As a campaign of misinformation subsumes the constitution-making process that has been in gridlock for several months now, officials working in the Parliamentary office coordinating the drafting process are dismayed by how historic and unprecedented steps to draft a new supreme law of Sri Lanka have been undermined.
Additional Secretary to the Constitutional Assembly, the 225 member body of parliamentarians that appoint committees to draft the final document, Yuresha Fernando says, the process that began in 2016 with a resolution of Parliament is historic in many ways.
“This is the first time in our history, a constitutional process began with wide public consultations, and by making all legislators stakeholders in the process,” Fernando said in an interview with the Sunday Observer.
But now, that process was being discredited. The Government, beleaguered by internal crisis has focused on other priorities, and failed to take ownership of the constitution making process, officials say, and this has left the constitutional reform project open to wild speculations and the target of misinformation campaigns. But even while the coalition dithers on the question of a new constitution, the process is still in motion at the Assembly, where lawmakers and experts are working hard to get out a final draft constitution that will be a negotiated settlement among the 225 nationally elected lawmakers on vital questions of state, including the resolution of the ethnic question, the abolition or otherwise of the executive presidency and the reform of the electoral system. While pessimism rules outside the offices of the Constitutional Assembly, a group of dreamers continue to chip away at the negotiations over the draft, quietly hoping to have some kind of working document on constitutional proposals ready within a month or so.
Addressing a panel discussion in Matara earlier this month, Fernando, who is a Senior State Counsel at the Attorney General’s Department and now serves as Additional Secretary of the Constitutional Assembly, admitted that ‘momentum’ had been lost, but said she still expected the final report would be ready in July. “On May 28, 2018 it was decided that the report must be presented to the Panel of Experts for their recommendations within a month. After which it will be presented to the Constitutional Assembly” she said responding to a question by a reporter during the discussion organized by Internews.
The process to draft a new constitution began in January 2016, when a Public Consultative Committee was appointed by the Cabinet of Ministers to seek public opinion on making a new Constitution for the country. The PRC was headed by Lal Wijenayake and comprised 20 persons of eminence.
“The first question asked from the people was, whether the country needed a new constitution,” Chair of the Public Representations Committee on Constitutional Reform Lal Wijenayake said.
“Almost 95% of the people of nearly 2,500, who came before the PRC, said we needed a new constitution. The PRC had sittings in all 25 districts. When the question ‘Why’ was posed, the people cited various reasons from land issues to matters of law enforcement.”
In a brief five months, a report was compiled containing the Commission’s recommendations outlining the people’s wishes. On March 9, 2016, a resolution was passed unanimously by all 225 members in Parliament converting the House into a Constitutional Assembly (CA), to ensure that the entire membership of the people’s representatives, across political divides were involved in the process. “During previous constitutional making processes what happened was the government prepared a draft and it was presented to Parliament for approval. But, the entire Parliament sitting as a CA ensured the ownership of the new constitution,” Fernando said.
This was the second phase of the constitutional making process. The House resolved to meet as a separate body to make a new constitution for the country.
When the House met as the CA the ‘ceremonial mace’ is taken out of the Chamber by the Sergeant at Arms. Yuresha Fernando explained that it was a very important symbolic gesture to say that the Constitutional Assembly does not have legislative power. The resolution has given power to have its sittings in Parliament although the CA is not a parliamentary committee but each time it has had sittings, the mace was taken out. It is the first time that something like this has happened in Sri Lanka’s Parliament.
The role of the CA is to come up with a political agreement, a draft which has no legal basis. The adoption of that document will be by Parliament. That process will be done in accordance with the provisions of the existing constitution, under Article 83, the Additional Secretary of the Constitutional Assembly said, adding that there were a lot of misconceptions about this process which was an unfortunate thing.
The Constitutional Assembly appointed a Steering Committee (SC) and six sub committees. The Steering Committee had 21 members and was chaired by Prime Minister Ranil Wickremesinghe. The six sub-committees comprised 11 members each and were headed by Members of Parliament, taking into account the multiparty representation. Even the Joint Opposition members, Bandula Gunawardena, Dullas Allahapperuma, Vasudeva Nanayakkara and Namal Rajapaksa among others were appointed to the sub committees and they took part in deliberations actively.
Fernando said, “The mandate for the preparation of the draft is with the Steering Committee, the sub committees were appointed, giving them autonomy, to handle specific subject areas that are not directly handled by the SC.”
The specific areas were Fundamental Rights, Law and Order, Centre Periphery Relations, Public Service, Public Finance and the Judiciary. The multiparty presence has been a thematic feature of this whole process beginning from the PRC.
For example, Law and Order was headed by Minister Sagala Ratnayake, Fundamental Rights by Minister Mahinda Samarasinghe, Finance by Bandula Gunawardena, Public Service by Susil Premajayantha, Judiciary matters Rauff Hakeem and Siddharthan chaired the Centre Periphery Relations.
