20 April, 2024


Nothing ‘Holistic’ About The Romesh De Silva Constitutional Draft Or The Millions Spent By ‘Experts’ 

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 21st 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 22nd of each year, replacing February 4th (when Sri Lanka gained independence from the British Raj).  

May 22nd 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 13th 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.’    

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Latest comments

  • 8

    Colombo Telegraph should publish how the public could get access to this document. The committee did not include anyone of known competence in constitutional law. The academics on the committee worked in areas other than constitutional law. The practitioners also did not specialise in the subject. So, it was a case of mice labouring at great cost and producing a little squeaking mouse. (the original saying is mountains laboured and produced a ridiculous mouse). The document will stand as a monument to men and women who prostituted whatever standing they had to serve a discredited president..

  • 0

    Indigenous boomiputhra Sinhala Buddhists don’t want another gimmick full of bogus construction. Still the source of making of constitution is the kallathoni Imperialist and the Waduga mixed Radala made 1815 Kandyan convention which is illegal and criminal.
    The source of the new constitution must be the Anuradhapura- Polonnaruwa period.
    In the new constitution:
    -The original Sinhale flag must be reinstated (without the stripes adapted from Indian flag).
    -Sinhala language must be the only official language of Sri Lanka. The language of the judiciary and parliament must be indigenous Sinhala language.
    – Buddhism must be the only official religion in Sri Lanka and must declare Sri Lanka as a Sinhala Buddhist state.
    English must be the working language. The minorities can practice their faith in private capacity.

    • 10

      I like what you have said.
      Have you thought of running for President. You should.
      The only drawback is your name. I am sure that you’ll find a way to overcome that.

      • 2

        Is this Eagle Eye’s illegitimate son?

      • 2

        If Basil will do, why not Tony?

    • 5

      Ranil has vision for 2048,but this guy wanted to go back to era of A pura Polanaruwa in this millennia.
      Sinhala only.how practical is ,international national schools mushrooming even the village levels.
      For our youngsters jobs are available in Japan Korean…..labourers pride of our education system. Standardisation-quantity not the quality.
      Buddhism is a cursed for our failed state this relegion being hi jacked the teachings. Golden robes the camouflage for the destruction.

    • 2

      Very good point to get into the mud-hole with Sinhala Buddhism as primary, change to ensure progress of this country!!??
      What a splendid thought, after the total collapse of SL from 1956 to 1022 – 65 Years of misery!!!
      if you call that an innovative idea for progress, please be assured we have comprhemsivly assessed your intellectual capacity – BRILLIANT!?
      Very good!! Success assured as desired in double quick time!!!???
      Time is the REVEALER, be patient for the REVELATION AND GLORY!!???

  • 5

    Monkeys should not be allowed to draft national constitutions. Let us outsource this onerous task to foreign experts on constitutional law. I suggest some Scandinavian country or perhaps the Netherlands.

  • 2

    The above article, states to be in the Constitution: ” The primary status of Buddhism and the duty of the State to protect and foster Sangha (Clergy)….” Why special mention to “Protect and Foster Sangha (Clergy)? Let this “Sangha” be on their own. After all a person becomes a “Sangha” of his/her own will and what is there to “Foster” and “Protect”? All “Sanghas” are housed in temples and there is a “Dayaka Sabah”. In addition, some of these “Institutions” are very “RICH” holding “Properties” and “Bank Balances”. For example, “Wealth” and “Daily Income” the two main “Institutions” in the country viz Asgiriya and Malwaththa have? So with most other ” Institutions”. How many “Sanghas” are in “Employment” at State institutions? Is this provision to “FOSTER” and “PROTECT” all those “POLITICAL BIKKUS” who merely put on a “UNIFORM” – the SAFFRON CLOTHE?

    The next, that must be “REMOVED” is the position of the “Executive President”. This country has so far not “Produced” and neither to be SEEN in the future a person FITTING to sit on that seat of power. So far and in the future all we “Promote” to this position have “Lost” his/her “Moral Strengths” that were expected of them. If we do need one, it must be purely “CEREMONIAL” like in the good old days of “Governor General” to always be “Responsible” and “Accountable” to Legislature.

  • 14

    Romesh de Silva is a crook.

