Colombo Telegraph

New Constitution Making Process Should Take A Middle Path

By Laksiri Fernando

Dr. Laksiri Fernando

Following is the full interview given by the author to Rashmin Tirimanne De Silva which was published mostly in the Daily Mirror (28 November 2016).

Could you enlighten us on where exactly the constitution reform process of Sri Lanka stands at the moment?

Formally, we are at the middle of the second stage as the six Sub-Committees of the Constitutional Assembly have submitted their reports. Three main stages are anticipated in the constitution making process before proposals go to the Cabinet to become a Constitutional Bill to be presented to Parliament. There is no agreed time frame.

First stage was from January to May 2016 after the Cabinet appointed the Public Representation Committee (PRC) which went around the districts and gathered people’s opinions orally and in writing. Opinions were invited on 20 topics from anyone. That was commendable.

Then started the second stage or the Sub-Committee process based on the Framework Resolution approved by Parliament for the Constitutional Assembly on 9 March 2016. However, the Steering Committee is yet to submit its report to complete this stage. This is a difficult task as there are overlapping proposals and in fact some Sub-Committees have gone beyond their premises to very controversial terrain without necessary caution. It is also necessary, in my view, to allow some time for the citizens to express their views on the Sub-Committee reports before the Steering Committee drafts/submits its report. This will be a Draft Constitutional Proposal.

The third stage is the discussions, debates and proceedings in the Constitutional Assembly as a Committee of the whole Parliament. If the Steering Committee process goes well this would be smooth. All political parties in Parliament are represented in this 21-member Steering Committee. That is where we stand today.

Could you detail explicitly if, and if so, why the present political and social environment so conducive to implement such reforms?

There was a major political change in 2015. It’s potential still prevails although there are some disillusionments. For this change, the civil society and minority participation was exemplary. A President was elected in January 2015 who gave up all authoritarian powers willingly. The 19th Amendment was enacted for this purpose with 215 in favour, only one against, one abstaining and seven absent in 225-memebr Parliament. This was a good omen for an overall constitutional change.

Although the two main parties (the UNP and the SLFP) contested against each other at August 2015 Parliamentary elections, now they are in a ‘national unity’ government. This is the main conducive condition for a New Constitution. Recently, the ‘national unity’ government could muster a 2/3 majority for its Budget at the second reading. This is also a promising sign.

It is for the first time that a constitution making effort in Sri Lanka after independence has gone through a public consultation process. The Sub-Committee process is also extensive and the minority participation within it is also promising.

If you make a SWOT analysis (strengths, weaknesses, opportunities and threats), above are the strengths and opportunities. This does not mean that there are no weaknesses or threats. Those need to be identified and overcome. If I be brief, extremes should be avoided. Instead of too much idealism, political realism should guide the constitution making process. A new constitution must be approved by the people at a referendum. No room should be given to arouse unnecessary fears or doubts, without compromising principles.

The Constitution has been formally emended 19 times and it is our third constitution since we received independence. What does this say about our country?

It says that our country has been through a continuous ‘constitutional disequilibrium.’ At times, through a ‘dangerous disequilibrium.’ The situation after the 18th Amendment was the example for the latter. That is why we need a New Constitution. We were at the edge of losing democracy. This is also one reason why the constitution makers should be extremely careful and should take necessary time without rushing. On the other hand, unnecessary delays also might make a disaster like in August 2000.

Disequilibrium means the absence of harmony. Therefore, there should be harmony to have constitutional equilibrium. On one hand, harmony between people’s expectations/aspirations and the constitution. People expect security and protection personally, and collectively as a nation. People also expect justice and fairness. Therefore, those should be delivered by a New Constitution.

On the other hand, it also means harmony between various institutions within the constitutional system. The Legislature, Executive and Judiciary are the three main institutions at the apex level. There should be harmony between them, while absolutely respecting institutional independence of the judiciary. There are also the Centre (national government) and the Provincial Councils at the horizontal axis. There should be harmony between them as well.

Since constitutional affairs are governed by politics (and adversarial ones) it is too ideal to expect perfect harmony. Equilibrium here therefore means reasonable harmony within an acceptable range. Politics is often defined by power. But it should be for justice. If we move for the latter objective of justice, it wouldn’t be difficult to achieve ‘constitutional equilibrium’ both in theory and practice.

