Sri Lanka is in the process of framing a new constitution. A resolution submitted by Prime Minister Ranil Wickremesinghe seeking parliamentary approval for the appointment of a constitutional assembly was adopted unanimously on March 10, 2016.
The original resolution underwent significant amendments proposed by the Sri Lanka Freedom Party (SLFP), the Joint Opposition and the Janata Vimukti Peramuna (JVP). This is the third attempt at constitution making since independence in 1948. The last Constitution which gave birth to a Presidential system of government was introduced by J.R. Jayewardene. It came into effect on February 4, 1978 and since then has undergone 19 amendments during the last 38 years.
The new constitution, inter-alia, is aimed mainly at (a) Reforming the electoral system, (b) Abolishing the Executive Presidency, and (c) Finding a solution to the ethnic problem through various forms of devolution.
The Government appointed a Public Representation Committee (PRC) to obtain the views of civil society, institutions and individuals outside the elected parliament. The PRC has since submitted its report to the government in all three languages.
Constitutional making is not going to be easy as evidenced by the inadequacy of the 1972 and 1978 constitutions. These constitutions reflected the narrow political philosophy of the then leaders of the SLFP and the United National Party. Mrs. Srimavo Bandaranaike wanted to vest power in the hands of the majority Sinhala – Buddhists at the expense of other national minorities. J.R. Jayewardene who was an ardent admirer of American President Dwight Eisenhower and French Charles De Gaulle always dreamt of introducing an executive presidency in Sri Lanka.
In 1971, he moved a resolution in the Constituent Assembly in support of an executive presidency. The resolution was rejected, but when his chance came in 1977, he ditched the 1972 constitution in favour of an executive Presidential style government. J.R. Jayewardene became a constitutional dictator under his 1978 constitution. He boasted that he can do anything except making a man a woman or vice versa.
His successors made full use of the executive powers of the President to the extent of subverting parliament and undermining the independence and powers of the judiciary. Ironically, Mahinda Rajapaksa who came to power promising to abolish executive presidential system made full use of the same system. He became an authoritarian ruler, especially after the 18th Amendment.
In short, both the Republican Constitution of 1972 and 1978 were fundamentally flawed concentrating power in the hands of single individuals and failed to protect and safeguard fundamental democratic values and principles. The 1972 Republican constitution ditched the Soulbury constitution by conferring constitutional status to the Sinhala Only Act, giving the religion of the majority foremost place and declaring Sri Lanka a unitary state. These provisions were almost reproduced verbatim in the 1978 constitution by J.R. Jayewardene.
A country’s constitution is the fundamental laws and principles of a country or state that create a system of government. The constitution of Republic of South Africa sets out how all the elements of government are organised and contains rules about what power is wielded, who wields it and over whom it is wielded in the governance of a country. It can be seen as a kind of covenant between those in power and those who are subjected to this power. It defines the rights and duties of citizens, and the mechanisms that keep those in power in check. It is worth repeating the Preamble to the Republic of South Africa’s constitution which, inter-alia, states as follows:
*Believe that South Africa belongs to all who live in it, united in our diversity.
*We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to –
*Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
*Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
*Improve the quality of life of all citizens and free the potential of each person; and
*Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
The constitution recognizes no less than eleven (11) official languages, including English. All official languages must enjoy parity of esteem and must be treated equitably. There is constitutional provision for the promotion and development of not only the official languages, but also other languages commonly used by communities in South Africa like German, Greek, Gujarati, Hindi, Portuguese, Thamil, Telugu and Urdu! There is recognition also for Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.
The US constitution drafted by the Founding Fathers is one of oldest written constitution in the world. The constitution was written in 1787 during the Philadelphia Convention, but ratified on March 4, 1789. It is considered one of the most important human rights document ever written. It is a very brief document and consists of a preamble and seven articles only. Three of the articles are related to structure and powers of Legislative (Article 1), Executive (Article 2) and Judiciary (Article 3) and the other four dedicated to position of states (Article 4), modes of amendments (Article 5), supremacy of national power (Article 6) and ratification (Article 7). It also holds that constitution is the supreme law of the land. Article one is the longest and cannot be amended. The preamble defines the purpose of the document and reads as follows:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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.
We the People of the United States means the Framers of the constitution were not trying to forge a nation made up not of elite, but of the common man. It was not handed down by a god or by a king — it was created by the people. Important features of the US constitution are:
1. It establishes the popular sovereignty of the people. This means in U.S, the people rule i.e. they have delegated their powers to the government and the government owes its authority to the will of the people. The principle of popular sovereignty is stated in the Preamble of constitution as “we the people do ordain and establish this constitution for United States of America.” This means that the ultimate seat of authority in United States is the American people.
2. Provides for bicameral legislature. According to Article 1, “All legislative powers are vested in Congress.” Congress is the parliament, which consists of two houses; House of Representatives (Lower House) and the Senate (Upper House).
3. It is based on the principle of “separation of powers”. The framers of the constitution believed that the separation of various organs of the government was necessary to ensure individual liberty and to check despotism. They, therefore, gave the presidential system to their people. The powers are divided among Congress, President and the Judiciary.
4. Congress has the power to make laws which outline general policies and set certain standards. President can enforce, execute and administer law. He is assisted by his cabinet but is solely responsible for all actions of Executive branch. Judicial powers are exercised by the Supreme Court which interprets laws and decided cases and controversies in conformity with the law and by the methods prescribed by law. The President is not responsible to the legislative. Legislative powers have been vested m the Congress and judicial powers are vested in the Supreme Court.
