25 September, 2020

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Some Notes On The Procedure To Enact A ‘New Constitution’

By Laksiri Fernando

Dr. Laksiri Fernando

Dr. Laksiri Fernando

The ‘Joint Opposition’ or their spokespersons seem to take more interest in the constitutional procedure rather than the ‘need for’ or the ‘substance’ of a ‘new constitution.’ The motive seems to be ‘power politics’ rather than the interest of the country or its future. Otherwise, their ‘valid objections’ should have been put forward in a constructive manner.

On the other hand, there seem to be some neglect on the constitutional procedure on the part of the Government or the advocates for a ‘brand new constitution.’ They also need to moderate their positions and come down to earth if they want to get the procedure going and discuss the substance with all stakeholders, amicably, as much as possible.

I don’t see anything wrong in the proposed or now moved Resolution referring to the ‘Committee of Parliament’ consisting of ‘all Members of Parliament’ as a ‘Constitutional Assembly’ under Article 75 of the Constitution. It would hopefully create a constructive mind set to deliberate on this important task without dragging on other matters during the proceedings.

The Resolution is also consistent with the Standing Order 86 of Parliament. After all, Parliament is supreme under the present Constitution to declare itself as a ‘Constitutional Assembly.’ Under that particular Article 75, Parliament can ‘repeal or amend the Constitution’ and what is applied here is ‘Repeal.’ Only condition stipulated is that under 75 (b), “Parliament shall not make any law …repealing the Constitution as a whole unless such law also enacts a new Constitution to replace it.”

Therefore, the draft Bill finally should be to ‘repeal the present and enact a new constitution.’ It is not merely to draft ‘a new constitution.’ This is not clarified in the Resolution. When the present Constitution is repealed, there are certain procedure/s to be followed particularly on certain entrenched articles.

However, I don’t see anything wrong in the resolution talking about a ‘New Constitution’ as some people have objected to. It is clear from Article 75 of the present Constitution. It is ultimately to ‘enact a new Constitution’ the procedure should be followed. That is the main intention of the Resolution. Of course one, or the whole of the so-called joint opposition can differ on that, but not on procedural or technical grounds. It is completely a political opinion that they are entitled to. However, they should not mix-up political objections with technical objections or vice versa.

I have also seen objections to the ‘Public Representation Committee’ claiming it is an outside body to Parliament. This is again a political argument and not a procedural one. The claim is that ‘the involvement of outsiders dilute the power of Parliament.’ The most hilarious fact is that the persons who have objected to this committee themselves are outsiders and ‘non-parliamentarians.’ The argument precludes the involvement of the people at large (citizens, academics, professionals, civil society organizations, legal experts etc.) in the constitutional reform and the drafting process.

The purpose of the Public Relations Committee is to seek the views of the people and submit them to Parliament through the Steering Committee. Their role is ‘task specific and time bound.’ Of course there can be some objections to the role of the Steering Committee or the way the role is formulated in the Resolution. These are matters to be resolved amicably. After all, the Government is a ‘national unity government’ of both the UNP and the SLFP, while each party has its own views and positions. The views of the JVP and the TNA also should be taken into account.

In respect of the necessary correct procedure, there is a weakness in the Resolution without allowing or not specifying the ‘judicial process’ that it should take after the ‘Bill to Amend and Enact a New Constitution’ is gazetted and placed on the Order Paper of Parliament. In my view, the President should refer the Bill to the Supreme Court and people should be able to make submissions.

However, the proceedings or submissions should be limited to verify whether the Bill has properly laid down the correct procedure according to the present Constitution in repealing the same and enacting the New Constitution.

In the above respect, there is no necessity to refer the Bill to the Provincial Councils as in the case of ordinary bills although it is laid down in the Resolution. Consultation or input from the Provincial Councils is necessary not at that last stage, but before drafting the Bill. At the final stage it could be divisive.

One of the most important procedural condition is to go for a referendum, if the Bill intends to repeal or amend Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30 (2), 62 (2) or Article 83 itself where the requirement is prescribed. This has to be done, in my opinion, separately for each article which is not that complicated as many seems to believe. This is matter on which the opinion of the Supreme Court is important and necessary even before drafting the Bill. The Election Commission could device the format for the referendum.

