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.
Features
The challenge of being positive about SAARC
It was a few years back that a former President of Sri Lanka took it on himself to pronounce SAARC ‘dead’. Since then there have been other sections of Sri Lankan opinion that have joined the critics of SAARC and taken the solemn stance that SAARC has indeed died what may be called a natural death.
Their fatalism is understandable. SAARC has failed to meet at heads of government or state level for the past several years to take the SAARC process notably forward. Regional cooperation has more or less been only an appealing idea. No substantive concrete projects have taken off to make the idea a hard reality. ‘Inner paralysis’ seems to be SAARC’s lot. Hence the fatalism in these circles.
However, being one of the worst cash-strapped regions of the world and a teemingly populated one with people virtually left to their devices, what choices do the ‘SAARC Eight’ have other than to try their best to band together and continue with their cooperation efforts, however small they may be?
There is no escaping the mounting debt trap for many of these countries and bankrupt Sri Lanka is a glaring example, but ‘throwing in the towel’ and abandoning themselves entirely to the diktats of the strongest economies and their agencies will prove a ‘living death’ for many countries in the SAARC fold.
The gains may be meagre but giving-up on SAARC cooperation in full would prove self-defeating for the organization and South Asia. Right now, the collective intention ought to be to salvage what the region could from the tenuous cooperative efforts. Moreover, such initiatives could go some distance to generate a degree of goodwill among the Eight and help in sustaining a dialogue process.
Given this backdrop it proved ‘a stich in time’ for the Regional Centre for Strategic Studies (RCSS), Colombo, to recently host the SAARC Secretary General Ambassador Md. Golam Sarwar to a round table discussion on the unifying potential of SAARC and its future possibilities, besides other related issue areas.
Held on June 24th and moderated by RCSS Executive Director and former ambassador Ravinatha Aryasinha, the forum brought together a vibrant, wide ranging audience comprising academicians, diplomats, senior public servants, civil society activists and many others. Following the presentation by Ambassador Golam Sarwar titled, ‘Reigniting SAARC: Achievements, Challenges and the Way Ahead’, a lively Q&A followed.
The above forum could be described as an act of lighting the proverbial ‘candle’ rather than ‘cursing the darkness.’ It surely is a ‘darkness’ that could be seen as daunting considering that the region’s pivotal powers, India and Pakistan, are failing to act in a spirit of accord but are engaged in bitter finger-pointing on a number of questions of vital importance to SAARC.
On the other hand, what is the rest of the region doing to bring the above sides together? It is disappointing that to date the rest of SAARC has failed to launch a major diplomatic drive to bring peace between the feuding regional heavyweights. It needs to act without delay and establish its earnestness and this effort would need to prove SAARC’s staying power in the unfolding months and even years.
In assessing SAARC’s seeming failure local opinion in particular has failed to factor in what could be described as weak leadership. Since Sheikh Mujibur Rahman of Bangladesh, the founding father of SAARC, the region has failed to produce a visionary leader who could advance the SAARC cause with charisma and drive.
Among other reasons, weak leadership accounts considerably for the faltering and stuttering status, as it were, of SAARC. Badly needed are leaders who could go the extra mile, think less of narrow national interests and work diligently towards the collective well being of the region but SAARC’s millions of ordinary people have been made to wait in vain for leaders of such stature. Instead, they have been burdened with politicians who seem to be relishing the apparently moribund state of SAARC.
Looking back, it could be said that it was the dynamic leadership factor that led to the launching of the Non-Aligned Movement and for its sustenance for a few decades. True, it could be seen in some quarters that NAM is no more, but as in the case of SAARC, the former too has been unfortunate to be burdened over the years with politicians who lack the vision and drive to unflaggingly advance the fortunes of the South. NAM and SAARC lack the dynamism and vision of leaders of the stature of Jawaharlal Nehru, for example, to give them the required guidance and intellectual depth.
The reasons are complex for there not being among us currently political leaders with the vision and the steadfast commitment to advance the legitimate interests of the South. However, it could be stated with conviction that the majority of Southern leaders have too easily caved in to the demands of the global North and its financial agencies.
These leaders have failed to see, for instance, that the largely market economy oriented Northern governments would not view with favour a centrist economic model that attaches priority to the interests of the dis-empowered publics of the South. This realization ought to have dawned on the current government in Sri Lanka, for instance, some while ago but it has no choice but to abide by IMF dictates since economic survival at present is unthinkable without the latter’s succour.
