Features
Postponing elections: Are there limits to constitutional amendments?
by Dr. Jayampathy Wickramaratne,
President’s Counsel
United National Party General Secretary Range Bandara’s statement at a media briefing at UNP Headquarters that the terms of the current President and current Parliament should be extended by two years ‘to save the Nation’ has drawn the ire of the people at large, with even the UNP’s ally (for the moment?), the Sri Lanka Podujana Peramuna distancing itself from the proposal. The essence of the people’s response is that the present Parliament has lost its legitimacy, and President Wickremesinghe has been elected not by the People directly but by that very Parliament for the remainder of the term of President Gotabaya Rajapaksa, who was forced to resign.
An amendment of the Constitution ordinarily requires a two-thirds majority in Parliament. Article 83 provides that a Bill for the amendment or the repeal or replacement of or which is inconsistent with any of the provisions of Articles 1 (The State), 2 (Unitary State), 3 (Sovereignty of the People), 6 (National Flag), 7 (National Anthem), 8 (National Day), 9 (Buddhism), 10 (Freedom of thought, conscience and religion), 11 (Freedom from torture) and Article 83 itself and also a Bill which seeks to extend the term of office of the President or the duration of Parliament to over six years, would become law only if it is passed by a two-thirds majority in Parliament and approved by the People at a referendum.
It has been argued that since the proposal is to extend the terms of the current President and Parliament to seven years, it can only be passed with a two-thirds majority in Parliament and approval at a referendum. It follows from the argument that a referendum would not be needed if the terms are to be extended to six years only.
The writer takes a different view, namely that the terms of an existing Parliament and a President-in-office cannot be extended even with the approval of the People at a referendum as they were elected for a specific term. Such an extension would go against the spirit of the Constitution. As the Lawyers Collective pointed out last week, a two-thirds majority of Parliament and a 50%-plus-One majority of the People cannot just pass ANY amendment.
A seven-member bench of the Supreme Court considered the Fourth Amendment to the Constitution Bill to extend the life of the first Parliament by six years. (Re Fourth Amendment to the Constitution Bill, 1982 (1978–1983) I DSCPB 155.) The Court only stated that as the Cabinet of Ministers had certified that the Bill was intended to be passed by a two-thirds majority and placed before the People at a referendum, it had no jurisdiction in terms of proviso (b) of Article 120. Interestingly, three of the seven judges did not agree with this view, but the reasons for their disagreement were not stated. The names of the dissenting judges, too, were not disclosed, giving rise to various versions in rumour-prone Hulftsdorp.
The Bill was approved by a two-thirds majority in Parliament and at the referendum that followed. The 1982 referendum is the worst blot in Sri Lanka’s election history. Election laws were violated with impunity, and there were many reports that opposition supporters were forced to vote ‘yes’ and show the ballot paper to UNP polling agents. Opposition leaders such as Hector Kobbekaduwa and Pieter Keuneman found out at the polling booth that their votes had already been cast!
At that time, the UNP enjoyed a five-sixths majority in Parliament, obtained through a first-past-the-post electoral system. What followed from the Court’s determination is that the UNP could have postponed Parliamentary elections repeatedly with its super majority as long as 50%-Plus-One of the People approved the same at a referendum.
The Nineteenth Amendment to the Constitution Bill, 2004, a Private Member’s Bill, sought to amend Article 9. The proposed provision read: ‘The official Religion of the Republic is Buddhism. Other forms of religions and worship may be practised in peace and harmony with Buddha Sasana.’ The Supreme Court (Weerasuriya, Thilakawardena and Raja Fernando JJ) held that the clause would curtail the freedom guaranteed to other religions under Articles 10 and 14(1)(e) and would require to be approved at a referendum. (2004–2006) VIII DSCPB 58.
Tilakawardane J, while agreeing with the conclusions of the Court, took an interesting position with regard to constitutional amendments. The learned Judge stated that although Article 75 does not contain any limitations on the power of Parliament regarding constitutional amendments, that power should not be exercised so as to damage or destroy the critical elements of the basic structure of the Constitution. That could only be done with the repeal and replacement of the whole of the Constitution and not through the ‘tinkering’ or amendment of specific Articles of the Constitution. She further stated: ‘An amendment of the two basic features of the Constitution, such as (a) the democratic character of the Constitution and (b) the separation of powers, must perforce be examined in the light of the features in each individual case, in the place of the particular feature in the scheme of the Constitution, it’s objects and purposes and it’s denial on the integrity of the Constitution as the fundamental instrument of the country’s governance.’
