27 September, 2020

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Sri Lankans Do Not Need One More Constitution Made In A Fast Food Style: AHRC

Replacing the primitive 1978 Constitution with a modern one

The Prime Minister’s announcement for the need of a new constitution, one that will be in keeping with those found in developed countries, is quite welcome. The 1978 Sri Lankan Constitution is primitive. It is a shame on the nation. And, a change is certainly needed.

Prime Minister Ranil Wickremesinghe

Prime Minister Ranil Wickremesinghe

However, a reminder is in order. The making of a constitution is the sole prerogative of the people. Both the 1972 and 1978 constructions were attempts by the respective governments to usurp this fundamental prerogative of the people. Naturally, both these constitutions brought much misery to the people; they virtually made constitutionalism an alien concept in Sri Lanka.

In India, however, when Indira Gandhi tried to do the same, the Indian Supreme Court stopped her, stating that the elected legislature only has legislative power and the making of constitutions does not fall within that power. That power belongs to the people.

The famous Keshavanda Bharathi v. State of Kerala, decided 40 years ago, has been celebrated as the case that saved the Indian democracy. It is in this case that the Supreme Court formulated the basic structure doctrine, which meant that the basic structure of the Constitution cannot be amended by the legislature. The doctrine of the supremacy of the constitution was thus firmly recognized.

If a new constitution is to be introduced in terms of the constitutional traditions of developed countries, such a construction must, most importantly and finally, settle something critical: what is the basic structure of the Sri Lankan Constitution?

The Soulbery Constitution had a basic structure, which was the structure of a liberal democracy. That structure is also found in all the constitutions of the developed democracies. The core element of that basic structure is the duty of the State to recognise and protect the liberties of all individuals. Both the 1972 and 1978 Constitutions were attempts to reject or undermine this fundamental duty of the State – to recognise and to protect the liberties of all the individuals.

Under the guise of the supremacy of Parliament, the 1972 Constitution attacked the notion of liberties of individuals. The 1978 Constitution, by incorporating national security laws into the Constitution itself, dealt a deadly blow to the very notion of the liberties of individuals. It was through this formula – making national security laws part and parcel of the Constitution – that J.R. Jayewardene armed himself to attack trade unions, political parties, and the minorities. The Executive President thus became capable of even authorizing enforced disappearances by merely using emergency laws. Blatant abuse of State property, in its most extreme forms, such as what took place under Mahinda Rajapaksa’s watch, became possible only due to 1978 Constitution.

Unlike the Indian Supreme Court, Sri Lankan courts, have not proven to be capable of defending the basic structure of a liberal democracy in Sri Lanka. Thus, a new constitution, in keeping with the best traditions of developed countries, would also require a change in the mentality of judges. This is so their failure to defend the basic structure of the Constitution would not cause a suicide of democracy.

The task of making of a new constitution is a necessary and a serious task. The Sri Lankan people do not need one more constitution made in a fast food style. Now is the time for people to take the initiative to bring the issue of their liberties to the forefront of their deliberations.

*A Statement of Asian Human Rights Commission

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Latest comments

  • 8
    2

    At-least ,still we have Guy who knows everything connected with The Parliament and Constitution of Sri Lanka , to deny that Knowledge in Ranil would be total injustice to a Statesman of his caliber.

  • 6
    2

    I think the 1972 constitution was excessively Socialist whilst the 1978 was excessively Capitalist.

    Marxist fool Colvin R Desilva struggled for 4 years and gave birth to the 1972 constitution. In the end it was bland, unexciting and removed crucial safeguards. It represented the all stereotypical Marxist closed door xenophobia such as “imperialism”.

    1978 being excessively Capitalist is understandable. JRJ wanted to open the economy again fast track development that was stifled under Socialist nincompoop rule. Although heavily built up Marxist excess gunk flooded in faster than he anticipated.

  • 4
    2

    We do not need a new edition of a failed constitution, that has to be again and again toyed with. What we need is constitution that is visionary and will stand the test of time. The new constitution must be formulated by eminent persons, after in depth consultations and study. The politicians should make their presentations to the Constutional Commision, made up of eminent me. It should be mandatory that it be approved by parliament, once it is submitted after wide consultations and wide debate.

    Dr.RN

    • 0
      0

      So you do see the need for a new constitution. How pathetic!

