22 October, 2017

Some Initial Proposals For A ‘New Constitution’

By Laksiri Fernando

Dr. Laksiri Fernando

Dr. Laksiri Fernando

Proposal 1: There can be a Preamble to the Constitution other than the Official Proclamation under ‘SVASTI’ such as the following before operational articles and Chapter 1.

PREAMBLE

We the People of Sri Lanka,

In order to consolidate national unity, to preserve territorial integrity and peace, to enhance democracy and good governance, to ensure social justice to all communities, to promote social and gender equality, to further promote general welfare and social security of citizens and inhabitants,

Believing in unity in diversity, and

Being a member of the family of democratic nations,

Hereby establish this Constitution,

On the basis of fundamental human rights, people’s inalienable sovereignty, constitutionalism and rule of law, compulsory adult universal franchise, and equality of all citizens irrespective of ethnicity, gender, religion, language, political opinion or any other distinction.

This Constitution is supreme and is the fundamental law of the country.

Justification: The present beginning of the constitution is abrupt without declaring a vision or basic principles that Sri Lanka’s future and the Constitution would be based on, although there are certain inoperative principles incorporated in the Proclamation under ‘SVASTI.’ A vision is most important for a new constitution and it should embrace the current thinking after the democratic change in January 2015. There are different views over the importance of a Preamble to a constitution and its legal status. However, the importance is accepted as setting the stage and/or declaring the main vision, beliefs and principles underlying the Constitution or constitution making. In the present proposer’s opinion, the Preamble is legally valid and not merely a decoration to the Constitution.

Proposal 2: Title of Chapter 1 may remain the same (The People, The State and Sovereignty). It was the same in the 1972 constitution. While the order of the articles could have been re-arranged to give more primacy to the people, and their sovereignty. However, as many of the articles may require pointed referendum, the order is kept the same as in the present Constitution.

No changes are proposed to Articles 3, 6, and 8 to minimize referendum requirement. Minimum changes are also proposed to Articles 1, 2 and 7 for the same reason. The most important is to have the founding principles of government/governance as in the case of South Africa and many others. Article 4 can be utilized for this purpose without any inhibition. Through this chapter, and particularly Article 4, one should be able to understand the nature and the scope of the proposed constitution and the system of governance/government.

CHAPTER I

The People, the State and Sovereignty

The State

1. Sri Lanka (Ceylon) is a Free, Sovereign, Independent, Indissoluble, Plural and Democratic Republic and shall be known as the Republic of Sri Lanka. (Comment: Referendum required)

Unitary State

2. The Republic of Sri Lanka is a Unitary State with Devolution in Nine Provinces as prescribed in this Constitution. The State takes responsibility for peace, unity and welfare of the people. (Comment: Referendum required)

Sovereignty of the People

3. In the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise. (Comment: No change. No referendum required)

Constitution and Governance

4. Sovereignty of the people for governance shall be exercised in the Republic by all delegated authorities in the following manner according to this Constitution. This Constitution is the supreme law of the Republic. Any law or conduct inconsistent with the Constitution or fundamental human rights provisions is invalid. The obligations imposed by it must be fulfilled. (No referendum required by Constitution)

a) The legislative power of the Republic shall be exercised by the national Parliament, consisting of the National Assembly and the Senate as prescribed in this Constitution. Parliament may seek people’s mandate through referendum on important policy matters. The Provincial Councils shall exercise devolved legislative functions as prescribed in this Constitution. Elections for the National Assembly and the Provincial Councils shall be on a mixed system of proportional representation and constituency based first-past-the-post principle within an overall proportional representation.

b) The executive power of the Republic shall be exercised by the President, the Prime Minister and the Cabinet as prescribed in this Constitution. The devolved executive functions shall be exercised by the Governors, the Chief Ministers and the Council of Minsters as prescribed in this Constitution.

c) The judicial power of the Republic shall be exercised by the Supreme Court, the other courts, tribunals and institutions established by this constitution or by law under the Constitution. The independence and impartiality of the judiciary are the cardinal principle.

d) The President of the Republic shall be elected at a national election and be in charge of national reconciliation and national security. All other executive powers of the President shall be ceremonial and on the advice of the Prime Minister and the Cabinet. The position of the President is not of an executive president. Head of the Cabinet shall be the Prime Minister. The President shall chair the Cabinet, as Head of the State, only when matters of national reconciliation or national security are discussed or she/he is so invited by the Prime Minister on other matters.

e) The Provincial Governors of the provinces shall be appointed by the President on the advice of the Prime Minister. The Provincial Councils shall be elected as prescribed in this Constitution and laws under this Constitution. The Governors have special responsibilities on national reconciliation and national security. All other executive powers of the Governors shall be ceremonial and on the Advice of the Chief Ministers and the Council of Ministers. Head of the Council of Ministers shall be the Chief Minister.

f) The fundamental human rights which are so declared and recognized by the Constitution shall be respected, secured and advanced by all organs of governance, the legislative, executive and judicial; and at all levels of governance, national, provincial and local. All citizens and inhabitants are obliged to follow and respect the fundamental human rights. The fundamental human rights shall not be abridged, restricted or denied, except under exceptional circumstances prescribed in the Constitution yet under the supervision of the Supreme Court and the Human Rights Commission.

g) Compulsory universal franchise is the foundation of representative democracy in the Republic. Every citizen who has attained the age of eighteen and who is registered and not unqualified under the law has the right and duty to vote at all elections, national, provincial and local. The Republic shall implement compulsory registration and compulsory voting progressively, introducing necessary future laws within ten years.

