Jul 09

 

 

Numerous well-informed and independent academics, constitutional lawyers, media commentators and other members of the public have, particularly over the past five years or so, made known their apprehensions regarding the attempt to push through ad hoc changes to the Constitution without a wide, thorough, transparent discourse on the subject. The Bar Association has, to all intents and purposes, also urged the authorities concerned to avoid making rash, ill-considered constitutional amendments.  The Citizens’ Movement for Good Governance (CIMOGG), too, has also taken up a number of specific aspects of the Constitution and offered its own views on most of the critical issues that need to be taken into account in amending or rewriting it (www.cimogg-srilanka.org).  In this context, CIMOGG welcomes the statement issued on 17 June 2010 by the Organisation of Professional Associations (OPA) which has highlighted fifteen important matters that the Government should consider carefully in the process of altering the Constitution.  This statement, which appeared in several newspapers, covers a substantial amount of ground in line with the thinking of those who are keen to promote good governance and the Rule of Law.  Keeping in mind that the OPA is a consortium of 42 professional institutions, with a grand total of over 50,000 members, its views patently deserve methodical study and evaluation by the Government. 

The principles enunciated by the OPA and by the many other concerned contributors to the subject are of great significance.  Nevertheless, it would be extremely difficult to incorporate them in the proposed Constitution satisfactorily unless something close to the following procedure is followed –

    

  a.     If successive governments are to be discouraged from modifying the Constitution to suit party political objectives each time there is a transfer of power, the process of constitution-making must, once and for all, be based on as broad a consensus as is practically possible, not only among political parties but also the representatives of important stakeholders such as the trade unions, public servants, professional bodies, business chambers, constitutional experts, academics and so on;

       b.    A reasonably representative Constitution Drafting Committee of not more than, say,twenty persons, broadly acceptable to all the stakeholders, should be identified and  entrusted with the task of preparing a draft Constitution for wider discussion.Sufficient time – perhaps, two to three years – will need to be set aside to make sure that everyone who has anything of value to contribute is afforded the opportunity to do so.  The process must not be hurried in the way that so-called urgent bills are  rushed recklessly, and sometimes even unscrupulously, through Parliament. 

       c.     After the process envisaged above is more or less complete, it is imperative that a White Paper, containing the consensually prepared draft Constitution should be published, together with a summary of its principal features, so that every interested  member of the public would have at least three months to study and comment on all  relevant aspects of the White Paper.  The proposals contained in the White Paper draft should then be revised as required and presented to Parliament jointly by the Government and the Opposition.

We need to appreciate that longstanding constitutions, such as those of the United States and India, were formulated by intense consultation among a large number of committed citizens over periods of several years and, hence, have solid frameworks which have never subsequently needed fundamental or drastic changes but can accommodate any number of amendments to suit the varying needs of a rapidly evolving world.  What CIMOGG proposes is that we should also strive to have a Constitution with a strong basic framework by drawing upon as many stakeholders’ expertise as possible and set aside enough time to prepare a really sound document without the loopholes that would result from unseemly haste.



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