Need for a proper study of constitution making

MEN & EVENTS BY Sugeeswara Senadhira

The United Kingdom, the mother of the Westminster model of democracy functions without a written Constitution. It has successfully carried on a democratic Constitution based on traditions and conventions very smoothly without running into major hurdles for more than a century. As Sri Lanka is to venture into drafting of a new Constitution – the 3rd Republican Constitution – in January 2016, we have to take a look at the Constitution making exercises in few other countries and learn a few lessons.

The Indian National Congress (INC) launched its first mass campaign against colonial rule on 26 January 1930 after the then INC President Shri Jawaharlal Nehru moved a resolution at the Lahore Session of the Congress. India gained independence 17 years later and, the first Prime Minister Nehru moved the required legislations to establish a Republican Constitution to sever all constitutional subservience to the British throne. The main task was given to Dr. B.R. Ambedkar the renowned constitutional expert and the leader of the so-called low caste people who Mahathma Gandhi fondly named as Harijans or the children of God.

Constitutional Assembly
Parliament sat as a Constitutional Assembly and the new Republican Constitution was approved. It also received the blessings of the State Councils and India became a republic on the same date (26 January) of the Lahore Swrajya resolution.
Sri Lanka became independent on 4 February 1948, less than six months after India, but the people of this country had to wait for 14 long years to see the fulfilment of their republican dream. Queen of England continued to serve as the Head of the State of Ceylon until 1972 and her representative Governor General was the titular Head of the State.
Although the Republican Constitution was adopted during the government of Prime Minister Sirimavo Bandaranaike, the main architect of the new Constitution was the eminent legal expert Dr. Colvin R. de Silva. He received the cooperation of his Lanka Sama Samaja Party (LSSP) and colleagues such as Dr. N. M. Perera, Leslie Gunawardena, Peter Keunaman, as well as conservatives such as Felix Dias Bandaranaike, Justice Secretary Wickremanayake and others. New Constitution came into effect on 22 May 1972 and Governor General William Gopallawa became the first titular President.

Executive Presidency
President J.R. Jayewardene made it a point to mention in every speech of his election campaign of 1977 that he would introduce a new Executive Presidency if he comes to power. However, there was no debate on the proposed new Constitution. People were dissatisfied with the government of Sirimavo Bandaranaike mainly due to economic difficulties. The incumbent factor was against the government and grew further due to the extension of the government term for two more years from 1975 to 1977.
The socialist parties LSSP and Communist Party left the government in 1975 and contested the 1977 elections as separate parties, thus ensuring split of votes in Sothern constituencies that gave a clear edge to the UNP.
As JR received a five-sixth majority, he could get the Constitution adopted easily. The drafting of the Constitution was entrusted to JR’s brother H. W. Jayewardene who was popularly known. JR advised him to draft a Constitution that took some provisions from the US and French Constitutions to give powers to the Executive President far exceeding the powers enjoyed by the Prime Minister under the first republican presidency.

19 amendments
The mistake of not having a national debate or proper studies became evident as the Constitution of 1978 had to be amended 19 times within a period of 37 years.
President Maithripala Sirisena is to introduce a proposal to convert Parliament as a Constitution Assembly to adopt a new Constitution that would abolish the Executive Presidency and transfer powers to the Parliament and the Prime Minister.
The anticipation is that there could not be a major Opposition to the move as not only the SLFP, but also the UNP, the party that introduced Executive Presidency is now supports its abolition. The UNP has stated that the executive powers of the incumbent President will remain until he relinquishes office in 2020 and the abolition of executive presidency will become effective thereafter.

Consensus
However, several issues are to be solved in order to find a consensus. There are issues such as the powers to be entrusted to titular President, who is expected to be the Supreme Commander of the Armed Forces, Prime Minister’s powers, whether the Provincial Councils to be given more powers or less powers than envisaged in the 13th Amendment to the Constitution, whether the local government institutions to be restructured, and last but not least the electoral system.
Already a delimitation commission is at work to decide on constituencies. If they fulfil their task soon, it will facilitate the work of the Constitution Assembly. As a new system of a mixed ‘first-past-the-post and proportional representation’ will soon be in place for the local government elections sometime next year, the same system could be introduced for the Parliamentary and Provincial Council elections too.

Devolution demands
There will be several issues regarding the devolution demands of the Tamil parties. Future of Provincial Councils, its powers, especially land and police powers, the constitutional provision of annulling the temporary merger of North and East are some of the issues. TNA and other Tamil groups, as well as Tamil Diaspora with the backing of some Western lobbies will definitely exert pressure on these issues.

While the South is vehemently against the proposal for devolving police and land powers to the Provincial Councils, the Tamil parties will not support the new Constitution without at least land powers.
The leading Tamil Diaspora group and the so-called transitional government leader Rudrakumaran now demands more powers than even the powers enjoyed by Indian States under the Federal system. While Indian Central Government can dissolve State Assemblies or take over the States and govern it under the Centre-appointed Governors, the diaspora demands that Colombo should not be entrusted with powers to dissolve Provincial Councils.

They demand a similar system as in Australia, where the Canberra Government cannot dissolve State Parliaments. Furthermore, Australian States can deal with foreign governments direct without going through the Central Government. The Australian States also can establish diplomatic offices in foreign capitals for trade relations.
Although, Tamil Diaspora makes such demands, the majority political parties in the South will not support such excessive posers to Provincial Councils. However, an agreement with Tamil political parties regarding the powers to be devolved to the Provincial Councils is essential to find smooth sailing of the new Constitution in the Constitution Assembly next year.

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