(No referendum required by Constitution)

Territory of the Republic

5The territory of the Republic of Sri Lanka shall consist of the main island’s landmass and the adjacent islands, which are together demarcated into Nine Provinces and Administrative Districts within them as set out in the First Schedule, and the internationally recognized territorial waters and the airspace. (No referendum required by Constitution)

The National Flag

6. The National Flag of the Republic of Sri Lanka shall be the Lion Flag depicted in the Second Schedule. (No change. No referendum required)

The National Anthem

7. The National Anthem of the Republic shall be “Sri Lanka Matha,” the words set out in Sinhalese and Tamil along with music in the Third Schedule. (Referendum required)

The National Day

8. The National Day of the Republic of Sri Lanka shall be the fourth day of February. (No change. No referendum required)

Code of Ethics

9In the promotion of good governance and furtherance of democracy, there shall be an overall Code of Ethics for all elected representatives at national, provincial and local levels as set out in the Fourth Schedule. More elaborated Codes of Ethics may be elaborated by relevant authorities based on the Fourth Schedule.

(End of Proposed Draft)

Salient Features and Justification

The proposed Preamble is new. Hopefully, it embraces many of the required conceptions. These are initial proposals. The author is flexible on constructive suggestions and it is finally up to the people and their representatives to decide. Article 1 brings ‘plurality’ into the fore. Unity in diversity is emphasised in the Preamble. The name ‘Democratic Socialist’ is dropped in the title of the Republic as it is misleading. ‘Republic of Sri Lanka’ is sufficient as the name.

It is important to bring the conception of fundamental human rights. Instead of fundamental rights, the term ‘fundamental human rights’ is introduced as relevantly as possible.

Unitary conception is retained, but qualified with devolution. No amalgamation of provinces is proposed. The main contours of devolution is brought to the forefront of the Constitution in the proposed Article 4 for clarity and due recognition. Republic is characterised as ‘indissoluble’ to allay any fears. There are other checks built in.

Legislative and executive powers and functions both at the national and provincial levels are clearly defined and demarcated as foundational principles of the Constitution. These should be elaborated in subsequent chapters. Independence of the judiciary is considered as a cardinal principle. No supremacy for parliament is accorded. Checks and balances are built in. Constitutionalism is considered as the underlying principle.

Abolition of the executive presidential system is ensured. It is however proposed that a nationally elected President is retained for the limited purposes of ‘national reconciliation and national security.’ The position of a nationally elected President may pose the risks of self- promotion and thus the abuse of power. However, the powers (functions) are limited and could be checked and balanced by the PM and the Cabinet. President also could be a check on the abuse of power by the PM or the Cabinet. With the maturity of the electorate and political culture, President can become an agency not only of reconciliation, but also for political harmony in the country.

A Senate is proposed. One half of the members should be appointed by the Provincial Councils. The other half is to represent the unrepresented sections, talent and professionals.

Compulsory universal franchise is proposed to be implemented progressively within ten years. The electoral system should be a mixed system of FFP and PR within the overall framework of proportional representation.

The National Anthem both in Sinhalese and Tamil is proposed to be included in the Third Schedule. Code of Ethics for all elected representatives is proposed as the Fourth Schedule in the Constitution. These proposals only pertains to a Preamble and Chapter 1 of the Constitution.

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Latest comments

  • 1
    8

    With this proposal the LTTE Diaspora money can buy sufficient number of members in parliament to do their bidding whilst a scare crow president sits at the top. Sir Lanka Needs the Executive Presidency. Period.

    • 2
      1

      Good work Prof Laksiri!

      But one point is that there needs to be a Chapter on Political Parties, Political culture and Good Governance. This is the new trend in constitution drafting as Political Parties and politicians are the bde rock of democratic process, and yet are the BIGGEST STUMBLING block to genuine democracy.

      Even the most perfect constitution will not get rid of the culture of political corruption that reigns supreme in the Parliament at the Diyawenn Oya today.

      So we need constitutional experts to look at countries that have Constitutions that have a Chapter on Political Parties – for any real change in Sri Lanka

      • 5
        0

        Dear Prof. Laksiri,
        1. Nature of state
        Tamil people have clearly indicated over the years that they be allowed to live in dignity and safety in the areas of their historic habitation ruling themselves without interference by Sinhalese. You could easily accommodate it in a united Srilanka. Can denying this to Tamils just because that Sinhalese are not willing, be called Justice that is supposed to bring peace and reconciliation among Tamils and Sinhalese. Why not follow the UK example regarding the nature of the state. UK does not have a constitution. Therefore it does not call itself a unitary, federal or anything between. But it funcioned for all intents and purposes as a unitary state with Parliament in London exercising legislative powers. Despite this extensive devolution has been made to Scotland and is now could be termed federal. The laws enacted by the London parliament is applicable only to England and Wales. There is a Scotish parliament enacting laws and having total administrative control over entire Scotland including their police force to enforce law and order. Even in fiscal powers there is great degree of devolution to raise their own revenue.

