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During the run up to the passage of the 20th Amendment the Government simultaneously announced its intention to draft a new Constitution.  According to the Government the 20th Amendment was only a stop gap measure until the process of drafting a new Constitution is completed and adopted.

In accordance with this process the Government announced the appointment of a team of legal luminaries headed by President’s Counsel Romesh de Silva to undertake this task. The committee has called for representations from the public on several given headings to be submitted to them by November 30, 2020. The committee for its part has promised a draft Constitution In six months and President Gotabaya Rajapaksa has stated that the new Constitution will be adopted before the second anniversary of his assumption of office which would be in November 2021.

The process outlined by the Government raises many questions.  Firstly it is in complete variance with the pledge contained in the President’s election manifesto on the basis of which the Government claims a mandate to enact a new Constitution.  What was promised was a Parliamentary selection committee to engage with the people, political leaders and civil society groups to prepare a new constitution for Sri Lanka. No explanation has been offered by the Government as to why it went back on its pledge in the election manifesto.

Different countries have adopted different approaches to draft constitutions. But one common feature of such processes in countries with a democratic tradition has been that it has to be done through a whole of country approach that is transparent and in which all segments including the diverse communities take part. In other words a new Constitution must be a product of a process owned by and with the participation of all sections of society.

The degree of legitimacy and acceptance of any constitution will ultimately be defined by the nature of such a process.  The process currently being followed by the Government can hardly inspire confidence in all sections of the people.  However eminent and erudite the members of the committee may be they do not have the authority to determine the shape and policy that informs the contents of the Constitution. That authority must necessarily emanate from the political process.

The selection committee driven process which the Government outlined in the President’s election manifesto could have been one option.  Another was the process followed in drafting the 1972 Constitution where the constitutional principles that would determine the architecture of the Constitution were first agreed upon by the Constituent Assembly after intensive debate and discussion.

Thereafter the experts stepped into flesh out the principles agreed upon by the representatives of the people. In the current scenario that is where the skills and expertise of the Romesh de Silva committee could be utilised. In fact it is a great disservice to the committee asking them to produce a draft Constitution without giving them the political direction they have to take.

Left to themselves they may produce an excellent constitution but to be subsequently told that it does not fit into the scheme of things envisaged by Government resulting their efforts being in vain. The experts should rightly have been drawn in after the principles were agreed upon. The current plan of appointing the committee of experts without an indication of the policy direction they have to follow is a clear case of putting the cart before the horse.

The people will have to figure out for themselves what the Government’s thinking on the matter is. On previous occasions when a mandate was sought from the people to draft a new Constitution they were appraised of the broad principles that would be included in such a document.

In 1972 the United Front obtained a mandate from the people to draft a Republican Constitution while the United National Party (UNP) in 1978 sought a mandate for a Constitution that would instal an Executive Presidency. In 2015 Maithripala Sirisena sought a mandate to abolish the Executive Presidency but the current Government only sought a mandate in broad terms to draft a new Constitution without spelling out what form the Constitution would take.

If one uses considered reasoning the Government’s thinking may be construed from the contents of the 20th Amendment which would include excessive centralisation of power in the Presidency, absence of political and financial accountability in governance, institutional reform that erodes democratic values and reducing the power of Parliament among others.

In the meantime some insights into the thinking of at least one expert committee member is provided by a news item carried in the Ceylon Today of September 5, 2020.

The news item quotes an unnamed member of the expert committee who expressed the view that other than 12 clauses in the current Constitution all the other clauses should be “done away with.” Among the clauses he wished to retain in the new Constitution were the articles relating to the country’s sovereignty, territorial integrity, Buddhism, the national anthem and the national flag.

The member was also of the view that the rest of the Articles could be changed with a two third majority without the need to go for a referendum. The member also went on to disclose that already the All Ceylon Buddhist Congress have formulated a new Constitutional draft.

In the meantime there are other questions that have arisen. Professor Nazeema Kamardeen who had originally been appointed had declined to serve on the committee. It is understood that Justice A. W. A. Salaam has been appointed in her place. The Government for its part could do well to go back to the selection committee option outlined in its manifesto or some other mechanism which can ensure the widest possible participation and ownership of the process. The Government should also be mindful of the fact that the COVID-19 pandemic will restrict the ability of the public to discuss the matter adequately.

(javidyusuf@gmail.com).