One strategy would be to reduce the number of repeals and/or amendments of Articles for which a referendum would be necessary. If an article is the same there is no need for a referendum and two thirds majority in Parliament is sufficient. For example, if Article 9 (on Buddhism) is not amended or repealed, while Article 2 (on Unitary State) is amended as necessary, that is a strategy to get through the complicated referendum process. Likewise, if Article 6 (on National Flag) is untouched, but Article 7 (on National Anthem) is amended as necessary, the referendum process would be easier. There is ample room to repeal and replace Article 4, for example, without a referendum to make the New Constitution really a New and Democratic One. No referendum is required for that particular change!

Although the Resolution presented to Parliament talks about a referendum both under Article 85, and under Article 83 at the very end, that is a matter least clear in the Resolution. Once the Resolution is approved or ‘agreed to’ in Parliament, there is a possibility of the President referring this matter to the Supreme Court for its opinion.

There was an aborted ‘new’ constitution in August 2000 due mainly to the erroneous procedure adopted, among other reasons. That time the Minister of Constitutional Affairs was none other than Professor G. L. Peiris, who is one of the vociferous objectors to the procedure today! The failure of the past, however should not be a reason to oppose a possible success in the future.

The possible success of a New Constitution would depend, however, not only on the correct procedure or the exemplary democratic content that the framers are going to propose, but also on the credibility, behaviour and performance of the Government during the coming period. It is unlikely that the people would rally around the constitutional process unless the ‘theory and the practice’ of the Government, its Ministers and advocates of the constitutional change are harmonized and proved genuine. Most important would be the economic performance of the Government.

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  • 2
    1

    Dr. Laksiri Fernando

    RE:Some Notes On The Procedure To Enact A ‘New Constitution’

    “The motive seems to be ‘power politics’ rather than the interest of the country or its future.”

    Is thee any surprise here. Wasn’t that the case since “Independence” on February 4, 1948?

    So, we want a “New” constitution, and keep almost all the “Old” Politicians.

    Dr. Laksiri Fernando, don’t you think that this is high time that, you or some of the “Sri Lankan” writers write the Common Sense Phamplet, in All 3 Languages currently used in the Land of Native Veddah Aethho, Para-English., Para-Sinhala and Para-Tamil, and distribute widely among the Paras?

    Thomas Paine, Where are you? The Land of Native Veddah Aethhjo need your help.

    Common Sense (pamphlet)

    Common Sense is a pamphlet written by Thomas Paine in 1775–76 that inspired people in the Thirteen Colonies to declare and fight for independence from Great Britain in the summer of 1776. The pamphlet explained the advantages of and the need for immediate independence in clear, simple language. It was published anonymously on January 10, 1776, at the beginning of the American Revolution, and became an immediate sensation. It was sold and distributed widely and read aloud at taverns and meeting places.

    Washington had it read to all his troops, which at the time were surrounding the British army in Boston. In proportion to the population of the colonies at that time (2.5 million), it had the largest sale and circulation of any book published in American history. As of 2006, it remains the all-time best selling American title.

    Common Sense presented the American colonists with an argument for freedom from British rule at a time when the question of whether or not to seek independence was the central issue of the day. Paine wrote and reasoned in an easily understood style. Forgoing the philosophical and Latin references used by Enlightenment era writers, he structured Common Sense as if it were a sermon, relying on biblical references to make his case. He connected independence with common dissenting Protestant beliefs as a means to present a distinctly American political identity. Historian Gordon S. Wood described Common Sense as “the most incendiary and popular pamphlet of the entire revolutionary era”.

    https://en.wikipedia.org/wiki/Common_Sense_(pamphlet)

  • 4
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    Welcome Dr.Laksiri.Hope things are under control.

    The tragedy is that onetime Professor,Scholar etc etc G.L.PIERIS is also in the Bandwagon of the spoilers!
    What better example of a mountain stream ending in mud.

    • 4
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      Dear Prof. Fernando,

      You are among the few profs I respect from Srilanka. I wish you a very happy new year for 2016.

      Profs of the grade GL Peris has tarnished the image of lanken profs. Prof Rajeeva Wejesinghe can only be theoretical. That he proved at the begining of the new regime. Anyways, your articles no doubt did a great service changing the regime.

    • 1
      1

      Plato.

      “The tragedy is that onetime Professor,Scholar etc etc G.L.PIERIS is also in the Bandwagon of the spoilers! What better example of a mountain stream ending in mud.”

      Time to give the job to the Assassins or the black tigers. They are supposed to more efficient, so goes the story.