        In your draft you are sticking onto the term unitary state which will be non starter for Tamils and will have to be forced down on them. Just because Sinhalese do not want to let go their hold on Tamils, that does not mean Tamils should suffer. In a Unitary state, Parliament controlled by the Sinhalese will be supreme and whatever assurances given to Tamils, there will be discriminatory laws and practices. Even having a senate will not help as this will also have a Sinhala majority and will behave in the same manner as the first chamber. Under a unitary state you can only delegate and not devolve, and What Tamils need is a legislature with a Tamil majority to enact laws according to their wish and govern their lands of historic habitation on their own.

        2. Unit of devolution.
        You are sticking to the same old rhetoric of nine provinces. While Tamils are demanding devolution to Sinhalese are not. Then why talk about nine provinces and stick to north and east for the purpose of devolution. In this aspect the devolution proposals put forward by Chandrika Kumaranatunga Neelan Thiruchevam and GL Peiris calling Srilanka a union of regions is an excellent one. In deciding the regions, once again the Scottish example can be taken. There is a Scottish demand for independance, but the UK governmant is not denying Scottish people the entirety of their lands. They have not altered the demographic pattern by settling large number of English and commiting ethnic cleansing of Scots in order to make them minority in certain parts of Scotland and thereby claiming that those parts cannot be incuded in Scotland.
        Please suggest a solution that will bring justice to Tamils particularly those in Eastern province.

        You cannot deny that contour of eastern province has been changed deliberately by the Srilanka government after independence. To create a Sinhala majority Amparai district, revenue districts of Mahaoya and Padiyatalawa were removed from Uva province in 1956 and linked to eastern province. In the rest of eastern province barring a few ancient Sinhala settlements the rest belong to Tamils. Tamilised descendents of coastal veddhas are the legitimate owners of eastern province. Recent archaeological findings in Vaharai, Kadiraveli and Mahiladitivu in Batticaloa district and Weber Satdium in Trincomalee goes to prove the presence of Tamils in the region more than 2000 years ago. There is nothing in the history saying that Tamils were settled by anyone in the eastern prvince, whereas there is historical evidence that Muslims who were fleeing persecution of Tamils were settled in the eastern province by King Senerath. There is also no historical evidence that Sinhalese were forcible evicted form eastern province by anyone. The census conducted since 1900 shows that it was a Tamil majority province and Sinhalese were only 2% in Trincomalee district and 10% in the whole eastern province.

        Now that it is firmly established that eastern province was a traditional homeland of Tamils, why should it be kept separate from northern province. You cannot deny that there was a clear plan by the successive Srilanka government to take away the Tamil majority status in eastern province. There was also an attempt to do it in the mainland northern province as evidenced by ethnic cleansing of Manalaru of Tamils and settling Sinhalese as well as settling large amounts of Sinhalese in Vavuniya South and South of Mannar. Unfortunately for the Sinhalese, due to LTTE uprising this could not be done unlike in eastern province.

        There is a way to solve this problem of north-east linkage to satisfy justice. When re-demarcating you should not give credit to any change of demographic pattern by ethnic cleansing of Tamils or large scale settlements of Sinhalese. Remove Amparai electorate and Lahugala AGA division of the Amparai district from Eastern province and link them to Uva province. Also remove Gomarankadwela AGA division in Trincomalee district from eastern province and link it to North central province. This way all traditional Sinhala areas will come out of the eastern province and make majority of Sinhalese presently living in eastern province to be free of Tamil rule. To compensate the loss of land in eastern province, remove Puttalam electorate in Puttalam district from north western province which has a sizeable Tamil and Muslim population where several urn burial sites have been discovered denoting it as the cradle of ancient dravidian civilaisation, and link it to Northern province. Once northern and eastern provinces are re-demarkated, merge the north and east into one unit. In this merged unit, carve out the traditional Muslim areas (not lands appropriated from Tamils in recent years) like Pondicheri model into a non-contiguous sub-unit within the merged north-east unit. This should satisfy the moderate elements in the Muslim community who are demanding autonomy. Your wording should be Srilanka is made up of several provinces of which one is the merged north and east as explained above. If Sinhalese want to merge any others it is up to them to do so.

        3. Extent of devolution.
        Again Scottish model can be taken into account. Tamil people want to heve the same powers enjoyed by the Sinhalese in their areas of historic habitation. Any denial of equality will amount to injustice. You cannot deny that their is institutional racism in Srilanka and Tamils cannot get justice. Tamils had been subjected to racial discrimination and violence due to this. Tamils want the injustices done to them corrected. These cannot be corerected without them enjoying full power. In South Africa, blacks were able to correct injustices only after they got power transfered to them from white rule. Similarly as long as there will be Sinhala rule on Tamils none of the injustices will be corrected. Tamils need full Police and land powers to correct them as mere passing of laws will not be sufficient if they cannot implement them due to the police under the Sinhala rule not co-operating. You could take Scottish example or even Indian example in devolving powers. Any constitution without full Police and land powers will have to be forced on Tamils and will not bring peace. Please remeber that Tamils had sovereignty over certain areas of Srilanka which was lost to the Portugese, and When British left they did not returen it to Tamils. We have heard umpteen times Sinhalese saying that they are only correcting injustice done by British to them in denying Tamils there language, right to education and employment on the basis of meirt. But when Tamils demand that injutice done to them by British be corrected, Sinhalese not only refuse but unleash violence on Tamils. Now the time has come to rectify this injustice and let Sinhalese oblige.

