People should have the “Right and Space for Participation” in Constitution Making
The parliament will establish a Committee of Parliament on 09 January, according to the Order Book No.01 issued on 21 December, 2015 that will consist of members of parliament and will be called the “Constitutional Assembly”. Purpose of this Constitutional Assembly is spelled out as [quote] deliberating and seeking the views and advice of the People, on a new Constitution for Sri Lanka, and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of its powers under Article 75 of the Constitution.[unquote]
It is very clear therefore, this drafting process restricts the participation of “People” to seeking “views and advice” only. For such purpose, the PM Wickramasinghe has already appointed a 24 member committee of known and unknown persons. Leaving aside their capability and credibility in engaging “people”, they are only mandated to collect views, suggestions and proposals from people and or groups and organisations. They are given a period of 03 months to collect such from the people. This 24 member committee will collate what they collect and perhaps recommend content for a new Constitution. With their political affiliations and credibility in question, there is no guarantee they will be independent and steer clear of this government’s preferences in the draft of a Constitutional Bill. There ends the participation of the “People” in making a new Constitution for Sri Lanka.
That extremely narrow and poor exercise in having “People” for drafting the Constitution, is nevertheless hyped as “public consultation” which is not. The actual making of the draft of a Constitution Bill that will go before parliament will be the work of miniature legislators in parliament. They are men and women in this present parliament who have not proved any competency, any commitment in making law for the “People”, though elected by the people. Drafting of the 19 Amendment and its content that includes the constituting of the Constitutional Council proves how power greedy and mediocre these parliamentarians are.
Sri Lanka and its people cannot afford such “politician made disasters” any more. A Constitution that needs to be made, should be one that would be valid and effective for many decades to come without constant tinkering. That Constitution therefore has to be made by the “People” through long and serious deliberations within society. Not in parliament, debated by men and women who don’t have proven capacity and social commitment for such serious work of intellect.
While making of a Constitution has to have a pre conceived set of principles and a social philosophy, it has to be a very democratic, participatory process open to society and discussed in layman’s language. In South Africa, it took 02 whole years and drafts were distributed freely in 11 languages that included tribal dialects too. Purpose was to have maximum participation in making the Constitution that Cyril Ramaphosa who chaired the process claimed, was made by 40 million people. In Kenya, people wanted a Constitutional Review to avoid past mistakes and excesses that led to political instability and poor social and economic performance. Their new Constitution adopted in August 2010 went through many reform processes, parallel reviews and structured people’s participation and is termed a “people driven” Constitution that includes a citizens “Bill of Rights”. People’s participation was guaranteed through officially established “Constituency Constitutional Forums” almost equivalent to “Electoral Constitutional Forums” if we are to borrow that concept. There are enough and more such people centred processes in many countries if we wish to draw experience from. Internationally it is now an accepted principle in Constitution making that it is “People who make their own Constitution”. This is not what is being planned here and it would not be a Constitution for the People, by the People. This would be drafted within a highly centralised process inside parliament. The Referendum would only ask the people to vote “yes” or “no” for a Constitution written and adopted in a parliament that has no competency for such exercise.
We wish to stress here, there is no urgency to finish off making a new Constitution in 06 months as proposed. We therefore appeal for a “People driven” process that will have a long and adequate period for discussions and debates in all 03 languages within provincial councils, local government bodies, political parties in and outside parliament, trade unions, professional associations, trade chambers, social and community groups and organisations with the right to propose changes and add new aspirations to the proposed draft before the parliament sits to discuss the draft of the Constitution Bill.
Neville Ananda Attorney at law
Sujeewa Dahanayake Attorney at Law
Muditha Karunamuni Social activist
Kusal Perera Journalist
Anton Marcus Trade union leader
Srinath Perera Attorney at law
Neville Ananda Attorney at law – 0777876811
Sujeewa Dahanayake Attorney at Law – 0777324062