Colombo Telegraph

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

By 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 When the present Constitution is repealed, there are certain procedure/s to be followed particularly on certain entrenched articles.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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