        4. Role of Center
        You could either take Indian or Scottish example. The governor should be goodwill ambassador and not a viceroy. He should be acceptable to the council and cannot interfere in the internal affairs of the province. Council should have the right to get him removed if they find him disruptive. Only the external security, doreign affairs, monetary policy inter-regional matters and few other subjects should be with the centre. Regarding the armed services, they should be a true Srilnakan outfit and not a 99% Sinhala one as at present. There should be adequate Tamil number and of those stationed in North and east 50% should be Tamils. Also number of camps should be limited to keep with real security needs not on percieved reasons. In this way you could prevent any racist actions by the armed forces on Tamils. Srilanka government is only worried about security of Sinhalese and the country and not the security of Tamils who had been victims of these armed forces. Sinhales people may deny any wrongdoings by these armed forces and not bring them to justice, but to expect Tamils to comply with this voluntarily, is far fetched. Armed forces should be confined to barracks and cannot come out of with weapons. Any security for them will be provided by the police which will be under control of the provincial council. In this way there will be a balace of power which is necessary for peace and harmony.

        5. Settlement on the basis of justice.
        As far as I am concerned Tamils will never get a just solution under any local initiative, unless by miracle. The concept of devolution was forced by India and was never in the minds of Sinhales. Therefore even today foreign intrvention either diplomatically or if it fails militarily is necessary to bring about justice to Tamils. I would like to take you to the Kosvo experience. NATO intevened to grant autonomy to Kosvo albanians as Serbs refused to do so. Still NATO forces are in Kosovo to protect the territorial integrity. Serbs who were the original inhabitants of Kosovo were being discriniated and subjected to violence by Albanians and they complained. Albanians did nothing as they wanted to drive serbs out of Kosovo. Recently European Union intevened in Kosovo and granted autonomy to Serbs within Kososvo despite the opposition of majority of Albanians, who even went to the extent of causing violence in Pristina. But NATO forces who were in the country put them down and this autonomy plan will be implemented to bring justice to Serbs. If the present attempt to grant justice to Tamils fail in granting their territory and power, then foreign intervention becomes necessary not only to broker a just deal but also to implement it under the teeth of stiff opposition by majority of Sinhalese. Please remeber that peace and reconciliation depend on justice and truth.

      • 0
        0

        Right on Dodo! Political Will is what is lacking to a change Sri Lanka. It is the politicians who are the most corrupt and racist and this has been trickling down to the people and institutions.

        The root cause of the ‘ethnic conflict’ in Sri Lanka is CORRUPT POLITICIANS who play the religious and racist card to win votes from the masses who are politically naive and uneducated.

        It is the corrupt and venal politicians and their parties that have promoted and spread racism to DIVIDE, DISTRACT and RULE the masses.

        Politicians, political parties and political culture works today on the basis of racism and corruption or MONEY POLITICS to distract the people from the corruption of their leaders. This game must be stopped and Political Parties must have Good Governance.

        1.Politicians should be required to have a University Degree and NO Criminal records. Now that Sri Lanka has had free education for decades it is fair to expect minimal qualifications for the job.
        2. Politicians should be required to declare their assets and promise no to spread hate speech.
        3. Term limits for Political Party Leaders are imperative to avoid dictatorships and family rule.
        4. Politicians who jump parties should lose their seats and face a fresh election.
        5. It is only one the political parties are cleaned up that there will be POLITICAL WILL to build a new Sri Lanka.
        6. An Independent Commission to monitor good governance and a Code of Conduct in political parties and hold politicians ACCOUNTABLE TO THE PEOPLE is needed.

    • 3
      1

      Best thing is to get back to the previous name – Ceylon CHANGING the name SRILANKA

      Today, if you introduce yourself as coming from SL, nobody would welcome you.. it is just because Mr Medamulana et al – did a service not second to a swine leaving all the path stinking – these stink would never die away until google keep all activities they deliberately performed.

    • 3
      0

      Dr Fernando,

      I will read your article laters.
      But I would like raise the following question.
      Why the majority folks down there in SL are against federalism which is being successfully practised in Germany, SWITZERLAnd and several other countries in the world ?

      • 3
        0

        Simon Gunasekara

        “Why the majority folks down there in SL are against federalism which is being successfully practised in Germany, SWITZERLAnd and several other countries in the world ?”

        It has been our much-treasured tradition to oppose anything and everything that is deemed progressive, irrespective of who forms the government.

        Political parties have their own agenda to outsmart their opponents. They have found it driving voters into a fear-zone atmosphere where rationality has no role to play is a great way to win elections. Paranoia driven people vote for the most corrupt, devious crooks.

        Federalism has been the “F” word which has stood the test of time. for

        • 1
          0

          Ich danke Dir viel mals.

          I think too, that people mix it up not have healthy knoweldge about Federalism:

          It is almost like psychitry and psychology. Most dont know the difference. Even on the west, people still feel not to go to psychologist to get analysed their day today problems – though amies in general see it to have family psychologist on a regular basis.

      • 1
        0

        I hope Dr Fernando or any talented person would add constructive thoughts on this. THanks.