    • 4

      Are you judging R De Silva on his attribute of shrewdness to change the ‘Proxy’, without much difficulty to appear on behalf of Lasantha W and once he had received the ammunition for LW defence, change the Proxy to appear for the opposition in that case and befriend the Defence Secretary!!! Win the case after demise of LW and get a good position with the new EP!!!!!???
      UNSCRUPLOUS B.; Not worth discussing!! SCAMP!
      SCOUNDREL!!! TO be UNKNOWN for anyone’s good!!!???

  • 4

    Glad that people are talking about a new constitution which the COUNTRY needs urgently to solve all the ills in SL. Let us study other countries constitution and draft a very good one—> that will be equally ACCEPTABLE to both minorities and majority.
    1] Secular, United, democratic, multi-ethnic, country
    2] Adopt the Canadian Federal states based on Sinhala and Tamil languages with English as link language
    3]Everyone is subjected to the laws of the country including the head of state[President or PM]
    4] Discontinue the presidential system
    5] Bar the clergy from politics
    6] Judiciary and other senior jobs be filled on merit by properly selected constitutional council members
    7] no more government controlled media [radio TV newspapers
    8] Parliamentarians job should be Non pensionable.
    9] Parliamentarians should not have been found guilty in the past and have no pending criminal cases at the time of nominations. They should not be dual citizens at that time.
    10] no more monetary facilities to ex-Presidents or PMs.

  • 4

    Could the JVP-NPP[ as well as all the political parties] put forward their draft for the new constitution as soon as possible? Let us have a referendum on the new constitution urgently. Our solution to both economic and political issues is dependent on IT.

  • 18

    In this diseased society , our so called legal profession must be the most diseased.

    Wearing European attire, some even wearing wigs, carrying big English books, almost worshipping their colleagues who for the salary have become judges and all of them speaking in broken English ! !

    In medicine, a doctor is either a specialist in skin disease or heart issues. He cannot be both . But this Romesh guy is master of all aspects of the law, arbitration, commercial, land , any appeal. A bit like Ranil, a man who knows everything !

    For Romesh Silva to be a jack of all trades, the other lawyers must be very weak or may be handicapped by their lack of English . In other countries you never hear of one lawyer so dominating , intimidating other lawyers, our judges must be clueless to allow one guy to run riot.

    The really stupid Gotabaya appointed this committee ( all PA lawyers, except for Romesh who is a hired gun ) to draft a constitution. If these lawyers had any self respect they would have refused to sit on the committee as his manifesto did not specify why yet another constitution or what kind of constitution. Did Gota ever explain why the word Socialist, must be dropped from the country name? Was that important ?

  • 16

    It will be hilarious if one of these lawyers turns out to be a dual citizen of another country ! So much a patriot , like Gota !

    What is the background of these lawyers to write our constitution ? Is Romesh a master of our history and culture to be writing our constitution? That Jayawardena was a member of the Monetay Board when Cabrall was ruining the country investing in Greek bonds !

    Any way these black coated conmen have now learnt a good lesson. Their draft constitution is in the sewerage where it belongs

  • 7

    From Lord Soulbury to Lord Romesh
    Constitution making in Sri Lanka has evolved
    to a fine art of enshrining people’s rights
    with loopholes in the right places
    so that the rulers can circumvent the law
    and abuse the people
    plunder the country
    and escape punishment.
    People pay through the nose
    for this great public service
    ranging from 25,000 to 200,000
    for just one session
    so that the black coats
    will put in the constitution
    what the white sarongs dictate.

    • 3

      A new constitution is a “must” and age limits and term limits to elected office with equal representation of both sexes in parliament to get rid of the decrepit seniors who have thrown the country into a such a sad state with a culture of impunity should signal a new beginning to give an opportunity to the many bright and younger generation to take over the reins of politics and lead the country to a much better future than the present hell hole the country is in.
      What is needed is a radical solution with progressive ideas.

  • 1

    A new constitution is a “must” and age limits and term limits to elected office with equal representation of both sexes in parliament to get rid of the decrepit seniors who have thrown the country into a such a sad state with a culture of impunity should signal a new beginning to give an opportunity to the many bright and younger generation to take over the reins of politics and lead the country to a much better future than the present hell hole the country is in.
    What is needed is a radical solution with progressive ideas.

  • 3

    An attempt by an unholy alliance to produce a Holistic Constitution.
    This should be thrown into a Manhole……….

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