Dear mendacious politicians, never rush a constitution

By Maduranga Rathnayake

(December 07, Melbourne, Sri Lanka Guardian) It is undisputed that the present Constitution, in its thirty-one years existence, so far, has caused a plethora of problems; it has been so morbid that everyone is all out to replace it. However, it is extremely vital that the political leaders concur, without going astray, on a defined process in drafting a new constitution. A caretaker government, a constituent assembly, an interim government of 180 days are some of the methods that we hear about. Do our political leaders have any idea at all what a constitution of a country means and is? It appears that these “constitutional quickies” are being proposed because of the fear-psyche that the common candidate, if elected, would become a dictator or a benevolent dictator, either way it is detrimental, if the abolition of the executive presidency was not hurried. If, in fact, it is the case, then we have already begun yet another mistake in our constitutional history.

Firstly, after the forthcoming presidential election, the parliamentary election must be held and the newly elected Parliament and the President must make an express declaration of the need to repeal the existing constitution and the desire and commitment to enact a new constitution. There is absolutely no necessity to hold the parliamentary election under a caretaker government; though it appears to be more democratic and likely to assure a free and fair parliamentary election, to do so, that is to have a caretaker government, would be to act outside the Constitution. Instead of an unconstitutional caretaker government, the present Parliament should co-operate expeditiously with the newly elected President in constituting the Constitutional Council so that the independent commissions under the 17th Amendment including the election commission could be appointed before the parliamentary election.

Secondly, once both the Parliament and the President have declared the need to repeal the present Constitution, a committee must be appointed to decide on a procedure to draft the new constitution. It would be dangerous, undemocratic as well as futile if the newly elected parliament were to convene or act as a constituent assembly outside the framework of the constitution with the dishonest motive of taking upon itself the task of drafting, approving and enacting a new constitution and any such attempt should be denounced.

One of two things could be done; the Parliament could appoint a constitutional commission consisting of members of parliament within the framework of the Constitution entrusted with the task of drafting a new constitution or it could appoint a broad-based constitutional commission consisting of members of parliament, representatives of the President, members from the provincial councils, members of other political parties and civil society and religious groups. The latter would be more democratic and representative and therefore is obviously preferred. There would certainly be no objection to such a body being called a constituent assembly as it is only nomenclature. A constituent assembly of this nature should clearly be contrasted with that of the infamous 1970-72 one.

The most significant advantage of a broad-based constitutional commission or constituent assembly is the contribution of independent persons, in terms of having no political ambitions or alliances, such as social activists and academics and the direct participation of ethnic minorities in the process through their representatives.

Thirdly, once a constitutional commission or a constituent assembly is appointed, it should conduct island-wide public hearings which process alone might take a minimum of two to three years. After public hearings the constitutional commission or the constituent assembly must present its draft constitution to the Parliament for debate and its approval; again this process may take one to two years. Once the Parliament has approved it by a 2/3 majority, then it must be approved by the people at a referendum. It is only thereafter that the new Constitution of the country would be declared and adopted.

Thus, the process of drafting a new constitution would be long and require great effort. The political leaders must understand that such an arduous process cannot be sustained and brought to its proper conclusion by adopting a new constitution unless they display maturity, honesty and total commitment. It would be ridiculous, much as it is unconstitutional, to practically suspend the present Constitution and have a caretaker government during this long period of consultations and drafting and therefore, the whole process requires a greater co-operation between all the political parties in the Parliament as well as between the parliament and the President.

An examination of the constitution making processes of some of the countries such as the United States, Australia, Canada, Germany, Spain, India and South-Africa reveals that different countries have adopted different processes and we certainly can learn from those experiences as well as our own constitutional history. What is important is to design our constitution making process having regard to the peculiar nature of our political culture and the core democratic values with a view to enacting a lasting modern constitutional document.

-Sri Lanka Guardian