    • 1
      0

      Oh what a coincidence – aligns so perfectly with that same rogue, singular sentiment of the learned sycophant Dayan masquerading as a Political Scientist.

      Wasn’t DJ at one-time “the” leading champion with the clarion call for non-anonymity in this blog space? Why the sudden bashfulness?
      Or, is it timidity now that the protective arms of the once all-powerful MR/Gota have gone grotesquely limp?!

      • 0
        0

        Kumar R.

        [Edited out] DJ is a good source and an asset for our future work.

        I am going to present my revised Mahinda Chinthanaya to DJ for review before giving to Mahinda and publishing it.

        I love you darling. Help me. Let us work together.

    • 2
      0

      Patriot the pathetic

      “Sir Lanka Needs the Executive Presidency.”

      Sri Lanka needs wise, honest, hard working, visionary, capable, compassionate, caring, selfless, …. leader who also believes in democracy, rule of law, … respects human rights, …. an embodiment of all things good in this world.

      You have no chance of becoming one. Therefore leave the others to decide.

    • 2
      0

      Dr. Laksiri Fernando

      Keep separation of Church, Temple, Mosques and state.

      “The National Anthem

      7. The National Anthem of the Republic shall be “Sri Lanka Matha,” the words set out in Sinhalese and Tamil along with music in the Third Schedule. (Referendum required)”

      It is the National anthem that unites the Land under one Flag

      The Current One is too long, especially the second part.

      So, Remove the second part.

      Keep the First Part. However, Sing In Sinhala 4 lines, Then in Tamu 4 lines and in English 4 lines.

      That way everybody will understand.

      Furthermore, the Sinhala will learn to respect Tamil and English, and the tail will respect Sinhala and English.

      Other option is the National Anthem in all 3 languages.

      Why English ad well. Everybody should understand.

      https://en.wikipedia.org/wiki/Sri_Lanka_Matha

      ශ්‍රී ලංකා මාතා
      අප ශ්‍රී……. ලංකා නමෝ නමෝ නමෝ නමෝ මාතා
      සුන්‍දර සිරිබරිනී සුරැඳි අති සෝබමාන ලංකා
      ධාන්‍ය ධනය නෙක මල් පලතුරු පිරි ජය භුමිය රම්‍යා
      අප හට සැප සිරි සෙත සදනා ජීවනයේ මාතා
      පිළිගනු මැන අප භක්‍තී පූජා
      නමෝ නමෝ මාතා
      අප ශ්‍රී …… ලංකා නමෝ නමෝ නමෝ නමෝ මාතා

      ஸ்ரீ லங்கா தாயே – நம் ஸ்ரீ லங்கா
      நமோ நமோ நமோ நமோ தாயே
      நல்லெழில் பொலி சீரணி
      நலங்கள் யாவும் நிறை வான்மணி லங்கா
      ஞாலம் புகழ் வள வயல் நதி மலை மலர்
      நறுஞ்சோலை கொள் லங்கா
      நமதுறு புகலிடம் என ஒளிர்வாய்
      நமதுதி ஏல் தாயே
      நமதலை நினதடி மேல் வைத்தோமே
      நமதுயிரே தாயே – நம் ஸ்ரீ லங்கா
      நமோ நமோ நமோ நமோ தாயே

      Thou Mother Lanka,
      Oh Mother Lanka we salute, salute, salute, salute Thee!
      Plenteous in prosperity, Thou,
      Beauteous in grace and love,
      Laden with grain and luscious fruit,
      And fragrant flowers of radiant hue,
      Giver of life and all good things,
      Our land of joy and victory,
      Receive our grateful praise sublime, we worship, worship Thee.
      Oh Mother Lanka! We salute, salute, salute, salute Thee!

      ඔබ වේ අප විද්‍යා
      ඔබ මය අප සත්‍යා
      ඔබ වේ අප ශක්‍ති
      අප හද තුළ භක්‍තී
      ඔබ අප ආලෝකේ
      අපගේ අනුප්‍රාණේ
      ඔබ අප ජීවන වේ
      අප මුක්‍තිය ඔබ වේ

      නමෝ නමෝ නමෝ නමෝ මාතා

      நமதாரருள் ஆனாய்
      நவை தவிர் உணர்வானாய்
      நமதோர் வலியானாய்
      நவில் சுதந்திரம் ஆனாய்
      நமதிளமையை நாட்டே
      நகு மடி தனையோட்டே
      அமைவுறும் அறிவுடனே
      அடல்செறி துணிவருளே – நம் ஸ்ரீ லங்கா
      நமோ நமோ நமோ நமோ தாயே

      நமோ நமோ நமோ நமோ தாயே

      Thou gavest us Knowledge and Truth,
      Thou art our strength and inward faith,
      Our light divine and sentient being,
      Breath of life and liberation.
      Grant us, bondage free, inspiration.
      Inspire us for ever.
      Oh Mother Lanka! We salute, salute, salute, salute Thee!

  • 1
    0

    The Pradeshiya Sabhas seems in excess of what is needed.

    The PS should be abolished and its powers transferred to Provincial Councils.

    The national holidays should be restricted to 5 floating days a year. The individual decides when to use the holiday whether its over Xmas, Ramadan or Vesak etc.

