Blueprint for NEW Constitution

The Committee of Public Representations on the Constitution (CPRC), which has been appointed to gather public opinion on Constitutional amendments completed its task and handed over the report to the President recently.

The 24 member Public Representations Committee on Constitutional Reforms headed by veteran legal expert Lal Wijenayake appointed by Prime Minister Ranil Wickremesinghe, went around the country and gathered public opinion.

The committee chaired by Wijenayake included Winston Pathiraja (Secretary), Prof. Gamini Samaranayake, Prof. Navaratne Bandara, Prof. M.L.A Cader, Mr. N. Selvakumaran, S. Thavarasa, Kushan de Alwis PC, Dr. Harini Amarasuriya, Dr. Kumudu Kusum Kumara, Sunil Jayarathne, Dr. Upul Abeyratne, Themiya Hurulle, Faisz Musthapha PC, Dr. S. Vijesandiran, M.Y.M Faisz, M.K.Nadeeka Damayanthi, Kanthi Ranasinghe, S.C.C. Elankovan and Sirimasiri Hapuarachchi.
Starting today the Daily Mirror will publish the recommendations of the report in a series on a daily basis.

Preamble to the Constitution

The People have made many submissions with regard to what should be included in the proposed Preamble of the Constitution. Some have wanted a reference to the past happenings of the State as a reminder and lessons for the future. However, there is consensus that the country should respect and promote democracy, rule of law, human rights, human dignity, fairness, equality, pluralism, diversity, peace etc. in the preamble.
Having considered these submissions this Committee is of the opinion that the proposed preamble to be incorporated in the Constitution may advert to the following in its formulation:
“Recognising the necessity to heal the divisions of the past and to foster the unity and integrity of the nation,
Strengthening of institutions of governance,
Ensuring wider sharing of power,
Enshrining democratic values, rule of law, social justice, human dignity and fundamental human rights,
Facilitating economic, social and cultural advancement, and
Fostering peace, ethnic harmony and democratic practices.”

The National Flag

Based on the submissions, the Committee has developed the following recommendations for consideration:
a. To design a new national flag keeping in line with the recommendation for a secular State and representing Sri Lankan collective life without reference to ethnicity
b. To design a new flag symbolising the equality of all ethnic groups and peace and harmony amongst them
c. Keep the flag as it is without any change

The National Anthem

Based on the above, we have developed the following recommendations:
a) Consider the clause on the National Anthem formulated in the Constitution Bill of 2000.
b) Consider the clause on the National Anthem formulated in the Constitution Bill of 2000, while recognising the right to sing it in Sinhala and/or Tamil.

Citizenship

Given the task of building a consensus that the citizens of the country face at present our recommendations would be:
a. To treat all Sri Lankan citizens equally, whether one becomes a citizen by descent or registration.
b. Those who become citizens by registration should take an oath of allegiance.


Religion

As a compromise, the Committee agreed to recommend the different formulations of the members as alternative recommendations for the consideration of the Constitutional Assembly:
i. Retain Article 9 (Chapter II) of the current Constitution with no change
ii. Heading of Chapter II of the current Constitution should state ‘Religions’ and not Buddhism and retain Article 9 as it is with no change
iii. Reformulate Article 9 of the current Constitution as follows:
“The Republic of Sri Lanka shall give all religions equal status. The State shall protect and foster Buddhism and the Buddha Sāsana, while assuring all religions the rights granted by Articles 10 and 14(1) e of the current Constitution
iv. Sri Lanka shall be a secular State
v. Sri Lanka shall be a secular State while recognising the role of religion in the spiritual development of people
vi. Heading of Chapter II of the current Constitution should State ‘Religions’. The clause should be revised as follows
“The Republic of Sri Lanka will give all religions equal status”

Nature of the state

The Committee deliberated at length when formulating recommendations for the nature of the State. We considered two major concerns in our deliberations: the need to strengthen democracy and finding a solution to the national problem. We were of the view that these two issues were of immense concern to the people who came before us. We also recognised the need to avoid recreating fears and insecurities among the various communities, while at the same time providing recommendations that steered the country towards a better future.
While we were unable to arrive at a unanimous recommendation on the nature of the State, it must be noted that Committee members in their deliberations compromised on their original views in order to accommodate the following recommendations with regard to the nature of the State.
For the purpose of our recommendations, we define unitary and federal forms as follows:
A unitary form of government means that there will be one centre of governmental power. Within a unitary State, the Legislative Power is enjoyed by one body at the centre, the Executive Power is enjoyed by another body at the centre and Judicial Power is exercised by yet another body at the centre.
However, the degree of separation between these institutions may vary. A unitary form of government will not admit of any superior or parallel or coordinate body to it.
Further, while it could have or admit delegated or devolved institutions with some of these powers, the central body shall have the authority to take back, amend or repeal the granting of power without the consent or concurrence of the delegated or devolved institutions.
In this way if the grant of delegation or devolution of power occurs through the constitutional instrument in a country, the central legislature shall be capable of reorganising or doing away with such arrangements or grant without the consent and approval of the delegated or devolved units.
On the other hand, a Federal Form of government means that there will be a Federal government having Legislative, Executive and Judicial power over certain subject matters, while there will also be federating units of government having Legislative, Executive and Judicial power over certain other matters in the country.
In this manner, the people’s power (sovereignty) over certain matters resides in the federal government, while over certain other matters it resides in the federating institutions. This power distribution or sharing or devolution arrangement shall take place by the constitutional instrument of a country and any change or amendment in the arrangement cannot be done by the federal legislature unilaterally; any such change has to be approved or consented to by at least a certain percentage of the federating units.
We are also conscious that there are many systems in the world which do not fall strictly under the above classification. Some of them overlap between these two systems by taking certain features of one system and certain other features of the other system and combining them with a certain degree of imagination and creativity to suit the needs of a polity. It is possible for some important features of one system to be made use of while some other features of the other system are also incorporated without doing violence to the objective of governing the country.
The Committee differed in opinion on the Nature of the State and therefore came up with the following three formulations indicated below:
i. Sri Lanka shall be one, independent, free, sovereign Republic consisting of governmental organs* as provided in the Constitution and the State shall safeguard the independence, sovereignty, unity and territorial integrity of the Republic and shall promote and preserve peace and harmony among various people of the country while promoting a Sri Lankan identity.
ii. The Republic of Sri Lanka shall be an independent, free, sovereign, unitary State consisting of governmental organs* as provided in the Constitution and it shall promote and preserve peace and harmony among various peoples of the country while promoting a Sri Lankan identity. For the purpose of this article, the Unitary State means an undivided country with multi-tier governance systems
*The organs of government includes at national level, Parliament, Executive and Judiciary; at the provincial level, the Provincial Council and the Provincial Executive and at the local level, Local Councils, Head and Deputy Head of these bodies.
iii. Article 2 of the present Constitution should be retained without change. Namely:
“The Republic of Sri Lanka is a Unitary State”

