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Constitution making and options



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By Neville Ladduwahetty


The ongoing constitutional making process in Sri Lanka has encountered three interest groups representing three broad options in regard to its scope and content. Group 1 wishes the existing 1978 Constitution to be repealed and replaced with a new Constitution that would be so broad in scope and content that a referendum would be inevitable. The second group wishes to limit amendments to the current Constitution to a degree that would avoid a referendum. The third group wishes to retain the present Constitution in its current form.


The need to revise the Constitution arises primarily because of two election pledges:the first was to abolish the current executive presidential system, and the other was to increase devolution to provinces in order to foster reconciliation by addressing Sri Lanka’s national question. The compulsion for the first pledge was because of a misguided belief that was promoted through a national campaign that the presidential system is systemically prone to abuse of power. This notion gathered credence because of the lack of unawareness that such tendencies can be countered by institutionalising necessary checks and balances through properly functioning Parliamentary Oversight Committees, as in other countries with Presidential systems such as the US.


The two major political parties that contested the election, the UNP and the UPFA made different commitments to the people. However, neither secured a sufficient majority to form a government. Consequently, neither has received the mandate of the people to fulfill these pledges to the people, singly or together. Therefore, neither political party has the constitutional authority to undertake any reforms without the legitimacy of the "will of the people" on which is founded the immutable guiding principle of representative democracy. Ignoring this principle is to trivialize and violate the Franchise rights of the people; a feature that is a component of the sovereignty of the people.


The three Options as discussed above are:


OPTION ONE – REQUIRING a REFERENDUM


Article 83. "Approval of certain Bills at a Referendum" states:


"Notwithstanding anything to the contrary in the provisions of Article 82—


a) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11, of this Article … shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the people at a Referendum …"


THUS, AMENDING ANY OF THE 9 Articles LISTED BELOW WOULD REQUIRE A REFERENDUM.


1. The State:


Sri Lanka is a Free, Sovereign, Independent and Democratic Socialist


Republic and shall be known as the Democratic Socialist Republic of Sri Lanka.


2. Unitary State:


The Republic of Sri Lanka is a Unitary State.


3. Sovereignty of the People:


In the Republic of Sri Lanka sovereignty is in the People and is inalienable.


Sovereignty includes the powers of government, fundamental rights and the


franchise.


6. The National Flag:


The National Flag of the Republic of Sri Lanka shall be the Lion Flag depicted in the Second Schedule


7. The National Anthem:


The National Anthem of the Republic of Sri Lanka shall be "Sri Lanka Matha", the


words and music of which are set out in the Third Schedule.


8. The National Day:


The National Day of the Republic of Sri Lanka shall be the fourth day of February.


9. Buddhism:


The Republic of Sri Lanka shall give to Buddhism the foremost place and


accordingly it shall be the duty of the State to protect and foster the Buddha


Sasana, while assuring to all religions the rights granted by Articles 10 and


14(1)(e).


10. Freedom of thought, conscience and religion:


Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.


11. Freedom from torture: No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.


As stated above Article 3 "includes the powers of government". The "powers of government" are specified in Article 4 (a); (b); and (c). This Article underscores the concept of separation of powers between the Legislature, the Executive and the Judiciary. However, it should be noted that Article 4 is NOT listed with the 9 Articles in Article 83 that require a referendum in published versions of the 1978 Constitution. This omission has to be recognised as a monumental mistake because the Hansard had included Article 4 along with the other 9 Articles in the Hansard version of Article 83.


This serious discrepancy between the published version and the Hansard has not been corrected though it was brought to public attention in 2015. Furthermore, the fact that Article 4 was not included with the Articles requiring a referendum is what enabled the 13th Amendment to become law WITHOUT a referendum.


SIGNIFICANCE of ARTICLE 4


There is a strong possibility that because Article 4 is not bracketed with the Articles requiring a referendum that lacuna might be used as an excuse to amend, repeal or replace provisions relating to the Legislative, Executive and Judicial powers of the people despite the precedent set by the Supreme Court that Article 4 should be read with Article 3.