  • 0
    7

    1 Unitary state of SL, no power devolution forced by Indo-Sri lanka
    accord rectify by JRJ and Rajva Gandi 1987.
    2 No police power to North or any provincial council.SL will be
    police state in future.
    3 Nationalization of all land belongs big land lords. land to tillers.
    4 Accept civilization of survival more than 2600 years in SL as
    nation first religion of Buddhism. other rights of freedom religion
    must be accept.
    5 All nationalities born in island must grant citizenship.

    • 6
      0

      Sirisena Yatawara

      1. Not much power is vested in the present Provincial Councils. If one or more Councils voluntarily decide to relinquish powers those councils should be allowed to operate under the central government. So tell your provincial council to opt out of the current arrangement.

      2. Whether the councils have more power or not the fundamental issue is the police force must act as the guardian of people not an instrument of tyrants. Most policemen are themselves, little tyrants anyway.

      3.It is a good idea. However once the land is distributed who is going to till fields, imported coolies from India, China, Middle East? Easy come easy go, sell the land, have good time and mourn about poverty then celebrate Sinha Le.

      4. What did happen before your limited timeline? Buddhism was not the first religion of this island. I would advise you to abolish all religion and let the people chose their own religious practises and their personal gods. Why bother with Buddhism when no one wants to practice what Buddha taught 2600 years ago?

      5 Interesting you are almost 26 years too late. Hindians had already got JR to do exactly that.

      Any other suggestions?

      Now tell us what is so good about your five pointless typing?

  • 2
    0

    This is a well intentioned effort by a liberal thinker but it is unlikely to be accepted. It assumes that there is just one people in Sri Lanka which is simply not true in the light of its past or present history. After all, the war was simply about that. The present Sinha Le campaign is reflective of the continuation of that thinking among the Sinhalese. Too far a distance has been travelled to get back to the sense of being one people. It is true that the US and Indian constitutions begin with preambles with such high sounding aspirations. But, these were drafted at momentous periods in history.

    Why is there a need for nine provincial councils? This is a fiction. The need is to ensure that the NorthEast has devolved powers so that they could pursue their own interests as a prople.

    The lion flag is another problem. It is reminiscent of a fiction of buggery as the origin of a race. It is best not to found a constitution on such an absurd and irrelevant fiction.

    This draft does not solve the problems that exist in the country. One should doubt whether the divisive exercise of a constitution is what is needed. It may be sufficient just to get rid of Presdential powers and give greater autonomy to the NorthEast.

    • 4
      0

      Ponkoh Sivakumaran

      “The lion flag is another problem.”

      It is in the nature of the people who prefer beast to peace. Sinha Le and Tamil Tigers. I would not know as to why they closely identify with animals which never lived in this island.

      Why cannot these stupid people creatively design a new meaningful flag which would symbolise unity in diversity, peace, respect for all living creatures including human, hard work, …….

      By the way karava.ord claims sole ownership of lion flag. It believes the lion flag was appropriated by the Kandyans. Kandyans should challenge Karavas.

      Also remember the name Sri Lanka was made in India not an INDEGENOUS product.

  • 1
    0

    Unitary State with nine provinces??????
    Same old Sri lanka where buddhist Sinhala domination over Tamils and Muslims.

  • 1
    0

    Whilst a valiant attempt it clearly fails on a number of counts. In any case there are two problems (i) Sri Lanka’s constitution fails to recognise that there are multiple indigenous nations on the island (so the majority cannot sway matters) and (ii) in any case the implementation of the constitution with respect to the independence of judiciary and human rights has been non-existent since independence.

    Back to the drawing board I am afraid.

  • 0
    0

    [Edited out] Please write instead of posting links – CT

  • 0
    0

    Dr.Laksiri.

    Whilst appreciating your commitment,I wish to comment on your Line…..

    A Senate is proposed.One half of the members should be appointed by the Provincial Councils. The other half is to represent the unrepresented sections,talent and Professionals.

    The Senate members are appointed not elected. Therefore,to make a distinction between those appointments will make the Senate a mix of Pearls and Swines!

  • 2
    0

    Today it is reported that the EP Governor is interfering in teachers’
    transfers – the provincial Minster of Education is sidelined.
    This does not happen in other provinces.
    This is not “good governance” – a.k.a ‘yahapalanaya’.
    This should not happen after a new constitution is entrenched.

    Provincial Governors’ duties should be fully defined and included in any new constitution.

  • 1
    0

    With due respect, you are living in Gagaland.

  • 1
    0

    The National Anthem is too long!

    have you been to the cricket matches…the national anthem goes on and on. The spectators and even the opposition team official all get visibly irritated

    This is a good chance to truncate the national anthem

  • 0
    0

    The National Flag

    6. The National Flag of the Republic of Sri Lanka shall be the Lion Flag depicted in the Second Schedule. (No change. No referendum required)

    I strongly suggest adding another animal to the national flag.
    A Tiger.
    It could be positioned on the NE corner of the flag

    This will put an end to the Tiger flag waving stupid diaspora as they will embrace the Sri Lanka national flag.

  • 1
    0

    Interesting. The Preamble to the US constitution says the following:
    “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

    Also the First amendment to the US constitution says this.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”

    The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting …

    In recent years, with a lot of resistance to Obama’s use of executive orders people have raised the tenth amendment which explicitly gives more powers to the States rather than the Federal Government.

