20 January, 2022

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NMSJ Proposals On Constitutional Principles, Nature Of The State & The Legislature

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

The Government has stated that it will unveil its proposals for a new Constitution in the form of a legal text early next year. A committee headed by Romesh De Silva PC has been working on a new Constitution for more than a year. It is not known whether the committee report would also be published. Whether the draft is based solely on the report or whether the Government’s proposals have also been included is to be seen.

In the meantime, the National Movement for Social Justice (NMSJ) has unveiled its proposals on constitutional reform. The NMSJ, which the late Ven. Maduluwawe Sobitha Thero founded, has made a significant contribution to the debate on constitutional reform during its decade-long existence. Ven. Sobitha Thero was at the forefront of the campaign for the abolition of the executive presidency from the time it was installed in 1978 until he passed away in November 2015. He played an important role in the regime change of 2015 and, by his leadership, contributed to the Nineteenth Amendment to the Constitution. The late Thero was deeply disappointed that the Nineteenth Amendment was not up to his expectations.

Ven. Maduluwawe Sobitha Thero

The NMSJ’s proposals on selected aspects relating to democratic governance are a culmination of almost a year’s work. Several discussions open to all were held in cyberspace on various aspects of the Constitution. Experts were invited to present their proposals for reform, followed by long Q&A sessions. Draft proposals were circulated among NMSJ members, and a consensus was achieved. The NMSJ is now chaired by Karu Jayasuriya, former Speaker of Parliament. The writer has been associated with the NMSJ from almost its inception.

Constitutional Principles, Nature of the State, Sovereignty and Safeguards Against Secession

The NMSJ has proposed that a new constitution set out certain basic constitutional principles. Following the South African post-apartheid Constitution, many new constitutions have included basic principles that would be considered when addressing constitutional issues or interpreting the Constitution.   The NMSJ has proposed the following: human dignity, social justice, equality and the advancement of human rights and freedoms; non-racialism and gender equality; the supremacy of the Constitution and the rule of law; regular elections and a multi-party system of democratic government; and the assurance of accountability, responsiveness and transparency.

The description of the Sri Lankan state as ‘unitary’ in 1972 and its subsequent entrenchment in 1978 have impeded efforts at meaningful power-sharing. In constitutional theory, a unitary state is one in which the central government is supreme, and administrative divisions exercise only powers that the central government delegates. In short, there is only one ultimate source of state power. However, for many Sri Lankans, ‘unitary’ means ‘oneness’ or ‘one country’. The Sinhala word for ‘unitary’ is ‘ekeeya’, and ‘eka’ is ‘one’. Thus, changing the ‘ekeeya’ nature of the state is seen by some as ‘dividing’ the country.

Proponents of devolution argue that describing the Sri Lankan State as ‘unitary’ in the English version of the Constitution is undesirable for the reason that there exists a certain ‘unitary mindset’ in Sri Lanka according to which any issue that arises between the Centre and a Province is decided in favour of the Centre. They argue that while ‘unitary’ means in the classic sense that powers devolved may be withdrawn by the Centre by constitutional change, there have been instances of the legislature, executive and even the judiciary undermining devolution. They are agreeable to the use of the phrase ‘aekiya raajyaya’.

The Steering Committee of the Constitutional Assembly of the last Parliament considered the above claims and suggested a way out. The Committee stated: “The President whilst speaking on the Resolution to set up the Constitutional Assembly, stated that whilst people in the south were fearful of the word ‘federal’, people in the north were fearful of the word ‘unitary.’ A constitution is not a document that people should fear. The classical definition of the English term ‘unitary state’ has undergone change. In the United Kingdom, it is now possible for Northern Ireland and Scotland to move away from the union. Therefore, the English term ‘Unitary State’ will not be appropriate for Sri Lanka. The Sinhala term ‘aekiya raajyaya’ best describes an undivided and indivisible country.”