5. The framers of the U.S constitution were aware that a department, if left unchecked, would become oppressive. They, therefore, introduced checks and balances in the constitution. The separation of powers confirms the system of Checks and Balances. This system prevents misuse of powers. The powers are provided in such a way that it provides a check upon other institutions.
6. Congress has been given a share in the executive powers. It can check the president’s powers of making treaties and appointments. Similarly, the President enjoys the powers of veto. By using this power he can influence legislation. He also enjoys judicial powers of giving pardon and reprieve. All this creates a system which makes compromises necessary which is a sign of healthy democracy. It prevents the rise of dictators as well.
7. The direct consequence of separation of powers is the doctrine of judicial independence. In United States all the judicial powers are enjoyed by the Supreme Court and other federal courts, no other office can influence its independence.
8. The U.S constitution provides for a federal system of government. Federalism is a device by which independent states form a union without losing their identity. According to Article 1, the federal government has jurisdiction over 18 matters and residuary powers are vested in states. States are autonomous bodies and centre cannot interfere in their affairs. In case of conflict, Supreme Court decides or settles the dispute.
9. It provides for a presidential form of government. Article 2 provides the powers, election and their matters related to president. President is elected for a term of 4 years and is not answerable to Congress and cannot dissolve Congress. He has a cabinet to assist him in running his executive powers.
10. It calls for a republican system with President as elected head of the state. The constitution derives its authority from the people and is supreme law of the land. Neither centre nor states can override it.
11. It ensures certain fundamental rights for every America citizen. He cannot be deprived of these rights by any lawful authority. The first ten amendments to the constitution are called “Bill of Rights”. The Bill of Rights provides for the rights of a person’s property, liberty, freedom of speech, press, religion and assembly.
12. It provides for dual citizenship i.e. every American citizen is entitled to the right of dual citizenship. First of all, he is the citizen of America and secondly he is the citizen of that state in which he lives. The feature of dual citizenship was introduced in the American constitution by the 4th amendment.
13. An important feature of the American constitution is the power of judicial Review. The Supreme court in U.S is supreme not only in theory but also in practice. In U.K no court can challenge the power of Parliament; however in United States all the laws passed by the congress and state legislatures are subject to judicial review.
14. Unlimited powers of the government would make them despotic which would lead to tyranny and violence. In UK the Parliament is supreme whereas in US the constitution is supreme and the powers of the government organs are limited.
Thus the Steering Committee and other sub-Committees could benefit from the study of constitutions that have stood the test of time. On the contrary the three (3) Sri Lankan constitutions lasted on an average of 38 years only.
Last year, after four (4) years of deliberations Nepal has adopted a federal constitution after abandoning the previous unitary constitution. It is worth studying Nepal’s constitution in depth since both Nepal and Sri Lanka are multi-racial, multi-lingual and malt-cultural countries.
Nepal promulgated the new constitution on September 20, 2015. The new constitution embraces the principles of republicanism, federalism, secularism, and inclusiveness.
Under the constitution, Nepal’s new federal structure will see the country divided into seven provinces, with clear lists of legislative powers for the central, provincial, and local bodies.
The country with the largest Hindu majority will continue to be a secular state with a special definition of the term: “respecting pre-historic traditions and religious and cultural freedoms.”
The other main characteristic of the new constitution is inclusiveness. The existing state structure is dominated by one particular community; others are deprived proportional representation in the current unitary structure.
The new constitution also provides a long list of fundamental rights, including economic, social and cultural rights, with the possibility of progressive realization.
Bicameral parliamentary system has been created with two houses at the Center and unicameral parliamentary system in each state.
Mixed electoral system has been opted for the elections of the lower house at the Center with both first past the post election system and proportional election system are used to elect members of the lower house.
Rights of gender and sexual minorities are protected by the new constitution with provisions of special laws to protect, empower and develop minority groups as well as allowing them to get citizenship in their chosen gender.
Recognizing the rights of women, the constitution of Nepal explicitly states that “women shall have equal ancestral right without any gender-based discrimination.”
Nepal also has also continued to abolish the death penalty. Nepal had abolished death penalty in 1990 after the promulgation of the Constitution of the Kingdom of Nepal in 1990.
The Constitution defines wide range human rights as fundamental rights.
The drafting of a new constitution by the Steering Committee is going to be a tedious task in the context of past tortuous history. A constitution that would satisfy both sides Sinhalese and Thamils will prove difficult. Yet for lasting peace, order, national unity and good government a progressive and modern constitution is a must. Already there is fierce debate over unitary vs. federal constitution. A campaign has already been launched claiming federalism will lead to separation; it is the first step to carve out a separate state.
The TNA has repeatedly assured the country that it is against separation. The TNA has made it known that the contiguous preponderantly Thamil speaking Northern and Eastern provinces is the historical habitation of the Thamil People and the Thamil Speaking Peoples and power sharing arrangements based on shared sovereignty over land, law and order, enforcement of the law, but within an undivided and united Sri Lanka. Such powers will ensure the safety and security of the Thamil People and their socio-economic development.
Sri Lanka needs a democratic, federal and secular constitution with strong divisions of power and checks and balances.