This proposed new ‘Constitution’ has been dubbed the ‘Constitution of the People’ with processes in place to obtain proposals from the public for the proposed constitutional reforms. How important is this?

All democratic constitutions are named ‘people’s constitutions.’ The reality may be different. There can always be a discrepancy between the ‘claim’ and the ‘reality.’ In the case of the ongoing constitution making process, there is however an admirable attempt to make truly a ‘people’s constitution.’ That is how the political legitimacy for the New Constitution could be generated. The role of the Public Representation Committee was outlined before.

Another necessary ingredient for a people’s constitution is lucidity. It should be written in plain language in Sinhalese, Tamil and English. It should be people friendly. People should be able to understand its vision, principles and even the provisions. This is yet to be seen. Sometimes, the drafters make the Sinhala or the Tamil versions more difficult than the English legal drafts. This should be avoided.

There were some discussions in 1972 for the First Republican Constitution. It was well written. However, the atmosphere was not conducive after the 1971 insurrection. Minority participation also was absent. The Second Republican Constitution of 1978 was mainly an elitist product.

The present constitution making process is different. I have never seen an extensive public discussion or debate in the media on constitutional matters such as the present, previously. The Daily Mirror’s efforts are one example. Perhaps it needs to be further strengthened. University communities should be brought into the process extensively. The civil society organizations, trade unions, business organizations, professionals, the seniors, women and youth should take an active part. Then there can truly be a ‘people’s constitution.’ However, some technical matters should be left to the experts.

In light of questionable and controversial “popular, democratic” decisions in the American elections and ‘Brexit’, how can one still defend public participation in governance. Are these instances where Hobbesian ideas of Governance should exist? Or is this the flip side of an absolute form of democracy that no one likes to see?

I think all democratic election outcomes should be respected, except those are completely rigged or forced. That is the way to correct any deviations or flip sides. Therefore, the Hobbesian idea of governance should not prevail. Just because we dislike an outcome, the popular verdict should not be denounced. It is very subjective. In 1934, Hitler forced the referendum outcome through armed groups. Thereafter, referendums were rigged. No such a thing at Brexit or American presidential elections. The discrepancy between the ‘popular majority’ and the electoral college majority in America was because of the electoral system. Electoral systems are not perfect. Those should be improved when defects are detected. This applies more to Sri Lanka in the present constitutional reform.

There are ups and downs in any democratic system. Lesson of Brexit or American election is about how to avoid extremes. If you go to one extreme, the other side might go to the other extreme. The best path is the Middle Path. Even in the present constitutional making process that should be the approach.

If your question is about the required referendum to finally approve a New Constitution, there shouldn’t be any undue apprehensions due to Brexit or American elections. However, the new draft should not go to the extremes of ‘David Cameron’ or ‘Hilary Clinton.’ I am speaking metaphorically.

Reforms focusing on several areas such as the role of the provincial Governor, and the fiscal, administrative, land and police powers of the provincial councils have been proposed. Do you think such reforms will solve issues in the North? If not what reforms would better solve reconciliation efforts?

As far as I am aware, there are no final proposals regarding the provincial Governor, land or police powers. I understand that the Sub-Committee on Centre-Periphery Relations has gone little too far from their tasks. The powers of the provincial Governor were in their initial subject areas. In addition, they have considered land and police powers and concurrent list/reserved list etc. It is not a major issue if they had enough time for a proper discussion. As the Report says, “We have rushed through this report due to time constraints.” I believe the Steering Committee might be able to correct the situation.

The following are my present views on those matters. The Governor should represent the President. Although we are moving for a parliamentary system, the President can be elected nationally like in Ireland. The President’s executive tasks should be limited to ‘national security’ and ‘national reconciliation.’ Other tasks should be ceremonial. The Governor’s tasks also should be related to ‘national security’ and ‘national reconciliation.’ All others should be ceremonial. This means the reduction of all other powers from the present provincial Governor.

We must understand that the people in the North have a great sense of freedom. This should be respected and accommodated as much as possible. They should be free from external control. But they should abide by the constitution. With freedom also comes responsibility. My conception to resolve the issues in the North is ‘cooperative devolution.’ We should reduce and rename the ‘concurrent list’ as ‘cooperative list.’ This means the tasks that the Centre and the Provincial Councils should undertake cooperatively.

