By 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.
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.
The People, the State and Sovereignty
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)
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
5. The 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
9. In 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.