Orumiththa nadu’, the Tamil phrase for ‘aekiya raajyaya’ proposed by the Steering Committee, evoked controversy. The EPDP argued that ‘orumiththa nadu’ means, in essence, a ‘united state’ and suggested that the phrase used in the Tamil version of the 1978 Constitution ‘ottaiyadchi’ be used. The TNA claimed that ‘ottaiyadchi’ means ‘one government’ and not ‘one State’.

The NMSJ has proposed that the phrase ‘aekiya raajyaya’ be used in both the Sinhala and English versions and the correct term in Tamil be found and used in the Tamil version.

According to the NMSJ’s proposals, Sri Lanka would be an aekiya rajyaya, consisting of the institutions of the Centre and of the Provinces, which shall exercise power as laid down in the Constitution. An aekiya rajyaya is defined as a State which is undivided and indivisible and in which the power to amend the Constitution or to repeal and replace the Constitution shall remain with the national legislature and the People of Sri Lanka as provided in the Constitution. Sovereignty is in the People and is inalienable and includes the powers of government, fundamental rights and the franchise. The legislative, executive, and judicial power of the People shall be exercised as provided for by the Constitution.

Some fear that a Provincial Council might use its powers to move towards secession. To assuage such fears, the NMSJ has proposed that the Centre should have the power to intervene if there is a danger to the territorial integrity and sovereignty of the country. Accordingly, where a situation has arisen in which a provincial administration is promoting armed rebellion or insurrection or engaging in an intentional violation of the Constitution which constitutes a clear and present danger to the territorial integrity and sovereignty of the Republic, the Centre may by Proclamation assume all or any of the functions of the administration of the Province and, where necessary, dissolve the Provincial Council. To ensure that such power is not abused, it is proposed that the Centre give reasons for the exercise of the power, that Parliament should approve any such intervention and that an intervention should be subject to judicial review.

Legislature

The NMSJ has proposed a bicameral legislature composed of a Parliament and a Second Chamber suitably named. The term of Parliament shall be five years.

Parliament shall be dissolved by the President if Parliament passes a motion of no-confidence in the government or the Budget is defeated in or the Statement of Government Policy is defeated and a new government formed does not win a vote of confidence within fourteen days. Parliament shall also be dissolved if a motion in the name of the Prime Minister to that effect, tabled with the agreement of the Leader of the Opposition and the leader of the third-largest party in Parliament, is passed. The President shall not dissolve Parliament other than in the above circumstances.

At present, a Member of Parliament who loses membership of the party or group on whose list s/he was elected consequently loses her/his seat in Parliament. But such Member may challenge the expulsion in the Supreme Court. In practice, however, such Members obtain injunctions from the District Court preventing any disciplinary proceedings and thereby frustrate the purpose of the anti-defection provision. This was sought to be remedied by the Nineteenth Amendment. Still, the proposed provision had to be withdrawn at the committee stage in Parliament due to the Opposition not being in favour. The NMSJ proposal is for the Supreme Court to have exclusive jurisdiction to hear and determine any matter relating to disciplinary action taken or proposed to be taken by any recognised political party or independent group against a Member of Parliament. No other court shall have the power to grant a writ, injunction, an enjoining order or any other relief, preventing, restraining or prohibiting any such action or proposed action.

The NMSJ points out that a second chamber of the legislature has been used in many countries as an instrument of power-sharing. Almost every country with devolution has such a chamber. A second chamber comprising representatives from the provinces would engender in the provinces a strong feeling that they too have a distinct role to play in the national legislature. It would function as a mechanism to rectify possible imbalances of representation in the lower house and also act as an in-built mechanism against hasty legislation and legislation that may have an adverse effect on the provinces.

The Second Chamber shall consist of fifty-five Members, each Provincial Council (PC) nominating five members based on a Single Transferable Vote, the method used under the Independence Constitution to elect Senators. As to who shall be members, two options have been given. Option 1: Members shall be persons of eminence and integrity who have distinguished themselves in public or professional life. Option 2: Members nominated will be PC members, including Provincial Ministers.

