Focus on Rights

Revisiting the constitutional debate from a different perspective
In the hurriedly, (if not stealthily), promoted discussions currently underway on the formation of a Constituent Assembly regarding primarily, the abolition of the Executive Presidency and the radical revision of the prevalent Proportional Representation electoral system, it will be interesting to see the place that will be given to the Constitution Bill of 2000. Or indeed, as to whether this would be remembered at all.

The Bill was based on a text of Devolution Proposals submitted by the People's Alliance when that party formed the government in 1995, which proposals were concretised for the first time in 1997. Discussed thereafter for over four years, these proposals culminated in the 2000 Constitutional Bill which provoked one of the many near constitutional crises that we have experienced in recent times when, in mid 2000, it was hurriedly gazetted as an urgent bill and referred overnight to the Supreme Court by President Kumaratunga prior to presentation in Parliament.

Citizens' groups, monks and the opposition, opposed this attempt on the basis that, though some provisions of the Bill had been put before the people, the country remained unaware of the Constitution Bill in its entirety, as formulated in the final draft. When the draft, in fact, became public, the fact that its Transitional Provisions contained troublesome clauses permitting President Kumaratunga to assume the powers of a ceremonial head of state as well as that of a cabinet style Prime Minister (as envisaged in the Bill) for the remainder of her presidential term (ie; for a period of six years from December, 1999) led to a storm of protests.

Though legal challenges to its constitutionality failed in the Supreme Court, extreme public agitation, spearheaded at that time by none other than the Janatha Vimukthi Peramuna (JVP), against the Constitution Bill resulted in the government withdrawing it from Parliament.

Four years later however, the Bill remains the most substantive reform document in existence and postulates constitutional reforms that could be broadly summarised under four categories. Firstly, those provisions directed at democratising the institutions of state, ie; proposals to abolish the executive presidency with a return to the Cabinet style of government and to establish a Constitutional Council with the purpose of making key public appointments. Secondly, those provisions attempting to strengthen fundamental rights and the institutional safeguards of rights. Thirdly, those provisions aiming to increase the mechanisms for power sharing between the Centre and the Regions and also within the Regions themselves, ie; the devolution of power to regional governments, provisions for an executive committee system and multi party cabinets within these governments. Fourthly, those provisions relating to an Interim Council for the North-East.

The 2000 Constitution Bill, in Article 1, declared the Republic of Sri Lanka to be one, free, sovereign and independent State, consisting of the institutions of the centre and of the Regions. This replacement of the prevalent provisions in the Sri Lankan Constitution of 1978 enshrining a unitary state, (in Articles 2 and 76), was an essential concession to fundamental demands made by minority communities. So too was the deletion of Article 18 in the 1978 Constitution which stipulated that the Official Language of Sri Lanka shall be Sinhala, stating instead in Article 32 that the official languages will be Sinhala and Tamil. These two were also specified to be the national languages of the country along with English.

The Constitution Bill envisaged a concept of Regional Councils with devolved powers in the areas of finance, law and order, land, education, the administration of justice and the public service. The respective powers given to the centre and the Regional Councils were according to two lists, the Regional List and the Reserved List. The abolition of the Concurrent List was meant to ensure that the experiences of overlapping discretion where often the centre held sway, currently besetting the functioning of the Provincial Councils, would not arise in the new regional structures contemplated. More extensive revenue raising powers were also given to the Councils.

With regard to power structures at the centre, the Constitution Bill abolished the post of the Executive Presidency, replacing this with a ceremonial head of state to be assisted by two vice presidents from two different communities. Executive power vested in the Prime Minister and the Cabinet of Ministers in a return to the Westminster system. The appointment of the Cabinet, (by the President acting upon advice of the Prime Minister), was subject to the need to ensure the representation of all major communities.

Though these provisions were meant to serve as a radical transformation of the prevalent conflict ridden power structures, they were offset by other clauses that retained power to the centre. However, the whole was a definite improvement on what existed before. If not for the indecent and tumultuous haste in which the Constitution Bill was attempted to be passed, heightened as it was by the backdoor provisions relating to the duality of the powers bequeathed to the current incumbent of the Executive Presidency, it might have signalled the commencement of a more healthy constitutional environment for citizens in this country.

Unfortunately, these discussions now appear to belong firmly to history. The prevalent position of the People's Alliance as regards the content of the 2000 Constitutional Bill will, obviously, be informed not only by short term gains but also by the hostile attitude of its current partner, the JVP which demonstrated its antagonism regarding the clauses of the Bill in no uncertain terms in 2000. In addition, given that the weight of the Jathika Hela Urumaya will also be added to the opposition against the Bill, its consignment to the past by the very party that was attempting to push it through hook or by crook not so long ago, appears now to be certain. We have now the delayed culmination of the deeply troubling 2000 incidents whereby members of the then opposition, (now back on the opposing benches), set fire to copies of the Bill in Parliament, exemplifying their typically political opportunism.

However, there exists an immediate need for those elements of civil society still active, to call for a process of constitutional making that is not only procedurally viable, (and thus naturally antagonistic to a problematic portion of the parliament setting itself up as a constitutional assembly on the spurious argument that if the old electoral system existed, their majority would be much greater), but also substantially inclusive.

Thus, given the fact that the Draft Constitution embodied reform of overall structures of governance, (including a radically restructured chapter on fundamental rights), it would be reasonable to believe that the document would not be jettisoned wholesale. Therein lies the necessity for those segments of the constitutional draft to be also brought into the constitutional debate.

It must be remembered that the Constitution Bill contained a new chapter on fundamental rights which included the right to life, the right to property subject to particular exceptions according to law and the right to privacy.

Its anti discrimination clause, in Article 11(2)(a), differed from the prevalent clause in the 1978 Constitution, (Article 12(2), that it forbade discrimination on the grounds of gender, married status, maternity, parental status as well as sex even though the improved formulation was arguably defective to the extent that it did not impose a duty on the State to prevent or prohibit unfair discrimination, unlike, for example, Article 9(4) of South Africa's Constitution.

The Constitution Bill included a whole host of socio-economic rights as well as special rights of children. Again, even though judicial review of legislation was not allowed to the extent pressed for by activists, the new chapter in Article 30 gave the right to approach court on a violation of a fundamental right, to groups or classes of persons acting bona fide as opposed to the present formulation of only a victim or a lawyer.

All these discussions appear to, as if in a moment, have disappeared into thin air. Instead, what we have are fractured debates on piecemeal amendment of a constitutional system that carries with it, all the dangerous overtones of constitutional, if not absolute, anarchy. This is so notwithstanding prevalent brave reminiscences of the doctrine of necessity and so on, ad nauseam. This is eminently the correct moment at which to speculate as to what could have been if the constitutional processes in 2000 might have been more enlightened and handled by statespersons on both sides of the political divide rather than mere politicians.

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