Tilakawardane J’s view that certain critical elements of the basic structure should not be ‘tinkered’ with and the identification of the democratic character of the Constitution and separation of powers as two of such features raises a pertinent question:
As long as a two-thirds majority in Parliament passes a constitutional amendment or a new constitution and a majority of the People approves the same, are there no limitations to what can be done? For example, can Sri Lanka be converted to a one-party state if a two-thirds majority in Parliament and a 50%-plus-One majority of the People agree? Similarly, can the freedom from torture not be made available to persons arrested on suspicion of working towards a separate state?
In international law, certain basic norms (jus cogens) are accepted as peremptory norms from which no derogation is permitted. Examples include prohibitions against slavery and torture, genocide, the use of armed force and piracy on the high seas and racial non-discrimination. Similarly, are there basic norms from which a democracy such as Sri Lanka cannot derogate? Can a tyrannous majority adopt any constitution? Would the Supreme Court have the power to examine a Bill for the amendment of the Constitution or a new Constitution, certified by the Cabinet of Ministers as one that requires the People’s approval at a referendum, if certain basic democratic norms are alleged to be violated? Such questions may seem academic at first blush, but given experiences from elsewhere, should they be brushed aside?
When freedom from torture is recognised as a peremptory norm that binds the international community, can the People of Sri Lanka restrict its application within the country, invoking their sovereignty? Put differently, are there no limits to the internal dimension of sovereignty?
The Lawyers Collective also raised the pertinent question of whether the amending process is also governed by the principle of ‘constitutional morality’, a concept which has recently gained wide acceptance in India. Simply put, constitutional morality demands that the spirit of the Constitution be respected and should not be undermined even at the behest of the majority. It is thus a counterpoise to popular or social morality that can sometimes be undemocratic and violative of rights.
In Navtej Singh Johar v. Union of India, the Indian Supreme Court observed as follows: “The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.”
The Court explained that it is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State. “The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves.
They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.” (AIR 2018 SC 4321).
The writer submits that peremptory norms that limit the internal dimension of sovereignty are found in the Preamble to our Constitution, which refers to ‘immutable republican principles of representative democracy’ that assure to ‘all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka’. These, then, are the critical elements of the basic features of our constitutional edifice that defy change.
by Kaushalya Perera
Time has, by and large, stood still in the business of academic staff recruitment to state universities. Qualifications have proliferated and evolved to be more interdisciplinary, but our selection processes and evaluation criteria are unchanged since at least the late 1990s. But before I delve into the problems, I will describe the existing processes and schemes of recruitment. The discussion is limited to UGC-governed state universities (and does not include recruitment to medical and engineering sectors) though the problems may be relevant to other higher education institutions (HEIs).
How recruitment happens currently in SL state universities
Academic ranks in Sri Lankan state universities can be divided into three tiers (subdivisions are not discussed).
* Lecturer (Probationary)
– recruited with a four-year undergraduate degree. A tiny step higher is the Lecturer (Unconfirmed), recruited with a postgraduate degree but no teaching experience.
* A Senior Lecturer can be recruited with certain postgraduate qualifications and some number of years of teaching and research.
* Above this is the professor (of four types), which can be left out of this discussion since only one of those (Chair Professor) is by application.
State universities cannot hire permanent academic staff as and when they wish. Prior to advertising a vacancy, approval to recruit is obtained through a mind-numbing and time-consuming process (months!) ending at the Department of Management Services. The call for applications must list all ranks up to Senior Lecturer. All eligible candidates for Probationary to Senior Lecturer are interviewed, e.g., if a Department wants someone with a doctoral degree, they must still advertise for and interview candidates for all ranks, not only candidates with a doctoral degree. In the evaluation criteria, the first degree is more important than the doctoral degree (more on this strange phenomenon later). All of this is only possible when universities are not under a ‘hiring freeze’, which governments declare regularly and generally lasts several years.