For instance, the sub-committee reports recommend that Executive powers of the Governor should be transferred to the Provincial Councils. This would impact on Article 4 (b) that states: "the executive power of the people, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the people". Since the Governor is expected to function as the Agent of the President responsible for Executive functions in the Province, the transfer of the Governor’s Executive powers is not only a violation of Article 4 (b) but also shall make the Governor a figurehead.Therefore, it is imperative that concerned Members of Parliament and citizens prevail on the Speaker to correct this mistake/error that has existed since 1987.


OPTION TWO – NOT REQUIRING


A REFERENDUM


If the extent and scope of the constitutional reforms are not to lead to a referendum, the Articles listed in Article 83 including Article 4 should remain intact. However, considerable amendments could still be entertained without the need of a referendum by limiting their scope to require only a 2/3 approval of Parliament for it to comply with the Constitution.


For instance, it would be possible to eliminate the Concurrent List under the 13th Amendment with only a two-thirds majority in Parliament. This list itemises the powers that could be exercised by both the Centre and the Provinces. By eliminating the Concurrent List, or by reassigning its powers between the Center and the Province, the objective of creating two distinct and separate power centers can be achieved. However, increasing the scope of the legislative powers at the provincial level has no meaning without increasing proportionately, the abilities to implement them. The recommendation for secondment of the District Secretary, the Divisional Secretary and the related Grama Niladaries to a Provincial Public Service Commission is perhaps to strengthen the implementing capabilities at the Provincial level and correspondingly weaken the ability of the Centre to implement any projects in the provinces relating to subjects reserved for it. Similar amendments could be introduced to weaken the Centre only with a 2/3 approval of Parliament. It is clearly evident that the intention is to create strong provincial units capable of functioning independently of the Centre.


Such an arrangement even without executive powers would amount to creating a federal arrangement. It was to avoid a federal arrangement that India decided to incorporate the Concurrent List in its own Constitution. Sri Lanka should not ignore that wisdom.


OPTION THREE - RETAINING THE PRESENT CONSTITUTION


The existing Constitution can and should be retained with two amendments. They relate to amendments that were introduced with the 19th Amendment. They are the dilution of executive powers as provided for in the original 1978 Constitution and transferring some powers to the Prime Minister. The division of executive power between the President and the Prime Minister is a weak administrative arrangement because it creates two authorities with divided responsibility; a fact starkly evident today through the gridlock that has led to inaction. Instead, a more effective arrangement is to have a single executive head with institutional arrangements to curb abuse through powerful Oversight Committees, as in the US, which are specifically tasked to oversee all aspects of executive action.


The other is to amend Article 46 (4) and (5) of the 19th Amendment in order to bring clarity to what constitutes a "National Government". The ambiguity that currently exists has permitted the current Parliament to interpret Article 46 (4) and (5) in order to favour the formation of a "National Government" and by resolution proceeded to increase the size of the executive far beyond what was intended by the framers of the 19th Amendment. A petition to the Supreme Court seeking an interpretation of Article 46 (4) and (5) was dismissed on grounds that Courts were not permitted to entertain issues that come within the purview of Parliamentary Privilege based on an outdated quote from Erskine May. Since a more recent edition of Erskine May does grant Courts the right to hear issues debated in Parliament as long as they relate to interpretation of Constitutions, presents an opportunity for the case to be reopened with a full bench.


Unless this issue is revisited, future governments are bound to exploit the ambiguities present in the current wording of Article 46 (4) and (5) and resolve to have jumbo cabinets at great financial cost. Furthermore, Parliament is not likely to clear these ambiguities by way of an amendment because its existence permits governments to reward loyalists. Therefore, it is only a judicial intervention that would pave the way to bring clarity to Article 46 (4) and (5).


