Make the new Constitution a Document solely by the People and for the People – By Bernard Fernando.
At the outset, it should be stated that the silent majority of the sovereign voters across the country were able to elect the new President and his team as the only political party fully committed to creating a new political, public and media culture in our homeland through a series of crucial ‘System Changes’ via a new Constitution. Towards that end, they have exceptionally succeeded in the elusive National reconciliation effort by building pillars of ‘Sri Lankan ness’ in the four corners in the North, South, East and West of the Country. They have already set examples of ‘System change’ by nominating Political Professionals and more Women to the Parliament. Also, we raise our hats for ‘Charity begins at home’ measures to curtail expenditure by reducing privileges to MPs such as duty free vehicles, and princely meals at heavily subsidized rates. Celebrating Independence Day without pomp and pageantry and similar measures proposed in the budget are indeed commendable and surely better than precept. Expediting steps to bring corrupt politicians to book is fulfilling a major election promise.
Prioritising the next step
The next step is to sustain the ’System change revolution’ via a package of Country first, rational, cost effective and transparent ‘People/voter friendly- system changes’, demanding Constitutional amendments and corresponding Acts to improve constructive and consensual debate quality, decorum and effectiveness of the ‘Supreme Parliament’ in relation to its objectives and rationalizing the multi layered Political organizational structure. Such ‘Root cause’ removing measures will surely pave the way to an economically and culturally developed country where corruption and theft are effectively curbed.
Who should take over Constitution making?
In this regard, the writer recalls with much respect, a public statement titled ‘Constitution-making should be Open, Public and transparent’ by an erudite group of learned persons that appeared in the press in late 2021. It was so topical and forthright at that time, that it nudged the writer as a sovereign voter and a senior citizen to respond to them with the following Constitution making procedure that ensures transparency and public participation bereft of Political involvement which summons a fundamental ‘Conflict of interest’ on their part particularly in regard to crucial ‘Political and Electoral system changes’ that directly implicate them.
Why were People left out of Constitution making ?
The majority of simple sovereign voters is engaged in a daily battle of keeping the wolf from the door and have no time to gain voter literacy beyond casting their vote on an Elections day as a ritual. Thus, over the years, the politicians as their elected ‘Agents’ have completely overpowered the ‘Principals’ and reigned supreme with impunity. Obviously, it is due to the highly disproportionate hype, publicity and attention given to empty utterances and false promises of crooked politicians mainly by the Media, ignoring valid suggestions and proposals from the sovereign voters in regard to several areas involving Country/Public interest. Adding insult to injury, even some civil organisations dedicated to protect the rights of sovereign voters as well as some officials and adhoc Review-Committees guiding the politicians have failed to arrest this trend inter alia due to the absence of a robust and transparent procedure to consult the people at least through the mass media before legalising such systems which were tailor made to fit vested interests of corrupt politicians hunting for a dictatorial majority in the Parliament under the pretext of the need for a strong Govt. !
Unfortunately, due to political expediency, the new Govt. could not muster the political will to legalise depoliticisation of the LG Machinery that is hitherto being subverted to strengthen the Vote Banks of traditional Political Parties adopting corrupt methods and using the LG Election as a litmus test to measure their Popularity/Unpopularity at the expense of Tax payers’ money in muti-billions.
In this backdrop, the writer wishes to propose a rational and transparent method to deal with the proposed ‘New Constitution’ using its chapter- ‘Franchise and Electoral Reforms’ as an example.
A transparent method to ensure sovereign voter participation in ‘Electoral Reforms’
- As has already been proposed, the President on the advice of National Elections Commission (NEC) shall set up a ‘Permanent Civilian Task force for ‘Political and Electoral system Reforms’ comprising, NEC recommended eminent retired Judges and the Academia possessing the requisite expert knowledge together with, ‘Sovereign voter dedicated’ Organisations (like ‘Paffrel’, CaFFe, CMEV) and other concerned civil rights Organisations and knowledgeable activists as its members. Since matters such as Eligibility criteria, Procedure for Selection, nomination, and allocation of seats for Politicians are some of the crucial aspects in Electoral Reforms, they would be barred from membership in this Task force owing to the fundamental ‘Conflict of interest’ as aforesaid and the tenets of ‘The Law of Agency’. Besides, the majority of them lack a thorough knowledge in Constitution making. The sad plight of a previous Parliament sitting as a ‘Constitution Assembly’ for 4 ½ years with no result bears ample testimony to this fact.
- The Task force shall study the relevant Reports submitted by the President, Academics, concerned Civil organisations and activists and prepare its own Draft on ‘Electoral and related Political reforms’ for submission to NEC.
- The NEC in turn will whet the Draft and in keeping with the principles of ‘People based Governance’, Effective ‘Equal suffrage’, Rationality, simplicity, transparency and Cost effectiveness, place its own Draft before the people through the mass media for their final comments and clearance within a specified time frame.
- Thereafter, the NEC will consider the proposals and comments from the public and prepare the final draft and submit same to the Supreme Court for clearance.
- The same final Draft together with Comments/recommendations of the Supreme Courts shall be sent to Legal Draftsman for preparation of the relevant section in the new Constitution.
- Considering the potential for so called ‘slips’occuring between the ‘Cup and the lip’, at different levels, such Final Draft of the section prepared by the Legal Draftsman as per 5 above should be placed before the people again through the mass media for their final comments, if any, within a specific time frame.
- Thereafter, the Final document should be placed before the Parliament through the Cabinet solely for formal approval and thereafter, go for a ‘Referendum’ on the recommendation of Supreme Courts and the approval of the President.
Further Recommendations towards the passage of the ‘New Constitution’
- The writer further recommends that the above transparent procedure be followed in respect of all other relevant sections/Chapters of the ‘New Constitution’ within specified time frames to expedite ‘People based Governance’ through a Constitution of their own making.
- Teams of Final year law students should be utilized to fine tune the respective Chapters in terms of clause compatibility, maximum clarity, duplication and minimum usage of legal jargon.
As a result of this transparent exercise, the people and the politicians themselves will become more conscious and aware of the basic law of the country too.
Concluding Note
We know that despite the meticulous attention given for its drafting by constitutional experts, it is still prone to loopholes and interpretational difficulties caused by exceptional, unforeseen circumstances and human error. We are also aware of a global phenomenon where crooked legal experts deliberately introduce ambiguous clauses in to legislation with ulterior Political/ business motives. Therefore, we have to admit that a Constitution will never be a perfect document and will be open to multiple interpretations by persons with good integrity as well as political bias, divisive and vested interests and rival motives, as happening in SriLanka too. Being an imperfect but a dynamic document, a constitution also needs to be amended in keeping with the democratic needs and aspirations of the new generation and the youth in changing times and culture.
We earnestly appeal to Religious Leaders ,the Govt., National Elections Commission, BASL, civil society organisations and activists to shoulder this national endeavor of re-making our Constitution towards a beautiful, Sri Lanka enriched by an uncorrupt, civilized and a resourceful citizenry.
Bernard Fernando
Former Deputy General Manager-Bank of Ceylon
Email: fernadobernard81@gmail.com
Tel: 0718118443
