional provisions for the protection of the freedom of expression, association or assembly are inadequate. Therefore, the Constitution must deliberately go into addressing the methods by which the wrongs done at previous times could be prevented from recurring. The killing of journalists and having no inquiries into these matters remain and also other forms of punishments to journalists like the breaking of the legs of one of the journalists and many other forms also remain major problems in Sri Lanka, and the Constitution must therefore provide for, if the Constitution is to have any meaning, to prevent these situations.

Hold politicians accountable

Holding politicians accountable is one of the major themes that people are discussing all the time. Thus, if the people have a say in the making of a Constitution, they would want to see that this matter is dealt with properly within the framework of the Constitution. All the possibility of corruption by politicians requires a preventive mechanism and for that, the principles that should be followed must be articulated within a clear framework within the Constitution.

Firmly entrench judicial power and judicial independence

For all these to be of any meaning, the judicial role, the judicial function and judicial independence should be rescued from the severe undermining it has suffered during the operation of the last two Constitutions. Resurrecting of the judicial role, the judicial function and judicial independence is at the core of any kind of legally based society. The Constitution is supposed to create the framework for such a legally based society. Therefore, it should be well within the framework of the Constitution to review the failures of the past and to find ways to correct these matters.

This list is not exhaustive

Many more other aspects can be added to the list in terms of the experiences of others, trade unionists, prisoners, children, disabled persons, women, and the future, particularly of the law enforcement sections of the country.

Prevent the fusion of civilian and military functions

The Constitution must clearly state the civilian character of the State. Any attempt to create a fusion of the civilian and military complex as a State will be the rejection of all the fundamentals on which the Sri Lankan legal system and the Constitutional system has been based on, in the past. It is most likely that the Constitution proposed now is going in the direction of making a fusion between the civilian character of the State and the military character. This would have a disastrous impact on every aspect including international relations and the future of Sri Lanka.

The protection for the Sri Lankans employed overseas through express recognition in the articulating of the principles of protection for the people means that such an overarching framework should provide for the institutional protection of the future of these workers.

Of paramount importance is the manner in which the issues of minorities are dealt with within the framework of the Constitution in such a manner that all people live in harmony as equal citizens, enjoying equal rights and equal protections, while at the same time enjoying the recognition of their differences within the framework of a democratic State. It is not enough to say these things as generalizations but a proper legal framework should be articulated within which one of the major problems facing the country for a long time could lead to a better resolution.

The people need to intervene now to stop the Government from proceeding with the passing of the proposed readymade Constitution. They must demand the right to participate in making a Constitution that they can call their own.

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Latest comments

  • 7
    0

    The two earlier constitutions did not help to bring peace among Sri Lankan communities, did not help to stop corruption or rule of law and independence of judiciary or protect people and their rights. So, far nobody have any knowledge about what will be in the constitution and how it will be passed or implemented.
    People should understand and be aware of the dangers if they make a simple mistakes as they made in the past, the outcome will be much dangerous. They can mislead using some magical emotional terms such as special status to Buddhism or Buddhist Monks or special status to Sinhalese language or special powers to President or Head of the Nation.
    By giving special status to Buddhist Monks means that they are buying you indirectly and making you as an enemy of other religious priests.
    By Giving you a special power, they also getting special power or executive power. In other words they are becoming above the law and above the Buddhism and they are not accountable for any crimes they commit or their allies commit and they shut your mouth.
    People have already made mistakes by allowing an American citizen be a President and American be a Finance Minister. There are 225 members of parliament in our Parliament and most of them can be bought by paying ransom either giving ministerial posts or other financial benefits in order to get what they want in the constitution. So, be cautious. Don’t loose this country!

  • 8
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    This one is going to be “Rajapaksas for life” and no one can do anything about it. The Mafia family is here to stay.

  • 13
    0

    …… The Third Readymade Constitution Is Coming Soon…….
    But see what has come instead and ahead : (Among a plethora of Task Forces and President appointed Committees ):….
    “An extraordinary gazette has been issued to appoint a 13-member Presidential Task Force to study the implementation of the concept “One Country, One Law” and prepare a draft Act.The task force is chaired by Ven. Galagodaaththe Gnanasara. It consists of Prof. Dayananda Banda, Prof. Shanthinandana Wijesinghe, Prof. sumedha Siriwardana, N.G. sujeewa Panditharathna, Iresh Senevirathne, Sanjaya Marambe, Eranda Navarathna, Pani Wewala,, Moulavi Mohamed of Ulama Council in Galle, Lecturer Mohamed Inthikab, Kaleel Rahuman and Azeez Nizardeen.”
    I see a significant non representation of Tamil & Catholic minority groups. Of course both these groups are presently Persona Non Grata.

  • 8
    0

    Ready Made Constitution! Made to measure to fit the Rajapakses.