Basic Structure of the Constitution 

1. This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled
2.Flowing from the above, no organ in the republic can claim to have any power other than those which are given by the Constitution to such organ. Those powers must be limited in their scope and no institution can claim to have unlimited or unfettered power given to it by the Constitution.
3. It is recommended that the essential features and spirit of the doctrine of separation of powers are incorporated with regard to the organisational formation of the legislative, executive and judicial arms of the government and the functional roles of each of them in the proposed Constitution.
4. To further facilitate this, there shall be established by the Constitution a Constitutional Court or in the alternative, a Constitutional Bench of the Supreme Court which will have the authority to interpret the Constitutional provisions. The Court or the Constitutional Bench will have the authority to go through and pronounce whether the provisions of laws passed by Parliament or other legislative bodies are valid or not.
Therefore, judicial review of legislation shall be expressly recognised in the Constitution; similarly judicial review of executive actions and judicial actions is also recognised in the Constitution. Detailed recommendations on these matters are found in Chapter 14.
5. Similarly the proposed Constitution shall incorporate necessary provisions to ensure the recognition, respect and maintenance of the rule of law in the country. Thus these values, coupled with a commitment to promote democracy, republicanism, fundamental human rights and the doctrine of public trust shall form the foundational basis of the Constitution.
6. The Constitution shall expressly recognise the fact that the powers of the organs of government do belong to the people of the country and that the organs are temporary holders of the said powers to be exercised by them, in trust, for the benefit of the people and future generations to come.

 

 

“A unitary form of government means that there will be one centre of governmental power. Within a unitary State, the Legislative Power is enjoyed by one body at the centre, the Executive Power is enjoyed by another body at the centre and Judicial Power is exercised by yet another body at the centre”

 

 

The Separation of Powers and Rule of Law

1. The doctrine of separation of powers, not in its strict sense, but recognising its value and spirit, must be taken into account in the formulation of the Constitution. Given the overwhelming recommendation that the country adopts a Parliamentary Cabinet system of government, the strict and water-tight compartmentalisation of the legislature and executive is not possible; nor is it desirable. The judiciary should be positioned in such a way that it should be, in theory and in reality, free from the other organs of the government.
2. The judiciary should specifically and constitutionally be entrusted with the task of checking the constitutionality and legality of legislative and executive actions in the country. It is the bounden duty and responsibility of the judiciary, as holders of judicial power of the People which is directly entrusted to it by the Constitution, to uphold the supremacy of the Constitution and the rule of law in the country.
3. There should be clear organisational and functional separation of the judiciary from the legislature and executive. The judges could be, in exceptional cases, subjected to a joint, responsible and transparent process of disciplinary action which should strictly follow the rules of natural justice.
4. The theory of rule of law, as opposed to the rule by law, shall be the unwavering and indisputable feature informing and inspiring the working of the Constitution and the legal system in the country.
5. All organs of the government and people in the country shall recognise and uphold the rule of law, in its liberal and extended meaning and shall be governed and guided by a broad understanding of the theory of rule of law. The rule of law demands, among others, that the legal system shall recognise and comply with minimum standards of certainty, generality and equality.
6. In the field of executive and administrative action, no action or inaction of any organ or instrumentality of the government shall be legal and valid unless such action can be supported and underscored by a grant of authority, express or necessarily implied, by or under the Constitution or a law. Any action or omission of any statutory agency which is unable to be supported by the Constitution or a law shall be devoid of legality and validity.
7. On the other hand, a natural person shall be at liberty to do or refrain from doing anything which such person is not prohibited, either expressly or by necessary implication, by the Constitution or law. People are free to engage in any activity which is not by law prevented from being engaged in.
8. The scope and content of the theory of rule of law must be laid down in the Constitution expressly.
9. It is our considered view, on the other hand, that the rule of law as interpreted and explained by the courts of law and experts must be incorporated in the Constitution and given effect to ensure a vibrant democracy which functions according to the law of the land but not according to the whims and fancies of individuals or organisations.

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