      • 0
        0

        A pathetic and ignorant comment, deliberately ignoring the fact that I have been advocating a new constitution for a long time. Let us disagree, but be yet truthful to the extent we can. This is not a war of words, but an opportunity debate and discuss ideas and opinions.
        Dr.RN

        • 0
          0

          Are you now denying that you insisted – on an interaction with me not so long ago – that there was nothing wrong with the constitution of Sri Lanka, and that it only needed to be implemented properly.

          Deny it, if you will, you shameless creature.

          • 0
            0

            Nathan.

            Whether I am shameless or not, that is a out of context misquote. What I likely said (not in the same words) was that even the present constitution can deliver, if operated in the right spirit.

            Dr.RN

  • 0
    0

    Yes the making of a constitution is the prerogative of the people.

    It is not the parliament that enacts a constitution.

    It is not even the constitutional lawyers.

    It is the people, only the people.

    When the political particles have the major say, they will safeguard their interests not that of the people.

    Will a new constitution do away with all the perks and privileges of the MPs and abolish pensions to the MPs
    How to make it work?

    A constituent assembly may not be the real solution, but what is the alternative?

  • 0
    0

    Dr RN,

    I do not agree.

    Who is an eminent person? Who select the eminent person?

    By eminent you mean constitutional lawyers?or political science professors? who?

    Will they look after the interests of the ordinary people?why should parliament approve?

    May be in a referendum. a constitution must be home grown and protect the rights of the people and reflect the aspirations of the people

    • 0
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      Sri Krish,

      There a yet such persons, but they have been eclipsed by our dirty, corrupt and vicious politicians. The FRIDAY group has many such persons. Justice Weeramanthri and LIonsl Fernsndo also come to mind.

      Dr. RN

  • 0
    1

    Is there any other “EXPERT” on building a Constitution for the country other than the UPFA, Prime Ministerial candidate than the ex President Mr. Mahinda Rajapakse. He said yesterday (27) in presenting the “Election Manifesto” of the UPFA, that he would bring in a “NEW CONSTITUTION” within “SIX MONTHS” after his assumption of office.

    So pointless discussions by other “EXPERTS” on the subject must stop. Please be patient and await a “KOTTU ROTI” – could be another “MIRACLE OF ASIA”.

  • 1
    2

    Of course the AHRC knows all there is to know about constitutions. The rules and regulations in that NGO change to suit the needs of the directors at a whim.

    I think perhaps they should be more concerned about what is happening in their own back yard as opposed to what is happening in Sri Lanka. Investigations by the Hong Kong Immigration Department into the actions of their staff being a case in point. HK ImmDept File No. E16121 refers……..

  • 0
    0

    “………………………………..would also require a change in the mentality of judges”.
    In Sri Lanka, the selection of judges of the supreme & lower courts is more political in nature, rather than on suitability, merit, qualifications, age, sentencing of those found guilty and behaviour – private and judicial.
    This has to change, before any efforts for a new constitution.

    Shrani Bandaranaike’s visit in robes of office to congratulate Namal Rajapakse on his oath-taking had no effect on her fate in the infamous ‘impeachment’ by a group of civilians who also happened to be MPs.
    High Court judge Sarath Ambepitiya sentenced Veluppillai Prbakaran to
    Two Hundred years in prison, for the Central Bank bombing !!!
    He also sentenced a young mother to life imprisonment for possession of 30mgs of heroin.

  • 1
    0

    A well defined article on current constitution. It is already shredded
    into pieces with various amendments over a period of 30 years and it should be put together with a modified new constitution, in keeping with those found in developed countries.This is where the constitution council could come to the rescue of making a constitution by consulting
    locally and abroad and should make a fool proof constitution so that a govt. with 2/3 majority, do not start shredding it again.
    This means that religion, language will not get prominence and instead
    devolution of more powers for the provincial councils,to ease the work
    load of the central govt.,non alignment, equal treatment to all people,
    irrespective of ethnicity , electoral reforms, educational reforms and laws to control corruption, nepotism and political thuggery, should get
    embodied in the new constitution but the question is whether the MPs
    will get used to adhere to the constitution,which was not visible in the last decade or more.

    • 1
      2

      Nice try to justify your article, Basil.

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