Whither the Constitution?

Good subcommittee reports; political

omens not so good

President at Asgiriya Temple with Ven. Warakagoda Dhamasiddi

Gnanarathana Thero
by Kumar David-January 14, 2017, 7:22 pm
The good news is that the six subcommittees
(Fundamental Rights, Judiciary, Finance, Law & Order, Public
Service and on Centre-Periphery Relations) have submitted their
reports; all good work and if the exercise keeps on track this
constitution could be much better than its predecessors of 1972
and 1978. It is not often that one has an opportunity to
congratulate our MPs; so well done! This piece deals with the
main points; Dr Jayampathy Wickremeratne has a 70 page
softcopy tabular comparison of the existing and proposed
versions.
First a worrying claim about President Maithripala Sirisena carried
by The Indian Express (PK Balachandran: "Sri Lankan constitution
making process hits a serious snag") on Jan. 3:

"President Sirisena told the Buddhist high priests that he would

once again consult the masses on the constitution, setting aside
the report of the Public Representations Committee (PRC) done
after an exhaustive island-wide survey. On Sunday the President
told the Mahanayakes of Malwatte and Asgiriya that he does not
intend to include any divisive elements in the constitution. By this
he meant (according to Balachandran) that the constitution will
be unitary and not federal, the North and East will not be
combined into a Tamil-speaking province, Buddhism will not be
denied the "foremost place" and the constitution will not be
drafted without the blessings of the Mahanayakes".
"(T)he report of the PRC (may) be jettisoned in favour of a fresh
exercise. (T)he committee did not say whether the constitution
should be unitary or federal (but) wanted to turn the now powerful
Provincial Governors into rubber stamps of the Chief Ministers and
had sought powers over land and police for the provinces. This set
off alarm bells among the majority Sinhalese who considers this
to be secessionist (according to Balachandran)".
This is hard to believe, I hope a figment of the writers
imagination, but a more credible rumour is that the President and
his wing of the SLFP do not favour a new constitution but prefer
amendments. Their argument it seems is that it is difficult to win
a referendum on a radical new constitution but compromises can
muster the requisite two-thirds majority in parliament.
What to me is incredible about the six reports is that there is a
black-hole in the middle of their solar system! The six planets
freewheel round a sun that does not exist! Will the presidency be
executive, semi-executive or ceremonial? How will the president
be chosen? What is the balance of powers between president, PMcabinet and parliament? What of a second chamber? What the
trade-off between FPTP and proportional representation in

parliament and province? Total silence! Did January 8, 2015 ever

happen? The apex of state structure is undefined; it is a mystery.
Delineation of state structure at its apex is mysteriously missing
while subcommittees frolic with trifling details.
Judiciary
The proposed structure is conventional; the membership of the
Supreme Court has been raised to 15 and a Constitutional Court
with well-defined powers is proposed. The report flays previous
administrations for abuse of power and meddling with the
judiciary (music to the ears of human rights activists) and makes
a strong case for explicit clauses to ensure judicial independence
and impartiality. Excellent; though words will not deter crass
autocrats like the one whose grip we recently escaped, but still
its helpful. What can stop despots is the determined will of the
people as we learnt in January 2015.
Finance
There is a useful review of weakness of state financial
mechanisms such as the budget making processes and
inadequate control of borrowing. The report seeks to overcome
weaknesses, ensure better control and management of public
finance, budget processes and establish oversight. I am not
constitutionalist enough to know how much should be laid down
in the constitution and what is better relegated to ancillary
legislation. Do you want to go in search of a two-thirds majority
every time a procedural detail needs modification? A welcome
feature is that the report seeks equitable and adequate provision
of financial provisions for provinces. Some detail, including
demographic factors is discussed.

The huge defect in the Finance report is

that it says nothing and proposes nothing to
integrate the state into economic
development. The report on the Public
Service (next item) does make anaemic
reference to a National Planning
Commission, but the proposal has no gall or
spunk. Last week I wrote approvingly of the
Economic Development Bill (ECB) now
before parliament which seeks to establish
planning structures at centre and periphery. Remember I
mentioned planets a while ago? Well the drafters of ECB and the
folks who wrote this report inhabit different planets! How can so
deep a proposal as the ECB find no resonance in the constitution?
Public service
A good discussion and review of shortcomings, but the problem is
that the recommendations pertain not to the constitution but to
subsidiary legislation that should be enacted later. For example
quality, efficiency, fairness, reasonableness and people-oriented
service delivery cannot be enforced constitutionally other than
making sonorous pronouncements.
The Public Service Commission must have a constitutional
warrant but the report goes on about a Senior Management Group
to train officers, Public Sector Performance Review Committee,
Public Corporation Service Commission (there goes independence
of state corporations and more political inference than at present)
and - help have they got anything more up their sleeve! a
National Committee of Public Service Commissions. The Steering