The Second Chamber shall not have the power to veto ordinary legislation. All Bills placed on the Order Paper of Parliament shall be referred to the Second Chamber to obtain its views, if any, before the Second Reading. A Bill seeking to make national policy or standards on a subject or matter in the Provincial Council List shall, however, be passed by the Second Chamber as well. The Second Chamber shall also exercise such oversight and other functions as may be prescribed by the Constitution or law. No Constitutional Amendment shall be enacted into law unless passed by both Parliament and the Second Chamber, with special (2/3) majorities.

*To be continued..

*Next: The Executive and Devolution

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Latest comments

  • 4
    3

    Overlook the man and his shortcomings ……… just listen to the contents/points what he is saying/making ………..

    https://www.youtube.com/watch?v=Qswi8dRkPz0

    • 2
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      National Movement for Social Justice (NMSJ) should investigate who was behind the assassination of Sobitha Thero? The bi-partisan UNP-SLFP (Ranil-Sira) govt. corruption racket that the Yahapalanaya Govt. represented was brokered by foreign actors in Sri Lanka and Sobitha Thero had realized this.
      He was increasingly critical of Yahapalanay and was eliminated – died in Singapore !
      As revealed in the Yale University Published book: “Cold War Monks: Buddhism and America’s Secret Strategy in Southeast Asia” including Sri Lanka, the US has long been weaponizing religion. So too US allies increasingly France and Aussie with the Saudi Wahabi-Salafi project at Easter Sunday 2019.
      SWRD Banadaranaike was assassinated by someone in Safron Robes when the US was weaponizing Buddhism and Islam in the Cold War, and SWRD had nationalized Sri Lanka’s ports and airports from the British and US! Today they are playing the same games -weaponizing religion to divide and rule and set up military bases in Strategic Lanka to monitor China, destroy the Rise of Asia as the Global Growth Hub !

      • 1
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        Also, which foreign donors fund this outfit NMSJ? Would be interesting to know..

    • 0
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      Well, provided he’s consistent.
      .
      You mean Victor Ivan who video you have linked us to, don’t you, nimal?

  • 5
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    1. I don’t think this is the time for a new constitution, although the present constitution is obsolete and authoritarian. Reasons are the following: (a) Efforts to propose a new constitution at this stage by the opposition would get into the trap of the government. (b) Given the enormous economic and social problems that people are facing, a new constitution is not of people’s priority or interests at this stage. (c) It appears that even the NMSJ constitutional proposals are half hearted and far short of progressive needs of the country.
    2. The above does not mean that if the government presents a draft in Parliament, the opposition should boycott. No. Not at all. But the opposition should try its best to derail this constitutional effort as it is obviously going towards a more authoritarian system. That is the task now. Not to propose some half-hearted proposals like what the NMSJ has done.
    3. What could be the opposition’s possible arguments? (a) The government should resolve the people’s economic problems first. (b) The government should hold elections to the Provincial Councils, particularly in the North and the East. (c) Any constitutional reform should have the involvement of the PCs.

    • 1
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      The prescription of the writer, ‘The government should resolve the people’s economic problems first’, is a diversion.
      .
      His panacea has been recommended, all along, for our national ill. Yet the problem gets worsened regime after regime.
      .
      His prescription only gets the skin grow and cover up the wound. The wound continues to fester beneath.
      .
      Isolate whatever that made the wound to fester, in the first place. Solve the national question.

