The Cat Is Out

By Basil Fernando –NOVEMBER 25, 2021

Basil Fernando

The Government’s announcement that copies of the draft Constitution will be given to Opposition Members of Parliament is good. This will open up the public debate. The people have a right to see what this curious animal looks like. Will it be nothing but the same Constitution which was tailor made to suit President Gotabaya Rajapaksa and re-tailored to suit Gotabaya Rajapaksa.

In any case, the matter of importance is the process of Constitution making, which should be democratic and open to the public. Do people want an authoritarian Constitution like that of 1978 or a system where everyone, including the Head of State, is bound by the same laws, and equally answerable to the courts?

The all important issue is the process of the making of a Constitution. The process of drafting the Indian Constitution has been summed up by a foremost authority on that Constitution, M. V. Pylee, in his book, the ‘India’s Constitution’.

“It took two years, 11 months and 17 days for the Constituent Assembly to finalize the Constitution since its first meeting on the 9th of December 1946. During this period, it had 11 sessions and 165 days of actual work. The draft Constitution had 315 Articles and 13 Schedules. The final form of the Constitution, as it was originally passed in 1949, had 395 Articles and eight Schedules. This shows that the original draft had undergone considerable changes. In fact, there were notices for over 7,000 amendments to the draft Constitution. Of these, 2,473 were actually moved, debated and disposed of. This alone should show the manner in which the Assembly conducted its business. To anyone who goes through the proceedings of the Assembly, it will be abundantly clear that it was indeed a great democratic exercise. Discussion was encouraged to the maximum. There was great tolerance of criticism and no impatience with long drawn out debates.” (India’s Constitution, by M. V. Pylee, Page 40, Paragraph 41).

No attempt to hustle through, no endeavour at imposition. It was a full fledged democratic exercise of which the Indians could be proud.

All the transcripts of every discussion that took place have been well preserved and are being constantly referred to in the courts in interpreting the Constitution. This raises interesting questions. Where are notes of discussions which took place among the lawyers who wrote the present draft? What was the reasoning behind each of the clauses that they have proposed? All those who are to contribute to the discussion have a right to know the process of reasoning that lay behind each clause as these clauses will have a lasting and drastic impact on future events. The Opposition Members of Parliament must demand that these discussions which preceded the draft be made available to them and the public.

The draft must be made available to the public

 It is not only the Opposition Members of Parliament that have the right to see this draft document. The public has right to know what has been proposed as the draft Constitution. They have a right to know what this is all about. Will the draft bring about good news to a battered nation? Or is it designed to make things even worse for them? The farmers have a right to see whether arbitrary decisions which can create disaster to their farming, will still be possible to be made if these proposals are adopted. The fishermen have a right to know whether the Constitution will protect their right to fish and whether the State will protect their maritime resources from intruders from other countries. The businessmen have a right to know whether unfair and illegal trading practices will be allowed to continue. Everyone will want to see whether strong corruption elimination measures can be brought up by measures to undo the weaknesses of the present Constitution which allowed corruption to flourish. Everyone will also want to know whether the present state of lawlessness and the failure of law enforcement, will be brought to an end through strong Constitutional safeguards. Will the Constitution help to create a better policing investigation system, which is not used to harass political opponents and will Constitutional provisions bring about a better coordination between all security agencies which will be capable of preventing horrendous crimes such as the Easter Sunday massacre?

Above all, everyone will want to know what the draft says about the Judiciary. Will the President continue to have the power to appoint Superior Court Judges or will that power be given solely to the Judiciary itself, as is done in India. Will the Judiciary be given back the power of the judicial review of legislation as it was available under the 1948 Soulbury Constitution and was removed by the 1972 and 1978 Constitutions?

Further questions of public interest are as to the ways proposed by the draft to remove the political controls exercised over the Attorney General’s Department. Associated with that is the issue of ending Executive influence on the filing or withdrawing of prosecutions. Also, the President’s power of pardoning persons convicted of serious crimes.

Of paramount importance is the way the draft proposes to deal with the protection of minorities. The 1978 Constitution contributed to aggravating such conflicts and creating processes leading to the use of violence. Will the future be different? Will avenues be created for reconciliation and cooperation among all the peoples living in Sri Lanka?

The making of a Constitution for a collapsed nation is not an easy task that could be left to a drafting committee. It is a daunting task that requires the contributions of all stakeholders.

Read More