“This diversity ensured a diversity of views also coming together in the final report,” she said. The Interim Report of the Steering Committee was submitted on September 21, 2017. It contained areas that were directly deliberated by the SC members, core issues such as Chapters 1 and 2 of the Constitution ; Nature of the State, formal structure of government, electoral reforms, the Executive, religion, land powers and principles of devolution. The Report was debated at the CA for five days from October 30, 2017 with a massive 110 members making speeches for and against the recommendations in the Interim Report. The Consolidated Report of the sub committees were handed over to the SC in August 2017 and tabled in the Constitutional Assembly on November 19, 2017. Both documents are now in the public domain.
The Panel of Experts was also nominated by the political parties. Members of the Public Representations Committee sat through the deliberations of the six sub committees, to ensure that the people’s views were also bridged in the CA process. Additionally, the committees themselves invited experts as well as a wide spectrum of interest groups, to consult on the subject matter and the constitutional making.
According to Ms.Fernando right to education, right to health services, right to environment, right to the ownership of property, right to privacy, right not to be subjected to disappearances, freedom to hold opinions without interference, security of persons, freedom from exploitation, family rights, rights of children, senior citizens and persons with disabilities etc. have been newly added to the Fundamental Rights Chapter as per the proposals by the relevant sub- committee.
The Public Service Sub-Committee has proposed a new Clause to make even the Minister equally responsible for any order or decision being carried out by a Ministry Secretary under the orders of the Minister. This provision will give confidence to Ministry Secretaries to carry out their responsibilities.
Despite these meticulous efforts to ensure public representation at every step of the way, there were allegations that the new constitution making process was being done behind closed doors, Fernando added. The way the resolution is being drafted and the process taking shape, it was intended to be a people’s resolution. She said, “The very fact that it started with a public representations committee, bears testimony to this effect.” During the subcommittee meetings also there had been avenues for people to come in and present their views.
“The allegations may have arisen because, during the Steering Committee level deliberations, when the parties were trying to reach consensus on more difficult core issues such as the Nature of the State, the executive, electoral reforms, devolution, etc, little information was shared publicly.”
She said, “It was done to ensure that the members sitting at the SC have the freedom to express their views without being pressurized into hanging on to party or political slogans, to encourage them to look at it in the national interest.”
The idea had been for the people to know the outcome later. “This may have created the misunderstanding and given rise to allegations of closed-door-constitution-making,” she said, adding that the SC is now out and it is the time to begin discussion on basic principles in the public forum. “What you get in this report are principles and formulations for discussion. There is no draft document of a new constitution so far,” she affirmed.
A legally acceptable draft document will come in the third phase of this process after it is approved by the Cabinet and Parliament. The whole idea of the CA is to prepare a document to be submitted to Parliament. The question of Referendum comes only in the last stage.
At the end of the second phase, the CA will vote on a document submitted by the SC. If a two thirds approval is given by the CA, this document will be considered to be a ‘consensus document’. There is no legality to that in the context of a new constitution. That vote will mark the end of the Constitutional Assembly.
Thereafter, it will go to the Cabinet of Ministers for approval. According to the provisions in the 1978 Constitution, this Draft Bill then has to be approved by Parliament. The question of a Referendum arises here. A Referendum is required if Articles set out in Article 83 of the present constitution, for example, Article 1 (Nature of the State), 2, 3, 6, 7, 8,9, 10 and 11 are changed. The Additional Secretary however said, the process might end in a Referendum irrespective of whether these articles are changed or not, before the new constitution is adopted, if the members decide so. Nevertheless, the question of the Referendum arises only at the final stage of the process. If the ‘Document’ is passed with a simple majority at the CA, still the CA will be dissolved. The consensus agreement will then be sent to Parliament to review it and approve with a two thirds majority within a month. This is not considered as a legislative process. This Draft must then be sent to the Cabinet and once again approved by a two thirds majority in the House.
If the Constitutional Assembly fails to garner even a simple majority for the ‘Document’, then the whole process will come to a premature end, the Additional Secretary explained.
Chair of the PRC on Constitutional Reform Wijenayake said Opposition voices try to assert that the government has no mandate to bring in a new constitution, but it should not be forgotten that the entire 225 MPs voted unanimously in Parliament, to set in motion a process to bring in a new constitution for the country. He questioned what more mandate is required. Wijenayake said, there was no question of the legality of the CA because the ongoing process is not a legislative endeavour. “All they have been mandated is to come up with a political document. The principle is that all people’s representatives will come together in this task,” he said.
The SC tabled their Interim Report on September 21, last year. The Expert Panel is now in the process of compiling a document that will be a discussion paper for the SC. Based on this document the SC will make a draft constitutional proposal that might be the final report.
The Expert Panel is considering the representations of the political parties annexed in the Interim Report, debates in the CA and general representations by interest groups. Their report is expected in early July.