    • 2
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      Prof. Laksiri Fernando,
      “(b) The government should hold elections to the Provincial Councils, particularly in the North and the East. (c) Any constitutional reform should have the involvement of the PCs.”
      —-
      13A and PCs were pushed through the throats of indigenous Sinhalayo almost at gun point as a solution to the Tamil problem assuming that it will also stop massacring Sinhalayo by LTTE Tamil terrorists. After lengthy negotiations, Ranil Wickramasinghe signed CFA even without getting the approval from President Kumaratunga and handed over almost one third of the country to 11% of Tamils. After that Prabhakaran ran a de facto State in the NE. But Tamils violated the CFA and continued to kill members of the Armed Forces and Sinhalayo to get a separate State as mentioned in Vadukkodei Resolution. The behavior of Tamils showed that they rejected 13A and PCs. Sinhalayo who were the victims of Tamil terrorism also did not get any relief from 13A and PCs because Tamil terrorism against them did not stop. So, what is the point is trying to revive something rejected by Tamils and did not bring any relief to Sinhalayo who were the victims of Tamil terrorism?

    • 2
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      Quite Right Prof. Laksiri! This is not the time for a new Constitution but external interests and geopolitical actors are behind this: US citizens Rajapaksa Brothers and families rule Lanka and the country is now a US colony and the new Constitutions is being pushed by those involved in the White Anglo Saxon NATO-AUKUS project to divide, and distract from the fact that a hybrid cyberwar is unfolding in the Indian Ocean region which Sri Lanka subject to Full Spectrum Dominance (FSD) !
      The US claims to be worried about Human Rights and militarization in Minority areas, but is the biggest militarizer on the planet and has 800 military bases all over and exports more weapons and bio-terrorism than any other country on the planet. The biggest Rogue State! This New Constitution is to distract the Lankan public and the MEDIA is being manipulated .

    • 2
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      Prof. Laksiri Fernando,
      As a consequence of the decision taken by Tamils to reject 13A and continued to fight to get their dream State within Sri Lanka, hundreds of Sinhala civilians and members of the Armed Forces had to sacrifice their lives, enormous damage was done to infrastructure and the economy. After making those sacrifices do you expect the Government and Sinhalayo who were the victims of Tamil terrorism to go back to something that produced no positive results?

      If Tamils rejected 13A and PCs, who are we trying to please by reviving PCs?

    • 1
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      A constitution should unite the people and not be divisive. A consensus constitution prepared from the grassroots and taking into account the grievances and aspirations of all political parties, all communities and religious groups inhabiting the land is a desirable outcome.
      Such an inclusive constitution will automatically evoke ownership and allegiance across the country.

  • 1
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    No constitution can unify islanders. What is good for one tribe is bad for the other two tribes. Some tribes want to keep their outdated tribal laws for their tribe. No country can move forward like this.

    We must accept that Sri Lanka failed as a nation.

    What more evidence do we need?

    Only solution is one island 3 mono ethnic nations.

    Until then Sri Lanka will keep bleeding hope.

    • 1
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      GATAM,
      “Only solution is one island 3 mono ethnic nations.”

      The 3 mono ethnic nations should be:
      • Sinhala nation that includes Sinhala speaking people irrespective of their religion.
      • Tamil nation that includes all Tamil speaking people irrespective of their religion.
      • Adiwasi (Vedda) nation consisting of real indigenous minority community in Sinhale.

      All Tamil speaking people will be relocated to North. Adiwasi (Vedda) people will be given an area in the East which is their ‘Traditional Homeland’.

  • 0
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    1. Jayampathy’s article says, “Following the South African post-apartheid Constitution… The NMSJ has proposed the following [constitutional principles]: [a] human dignity, social justice, equality and the advancement of human rights and freedoms; [b] non-racialism and gender equality; [c] the supremacy of the Constitution and the rule of law; [c] regular elections and a multi-party system of democratic government; and [d] the assurance of accountability, responsiveness and transparency.”

    2. Are these sufficient? Are we serious? South Africa proposed 34 principles! NMSJ has proposed only 4! Under [a] at least ‘social welfare’ should have been included, in my opinion. Given Sri Lanka’s past struggles for social welfare (free education and public health etc.), it should be protected given the poverty and social insecurity of vulnerable groups.

