Make the Constitution a document by the people and for the people

By Bernard Fernando

We as citizens are aware that a constitution is a well-intentioned instrument to ensure and sustain good governance, integrity, sanity, law and order in a country. We know that despite the meticulous attention given for its drafting by constitutional experts, it is prone to loopholes and interpretation 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 business motives. Therefore, we have to admit that it will never be a perfect document and will be open to multiple interpretations by persons with vested interests, rival motives, political affiliations and integrity levels as it is happening now in our motherland.

People’s expectations

Being an imperfect but a dynamic document, a constitution also needs to be amended in keeping with the democratic needs and aspirations of the people living in changing times. People expect that all efforts are made to minimise ambiguity and maximise clarity of clauses/articles with minimum legal jargon to achieve the sacred objectives of a constitution.

Thus, in the event of any further ambiguity, or interpretational problem, the concerned parties should not look for loopholes and engage in hair splitting arguments, but strive to implement the good spirit and the objective of the different clauses in order to meet the expectations of the sovereign voters who elect a Govt. for a specific period under a specific symbol.

Who should draft or propose amendments to the Constitution?

In our view, if the Constitution is the primary document to safeguard the sovereignty of the people, it should be drafted by the sovereign people themselves as the principals and not given to the politicians who are only agents required by the principals to act in terms of the constitution. If politicians take over, the drafting of a constitution, it is tantamount to a ‘conflict of interest’ as happening now with the existing Constitutional Assembly which is not the people’s wish. Its failure to deliver the goods for the last 3½ years is in a way, a blessing in disguise.

Against this backdrop, I wish to make a few suggestions, to solve the present constitutional imbroglio:

1) Firstly, a representative team of members from the civil society organisations including a few retired judges and university dons should be immediately assigned with the task of carefully re-framing all the debatable clauses in the constitution in order to ensure utmost clarity, justice, equity and democracy. The process should be made transparent by seeking political as well as public opinion through the mass media from time to time before finalising the draft amendments. Some clauses which need immediate attention are:

a) The abolition of the ‘cross-over mockery' in order to prevent ‘horse-trading' by the agents of the people for filthy lucre and power and ensure sanity of the Parliament though it may hardly arise in the future, if step No. 3 below is successfully implemented. In this regard clause No. 99(13) needs to be amended.

b) The removal of the clause which allows the Executive President to appoint ministers at his will from another party to ensure political peace, good order and Parliament democracy.

c) Instead, entry in to the Cabinet should be made a constitutional right of all seat winning parties at every General Election on a proportionate basis which will see the emergence of a truly 'National/People’s Govt.' for all times. This amendment will surely help to remove all political and ethnic rivalries and make politicians think and act as true ‘Sri Lankans’ to achieve the common goal of developing the country.

d) The clauses which enable the Executive President to usurp the sovereignty and independence of the Parliament should be removed, to prevent any future conflict arising between the two institutions. In other words, the need for intervention by the Judiciary on constitutional matters should be minimised as prevention is better than cure.  Also, in the light of the strong public opinion established over the years (Since 1994) to discontinue the ‘Executive Presidential system,’ it is reasonable to strike an equilibrium by further reducing the unhealthy powers of the Executive Presidency. The renewed clarion call by late Ven. Sobhitha Thero in 2015 saw the passage of the 19th Amendment (though weakened) as a major step in this direction. The citizens would eventually expect the powers of the Executive President to be confined to look after the country’s defence, provincial council system and ceremonial functions/appointments.

2) A robust public opinion poll should be held to convert the finalised amendments to a sovereign, public document directly coming from the principals, viz. the people. Political agents and vested interests should not be allowed thereafter, to debate and tinker with such well-founded, people approved amendments. Only the ‘rubber stamp’ of the Cabinet and the Parliament would be needed to legalise such amendments. The clearance from the Supreme Court can be obtained for passage of the amendments without going for a referendum that carries a colossal expenditure without a tangible return.

3) The Election Commission should lay down stringent eligibility criteria coupled with a structured interview system for parties to select educated, honourable, patriotic, political professionals with high integrity to enter the Parliament... (I have dealt with this subject in much detail through my several articles to the press over the years). In the event the recent rowdy and indecent behaviour of some ill-bred MPs in the Parliament, lead to a snap general election, the civil society and the media should pressurise the contesting parties to nominate more new faces using the aforesaid criteria. Only then will the sovereign voters get a fair opportunity to assess the quality of the teams fielded by the parties to run the country. 

We earnestly appeal to the Government, Elections Commission, civil society activists and organisations to shoulder this national endeavour of re-making Sri Lanka as a proud, decent and a civilised nation.