3 October, 2022

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Is The Doctrine Of Necessity Being Relevant For Sri Lanka To Initiate A People-Centered Constitution? 

By Firdous MHM

Firdous MHM

The discourse Doctrine of Necessity is portrayed as a negative aspect in the Sri Lankan context. However, beyond its destructive usage in the past by Zia Ul-Haq of Pakistan, we people of Sri Lanka can make use of it to strengthen the democracy and rule of law. Those who deny the application of the doctrine of necessity in the local domain for the reason of constitutional absurdity, know very well that we are already living with constitutional absurdity! But unfortunately, we the constitutional law experts feel odd to speak of it louder, and precisely as our studies of the past including our learning, teaching, and practicing are knowingly and unknowingly, and expressly and impliedly defended the existing system of constitutional anarchy without realizing its embedded absurdity.

Constitutionalism can start functioning based on the doctrine of necessity at times of popular uprising and popular demand for the people-centered constitution and accountable government. But most of the Sri Lanka legal experts, if not all, are siding with existing constitutional absurdity and they just deal with pre-dated basic theoretical reading of the doctrine of necessity in an abstract manner and counter the initiatives and demand to rescue the country and the people from the existing model of elected constitutional anarchy. 

The context of the 1972 constitution-making process evolved and the current demand for the new people-centered constitution-making framework are not similar and different from one another in many aspects. Despite the celebrity-styled learning of the 1972 constitution-making process as the development of a homegrown and autochthonous constitution, it was one of the darkest sides of the constitutional evolutionary history of Sri Lanka. Our academic studies praise it as the advancement of constitutional evolution in Sri Lanka, in the name of the so-called autochthonous constitution, what evolved is a majoritarian constitution that enables the legislators to come up with discriminatory legislation and treat minority communities differently. Let us not even think of repeating the 1972 constitutional making model as a guiding framework, because both the 1972 and 1978 models are neither promotes democratic, people centered system with accountable government and rule of law, rather both reflect the mix of majoritarianism and retention of unaccountable power  and dividing the people to distract their concentration on the demand for state accountability.

Today the constitutional law reform discourse in Sri Lanka takes places in two fronts. One segment is among the ordinary people who are not claimed expertise or authority for constitutional law studies. Other segment is the so-called constitutional law experts and judicial officers. Reading the direction of these two camps are interesting. The first camp demand for the people centered constitution with accountable government and a system change that could make the constitutional government accountable and capable to provide and sustain basic expectation of the people such as the right to live a house, right to employment, right to unemployment benefit, right to pension, right to education and health by managing the tax money collected from every person living in this county. On the other hand the later segment knowingly and unknowingly and internationally or unintentionally resist the voices of the people and guard the prevailing unaccountable system. The discourse around the concept of doctrine of necessity reveals the conceptual barriers toward progress.

 Metaphorically speaking, we will not agree with those who drive a car forward while looking for the direction from the backside mirror. Similarly, the way we interpret the Doctrine of Necessity also lost direction and objective assessment, and consideration was placed on its application to the past. 

1. In a country where people collectively feel that the constitutionally unaccountable executive, legislative, and judiciary is the curse of the country, and the existing constitution blocks all kinds of steps toward eliminating unaccountable government it necessitates different means and ways to give prominence to the aspiration of the people. 

2. In a country where elected anarchy prevails and people do not find a way to get rid of the anarchy within the system, necessitates thinking beyond the system to protect the country and transform from elected anarchy to democratically elected accountable institutions. 

 3. In a country where the constitution and constitutional reform become a tool for strengthening the unaccountable executive, judiciary, and legislative body, people feel the necessity to build a people-centered constitution, that makes the government accountable to the people and ensures that the people-centered constitution, upon established, any future amendments should take place with the super and greater, regional and the national majority of the people’s vote.

All these reasons validate the need of stressing the need for making use of the doctrine of necessity to build a democratic, people-centered constitution, capable state structures, and accountable government. Leaving all these reasons and justifications away, looking at how a dictator used the doctrine of necessity to consolidate power and build a stronger dictatorship as a reason for disregarding the validity of the doctrine of necessity is counterproductive in many fronts. 

 Let’s understand that even the democratic electoral process, and people vote can be used by dictators and murderers to enhance their power base and sustain a governing model that bring nothing but anarchy, just like how Gota used 6.9 million voters, which does not disqualify the existence of democratic framework. Similarly, the doctrine of necessity can be seen as a way of transforming the prevailing elected unaccountable constitutional slavery system of Sri Lanka toward a democratic, people-centered constitutional governing system. I urge the so-called constitutional law experts to stand with people and lead the process of building people centered constitution and accountable government and make use of the public call for system change.

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    OMG, Firdous, our so called righteous and constipational experts are going to be very unhappy with you. Conditioned voters are like retarded donkeys following those crooked politicians for years.