    3. It is good that human rights appear under the principle [a]. But instead of ‘advancement of human rights and freedom’ this principle should declare ‘protection and promotion of human rights and freedom.’ To me, the word ‘protection’ is very important. Why not include ‘democracy’ also under [a]. Of course, it is mentioned under [c] referring to multi-party system. But democracy is basic principle even people should follow. These are some initial observations on proposals.

    • 0
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      Section 1 Republic of South Africa
      The Republic of South Africa is one sovereign democratic state founded on the following values:
      (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
      (b) Non-racialism and non-sexism.
      (c) Supremacy of the constitution and the rule of law.
      (d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

  • 1
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    I do not think the author of this article is one to be taken seriously, because he himself is not serious of himself.

  • 0
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    Sri Lankans are not capable at all of drawing up a good constitution. However, there is no denying that this country does need a new and fresh constitution. Therefore, the best solution would be to outsource the drafting of a new constitution to foreign constitutional lawyers (not from China!) after getting them to do a careful study of the needs of the country and the people and the problems that have beset this land from the time of independence.

    • 0
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      We may need a new constitution, but not any old thing.
      .
      I don’t know about the legalities, but the fact is that in 13 months these guys don’t command the support of even 20% of the electorate.
      .
      A referendum therefore becomes a moral necessity. An expensive exercise for which we don’t have
      the money.

  • 1
    1

    As it is with the 20th amendment the country is now under threat of complete family dictatorship. Further, there is no scope for solution to the economic problem under this government. First thing is to get rid this dangerous government immediately. This can be done only by people. The people should come to the streets in each electorate and chase away their elected parliament members or push them to get rid of 20th amendment and to hold a new election.

  • 0
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    1. It is appreciated that Jayampathy has taken much time and energy to resolve the most controversial constitutional question, the nature of the state – unitary, federal, devolved, or else. However, it is doubtful that this matter can be resolved by sticking to the Sinhala term ‘ekiya’ giving it a subjective and a colloquial explanation, what people think! In the proposed NMSJ constitution could it give an explanation that ‘ekiya’ does not mean unitary? Even if it is agreeable, how are you going to say it in the Sinhala version: ‘ekiya’ does not mean ‘ekiya?

    2. In the 1972 constitution and, also in the 1978 constitution, when ‘ekiya’ was used to characterize the nature of the state it meant ‘unitary’ and nothing else. Devolution of power came only in 1987. It undoubtedly created an inconsistency or contradiction. The situation is something in between ‘unitary’ and ‘federal’ but more towards ‘unitary.’ This is another matter which must be resolved.

    3. What is the Tamil word we are going to use: ‘ottaiyadch’ (unitary) or ‘Orumiththa and u’ (united states) or something different. This is another matter that must be resolved. More correctly (at present), Sri Lanka is a ‘power devolved state.’

    • 0
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      You gave approval for Mahinda and Gotabaya to be awarded their honorary degrees.
      Do you regret this now?

    • 0
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      Why not leave the “nature of state” blank without mentioning anything like in the Soulbury Constitution rather than word jugglery creating suspicion all round.

      Let the content defines the nature of the state. If it is somewhere in the continuum with unitary at one end and federal at the other end, say where it is honestly and sincerely.

      • 0
        0

        Make sense.

    • 0
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      Dr.LK
      Do you honestly believe Sajith will agree for abolishion of EP? If you remember it is not only the incumbent but the opposition chief also tries to evade the issue as the desire to become a powerful president overrides all principles and observing that the existing president is fast becoming unpopular opposition thinks it is in their court now.
      Did you notice that the so called Civil Society was also totally silent on the issue during the 2019 November presidential election for they wanted their man on the throne. So much for the honesty, integrity and impartiality of Civil Society.
      Do you also remember how Jayampayhy Wickremaratne tried to manipulate 19A in favour of Ranil , Courts rejecting some of his clauses as unconstitutional.