Committee would be wise to sort sheep from goats when reading

this report.
The report says Ministers must be accountable for instructions
they give Ministry Secretaries, not only the other way round.
Excellent, our Ministers habitually play pandu issuing verbal
instructions about which they later deceive public and PM. This is
a good proposal but whats the best way to get it done
constitutionally?
There are many recommendations of constitutional stature.
These include the establishment of Grama Rajayas to devolve
power down to the broadest mass level, bilingualism with English
constitutionally stipulated as link-language, and strengthening
provincial public services. A debatable point is whether COPE,
Public Accounts Committee and Committee on Public Petitions
should be hardwired into the constitution.
Fundamental Rights
The introduction features the vagaries of fundamental rights in
Lanka since independence and offers a review of human rights
worldwide. This is true but certain to be ignored by dictators
everywhere and god forbid in Lanka, again. This sour note
aside, its a damned good to have a strong chapter on
fundamental rights because of our misery with civil wars and
white vans. The recommendations on individual, religious,
language, trade union, family rights and the right to information
are welcome.
The report recommends that social and economic rights be
written into the constitution and be made justiciable. I do not

oppose this who can but its a cry in the wilderness? How to
enforce in the context of budgetary, regional and planning
constraints? Socio-economic rights are right to education, healthcare, food-nutrition-water-housing-sanitation and the right to a
healthy environment and natural resources (whatever that adds
up to). Very good but how is it going to be manifested, except in
party manifestoes at election time?
The star example of the reports naivet is the South African
Constitution the drafters Mecca - which did not help one iota to
deter a half-mad president from, in effect, murdering millions of
countrymen. Thambo Mbeki, an ignorant black-racist and pseudo
witch doctor, refused to allow his people the country worst
affected by AIDS-HIV to receive retroviral drug treatment
resulting in the worst known medical calamity. Of what use was
finest social and economic rights chapter of any constitution, or
the much extolled free and independent judiciary in preventing
the catastrophe? Nil!
Law and order
The subcommittee says consensus could not be reached and only
the majority report is attached; the minority view is not made
available; we are not enlightened on who dissented and on what
issues. Most of this report in not suitable for inclusion in the
constitution; the subcommittee recognises this and suggests that
two new laws National & Public Security Act (to replace the Public
Security Ordinance) and Police Act (to replace the Police
Ordinance) be enacted to include the bulk of its submissions.
The key constitutionally relevant feature is a structural overhaul
of the police into National Police (NP), nine Provincial Police (PP)
units and a Metropolitan Police (MP) for Colombo and environs. PP

would be responsible for day to day stuff (traffic, crowd control,

crime) and hence the large majority of personnel will end up here.
NP will include CID, STF, maritime, serious commercial crimes and
MP. It will also be responsible for national security, counter
terrorism, the police academy and training. There will be a
National Police Commission and Provincial Commissions to lay
down schemes of recruitment, promotion, transfers and
disciplinary control in their domains. Since transfer between
NP/MP and PP is envisaged and since all officers above a certain
rank will be eligible to become IGP, it is not clear how divergences
in recruitment and promotion policies will be rationalised.
Institutions-institutions-institutions! The success of the proposed
police structure is predicated on creating healthy instructions at
the provincial and national level. The authors of Why Nations Fail
(Daron Acemoglu and James Robinson) assert that states flop
when they fail to build vibrant institutions. This will be the
decisive challenge mediating the success of the proposed police
system.
A second part of the report is devoted to National Security and
envisages the repeal of the much hated "Emergency Law"
hooray! However it is to be replaced by new regulations under
which a State of Emergency can be declared for 34 itemised
reasons phew! The list is extensive and constitutes an
infringement of the rights of the citizen and an erosion of
protection from abuses by the state; so not much gained. The
good side is proposed checks and controls on extension of a State
of Emergency and a special majority (maybe two-thirds but not
specified) will be needed to extend it beyond three months.
Citizens can also file for judicial review of a declaration or against
specific provisions.

Centre-periphery
relations
This piece is longer than my usual and I will surely have to return
to this topic in the coming weeks; so let me be brief. I like this
report, it sensibly avoids hornets nest rousing words like unitary
and federal and the practical minded recommendations it makes
have my support. The clout of the Governor will be curbed to the
benefit of Provincial Councils (PC), Provincial Ministers and the
Chief Minister and his ability to block PC decisions will be time
limited this will mean more devolution of power. Provincial
authority over state land is enhanced and police powers will be
more devolved since the Provinces Police (PP above) force will
report to the relevant provincial minister. There is also substantial
discussion of the provincial public service and provincial finances.
An important recommendation is to give the third-tier of
administration (Local Government) greater power and recognition.
A vital tool to accomplish this is the Grama Rajya (GR) concept.
GR is a village council (of more than one village to limit the
number); a statutorily recognised community level forum. GRs will
assist, advice and monitor local authorities, Provincial Councils
and the National Government it says in one place and elsewhere
that GRs will not undermine Provincial and Local Authorities. A lot
of thinking will need to go into formulation supporting legislation.
I will wind up with a few largely supportive comments. There is
enough meat in the six reports to build a good constitution,
equally useful are the ancillary ideas thrown up for supporting
legislation. The envisaged practicable devolution avoiding

verbiage that will rouse Lankas abundant supply of racists is

workable. That such a degree of unanimity has been achieved by
parliamentarians with varied ethnic delusions and partisan hues is
encouraging. Missing are chapters on the apex political structure
and on the directive role of the state in economic development.
Posted by Thavam