Some reasons for the impending failure of the ‘New Constitution’

Dissension or different views cannot be completely eliminated in a constitution-making processes. However, those should be reduced to the minimum or to clearly identifiable matters. That should be the merit or the objective of a constitution making process. Otherwise, when a draft comes to Parliament there can be confusion or chaos – Pic by Shehan Gunasekara

It is not only the ‘aekeeya/orumiththandu’ confusion and the ‘draft provisions’ for a new constitution that are questionable, but also the procedure and the process that were followed in drafting them. Under the present circumstances, there is no possibility of a single major party inaugurating a new constitution even if with minority party support. A new constitution requires a two thirds majority in Parliament at least as the first hurdle. 

There was no apparent leadership for a new constitution and no purposeful effort to build bipartisan consensus among parties or the people. If the present draft is proposed to the Parliament, it would be like the proposal to have another ‘national government’ with one MP from the SLMC participating with the UNF!

For the 1947 Constitution, there were two names behind, Lord Soulbury and Ivor Jennings. For the 1972 Constitution, Colvin R. de Silva clearly was the brain or the hand behind although he later excused himself from its ‘unitary’ characterisation. The disastrous 1978 Constitution undisputedly was the creation of J.R. Jayewardene. 

Can that be said about the proposed draft or the ‘aekeeya/orumiththandu’ formulation? It is just an Expert Report of originally 10 members, four of them clearly dissenting or expressing their own views. The 10 has become reduced to six. This is apart from various political parties in the Constitutional Assembly or in the Steering Committee dissenting or disagreeing on very many matters, except on few subjects like ‘fundamental rights, freedom, language rights and directive principles of state policy’. 

 

Failure of consensus building 

Dissension or different views cannot be completely eliminated in a constitution-making processes. However, those should be reduced to the minimum or to clearly identifiable matters. That should be the merit or the objective of a constitution making process. Otherwise, when a draft comes to Parliament there can be confusion or chaos. 

Even with a clearly written draft in August 2000, and apparent consensus between the SLFP, and the UNP, when it was proposed in Parliament, the opposition UNP created enormous chaos. It would be extremely difficult for the UNP to get rid of this negative legacy however much they have the support from the ‘international community’ or (for some valid reasons) from the minority political parties. One reason for this unfortunate situation was the delay in formulating the draft and proposing it in Parliament at the very end of the parliamentary and presidential tenures in 2000. The same goes for the present situation. 

There has been some kind of stubbornness or rather ‘pig-headedness’ on the part of at least some of the new constitution makers, whether they were political leaders or the so-called constitutional experts. However much they talk or preach to others about plurality, diversity and tolerance, they were not ready to take other people’s views at least in terms of a dialogue. 

Without going into details let me quote from a letter submitted to the Chair of the Steering Committee dated 8 August 2018 by two experts of the Panel, Prof. Camena Guneratne, Professor of Legal Studies, Open University, and Prof. Kapila Perera, Vice Chancellor of the University of Moratuwa. 

“At the last Steering Committee meeting held on 18th July 2018, two documents were produced by the Experts. The Second (Mapping) Document submitted in the form of separate booklets with a mapping of the reforms was submitted as it was felt that this is what required as per indications given by the Steering Committee at that meeting held on 24th May 2018. The discussion paper which is to be produced today [8 August 2018] is being submitted further to the directives given to the Panel to produce one document that could be a working paper for the Steering Committee.”

What does this mean? There had been a sudden ‘leap forward’ from May 2018 to July 2018, virtually annihilating the Mapping Document, and ‘some experts’ being asked to produce one document, an apparently a ‘draft constitution,’ now produced as ‘A Report Prepared by the Panel of Experts’ in the Constitutional Assembly website. (https://english.constitutionalassembly.lk/). 

 

What has happened to the Mapping Document? 

It is intriguing to note that the Mapping Document is suppressed. It is difficult to talk about the merits or faults of this document/s without knowing the contents. However for the citizens and those who research on constitutional matters this document seems to be crucially important particularly in the context of different views apparently appeared among the Panel of Experts. This suppression cannot be appreciated as ‘transparency’ in ‘good governance.’ This is also not fair for the experts who have produced this document although their letter that I have quoted above appears in Schedule II. 

It seems that the Mapping Document has given a good overview of views expressed by political parties in the Steering Committee or in their written submissions. Although these are said to be incorporated as Schedule I to the said Report, it is difficult to judge whether those representations are accurate, complete and fair. 

Let me quote the very last paragraph of Schedule I. It pertains to ‘State Land.’ Under EPDP, it just says, “EPDP • State Land – Dispute Resolution (Item 15) – total number in the arbitration panel is confusing.” Is this a fair, comprehensive or a clear description of the EPDP view? 

