Constitution making should be handled by sovereign voters as ‘Principals’

A Select Committee consisting of a majority of unprincipled and selfish Parliamentarians will collude to even overturn the very objective of the ‘Draft Report’ in order to protect their privileges and conflicting vested interests particularly coupled with ‘Electoral Reforms’. The process will continue with a two-third parliamentary majority followed by the final ‘eyewash’ of a ‘Referendum’ where the people are asked to say ‘yes’ or ‘no’ to a question framed according to the whims and fancies of the politicians – Pic by Shehan Gunasekara 

By Bernard Fernando

The procedure for the passage of the proposed new Constitution has been outlined by Nihal Seneviratne, former Secy. General of Parliament as follows:

“These eminent lawyers would sift through the representations and memorandums received and prepare a draft report which is expected to be submitted to the President. The President is expected to submit the report and draft to the Speaker and the Speaker would submit this report and thereafter appoint a Select Committee comprising members from both the Government and the Opposition. The Select Committee following the usual established procedure would invite representations from the public and would study all these memorandums and submit the report back to Parliament with their recommendation. It would deliberate at length, studying all the representation made and submit its final report to Parliament.”

The preparation of a Draft report by an ‘Experts Committee’ consisting of eminent lawyers is acceptable as the Ministry of Justice has called for proposals from the public for their consideration. However, the said ‘usual established procedure’ simply allows the politicians acting as ‘Agents/Representatives’ of the sovereign voters  to  usurp the powers of the ‘Principals,’ to bulldoze their own way through a ‘Parliamentary Select Committee’ under the ‘eyewash’ of inviting representations from the public. 

As we know, such a Select Committee consisting of a majority of unprincipled and selfish Parliamentarians will collude to even overturn the very objective of the ‘Draft Report’ in order to protect their privileges and conflicting vested interests particularly coupled with ‘Electoral Reforms’. The process will continue with a two-third parliamentary majority followed by the final ‘eyewash’ of a ‘Referendum’ where the people are asked to say ‘yes’ or ‘no’ to a question framed according to the whims and fancies of the politicians.

How will sovereign voters handle ‘electoral reforms’ and other sections in new Constitution?

The aforesaid procedure clearly violates ethical norms, natural justice and the principles of the ‘Law of Agency’. Moreover, considering the potential for so called ‘slips between the Cup and the lip’, in the existing procedure, we propose the following ‘system change’ to rectify this unfortunate situation using the section covering ‘Electoral Reforms’ as an example.

1) As already proposed, the National Elections Commission (NEC) or the relevant authority shall set up a ‘Permanent Civilian Task force for Electoral Reforms’ comprising ‘Sovereign voter dedicated’ Organisations like ‘PAFFREL,’ CAFFE, CMEV and other civil rights organisations with practical knowledge on desired electoral reforms together with eminent retired judges and the academia possessing the requisite expert knowledge, as its members. Political representatives/Agents would be fundamentally barred from this task force due to the obvious ‘Conflict of Interest’ and the operation of ‘The Law of Agency’ as aforesaid. Besides, the majority of them lack a thorough knowledge in Constitution making. The sad plight of the previous Parliament sitting as a ‘Constitution Assembly’ for 4½ years with no result bears ample testimony to this fact.

2) The Task Force shall study the relevant section of the ‘Draft Report’ and prepare its own Draft on ‘Electoral Reforms’ for submission to National Elections Commission (NEC).

3) NEC in turn will whet the latter draft and in keeping with the principles of ‘people-based governance’, place its own Draft before the people through the mass media for their final comments and clearance within a specified timeframe.

4) Thereafter, the NEC will prepare the final draft and submit same to the Supreme Court for clearance.

5) The same final Draft together with Comments/recommendations of the Supreme Court shall be sent to Legal Draftsman for preparation of the relevant section in the new Constitution in conjunction with the comments/recommendations of the Supreme Court.

6) Such final Draft of the section prepared by the Legal Draftsman as per 5 above should be placed before the people through the mass media for their final comments, if any, within a specific time frame.

7) Thereafter, the final document should be placed before the Parliament purely for formal approval.

Finally, we recommend that the above transparent procedure be followed in respect of all other relevant sections of the new Constitution within specified time frames to ensure facilitation of ‘People based Governance’ through a robust Constitution.

Last but not the least, as a result of this exercise, the people and the politicians themselves will become more conscious and aware of the basic law of the country.