The newest draft of a proposed Constitution for Sri Lanka, handed over to the Government in mid 2022 by a committee of lawyers and academics appointed by former President Gotabaya Rajapaksa, has recommended that the term ‘Socialist’ (Samajawādi) be dropped from the constitutional description of Sri Lanka as a ‘Democratic Socialist Republic,’ which the current constitutional text reflects (1978), the Colombo Telegraph learns. 

Romesh De Silva

President’s Counsel Romesh de Silva chaired the committee comprising also Gamini Marapana P.C., Manohara de Silva P.C., Sanjeewa Jayawardena P.C., Samantha Ratwatte P.C., Prof. Naazima Kamardeen, Dr. A. Sarveswaran, Prof. Wasantha Seneviratne and Prof. G.H. Peiris.

Branded as ‘hardline’ supporters of the Rajapaksa brand of toxic nationalism, the team was appointed by Rajapaksa’s Cabinet of Ministers in Sept. 2020, on a proposal made by then Justice Minister Ali Sabry, PC. Their draft had been handed over in April 2022 in a bid to preempt the 21^st Amendment to the Constitution but which attempt had failed. 

The contents of the draft had been kept highly secretive.  

Last month, the draft was handed over to a group of activists by the Ministry of Justice before the Right to Information Commission when they appealed against refusal of the Ministry to release the draft. The Justice Ministry stated that the report related to a pending Cabinet memorandum. However, this was not accepted by the Commission. The Ministry thereafter released the draft.

Colombo Telegraph learns that the Justice Ministry had been informed that, if ‘Cabinet Memorandum’ is taken as a ground to deny information, it must limit themselves to information relating to a ‘Memorandum’ in regard to which a decision has not been taken by the Cabinet, not each and every document originating from the Cabinet. 

On that basis, the Commission had earlier directed release of the inquiry report commissioned by Cabinet on a Minister (Lohan Ratwatte) invading the prisons with a loaded pistol while drunk and threatening prisoners who were of Tamil ethnicity. That report issued by the Ministry of Justice disclosed that while the inquiry committee headed by a retired judge had found several violations of the law and recommended tough action to be taken against the Minister, this had not been acted upon. 

Activists who examined the Sinhala draft of the constitutional report released under RTI, told Colombo Telegraph that the draft constitution report also adopts the ‘unitary’ (‘ekeeiya’) status of the State in line with the present wording of Article 2 of the 1978 Constitution. New sections relating to the land and resources of the State have been added with emphasis on the State not being able to cede ownership of any such part owning to Sri Lanka to any other party. 

They said that the drafting committee had taken a ‘hardline’ stance in regard to Presidential powers, following the wording of Article 4b) (1978 Constitution), that the executive power, including the defence of the State, be vested in the President. This amounts to a rejection of the movement by constitutional reformers to balance presidential powers fairly with the other organs of the State. 

In a throw back to the 1972 Constitution, the ‘legislative powers of the People’ are recommended to be exercised by a ‘national state assembly.’ The committee had also recommended that a Tamil translation of the national anthem be included in the new Constitution. Those who have read the draft report state that the National Day of the Republic has been recommended to be May 22^nd of each year, replacing February 4^th (when Sri Lanka gained independence from the British Raj).  

May 22^nd 1972 was the date when Sri Lanka became a Republic.

The primary status of Buddhism and the duty of the State to protect and foster the Sangha (clergy) while assuring the right to people of other faiths to practice their religions, has been retained. New sections have been added on ‘Sri Lankan citizenship’ stipulating that, a non-Sri Lankan citizen cannot be permitted to hold any official positions whatsoever. 

A new section titled ‘Fundamental Duties’ have been added along with a chapter on ‘Fundamental Rights.’ The new section on ‘Fundamental Duties’ contains a long list of badly defined acts, legal activists say, including imposing duties on citizens not to act in a way that is prejudicial to the Sri Lanka State and to act to preserve the ‘national heritage.’ Some of these ‘duties’ include the regulation of harmful pesticides which should not belong in a constitutional chapter, they say. In the chapter on ‘Fundamental Rights’, the ‘right to life’ and the ‘right to information’ has been included and several socio-economic rights as well including disability rights, which is a positive development, they say.   

The draft preserves status of Sinhala and Tamil as state languages and gives the right to any child to be educated in either language. However priority is given to the Sinhala language if there is a conflict between laws.                            

Last year, the Colombo based Sunday Times newspaper reported that an audit report had found that the none-member Rajapaksa constitutional reforms committee had, ‘failed to compile the report within the specific deadline, while millions of taxpayers’ funds were spent for the proceedings and as allowances for the committee without securing proper approvals.’ 

On November 13^th 2022, the newspaper had reported that, ‘drafting and submitting the constitution was not completed even by December 2021, though the initial meeting of the committee was held in October 2020. The report was initially to be completed within six months from the date of the appointment of the committee and more time could be obtained by extension.’

It was stated that, ‘among the expenses incurred by the committee are Rs. 3,100,000 for attending sessions on the basis of Rs. 25,000 per member for each session and Rs. 120,000 in total as Rs. 5,000 for travel allowance per meeting for specialists and a monthly allowance of Secretary to the committee amounting to Rs. 1,200,000 as Rs. 200,000 for each session.’

The audit report that was put online also stated that, the monthly allowance of the Coordinator amounted to Rs. 600,000 at Rs. 100,000 for each session, the monthly allowance of full-time Research Assistant amounting to Rs. 2,600,000 at Rs. 80,000 for each session, and an allowance for the part-time Research Assistant amounting to Rs. 2,560,000 at Rs. 40,000 for each session by 31 December 2021. 

However, ”approval had not been obtained for the respective rates,” the audit report said. The National Audit Office which compiled the report, had recommended that payments that were made without obtaining the Treasury approval should be recovered from the responsible parties while stressing that “public money should be used only for economic transactions after identifying the requirements accurately.”

These damning media disclosures came at a time when Sri Lanka had declared bankruptcy due to political squandering of public money for decades coupled with the post 2020 mismanagement of the Treasury and the Central Bank/Monetary Board by Rajapaksa loyalists. Following the media report, the secretary to the constitutional reform committee wrote ‘a right of reply’ to the newspaper, protesting that allegations of wastage of funds was ‘hurtful’ when the ‘majority of members’ (not specified) had not accepted any payment. 

Also, he stated that it was ‘unfortunate that the purpose of drafting a ‘holistic’ Constitution has been ignored’ and that, the draft ‘deals with and reflects the views of the People of this country and provides solutions to a number of issues.’

The Colombo Telegraph however was told by lawyers who had read the draft that there was little that was ‘holistic’ about its contents, particularly about the continued concentration of power in the Executive Presidency which is retained as a five year term or the constitution of a so-called ‘Constitutional Council’ comprising of politicians to vet appointments to high public office and the ‘independent commissions.’