Problem type 1
– Archaic processes and evaluation criteria
Twenty-five years ago, as a probationary lecturer with a first degree, I was a typical hire. We would be recruited, work some years and obtain postgraduate degrees (ideally using the privilege of paid study leave to attend a reputed university in the first world). State universities are primarily undergraduate teaching spaces, and when doctoral degrees were scarce, hiring probationary lecturers may have been a practical solution. The path to a higher degree was through the academic job. Now, due to availability of candidates with postgraduate qualifications and the problems of retaining academics who find foreign postgraduate opportunities, preference for candidates applying with a postgraduate qualification is growing. The evaluation scheme, however, prioritises the first degree over the candidate’s postgraduate education. Were I to apply to a Faculty of Education, despite a PhD on language teaching and research in education, I may not even be interviewed since my undergraduate degree is not in education. The ‘first degree first’ phenomenon shows that universities essentially ignore the intellectual development of a person beyond their early twenties. It also ignores the breadth of disciplines and their overlap with other fields.
This can be helped (not solved) by a simple fix, which can also reduce brain drain: give precedence to the doctoral degree in the required field, regardless of the candidate’s first degree, effected by a UGC circular. The suggestion is not fool-proof. It is a first step, and offered with the understanding that any selection process, however well the evaluation criteria are articulated, will be beset by multiple issues, including that of bias. Like other Sri Lankan institutions, universities, too, have tribal tendencies, surfacing in the form of a preference for one’s own alumni. Nevertheless, there are other problems that are, arguably, more pressing as I discuss next. In relation to the evaluation criteria, a problem is the narrow interpretation of any regulation, e.g., deciding the degree’s suitability based on the title rather than considering courses in the transcript. Despite rhetoric promoting internationalising and inter-disciplinarity, decision-making administrative and academic bodies have very literal expectations of candidates’ qualifications, e.g., a candidate with knowledge of digital literacy should show this through the title of the degree!
Problem type 2 – The mess of badly regulated higher education
A direct consequence of the contemporary expansion of higher education is a large number of applicants with myriad qualifications. The diversity of degree programmes cited makes the responsibility of selecting a suitable candidate for the job a challenging but very important one. After all, the job is for life – it is very difficult to fire a permanent employer in the state sector.
Widely varying undergraduate degree programmes.
At present, Sri Lankan undergraduates bring qualifications (at times more than one) from multiple types of higher education institutions: a degree from a UGC-affiliated state university, a state university external to the UGC, a state institution that is not a university, a foreign university, or a private HEI aka ‘private university’. It could be a degree received by attending on-site, in Sri Lanka or abroad. It could be from a private HEI’s affiliated foreign university or an external degree from a state university or an online only degree from a private HEI that is ‘UGC-approved’ or ‘Ministry of Education approved’, i.e., never studied in a university setting. Needless to say, the diversity (and their differences in quality) are dizzying. Unfortunately, under the evaluation scheme all degrees ‘recognised’ by the UGC are assigned the same marks. The same goes for the candidates’ merits or distinctions, first classes, etc., regardless of how difficult or easy the degree programme may be and even when capabilities, exposure, input, etc are obviously different.
Similar issues are faced when we consider postgraduate qualifications, though to a lesser degree. In my discipline(s), at least, a postgraduate degree obtained on-site from a first-world university is preferable to one from a local university (which usually have weekend or evening classes similar to part-time study) or online from a foreign university. Elitist this may be, but even the best local postgraduate degrees cannot provide the experience and intellectual growth gained by being in a university that gives you access to six million books and teaching and supervision by internationally-recognised scholars. Unfortunately, in the evaluation schemes for recruitment, the worst postgraduate qualification you know of will receive the same marks as one from NUS, Harvard or Leiden.
The problem is clear but what about a solution?
Recruitment to state universities needs to change to meet contemporary needs. We need evaluation criteria that allows us to get rid of the dross as well as a more sophisticated institutional understanding of using them. Recruitment is key if we want our institutions (and our country) to progress. I reiterate here the recommendations proposed in ‘Considerations for Higher Education Reform’ circulated previously by Kuppi Collective:
* Change bond regulations to be more just, in order to retain better qualified academics.
* Update the schemes of recruitment to reflect present-day realities of inter-disciplinary and multi-disciplinary training in order to recruit suitably qualified candidates.
