Jan 11

The government is planning to have a fresh Constitution for Sri Lanka and has indicated that the current crop of 225 MPs will function as the members of the Constitutional Assembly (CA).  It was announced some weeks ago that the government’s proposals would be revealed on 9 January 2016 and that citizens and interested organisations would be allowed six weeks to study these proposals and call for whatever changes they deem desirable.  Subsequently, it has been reported that the Prime Minister has obtained Cabinet approval for a 24-member Committee (of persons selected by him, with a pre-named Chairman) “to obtain proposals for a new Constitution from political parties and the general public”.  This phase of the work will presumably have to be completed within six weeks and “these proposals will be handed over to the Cabinet Sub-Committee which is appointed to compile a revised Constitution”.  How long the Cabinet Sub-Committee will take is anyone’s guess.  It is only then that the Cabinet will give the CA the final draft.  Allowing six months in all, as indicted by the Prime Minister, the CA will have to complete its work by 9 July 2016, including obtaining the formal approval of Parliament.  The version of the Constitution passed by Parliament will then be subjected to a referendum and, if accepted by the people, will become Sri Lanka’s new Constitution.

Based on Sri Lanka’s constitution-writing precedents, the Cabinet draft may be expected to be a compromise between the competing demands of the main political parties, and focus on enhancing the benefits that would accrue to Parliament, the individual MPs, the Ministers and the Prime Minister.  The interests of the public and the forging of a united nation will, we are quite convinced, be accorded a much lower priority.  The Citizens’ Movement for Good Governance (CIMOGG) fears that, despite the token (?) exercise to ascertain proposals from the public, the Cabinet has already decided what the new Constitution should contain.  The Cabinet will assuredly reject any amendments that would reduce the powers, privileges, rewards, perquisites and money-making-opportunities that MPs increasingly want for themselves.  Solely for public relations purposes, a few cosmetic changes may, of course, be made.

CIMOGG has for long urged that at least one year would be needed for a properly-constituted CA to ascertain the views of key stakeholders and then negotiate the compromises required to produce a sound Constitution that will safeguard the interests of the people.  We may mention here that, in one B5-sized book about the 1978 Constitution and its 17 Amendments, the bare text alone occupies 290 pages.  Based on this, we may expect that the initial Cabinet draft would contain, perhaps 250-350 pages text.  Needless to say, it would have been approved by all the members of the Cabinet, many of whom would not have read, let alone understood, its contents.  Would it be fair or democratic to expect concerned citizens to examine and critique, within six weeks, the huge amount of legally-binding text that the Cabinet draft would contain, considering that top lawyers argue for days in the Supreme Court about the precise meaning of one word or phrase or sentence in the Constitution?

The Cabinet draft will, of course, include provisions for entities like the Committee on Public Enterprises (COPE), the Committee on Public Accounts (COPA), the Auditor-General, Bribery Commission and Independent Commissions (ICs), all formulated so as to provide certain checks on the executive arm.  The reality is that the powers of these entities may be weakened, wittingly or unwittingly, by the inclusion of innocuous sounding articles elsewhere in the Constitution.  For example, the Constitutional Council (the CC; not the CA), which is responsible for most important appointments in the public sector, is comprised of seven politicians and only three laypersons.  This makes the CC highly susceptible to political bargaining and loss of independence.  Whereas the constitutional articles that refer to the ICs would probably remain little changed from what we already have, the independence of the appointees to the ICs will, in practice, be adversely affected by the politically-controlled CC.

The CA, being effectively dominated by government MPs, will be subservient to the Cabinet.  As it will be presented with a finalised Cabinet draft, the scope available to the CA as a whole to change anything significant would, therefore, be minimal.

One theoretically possible way of getting over this difficulty would have been to expand the CA by the inclusion of 225 selected representatives of key stakeholders so that there would be a fair balance in the CA between the interests of the people as against the interests of the Cabinet, Parliament and the MPs.  Practically, however, such a large crowd would not be able to function efficiently.  On the other hand, those with a professional education and training have the necessary “clout”, knowledge and discipline to work collectively to pressure the government to give the people adequate time to study the draft and have their views considered seriously.  Those in the essential services could do likewise.  Another influential group would be academics who are not politically strongly aligned.  These non-political stakeholders should take it upon themselves to get together, and then identify and sponsor up to a total of, say, 25 persons of distinction and integrity to form a strong People’s Committee that would scrutinise the Cabinet draft from the point of view of the people’s concerns and forestall wrongful exploitation of the public trust.  Their recommendations, when made, should be quickly and widely publicised so that ordinary citizens, too, could add their voices to those of the said People’s Committee.

We need to look at this problem from another point of view as well.

If you had to appoint a manager to look after your business, would you let him run it as he pleases?  Would you allow him to make rules that would give him more power than yourself?  Would you watch helplessly while he sells your goods or assets at an artificially low price so that he and the middle-man buyer, working in collusion, could make a huge profit for themselves?  No responsible person would allow such things to happen.  Yet, the citizens of this country delegate their powers to MPs, Ministers and Presidents and watch helplessly whilst these individuals write constitutions and laws which, inter alia, allow them to exploit for their private benefit the rich resources of the country during their period of office, perpetrating large-scale breaches of the public trust.

Going a little further, which of the present MPs could you count on to run your business in your interests if that ever became necessary?  Not many, we should guess.  If so, why should the people let themselves be inveigled into entrusting all their national assets indiscriminately to a set of MPs instead of insisting on having a Constitution that lets the people monitor and control how these MPs perform their fiduciary obligations?  Why should the people have to wait for the next set of elections to throw out those who rob the country?  Why should there not be provisions in the Constitution that would permit their earlier recall, after following due process?  It is in order to tackle questions like these that it is essential for the public to call for enough time to coordinate their efforts to get a Constitution that will establish the Rule of Law and Good Governance.

If we are not mistaken, the most recent amendment to the US Constitution allows the members of the House of Representative (HoR) to propose and approve various benefits for their members and Senators but on one condition, viz. that such benefits shall not accrue to the current representatives but only to their successors after the next elections.  Compare this with the manner in which MPs are being incentivised (bribed?) by enormous increases covering every aspect of their remuneration and their official perquisites to carry out the Cabinet’s will without resistance, the latest being a proposed 4,000% increase in their committee sitting allowance.

For the sake of Sri Lanka’s future, those with the expertise and resources to mobilise public opinion should rapidly draw the attention of our citizens to those features of the draft Constitution that will give license to the people’s representatives to misappropriate public assets subtly in the many forms that have been developed over the years, and urge the citizens to resist the incorporation of any such features in the fundamental law of the land.

Dr A.C.Visvalingam

President, CIMOGG

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