      Looks like Yahapalanaya is nor efficient.

  • 3
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    All depends on the new constitution and its implementation. Hope it will not lead Tamils boycotting or getting uninterested in elections. Which would bring maRa and seena again

  • 7
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    Prof. Laksiri,

    Thanks for the insights you have provided. I feel the joint opposition is engaged in a quibbling exercise. If this ploy continues and this government continues to appease them, as has become a habit, we may have a new constitution, that will be moth eaten like the 19th amendment. It will probably be better to live with the present constitution than going through the laborious , tedious and ultimately futile effort to produce only a moth eaten document that will not be visionary and be able to serve our future needs and improve the quality of our governance.

    The government has to be firm and decisive, while being receptive to sensible suggestions to improve the new constitution. The quality of the new constitution should not be sacrificed as has been our national habit,at the altar of expediency.

    Dr.Rajasingham Narendran

  • 1
    1

    If the constitution had been written and rewritten several times what would be the final constitution?? Just a watered down one to please the last Regime and not for the goodness of the country as a whole??
    It will end up as a paper with the title SL Constitution and blank underneath.
    Good work GG!!!
    I begin to see the big shots from the big schools are being summoned or being summoned for interrogation for fraud and mismanagement of school funds and from the innocent parents who only wants the best for their children. These vultures in the name of Principals have educated the vulnerable children with fraud and extortion before even they started their education. All during the last regime or even before. It was all allowed by the progressive governments to fiddle public money as much as they can.

    How much do we owe the world GOODGOVERNANCE ?? the resultant of the last Regime??.
    Do the village idiots been informed of how the country had been driven to Bankruptsy??

    Do we sit and watch the dramas unfolding of these Principals. There are many more school Principals who are shivering in their pants now including from the schools from the Colombo suburb . I hesitate to name schools here.

    Come on GG start the hunt with Schools / Univercities and proceed to law and order , the public institutions including the Health service and the Health Department.
    The promised jobs are not done yet while we wait in anticipation..

  • 0
    0

    Hirunica was arrested to stop the negative publicity arising from of giving a Consul post to her Aunt. One crime to hide another crime, in the way of removing a thorn with another thorn.

    Constitutional Amendment or redrafting is to sedate the call for UNHRC investigation, removal of army from North East, release of false arrests of Tamils under PTA, call the rights stipulated for NPC in the constitution…..

    Now UNHRC has badly failed like India failed on the stalled 13A. Observing the replacement of unimplementable provisions and of the double meaning of the wording “Foreign and Commonwealth” judges and lawyers, instead of OISL report called the “IC judges and lawyers, prompted Tamils,INGOs and independent Human right advocates to publicly accept the Lankawe, cheating.

    There is always a party action possible for the party rebellions. Minister posts are alloted to UPFA in the understanding UPFA will be the unitary government. UPFA is party in the National Unitary Government. So far there have been no action from UPFA on these sabotage group. These rebellions or the dissidents are the no satisfactory mister post offered. There is no sincerity in staying out of the National Unity government of holding up of the constitutional making process.

  • 1
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    Vellala TNA leader Mr Samabndan says there is no demand for a separate State ( Thamil Eelaam) now.

    He goes even further to emphasize that the demand for a Separate Sate was dropped as soon as Mr Pirahaparan departed.

    Now, how this new position of the TNA fit in with their Election Manifesto which gave UNP the Government?.

    Can this Professor explain to our Yahapalana suckers whether this re inventing the wheel is necessary now?.

    Which is going to add more injury to the insult which Ranil inflicted on his dear old Uncle, by allowing a halfwit SLFP MP & Minister who didn’t even get one vote, to debate the UNP brains our ex Law Professor Dr Peiris…

    • 3
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      KASmaalam KA Sumanasekera

      “by allowing a halfwit SLFP MP & Minister who didn’t even get one vote, to debate the UNP brains our ex Law Professor Dr Peiris…”

      Prof Peiris was a highly respected intellectual, above all a good man respected by all people until he met MR and his fellow crooks.

    • 0
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      There is a resolution to rewrite the constitution on PR system, EP system and devolution of power for national question. SLFP minister Susil Premajayantha has requested to abandon these objects from the revolution and the team is considering it too. This is one step ahead of “Foreign and Commonwealth judges and lawyers” correction to the UNHRC resolution. Sampanthar should not be in that procedure anymore if the objects are removed the resolution.