* Ensure recruitment processes are made transparent by university administrations.
Kaushalya Perera is a senior lecturer at the University of Colombo.
(Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.)
This week, too, the spotlight is on an outfit that has gained popularity, mainly through social media.
Last week we had MISTER Band in our scene, and on 10th February, Yellow Beatz – both social media favourites.
Talento is a seven-piece band that plays all types of music, from the ‘60s to the modern tracks of today.
The band has reached many heights, since its inception in 2012, and has gained recognition as a leading wedding and dance band in the scene here.
The members that makeup the outfit have a solid musical background, which comes through years of hard work and dedication
Their portfolio of music contains a mix of both western and eastern songs and are carefully selected, they say, to match the requirements of the intended audience, occasion, or event.
Although the baila is a specialty, which is inherent to this group, that originates from Moratuwa, their repertoire is made up of a vast collection of love, classic, oldies and modern-day hits.
The musicians, who make up Talento, are:
Prabuddha Geetharuchi:
Geilee Fonseka: Dynamic and charismatic vocalist
Prabuddha Geetharuchi: The main man behind the band Talento
(Vocalist/ Frontman). He is an avid music enthusiast and was mentored by a lot of famous musicians, and trainers, since he was a child. Growing up with them influenced him to take on western songs, as well as other music styles. A Peterite, he is the main man behind the band Talento and is a versatile singer/entertainer who never fails to get the crowd going.
Geilee Fonseka (Vocals):
A dynamic and charismatic vocalist whose vibrant stage presence, and powerful voice, bring a fresh spark to every performance. Young, energetic, and musically refined, she is an artiste who effortlessly blends passion with precision – captivating audiences from the very first note. Blessed with an immense vocal range, Geilee is a truly versatile singer, confidently delivering Western and Eastern music across multiple languages and genres.
Chandana Perera (Drummer):
His expertise and exceptional skills have earned him recognition as one of the finest acoustic drummers in Sri Lanka. With over 40 tours under his belt, Chandana has demonstrated his dedication and passion for music, embodying the essential role of a drummer as the heartbeat of any band.
Harsha Soysa:
(Bassist/Vocalist). He a chorister of the western choir of St. Sebastian’s College, Moratuwa, who began his musical education under famous voice trainers, as well as bass guitar trainers in Sri Lanka. He has also performed at events overseas. He acts as the second singer of the band
Udara Jayakody:
(Keyboardist). He is also a qualified pianist, adding technical flavour to Talento’s music. His singing and harmonising skills are an extra asset to the band. From his childhood he has been a part of a number of orchestras as a pianist. He has also previously performed with several famous western bands.
Aruna Madushanka:
(Saxophonist). His proficiciency in playing various instruments, including the saxophone, soprano saxophone, and western flute, showcases his versatility as a musician, and his musical repertoire is further enhanced by his remarkable singing ability.
Prashan Pramuditha:
(Lead guitar). He has the ability to play different styles, both oriental and western music, and he also creates unique tones and patterns with the guitar..
The JJ Twins, the Sri Lankan musical duo, performing in the Maldives, and known for blending R&B, Hip Hop, and Sri Lankan rhythms, thereby creating a unique sound, have come out with a brand-new single ‘Me Mawathe.’
In fact, it’s a very special milestone for the twin brothers, Julian and Jason Prins, as ‘Me Mawathe’ is their first ever Sinhala song!
‘Me Mawathe’ showcases a fresh new sound, while staying true to the signature harmony and emotion that their fans love.
This heartfelt track captures the beauty of love, journey, and connection, brought to life through powerful vocals and captivating melodies.
It marks an exciting new chapter for the JJ Twins as they expand their musical journey and connect with audiences in a whole new way.
Their recent album, ‘CONCLUDED,’ explores themes of love, heartbreak, and healing, and include hits like ‘Can’t Get You Off My Mind’ and ‘You Left Me Here to Die’ which showcase their emotional intensity.
Readers could stay connected and follow JJ Twins on social media for exclusive updates, behind-the-scenes moments, and upcoming releases:
Instagram: http://instagram.com/jjtwinsofficial
TikTok: http://tiktok.com/@jjtwinsmusic
Facebook: http://facebook.com/jjtwinssingers
YouTube: http://youtube.com/jjtwins
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