    The 10th reads as follows on Reserved Powers. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

    Also another one that may help in the case of fundamental rights is the 4th Amendment.

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    This will apply not just to a person’s homes but property and even private sexuality issues which are surfacing in Sri Lanka now where it should be nobody’s business if a person is straight or not. Invasion of privacy is the bane of good societies.

  • 1
    0

    Dr LF,

    You have omitted to mention about languages and religions. Is it intentional or an oversight?

    The current flag is completely sullied and a new flag is a must to galvanise the peoples. The new flag should be a simple design in the mould of the Indian flag. This is very important.

  • 0
    0

    So long our political style would not change, it will be not easy to get passed anything for the benefit of the masses.
    The style of politics being practised in srilnaka are not for the uplifement of the nation, but politicians selifish agendas. How can we the nation raise from the current situation is to analyse by lanken sociologists, psychologists, but not the kind of analysts like SELF proclaimed nation s analysts such as Dayan Jayathilaka, nations pundith – GL Peris. Latter from the both – is world recognized professor but his knowwledge is being eroded by Rajapakshe tactics.
    If the professor stayed in academia – not joining lanken politics, he could help dozens of PhD students to finalize their doctorates. By this day, I dont know what the professor has achieved in his kind of politics.

  • 0
    0

    If the Professor suggested the following in his preamble . even I would have ticked it on behalf of the Dalits.

    “Feed the poor , and the hungry by giving them education, jobs, decent houses, health care, and freedom to live in any part of their motherland with the aim of lifting their living standards to meet at least to 25 % of that of the Elite in the first Yahapalan term and to 50% in the second Yahapalana term.

    We wouldn’t even need a constitution after that , because the Dalits would want to change Yahapalanaya. .

    But there should be a clause to disqualify themselves automatically if these targets are not met.

    The same way as Mr Poorten’s mate, the caretaker of Malwatta & Asgiriya, Mr Kiriella Basnayaka wants certain clauses in the new constitution which no one can change even through a Referendum.

  • 2
    0

    If a constitution must indeed be made, certain realities have to be faced. Sri Lanka has been for over sixty years rules by a limited clique of kleptocrats who kept their small group of followers happy by distributing what they stole from the people. They kept themselves in power by stoking up intense ethnic feelings. This was so for both the Sinhalese and the Tamils. Power alternated between two sets of kleptocrats and the picture continues to this day. A new constitution must break this pattern but unfortunately it is not something which can be achieved simply because the kleptocrats are still in power. One set of kleptocrats, Rajapakse, will resort to movements like the SinhaLe to create confusion in the country if a meaningful constitution that ends majoritarianism is brought about. Constitution making at this juncture is a futile effort. It will create more trouble than necessary, more divisions than can be coped with. This effort should be abandoned. Instead, there must be a slow movement to ensure greater power-sharing and the dismantling of the Executve Presidency.

  • 0
    0

    Dear Sir, I have the following comments and questions on the Preamble. Please note that my comments are primarily based on what is explained in Frederic Bastiat’s essay “The Law”.

    1. “In order to consolidate national unity,” <– The phrase 'national unity' is somewhat ambiguous. What does it mean?

    2. "…to preserve territorial integrity and peace, to enhance democracy and good governance" <– the word 'democracy' means: will of the majority, which can be at the expense of the minority. The word fundamentally does not entail concepts of rule of law or limitation of 'democracy' through rule of law. It is a loose word. It is also a word not used in the American constitution. I suggest it be omitted.

    3. "…, to ensure social justice to all communities, to promote social and gender equality, to further promote general welfare and social security of citizens and inhabitants" <– The government cannot create wealth. For this reason the government can only ever redistribute wealth to provide these social services. The provision of these services must therefore inevitably result in the compromise of the fundamental rights you have referred to later on.

    4. "Believing in unity in diversity," <– Ambiguous. What does it mean sir?

    5. "Being a member of the family of democratic nations," <– Is such a membership vital to the interests of the nation? Perhaps revise to "Being a friend towards all peoples of all nations"

    6. "On the basis of fundamental human rights, people’s inalienable sovereignty, constitutionalism and rule of law, compulsory adult universal franchise, and equality of all citizens irrespective of ethnicity, gender, religion, language, political opinion or any other distinction. This Constitution is supreme and is the fundamental law of the country." No comment – this is a good finish!

    If Bastiat is to be followed then the constitution should be based upon the idea that a person be defined by his life, his liberties and his properties, and the government be devoted to protecting these three fundamental concepts, and do no more and no less. That would be a very simple constitution. But perhaps hard to sell.

  • 1
    4

    This is an interesting, and on balance, basically decent draft. Thanks.

    • 1
      0

      Dear Dr. Jayatilleka,You are saying that this is a decent draft, which fails to accommodate the legitimate wish of Tamils regarding nature of state, unit of devolution and extent of devolution. Please read my detailed response to this inadequate exercise appearing above. Could you please give your answer to the following questions on this matter.

      1. Is it unreasonable for Tamils to demand a federal set up within Srilanka, at this modern age when minorities who faced similar racism in other parts of the world have either been granted full independence as in East Timor, Bosnia and South Sudan or de-facto separation as in North Cyprus and Kosovo) or greater autonomy in Aceh of Indonesia.