      G.L.Perris is claiming there is no cabinet approval for the resolution. This guy mas working even with Chandrika one time. He is so naive as soon as Old King opened a file on his activities, he surrendered to Old King him became a distard consultant to the most corrupted government.

  • 2
    0

    Dr Laksiri Fernando,

    We see a lot of opinions expressed since of late on the constitution, what it should be and what it should not be. Now you have added your weight into this argument as well.

    But at the end what does it matter what kind of constitution we have. Sri Lankan politicians will do exactly what they will do – plunder the wealth of the country, surround themselves with a bevy of equally reprehensible people, give priority in every sphere including jobs to relatives and friends, heavily influence the police and the judiciary and drive in the most luxurious limousines with a police escort pushing every other road user to the road side drains.

    So what is the point of engaging in all this utterly useless arguments. It will be best to throw the constitution in the dust bins and go about hero worshipping the scoundrels who pose as politicians in pristine white Ariya Sinhala suits with or without the ‘satakaya’.

  • 1
    3

    There is no need for a new constitution. Leave it as it is. Minorities are given more than their fair share by the constitution.

    The current government’s the most unpatriotic government ever in Sri Lanka’s history. If they try to harm country’s Sinhalese-Buddhist identity there will be a mu tiny, who knows.

  • 0
    0

    “But at the end what does it matter what kind of constitution we have. Sri Lankan politicians will do exactly what they will do “

    That may be, but don’t forget that the other main need for a new constitution is to solve the problems that led to the 30 year conflict.

    It remains to be seen if Sri Lankans of all ethnicities and all parties are willing to work out an acceptable compromise. To me, this is the grand prize of this exercise.

    I don’t see any problem with an executive presidency, as long as he is a good king.

  • 1
    0

    USA – 1 constitution – 227 years – 27 Amendments

    SL – 2 constitutions – 37 years – 19 Amendments

    2016 a final chance to get it right?

  • 0
    0

    Democracy guarantees equality, dignity and justice for ALL citizens. But we do have a longstanding problem of ethnic and religious dominion, greed and big bullying by the Sinhalese in SL.

    The Prime Minister said last week that a new constitution will bring ethnic and religious harmony.

    Therefore, it is essential for the constitution to have a preamble that recognises;

    1) The inherent dignity and of the equal and inalienable rights of ALL people as indispensable for freedom justice and peace.

    2) The right of all citizens to life, liberty and pursuit of happiness regardless of ethnic origin, sex, religion, creed or sexual or economic status.

    3) The determination of the people of SL to adopt a constitution, which expresses for ourselves and our children, our resolve to cherish and protect the dignity of the individual and national reconciliation, to foster; peace, justice, liberty, equality and fraternity in a secular, democratic and united SL, with the right of self determination to the people of North and East, for the prosperity of ALL.

  • 3
    0

    We have had three constitutions. The first was made by His Majesty’s Government as an order in council “in sympathy with the desire of the people of Ceylon to advance towards Dominion status “.

    The 1972 and 1978 constitutions were initiated and adopted by governments which had 2/3rd and 5/6th majorities. Procedural niceties were never concerns of either of them.
    In the case of constitutional amendments of the 1978 constitution, several amendments that required approval by the people in a referendum were passed with the connivance of a docile Supreme Court. The negative vote on the 13th Amendment cost justice Wanasundera the CJ’s chair.

    President Chandrika Kumaratunge was serious about constitutional changes in 1994. G.L.Pieris convinced her that Justice Mark Fernando the most senior SC judge if allowed to succeed the retiring CJ would be an obstacle to their constitutional plans. He got Sarath Silva in as CJ. Power Politics aborted the 2002 draft constitution.

    The problem with Prime Minister Ranil Wickremsinghe is that he is pathologically incapable of consensual decision making. He needs to free himself from his ingrained disdain for the average man’s common sense.

  • 1
    0

    Sarath De Alwis.

    Frankly,if Hon.Justice Mark Fernado,son of Justice H.N G.and grandson of Justice V.M was appointed CJ,the SC.would have had a different History.GLP was the guy who put the spanner in the works;He is still at it in a different exercise..

    GLP reckoned that Sarath.N.Silva was more minority friendly than Hon.Mark Fernando and his advice to CBK,as events turned out has neither been here nor there.
    That advice of GLP to CBK to appoint Sarath.N.Silva is the biggest mistake ever made by Govt:in recorded History!

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