CONCLUSION


It is customary for political parties and candidates contesting elections to make pledges to the people. However, if no political party secures a majority to form a government as it did with the UNP (106 seats) and the UPFA (95 seats) at the 2015 election, no party has the moral authority singly or collectively to implement any of the pledges since the people did not give consent expressed as the "will of the People". The abolition of the executive presidential system and reconciliation through greater devolution are two such pledges.


In the absence of a judicial challenge indications are that the government would ignore the immutable principle of representative democracy where authority to govern is derived from the "will of the People", and proceed to introduce either a new Constitution or amend some provisions of the existing Constitution. In either case, a serious effort would be made to avoid a referendum not only because of the mood in the country but also because of the likelihood that constitutional reforms could be opposed in the South and approved in the North. Such an outcome would precipitate demands that would have serious unintended consequences as happened after the 1976 election when the Tamil leadership used the mandate given ONLY by the Northern Province electorate to justify the claim for a separate State. This is the referendum trap.


Another trap is the current status of Article 4. This Article defines the "powers of government" in the form of Legislative, Executive and Judicial powers of the People as being separate. According to the Hansard Article 4 enjoyed the same status as the other 9 Articles that require referenda listed in Article 83. However, for some inexplicable reason Article 4 is omitted from the list of Articles requiring referenda in published documents. This situation presents an opportunity for a Court that mechanically applies the law (as opposed to interpreting the law) the opportunity to rule that provisions relating to "powers of government" in Article 4 could be amended without a referendum. This disturbingly unfortunate situation could be exploited to either abolish the executive presidential system and/or to devolve executive powers to the provincial councils without a referendum as it was with the 13th Amendment. Therefore, it is imperative that measures be taken to prevail on the Speaker to hold the parliamentary administration accountable for compromising the authenticity of parliamentary records.


The constitutional reform process must be founded on fundamentals. For instance, should constitutional reforms be based on Sri Lanka being a multiethnic, multi religious and multilingual society or on a society founded on universal values? Reforms based on the former would cause each group to aspire to find its place as equals in a multifaceted and diverse society. Such a process would spawn distinct cultural entities each seeking its own sphere of influence at the expense of what binds them to the nation as a whole. And what binds them is not culture but values such as commitment to democracy,rule of law, universally recognized individual freedoms, equal opportunity, fairness, tolerance, etc. etc. Therefore, shouldn’t the ongoing constitutional process focus more on the Centre that has the potential to foster solidarity among is citizens rather than on culturally based peripheries that by reasons of exclusivity do not have the inclination or the capacity to bind the citizens of a nation? Thus, while the former fosters the solidarity of a unitary state, the latter promotes a state made up of culturally based entities. This is why words do matter.


In the Sri Lankan context, recognising cultural entities would mean political recognition of the Northern Province as a Tamil majority region, the Eastern Province as a Muslim majority region, and the remaining seven Provinces as Sinhala majority regions. Increased devolution in such a context appears to be the trajectory of the ongoing constitutional reform process. If the intention of the process is to strengthen the provinces at the expense of a weakened centre,the commitment to universal values referred to above would become the responsibility of the provinces, and not of the centre. The provinces, on the other hand, do not have the ability or the inclination to unite the disparate cultural parts into a coherent whole because it does not serve their parochial interests. It is only a strong Centre headed by an executive president elected by all the people that would have the potential to commit and glue the parts into a unitary whole in which all citizens could prosper.


The choice for the constitution makers is whether to frame the Constitution to satisfy the Tamil leadership and strengthen the provinces in the hope that empowering that leadership would foster reconciliation or to promote an arrangement where the citizens commit to universal values and prosper together as one nation. It is clear from the foregoing that Option 3 would serve Sri Lanka’s interests best because it would bring stability and cohesion to Sri Lanka as a unitary State and not as a united State.


 
 
 
 
 
 
 
 
 
 
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