In my view, land and police powers could be cooperative tasks. Balanced regional development is another way of resolving the issues in the North as well as in other rural provinces (i.e. North Central, East, Uva etc.). Balanced regional development also should be a cooperative task. Many others could be given to the provinces. The Centre should not hesitate to give. As much as they give, they can perform their tasks better nationally. This is better for the country, its development and for the people. The devolution is like division of labour. It improves efficiency and productivity.

Is Sri Lanka a secular state? If so how do we interpret Article 9 in the present Constitution and how should this be addressed in the reform process?

It is difficult to say Sri Lanka is a secular state. Article 9 accords foremost place for Buddhism and mentions ‘all other religions.’ It also assures all religions the rights granted by Articles 10 and 14 (1) (e). There is a balance. I would prefer completely a secular state where religion is considered a private matter. Under the prevailing circumstances however, the best might be to strengthen the balance between the ‘foremost place for Buddhism’ and the ‘equal rights of other religions.’ One way to do so is to qualify what it means by the ‘foremost place,’ and explicitly state that this is accorded ‘without any discrimination’ to other religions. I don’t think it is good to generate a major controversy over this issue. We have enough controversies.

What sort of effect will the Geneva Resolution have on this process and the idea of Human Rights in general?

I don’t think the Geneva Resolution has much bearing on the constitution making process. We have been striving for a New Constitution since 1994. I have not seen any Sub-Committee making any reference to that Resolution. Instead, the Sub-Committee on Fundamental Rights and Freedoms has taken inspirations from several new constitutions in the world (South Africa, East Timor, Nepal, Ecuador, Bolivia, Kenya etc.).

It is important that the New Constitution anchor its philosophy on democracy and human rights. A great new effort is placed on recognizing and implementing Economic, Social and Cultural Rights. This effort goes beyond the present fundamental rights chapter of the 1978 Constitution. There is no recognition of these rights in the present constitution. This is beneficial for the ordinary masses. This is what we should emphasize when we go for the referendum. Cultural rights also mean minority rights and group rights. Apart from devolution, a new vision for ‘fundamental human rights and freedoms’ should be geared for national reconciliation. Our conception of human rights is also with human responsibilities.

Many new constitutions emphasize these responsibilities. Ecuador constitution has an interesting phrase: Ama killa, Ama llulla, Ama Shwa. This phrase is traditional to indigenous as well as settler communities. This means ‘don’t be lazy, don’t lie, don’t steal.” It reminds us some of our religious precepts. There is a philosophy of responsibilities along with rights and freedoms. One is not conditional on the other, but goes alongside.

In your personal opinion, what are some key areas of reform?

I think I have already underlined some. To some up, key structural areas are: (1) Devolution or centre-periphery relations also giving emphasis on local government. (2) Reforming the electoral system to make it more democratic and people friendly. Old parliamentary seat system (under FPP) within an overall proportional representation (PR) is possible. (3) Changing the executive presidential system to a parliamentary system. However, keeping a useful role for an elected President is desirable.

Then there should be a clear vision for a plural democratic system, recognizing the multicultural nature of the society in an operational Preamble. It is interesting note that Bolivia calls it a ‘plurinational state’ considering various ‘nations’ in the country. I am not at all advocating it. The state can be unitary with [extensive] devolution. But in a constitution, adjectives [extensive] are not usually used. We have already discussed fundamental rights and freedoms. I wish, if it is called ‘fundamental human rights’ with an emphasis on ‘human rights’ aspect. It is educational and comes closer to the universal norms.

Language rights or issues should be clearly fixed. I wish all three languages (Sinhalese, Tamil and English) be official languages. There should be a ‘language revolution’ in Sri Lanka in strengthening trilingual competence of all citizens, particularly the youth. This is possible under the present-day technology. There should be a special place always for Sinhala and Tamil as national (indigenous) languages.

Independence of the judiciary should be strengthened and ensured. The Present chapter on Public Service is appallingly poor. It should be revised to strengthen professionalism, integrity and independence. Finance is another area which requires reform. Fiscal devolution is also necessary. There should be a new chapter on External Affairs. This is lacking at present. There should be a Code of Ethics for MPs as a Schedule to the New Constitution.

*Former Senior Professor in Political Science and Public Policy, University of Colombo, Laksiri Fernando has newly authored ‘Issues in New Constitution Making in Sri Lanka: Towards Ethnic Reconciliation,’ available at Lake House Bookshop, Liberty Plaza.

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