Prioritise People based Constitution making- A depoliticised method – By Bernard Fernando
It is well known that the silent majority of the sovereign voters across the country elected the new President and his team as the only political party fully committed to creating a new political, public and media culture through a series of crucial ‘Political and Electoral System Changes’ via a New Constitution ‘by the People and for the People’. Towards that end, they have overwhelmingly succeeded in,
a) precipitating the elusive National reconciliation effort by building pillars of ‘Sri Lankan ness’ in the four corners in North, South, East and West of the Country;
b) setting live examples of ‘System change’ by nominating more Political Professionals and Women to the Parliament;
c) curtailing Govt. expenditure by reducing privileges to MPs such as duty free vehicles, and princely meals at heavily subsidized rates ;
d) celebrating Independence Day without pomp and pageantry of parading armed vehicles exhibiting war power;
e)similar cost effective measures proposed in the budget and
f) Expediting steps to bring corrupt politicians to book, fulfilling a major election promise.
They are commendable indeed and deserve kudos from the people.
Prioritising the next step
The next step is to streamline and sustain the ’System change revolution’ across the board via the writer proposed, ‘Voter -friendly package of Country first, rational, simple, transparent and cost effective ‘Political and Electoral system changes’, through Constitutional amendments and corresponding Acts. As a result, at a future Parliamentary Election, the entry of 225 Country first Political professionals will improve the quality of constructive and consensual debates, decorum and effectiveness of the ‘Supreme Parliament’ focusing on its real objectives. Simultaneous passage of the writer proposed ‘system change’ package to the multi layered Political organizational structure mainly to replace the people elected ‘Executive President with a Non-Executive President and depoliticise Local Govt. Elections with effect from specified future dates, will rationalize the entire Political system and buttress the newly affirmed ‘SriLankan ness. Such ‘Root cause’ removing measures will alone pave the way to an economically and culturally developed ‘Beautiful and rich country’ where corruption and theft are effectively curbed.
Unfortunately, due to want of more time and/or political expediency, the new Govt. could not muster the political will to legalise depoliticisation of the LG Machinery which is detested by the people but ironically being perverted by the traditional and cunning Politicians to strengthen their Vote Banks 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.
Who should then take over Constitution making? In this regard, the writer recalls with much respect, a public statement in the press, titled ‘Constitution-making should be Open, Public and transparent’ by an erudite group of learned persons in late 2021. Since it was so topical and forthright at that time, it nudged the writer as a sovereign voter and a senior citizen to respond 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 at discussions on crucial ‘Political and Electoral system changes’ that directly implicate them.
Why were People left out of Constitution making ?
The simple sovereign voters are 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. The intelligentsia of the country were in hibernation for reasons best known to them, allowing the Political mafia to rule the roost and call the shots at every turn with sheer impunity. Thus, over the years, the politicians despite being elected ‘Agents’ have completely overpowered the ‘Principals’ and reigned supreme. Obviously, it is mainly due to the highly disproportionate hype, and attention given to empty utterances and false promises of crooked politicians mainly by the electronic Media, ignoring valid and practical 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 key officials and adhoc Review-Committees guiding the politicians have failed to arrest this trend following the pithy Sinhala saying “ wela yana peththata messa gaseema”.Thus, before legalising systems 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 so called ‘strong Govt.’, a robust and a transparent procedure to consult the people at least through the mass media needs to be laid down . Accordingly, the print media organisatons shall provide more space for comments and proposals from the public on issues of National importance without restrictions such as ‘Single paper policy’.
A depoliticised method that ensures ‘People based’ Constitution making.
In the said backdrop, the writer wishes to propose a rational and transparent method to make the ‘New Constitution’, using the chapter- ‘Franchise and Electoral Reforms’ which is very important for voter literacy, as an example.
1) As has already been proposed, the President on the advice of the newly empowered 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 voter activists as its members from time to time. Since matters such as Eligibility criteria, Selection and nomination Procedure, and allocation of seats for Politicians are some of the crucial aspects in Electoral Reforms, they shall be barred from membership in this Task force owing to fundamental ‘Conflict of interest’ and the tenets in the ‘The Law of Agency’. Besides, the majority of them lack a thorough knowledge in Constitution making, as evidenced from the sad plight of a previous Parliament sitting as a ‘Constitution Assembly’ for 4 ½ years with no result.
2) The Task force shall study the relevant Commission Reports by the Govt., Academics, concerned Civil organisations and Voter activists and prepare its own Draft on – ‘Franchise and Electoral Reforms’ including people friendly ‘Political and Electoral system’ reforms, for submission to NEC. Obtaining the services of BASL members and Final year law students to fine tune the respective Chapter in terms of clause compatibility, maximum clarity, duplication and minimum usage of legal jargon etc. would be of mutual benefit.
3) The NEC in turn will whet the Draft in consultation with the taskforce and in keeping with the principles of ‘People based Governance’ and the need for a Robust Representative Democracy, Effective ‘Equal value to ballot’, Rationality, Simplicity, Transparency, Cost effectiveness and overall productivity of the system signifying the dynamic social and cultural changes, prepare and place its own Draft before the people through the mass media for their comments and clearance within a specified time frame.
4) Thereafter, the NEC will consider the proposals and comments from the public and prepare its final draft and submit same to the Supreme Court for clearance.
5) The same final Draft together with Comments/recommendations of the Supreme Courts shall be sent to the Legal Draftsman for preparation of the relevant section in the new Constitution.
6) Considering the potential for so called ‘slips’occuring between the ‘Cup and the lip’, and entries at different levels, such Final Draft of the Legal Draftsman as per 5 above should be placed before the people again through the mass media for their final clearance within a specified time frame.
Further Recommendations to expedite passage of the ‘New Constitution’
7)The writer further recommends that the above transparent procedure be followed in respect of all other relevant sections/Chapters of the ‘New Constitution’ by empowering the relevant Independent Commissions to submit their drafts within specified time frames to expedite ‘People based Governance’ through a New Constitution by the people and for the People .
Chapter wise submission of final draft of the new constitution to Supreme Courts will enable quick examination and disposal by the Supreme Court.
8) However, the legal draftsman shall carefully compile the chapters in to one document; obtain clearance/approval from the Auditor General and the Attorney General respectively, before submission to the Cabinet for onward transmission to the Parliament which in turn will forward the same for formal clearance by the Supreme Court being a new Constitution.
9) On receipt of final clearance by the Supreme Court, the New Constitution will again go before the people for final approval, at a Referendum approved by the President.
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.
Concluding Note
We know that despite meticulous attention given by constitutional experts, a constitution 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 integrity as well as political bias, divisive and vested interests / 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 and cultural needs and aspirations of the new generation and the youth in rapidly changing times.
We earnestly appeal to Religious Leaders, the Govt., NEC, BASL, concerned civil society organisations and activists to shoulder this national endeavor of re-making our Constitution towards a beautiful, Sri Lanka enriched by an uncorrupt, decent, law-abiding and an entrepreneurial citizenry.
Bernard Fernando
Former Deputy General Manager-Bank of Ceylon
Email: fernadobernard81@gmail.com