    Srilanka must be the only country in the World that is ushering in a New Constitution in the midst of the Covid-19 Pandemic.
    As usual the People will be told that this is the only way out to eradicate from our shores this virus., in keeping with the tradition that Srilanka is a Land like no other!

    The Republican Constitution of 1972 was ostensibly on the will of the people as extolled by its Architect Dr.Colvin.R.de Silva. A fraudulent exercise that started the rot.
    The 1978 Constitution was Tailor-Made for JRJ.. We are still under the Jack-Boot of the Executive Presidency that he created.

    Coming colours not good……………….

  • 4
    0

    There is “ONE” more “Ready-Made” Constitution in the waving hands of one time “Presidential” contender – Mr. Nagananda Kodothuwakku. According to him, it has been prepared by “5 Eminent” persons whose names are still are not divulged. He also says that “1 million” copies of it have been printed and distributed among the people. I asked my “Kadamandiya Club” members – Babun Appu Maama, Seelawathie, Siripala, Jothi Aiyah, Ganasekera (unemployed Graduate), and many more whether they have had an opportunity to get a copy of it. I received an “Earful”.

    Judging from the above and presently what to come before Parliament, each and every Presidential candidate will make a presentation of each one’s “Constitution”, (Ready-Made), and once in “Five” years, we will have a “BRAND NEW” Constitution. It will be one more “MIRACLE” of Asia.

    • 3
      0

      Simon,
      .
      You’ve got your feet firmly planted on terra firma!
      .
      We’ve got to activate our various “kada mandiyas”. Hasn’t Gotler yet provided “unemployed Graduates” like Ganasekeara (Gunasekera?) ” rassavas” (jobs)?
      .
      Panini Edirisinhe of Badarawela

      • 7
        0

        Dear SM
        ….”Hasn’t Gotler yet provided “unemployed Graduates” like Ganasekeara (Gunasekera?) ” rassavas” (jobs)?”…..
        This is the problem – everyone is waiting for handouts – subsidies to samurdhi to jobs – all free. This is one reason where we have been fed with too much socialism, and not getting anywhere. Some safety net – yes – but forever?. General attitude is tax the rich and give us free food clothing and shelter. By dividing the wealth, you cannot multiply it.
        To get something free, someone else has to produce twice as much.

      • 2
        0

        Sinhala_Man: Thank you. I never skip reading your comments, because those are well-considered and independent. If you know how I have “Assembled” that “Kadamandiya Club” you will be surprised. I will tell you that at a later date. Have a nice day and keep in touch.

    • 6
      0

      Dear Simon.
      ….I asked my “Kadamandiya Club” members – ……and many more whether they have had an opportunity to get a copy of it. I received an “Earful”…….
      Have they read it ? Studied it at depth?
      It is not NKs fault – it shows the bovine attitude of the Kadamandiya folk who do not appreciate a good thing but fall belly up for Rajapakse Weerawansa Gammanpila rhetoric. Lack of discernment.
      That Constitution is quite good to START off (any good additions/subtractions to be made) – if you had read and studied it. It has covered good governance, rule of law and minority rights. But then in SL to denigrate is normal – superficial judgements galore. So any wonder, we are where we are ?

  • 2
    0

    Dear MyView: Thanks for your input. I have gone through what “NK” proposes. My view of “Constitution Making” must not be left in the hands of a few “Selected”, but as “NK” himself preaches it must be in the realm of “Janatha Paramadhipathya”, thereby making that task most “Involved” and “Participatory” by the “PEOPLE”. Having said that, I am of opinion that must not be made a “Political Agenda” of a “Selected” few who would canvass for votes. Please watch the following link.

    https://www.youtube.com/watch?v=6m4CAINLjeI

    This expresses the real importance and responsibility of making Constitutions for a country.

    • 2
      0

      Dear Simon.
      I had the impression on reading your comment that you & Kadamandiya had dismissed the NK draft out of hand. But then :
      ……”must not be made a “Political Agenda” of a “Selected” few who would canvass for votes”….. leaves me wondering who should initiate it – that is why I mentioned NK draft as a starting point. Someone must enter the ring and say “Come on”. NK is not political to the extent of our “politicos” of all parties and it ‘appears’ genuine as at now (I qualify there because human nature can change with circumstances – Phillip NM Colvin Pieter Vasu DEW Dr Tissa et al).
      …..”the real importance and responsibility of making Constitutions for a country.”…
      And who takes that responsibility in sending the opening ball of the match.
      Ideas are in the mind of one man – you can then digest that in the collective stomach !