      2. Is it unreasonable for Tamils to demand that their homeland should not be divided when Sinhalese are demanding that Srilanka should not be divided. In this context is it unreasonable for Tamils to say that eastern province belong to them, when there is concrete evidence based on past census reports, historical records and archeological findings.

      3. Is it unreasonable for Tamils to demand that on basis of justice and equality, they should have the same rights and privileges enjoyed by Sinhalese at least in the areas where they had been living for over 2000 years, so that they could live as first class citizens, enacting laws and governing themselves without any interference of Sinhalese.

  • 1
    0

    Dr. Laksiri Fernando has missed an important point. Some people were asking about Buddhism being given the foremost place in the Republican constitution of 1972. What about others.

    Either they should remove religion completely from the constitution or give all of them equal status. If it is still difficult, at least give foremost place in Sri Lanka to the two ancient religions Buddhism and Hinduism. Islam and Christianity are still new to the country, they can be considered later.

    Hinduism is much older than Buddhism in Sri Lanka and is still followed by not only Tamils but also Sinhalese and Veddas. Tamils, Sinhalese and Veddas worship the Kataragama God Murugan at the ancient Hindu temple in Kataragama. Mahavamsa says, before going to war (against Elara), King DutuGemunu went to Kataragama temple to invoke blessings.

    Buddhism and Hinduism/Brahmanism are the two main religions that existed and flourished in Sri Lanka from the very early period. The Buddhist archaeological sites in the Tamil speaking North & East, or the Hindu archaeological sites in the Sinhala speaking south are not strange phenomena in the island. Even today, if we visit any Buddhist temple in Sri Lanka, there is always a Hindu Devale/temple with Hindu Gods inside the Buddhist temple. Many Sinhalese, whether Buddhist or Christian, are still practicing Hindu religious traditions openly. If you go to the Hindu temples like Kataragama, Munneswaram, Koneswaram, you find more Sinhala devotees than Tamil. Majority of Sinhalese in Sri Lanka practice a Buddhist-Hindu culture.

    On the other hand, even today if you go to the ancient Naga Vihara Buddhist temple in Jaffna town (not the Nagadveepa), you will be able to see some locals (Tamils) worship the Buddha/Dagoba, it is a practice among some Tamils.

    If Religion is included in the constitution, then all the four religions (none of them originated in Sri Lanka) should be given equal status. If people insist on foremost place then both Buddhism and Hinduism should be given the foremost place.

    • 1
      0

      The fundamental to everything is equality. If that is not there, it is another constitution that give a way for slavery and discrimination which made Buddhists as violent murderers.

  • 1
    0

    There is no point for Sri Lanka to have a new constitution unless she moves away from the unitary character which is majoritarianism. One classic example Sri Lanka has to learn from Belgium. Belgium was a unitary state initially. They then have moved toward unitary with comprehensive devolution and finally to a federal one. The king has been instrumental for these changes. What did Sri lanka achieve for the past 68 years having three unitary constitutions. Virtually they did not gain anything.

  • 2
    0

    Prof Laksiri Fernando,

    Thanks for the excellent article.I agree to most of your suggestions without any reservations.

    However, I suggest certain improvements to be made to make it more acceptable to a wider section of Sri Lankan society.

    I wish to amend your version with the following

    Unitary State:-

    The Republic of Sri Lanka is a Unitary State with power sharing with the nine provinces as prescribed in this constitution.
    Wherever the word “devolution” appears in your paper, please replace it with the word “Power Sharing” because the mere word “devolution” denotes two hierarchical level of governance between the two tiers of Governance-one higher and the other lower. The word “Power Sharing” is however, neutral

    Legislative Power

    The legislative power of the state shall be exercised by the Parliament, the Senate and the Provincial Councils. .
    The legislation of the Provincial Council shall not be subordinate to that of the centre.

    Senate

    80% of the members shall be appointed by the Provincial Councils with the single transferable vote. 10% by professional from Professional bodies. The balance 10% is to represent the unrepresented underprivileged sections.
    President
    The president shall not be elected directly, but indirectly by members of Parliament, members of Provincial Councils and some other bodies.

    All executive powers shall be exercised by the President but he will exercise this power on the advice of the Prime Minister as long as the Prime Minister has the confidence of the majority members of parliament. President shall not hold any ministerial portfolio. The cabinet meeting has to be presided by the Prime Minister.

    Governor:- The Governor shall be appointed by the President on the recommendation of a the higher Appointment Committee.

    The executive power shall be exercised by the Governor, but he will exercise this power on the advice of the prime minister as long as the prime Minister has the confidence of the majority members of the provincial Council

    i very much like to have your considered opinion!

  • 1
    0

    Laksiri Fernando,

    I missed on one important issue language

    language

    Let Sinhala, tamil and english shall be the official languages

    and the 16th amendment to be 1978 constitution to be incorporated in full in the new constitution.

  • 1
    0

    An error has crept into my previous comment in respect of Governor’s executive power.

    I give below the corrected version.

    “Governor:- The Governor shall be appointed by the President on the recommendation of the Higher Appointment Committee.

    The executive power shall be exercised by the Governor, but he will exercise this power solely on the advice of the Chief minister as long as the Chief minister has the confidence of the majority members of the Provincial Council.

    I very much regret the error

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