Salient features of a new Constitution

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By 2017-09-23

by Lakshman I. Keerthisinghe

The glory of justice and the majesty of law are created not just by the Constitution – nor by the Courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they are themselves protected by the law. – Robert Kennedy

It has been reported that the Mahanayaka Theras of the three Nikayas and other Sangha Sabhas who convened in Kandy, unanimously decided that there was no need to bring in a new Constitution or an Amendment to the Constitution. Their fears appear to be based on the premise that an attempt is being made by interested parties to bring in the features of a federal State in the new Constitution thereby doing away with the unitary state and deprive the place that Buddhism enjoys in the present Constitution.

In the above backdrop this article attempts to analyzse the salient features of a new Constitution, which would gain the approval of a majority of Sri Lankans at a referendum. Without facing a referendum a new Constitution cannot be framed. The Framework Resolution of 9 March 2016 created a representative body known as the Constitutional Assembly (CA) whereby all 225 Members of Parliament sit as a committee for the purpose of drafting a Constitutional Proposal.

The CA is chaired by the Speaker of Parliament and is aided by seven Deputy Chairmen who have been elected by the Assembly to chair sittings in his absence. In preparing the Draft Constitutional Proposal for consideration of the CA, the Steering Committee is aided by six Sub-Committees. The Sub-Committees were appointed by the CA to deliberate on areas of fundamental rights, judiciary, law and order, public finance, public service, and centre-periphery relations. The recommendations contained in the final reports by the sub-committees are to be considered by the Steering Committee in drafting constitutional proposals on the respective subject areas. The 'Final Report' of the Steering Committee and the 'Draft Constitutional Proposal' will be subject to deliberation and debate by the CA.

Draft Constitutional Proposal

The Final Report incorporating approved amendments will be submitted to the CA thereafter, together with the Draft Constitutional Proposal containing the actual text of a Constitution for Sri Lanka. If the CA approves the Draft Constitutional Proposal by a two-thirds majority, it will be submitted to the Cabinet of Ministers. The Draft Constitutional Proposal will also be presented to Parliament.

Thereafter, the CA will stand dissolved. With the dissolution of the CA, the Draft Constitutional Proposal would be converted to a Bill for consideration by Parliament in accordance with the scheme laid out in the Second Republican Constitution of 1978 for formally enacting a new Constitution for Sri Lanka.

The report of the Public Representations Committee (PRC) quotes what Prof. Marasinghe said in 2003 in foresight: "We have reached such a stage here in Sri Lanka, where it has now become necessary to arrive at a constitutional settlement which would not only provide cast iron constitutional guarantees to all persons equally, which human ingenuity could devise, but also provide the legal institutions that could protect and enforce those guarantees. Unless that is achieved now, this nation would have lost yet another opportunity to solve its ethnic conflict which might in its next phase wrench the country apart," which is true indeed.

The PRC report states that while Buddhism is given the foremost place, Hinduism, Islam and Christianity should enjoy equal rights. It must be noted that in Saudi Arabia no religion other than Islam is permitted to be practised. The Kandyan Convention of 1815 entered into between the British and the Chieftains in Article 5 stated: "The religion of Buddhism is declared inviolable and its rights to be maintained and protected," in acceptance of the unique status Buddhism enjoyed under the Sinhalese Kings.

Advent of Buddhism

From the advent of Buddhism in Sri Lanka it has been given the foremost place and protected by all subsequent kings. Even during the colonial period all attempts to suppress Buddhism failed. For instance, Buddhism was not taught in government schools, disregarded as idolatry under missionary influence and Vesak was not given any special significance until 1885 when it was declared a public holiday, in response to a sustained campaign of agitation by the Buddhist public and the Sangha. Thus Section 29 of the Soulbury Constitution enshrined a principle that even the British did not necessarily uphold in practice either in Britain or in any of its colonies, despite public declarations of a commitment to the ideal of a secular State.

For example, in England the British monarchy i.e. the Queen, is officially declared as the defender of the faith i.e. Christian faith, and in spite of Britain being a multi-religious society, the laws against blasphemy operate only when the Christian religion is denigrated or ridiculed. Only days of religious significance to Christians have been made public holidays in Britain whereas in Sri Lanka all important days of religious significance of all four religions Buddhism, Hinduism, Christianity and Islam have been declared public holidays. The Constitution should also recognize it as the supreme law of the country.

Supremacy of the Constitution

To ensure the supremacy of the Constitution, all action inconsistent with the Constitution must be considered void. Removal of executive presidency should not mean transferring all the executive powers to the Prime Minister and creating an authoritarian executive Prime Minister. While the President should have certain powers to ensure checks and balances the functions of Parliament, the Prime Minister should be answerable to Parliament and the President.

It has been stated that the denial of language rights formed the basis for the ethnic conflict in Sri Lanka. The language issue has grown to such proportions as to bring the country to the verge of total destruction. It is acceptable that the new Constitution should recognize tri-lingual administration at the centre to avoid language discrimination. Every non-Sinhalese citizen should have the right to services and communication in their own language, either in Tamil or English, with access to translators.

The Sub Committee on Fundamental Rights has recommended that the fundamental rights chapter should be strengthened and made consistent with Sri Lanka's international human rights obligations and should also include social, economic, cultural, group, women's and children's rights apart from strengthening civil and political rights. Provisions must be included in the new Constitution to ensure judicial independence which means that judges are not subject to pressure and influence, and are free to make impartial decisions based solely on fact and law.

Devolution of power

Although properly devised, devolution of power would be the major starting point towards reconciliation, the unitary State of the country should be preserved. The Constitution should specifically state that the Sri Lankan State is sovereign, unitary, undivided and indivisible. It should specify that no Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of Province or part thereof, from Sri Lanka.

There should be provisions to strengthen the institutions dealing with justice in the country such as the judiciary, the Attorney General's Department, the Bribery Commission, the Police by the provision of sufficient human and material resources to prevent delays in the administration of justice.

In conclusion, it must be appreciated that as Robert Kennedy stated and quoted at the outset: "The glory of justice and the majesty of law are created not just by the Constitution ...but by the men and women who constitute our society, who are the protectors of the law as they are themselves protected by the law." It must be noted that as Abraham Lincoln stated, "We the people are the rightful masters of both Congress and the Courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution," and the people of Sri Lanka would not hesitate to act in a similar manner.

The writer is an Attorney-at-Law with LLB, LLM, MPhil (Colombo)

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