There are two other important matters that the two experts have revealed in respect of the so-called ‘Report of the Expert Panel,’ aka the ‘draft constitution.’

“Firstly, in regard to the format of the discussion paper, it has been decided by a majority of the Panel that the format of the first document endorsed by six Panel members, which was submitted to the Steering Committee meeting of 18th July 2018 should be retained in drafting this discussion paper of the Panel of Experts.”

They have said to the whole world quite loudly that this document is not from all, but from six persons and the format was decided by those six or someone else. More important is what they have said about the contents as follows in two final paragraphs. 

“We further note that this discussion paper and the Mapping Document are compatible/consistent to some extent as both are based on the provisions of the 1978 Constitution. However, there are also differences, mainly provisions in this discussion paper which do not appear in the Mapping document.” 

“We wish to acknowledge the work of our colleagues on the Panel of Experts in preparing this discussion paper….However, we disclaim all responsibility for any specific formulations of provisions which are found in this discussion paper but which are not found in the Mapping Document of the other experts that was submitted at the Steering Committee meeting of 18th July 2018.” (My emphasis). 

In the first sentences they have extremely been polite to others. However, they differ and disassociate strongly on the matters of ‘specific formulations of provisions.’ 

 

What are these formulations? 

Apart from Camena Guneratne and Kapila Perera, there are two others, Prof. Austin Pulle and Chamindry Saparamadu, who have expressed dissent or different views as incorporated also in Schedule II. Most significant is the complete disassociation of the two academics, Guneratne and Perera, from what they have called the ‘specific formulations of provisions’ which have apparently come into the draft ‘which are not found in the Mapping Document.’  It is difficult to speculate on the exact formulations or provisions that they disagree with and ‘disclaim all responsibility’. However, when one goes through the Report or the draft, there are abundance of them which could be considered questionable, controversial or out of line with the requirements of consensual constitution making. 



Let me take one formulation from the very Preamble and another more hilarious formulation from the proposed Article 1. 

How do the ‘experts’ propose to inaugurate the new constitution? This is what the Preamble says: 

“NOW THEREFORE, WE THE PEOPLE OF SRI LANKA celebrating our rich ethnic, religious, linguistic and cultural diversity, in the exercise of our sovereignty, hereby give ourselves, and the future generations of Sri Lankans, this CONSTITUTION.” (My emphasis).

What is wrong with this formulation? This is conceptually wrong for the situation in Sri Lanka. It is not at least ‘unity in diversity’ which is ‘celebrated’ in this declaration, but just diversity. Of course the first paragraph of the Preamble gives more agreeable formulation, but negated by the second or the last paragraph quoted above. 

Why do they bring ‘ethnic, religious and cultural matters’ into the forefront, although called ‘rich’? Those who oppose a new constitution on majoritarian lines, rejecting any kind of plurality or diversity in the country will rejoice on these kind of formulations for the opposite reasons. They will brand the ‘new constitution’ as a clear effort in dividing the country on ethnic, religious and cultural lines. There is clearly a ‘divisive thinking’ behind such formulations even in my opinion. 

 

Aekeeya/Orumiththandu confusion 

The confusion about the characterisation of the state and the constitution is not an isolated matter as ‘aekeeya/orumiththandu,’  but follows from the erroneous constitution making process that we have been talking about. The following is what the draft Article 1 says in full. 

“Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekeeya rajyaya/orumiththandu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution.  In this Article aekeeya rajyaya/orumiththandu means a State which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Legislature and the People of Sri Lanka as provided in this Constitution.”

The article has conveniently dropped the ‘socialist’ characterisation of the republic. It has also dropped the unitary characterisation although its Sinhala and Tamil equivalents (aekeeya rajyaya/orumiththandu) are introduced instead to create an apparent confusion. I am not competent to talk about the Tamil term, but any political science student in Sinhala medium should know that ‘aekeeya rajyaya’ is used in political science and law to mean ‘unitary state.’ That is also the case in the present Constitution, while unitary term is retained in the English version.

Therefore why these Sinhala and Tamil terms are used in the English version/draft is not explained, other than some arguing ‘let us look beyond the words.’ These are not just words, but technical terms with definitions in constitution making. I am not a person who would simply oppose federalism, but my concern is about its practicality or rationality at present.

When ‘aekeeya rajyaya/orumiththandu’ are used without using ‘unitary state’ and defined as ‘consisting of the institutions of the Centre and the Provinces’ that give rise to suspicion as an effort of smuggling ‘federalism’ through the backdoor. My main criticism is for this devious manner of constitution making without being straight forward, frank and open.