      • 0
        0

        MyView: Thanks for your understanding. “Someone must start”. Yes, of course. Then who? I am of opinion that the “Legislature” (The Peoples Representative Parliament) is the “PLACE” and the “Janatha Paramadhipathya” displayed by those “Elected” must name a “Competent Committee” of “EMINENT” persons (Accepted as such by the PEOPLE) whose “Competency”, “Integrity”, and “Character” are not “Questionable” in any way in the society. We have “ENOUGH” of such persons, but unfortunately, they don’t show up. We have to bring them to fulfill that onerous task for the country. Didn’t India find such a “Person”- Dr. Ambedkar?

        “NK” showed the other “Scoundrels” a “Path” to follow. His “Selection” of “Five” persons to draft his Constitution is yet a “Mystery” to us. Now he says, “If any Political Party “Accepts” his Constitution, he will support that party. What “CRAP” is that? He is gone “NANATHTHARA” – that is what my “Kadamandiya Club” member “Ganasekera,” said.

        • 0
          0

          Dear Simon.
          ……..Didn’t India find such a “Person”- Dr. Ambedkar?……..
          India’s first Minister of Law and Justice, and considered the chief architect of the Constitution of India. He earned doctorates in economics from both Columbia University and the London School of Economics, gaining reputation as a scholar for his research in law, economics and political science. Totally untainted with corruption or for jumping from one party to another. He was principled to the last.
          Please name just ONE SUCH person in our legislature.
          Secondly, we have seen, ever since the 1972 constitution, that “Legislature” drafted Constitutions and Amendments are to perpetuate politicos powers and sustenance and not people oriented. Even the good conditions are eliminated at the infamous “Committee” stage.
          OUR legislature is full of nincompoops that it should be the last resort to constitution drafting.

        • 0
          0

          Dear Simon.
          …”Now he says, “If any Political Party “Accepts” his Constitution, he will support that party.’….
          He tried alone but was not able to get ahead as no one supported him having swallowed the ‘rhetoric’. So left with only option to get INTO the discredited SYSTEM and cure it from inside. This is a case of “the end, justifies the means”.
          At least more “educated” people are supporting him now.
          Latest : DM today FR J C PIERIS :
          “The only option left, only worthwhile alternative for the battered citizens of this sad and unfortunate country is the indigenous or Autochthonous Constitution of NK and a COMPLETE break with the present corrupt politico-economic dispensation of ‘thattu-maru’ trap of fraudulent democracy.”

  • 0
    0

    Dear Friend MyView: Either, I didn’t explain clearly or you didn’t get at what I said. Could be my mistake. What I meant was the “Legislators” in the Parliament, irrespective of their “Education” and “Literacy”, a “Panel of Experts” in the country (need not necessarily be in Parliament) be named by the “Peoples’ Representatives” elected by the People. That is how that “Process” becomes “Democratic” and “Janatha Paramadhipathya”. That “Panel of Experts” must be FREE to have “Consultative” meetings with the PEOPLE through varying Civil Societies and “Experts” and formulate a “DRAFT” which can be again “Examined”, “Debated” and “Amended” before “ONCE” again be “Examined” by the Supreme Courts and finally to be “VOTED” (as a Special Vote) by the PEOPLE.

    My view is: NO POLITICAL LEADER contender for any position be allowed to wave “HIS” draft of a Constitution and seek approval by the people at election rallies. Hope you understood.

    • 0
      0

      Dear Simon.
      ….”those “Elected” must name a “Competent Committee” of “EMINENT” persons”…
      This is my point. All Committees named by “those elected” will be their partisans. See the Committee that the ‘elected’ President “named” to draft the constitution. His lawyer, chairman of Port City, Two directors of Sri Lankan Airlines and a member of the monetary board – all are appointed by him to their substantive posts mentioned – all beholden to him – so where can you expect ” “Janatha Paramadhipathya””.
      I feel a good starting point is a document – add or amend later – where it’s basic points can be accepted by the people in the first instance, at an open election, then finalised by consensus but keeping the basic points intact..

    • 0
      0

      Dear Simon,
      So sorry to persist but then….
      When you say ..: ” “Legislators” in the Parliament, irrespective of their “Education” and “Literacy”… must APPOINT a Committee, it looks somewhat farcical in that the ‘appointments’ are tainted by the doubts in the ““Education” and “Literacy” of the Principals in the first instance.

  • 0
    0

    Dear Simon.
    …”Now he says, “If any Political Party “Accepts” his Constitution, he will support that party.’….
    He tried alone but was not able to get ahead as no one supported him having swallowed the ‘rhetoric’. So left with only option to get INTO the discredited SYSTEM and cure it from inside. This is a case of “the end, justifies the means”.
    At least more “educated” people are supporting him now.
    Latest : DM today FR J C PIERIS :
    “The only option left, only worthwhile alternative for the battered citizens of this sad and unfortunate country is the indigenous or Autochthonous Constitution of NK and a COMPLETE break with the present corrupt politico-economic dispensation of ‘thattu-maru’ trap of fraudulent democracy.”

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