      Soma

  • 1
    1

    Laksiri,
    What you all talk about the controversial constitutional question is about finding the correct word in all three Languages rather the common meaning or understanding of the the nature of the state. why cannot describe the common meaning or understanding or agreement of the explanation of the term in English, Tamil and Sinhala.
    Since this country have a diverse population speaking different languages, different Religions, different distribution and one country one law was completely a failure it was felt that the meaningful devolution of power. Unfortunately, the continued war made the devolution of power not meaningful and even after the end of war the environment did not change but worsened the situation. Before making a new constitution politicians of all major political parties and civil societies need to come for a compromise for a balanced approach to take forward to the people. It is sad why cannot all party leaders sit on a room and discuss what is better for country rather than party.

    • 0
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      Nothing particularly to disagree. (1) A term should confine to international usage (English). (2) Law should accept diversity as much as necessary. (3) Political leaders/parties should sit and resolve these problems also consulting civil society.

  • 0
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    The EPDP argued that ‘orumiththa nadu’ means, in essence, a ‘united state’ and suggested that the phrase used in the Tamil version of the 1978 Constitution ‘ottaiyadchi’ be used. The TNA claimed that ‘ottaiyadchi’ means ‘one government’ and not ‘one State’.

    My Tamil suggests that, the EPDP’s argument does not make any sense politically. ORUMITHA NADU can’t mean UNITED STATE. Because “STATE” is always united, regardless of different political opinions or religions and languages etc. prevail in a STATE.

    If different nations unite together then only that set up is a “UNITED STATES” or “UNITED (ARAB) EMIRATES” or “EUROPEAN UNION”. And the word “OTTRAIYADCHCHI” can mean one (central) government with devolved powers to regions or provinces.

    The current name “The Democratic Social Republic of Sri Lanka” does not make any confusion. So that there is no need for a new word to describe our system of governance of the country.

    However, there should be only two devolved administrations, North and East. All other provincial councils be abolished. If theses two provincial councils want to be one then two separate referendum must be held, one in north and one in east and favourable outcome is an unification then there must be an arrangement in place in our constitution to call our country as “EKIYA ” in Sinhala , “Unitary” in English and “ONRIYAM” in Tamil, because central and devolved powers work together.

    • 1
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      We have to create a constitution of the country (state), not to wish of one community or one one political party but for all communities of this country. It is an absurd process spend our valuable time on “terms” rather than what is the nature of state. Whether you use the term “Ottrai aadchi” or “Orumitha naadu” “Aikiya naadu”, what we intend is important.

  • 0
    0

    At a time when there are so many shortages and functioning under a pandemic situation the author is playing the fiddle. The author incidentally was at the helm of constitutional affairs during the Yahapalana government. He now lamenting that the 19th amendment was not up to his expectations of Ven. Sobhitha is ironic, if not hypocritical. Like all governments after 1977, the Yahapalana government too was kleptocratic, the bond scam being at the foremost, and I bow my head in shame that I too voted for that motley combine way back in 2015. The author understands the 19th amendment presented had to be modified because of the constitutional judgement that was delivered requiring the conduct of a referendum for the passage of certain provisions. If the Jayampathian version was closer to Ven. Sobhitha’s expectation why was the referendum avoided? Whatever be the shortcomings of “MaruSira” the scam came to light because of the COI appointed by him unlike the committee of three attorneys appointed by Ranil Wicks. Had at that time the entire “powers” were transferred to the PM then the scam would have swept under the carpet. WE NEED A SYSTEM OF CHECKS AND BALANCES.

  • 0
    1

    In Srilanka, Constitutions have now become like Periodicals.
    They are released now and then.

    • 1
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      Plato
      ‘Periodicals’ I believe are released at regular periods – not now and then.

      Soma

      • 0
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        Indeed Soma.
        I Would not contest your superior knowledge of regular Periods,even if they are irregular now and then…………..

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