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      Here we go, Mervyn Silve is arrested for forcibly entering Rupavahini in 2007. What a joke this govt is becoming. It took 15 years to figure this one. It’s not just the constitution but the whole country, system, judiciary, low and odor ….. The guy who entered the govt building got arrested within days. People who sat on Speaker’s chair are still law makers. Person who sat on President’s chair is arrested, Mahinda who organized violence against protesters is still free, but the protesters are hunted down.

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        The same CID who found Meervyn guilty, also found a person who deposited 0.5 million to activist Ratta’s account was mistaken identity/ transaction. When was the last time we heard a personal deposit of that amount by mistake. Apparently the person by mistake deposited that amount , while depositing 15 million. Only in Silly Lanka .

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    A well written article about our constitution and need for the people centred constitution for this country. Unfortunately, even our people wanted that the political institutions which are based on racism and buddhist fundamentalism who influenced the people are not prepared to make changes because they do not want to loose the benefits of the current system. That is why they made constitutions twice to protect them and keep the control of power. Even after such a failure of the constitution to protect the people and protect the basic humsn rights they are just concentrate on making amendments one to another and vice versa depending on their personal interest.

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    We must sort out the problems among the ethnic groups and special focus should be given to the diaspora as it is a strength and source of investment,” Wickremesinghe said recently.
    One of the important steps the President has to take is BRING IN THE NEW people centred CONSTITUTION. Diaspora enjoy the law and oredr in the countries they live in but it is NOT THE CASE for the citizens of SL. Laws are only applied to crush anyone opposed to the rulers and to those point to the wrong doings of the government. Shiriyani Bandaranayake and Sarath Fonseka are some who had to suffer the wrath of Rajapaksas.There are no punishments for the white van organisers or to those who murdered the surrendered in may 2009. The Diaspora aren’t happy that those who are guilty are STILL in their Government posts. Tamil Diaspora are still very suspicious of the Government’s moves.
    GoSL should reassure them by reducing the DEFENCE presence in North & East as a first step. Return the occupied private lands and sell the business ventres of Army.

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    Is the Doctrine Of Necessity Being Relevant For Sri Lanka To Initiate A People-Centered Constitution

    The Ousted President Initiate A People-Centered Constitution by adopting to Executive power and made this country for the present situation. It is not the constitution it is attitude. Surround yourself with people that force you to do better and to follow the constitution. We must people who follow the constitution. Not Divide and rule, many politicians are provoking storytellers, as they mix facts with fiction, grab our emotion and tell things, they want us to believe.

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    Part 1
    Yes, we are already living with constitutional absurdity!.The 1972 constitutional absurdity arose from the alleged mandate obtained in the 1970 General election with less than 50% of the popular vote .
    The mandate to convert the elected parliament members to constitute n members of the constituent assembly was included in the election manifesto of United Front led by Mrs Srimavo Bandaraiyake a s one of many promises in the manifesto.
    Could it be considered as a mandate? Further the results of the 1970 General election reveals that although the United Front was victorious in mre than 2/3 numer of MPS in a first past post electoral system out of total number of valid votes cast in the elecyion united front received less than 50% of the total valid votes cast.
    Under these circumstances did they have the mandate?
    Yet it bypassed the in the name of doctrine of necessity to throughout thel Soulbury constitution and bring the 1972 Republican Constitution.

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    Part 11

    The 1972 constitution was not a radical departure from the Soulbury constitution.

    It removed some of the progressive features in the Soulbury Constitution such as Independence of Public Service and other independent institutions while making all institutions subservient to the National State Assembly, but in all other aspects it was more or less the Soulbury Constitution.

    The fundamental rights even though mentioned in the text was not enforceable.

    All opposition parties including all nationalities were opposed to the new constitution.

    It lasted for only six years 1972-1978 and replaced by the draconian 1978 constitution which continued to date elevating the Sinhala only Act and unitary state to the constitutional status, had given a foremost place to Buddhism and given unbridled powers to the National State Assembly- dictatorial powers over and above all independent and democratic institutions.

    The members of the Constituent Assembly was sleeted by an unusual practice, thereby the members parliament elected in terms of the Soulbury Constitution under a first past Post electoral system had become members of the Constituent Assembly presumably in terms of so called mandate received at the Parliamentary General Election held on May 1970. The members included 06 nominated members.
    The application of doctrine of necessity was unnecessary and the work was half done.

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    Part 111
    Now is the time to apply the doctrine of necessity and to go for a total systemic change including a new constitution to open a new chapter in the entire history of the island.

    This the time is ripe for a secular, democratic, participatory governance with good governance and power sharing arrangement as the core value. The political party system is democratized with inner-party democracy is at the core .

    It will be a people constitution rectified by a constituent assembly process when all members of the constituent assembly are elected directly by the people without involvement of any political parties.

    It will be a new paradigm replacing all existing paradigms to usher in a people government

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