Accordingly for SAARC this should be the time for some soul-searching. Priority needs to be attached to ending the feuding between India and Pakistan since at present the material fortunes of the region hinge largely on these regional giants giving peaceful relations among them a try. This is no easy challenge to meet but some daring, visionary diplomacy needs to take hold among the rest of SAARC.
There is some sense in SAARC bringing the peoples of the region together through programs that address their best collective interests. A meeting of minds among SAARC nations could enable SAARC and its agencies to build a region-wide people’s movement for progressive political and economic change that could in turn lead to the region’s political leaders sensitizing themselves more to the neglected needs of their publics.
However, the time is ‘now’ for the initiation of these progressive changes and the voice of SAARC well wishers would need to drown out those of their critics.
Features
OPA seminar examines Sri Lanka’s economic recovery, resilience and growth pathways
A seminar, “Sri Lanka’s Economic Crossroads: Navigating Recovery, Resilience and Growth” was recently held by the Organisation of Professional Associations of Sri Lanka (OPA) at the OPA Auditorium, bringing together economists, OPA members, and professionals from diverse fields for an insightful discussion on Sri Lanka’s economic recovery and future growth prospects.
The event was held under the patronage of Jayantha Gallehewa, President of the OPA, and was jointly organised by the National Issues Committee (NIC) and the Seminars, Workshops and Programmes Committee of the OPA. The event reaffirmed the organisation’s commitment to advancing professional excellence, fostering insightful intellectual engagement, facilitating interdisciplinary knowledge exchange and creating a constructive platform for informed dialogue on issues of national importance.
The panel of speakers comprised Dr. Harsha Aturupane, Lead Economist and Programme Leader for Human Development at the World Bank for Sri Lanka and the Maldives; Dr. Achinthya Koswatta, Senior Lecturer in Economics at the Open University of Sri Lanka, and Anushan Kapilan, Lead Economist at Verité Research.
In his welcome address, the President of the OPA emphasised that Sri Lanka was at a critical juncture in its economic recovery journey where sustained reforms, effective implementation, and collective national commitment are essential to achieving long-term stability, resilience and inclusive growth. He noted that the country had experienced one of the most severe economic crises in its history with the economy contracting by 7.8 percent in 2022 and a further 11.5 percent in 2023, resulting in significant economic and social challenges.
Delivering his introductory remarks Bhanu Wijeyaratne, Vice President of the OPA and Chairman of the National Issues Committee, underscored the need to move beyond short-term economic stabilisation towards a comprehensive agenda of structural transformation. He observed that the economic crisis had revealed deep-rooted weaknesses within the economy, including persistent fiscal pressures, rising public debt, foreign exchange limitations, and insufficient diversification of the export base. He stressed that addressing these challenges through strategic reforms, institutional strengthening and long-term economic planning would be essential to establishing a more resilient and competitive economy.
While acknowledging recent positive developments, including improved inflation management, tourism recovery and signs of economic stabilisation, Wijeyaratne stressed the need to advance reforms aimed at strengthening fiscal discipline, enhancing productivity, improving competitiveness, developing human capital and reinforcing governance and institutional effectiveness.
He further highlighted the important role of professionals, businesses, academia and other stakeholders in contributing to evidence-based dialogue and supporting Sri Lanka’s journey towards a resilient, inclusive and sustainable economic future.
Delivering the keynote presentation, Dr. Harsha Aturupane provided a comprehensive assessment of Sri Lanka’s economic prospects within the broader context of global economic transformation. He argued that Sri Lanka functioned as a small open economy whose performance is significantly influenced by developments in the global marketplace. External factors could not be controlled, and the country must strengthen its domestic capacity and resilience to respond effectively to international economic shifts, he noted.
Tracing the evolution of global economic systems, Dr. Aturupane highlighted the transition from ideological divisions between state-controlled and market-oriented economies towards increasingly pragmatic approaches focused on growth, competitiveness and development. He noted that Sri Lanka’s own economic journey reflects a similar evolution, with contemporary policy debates now centred on practical solutions for sustainable economic progress.
The presentation also examined the transformative impact of globalisation. Dr. Aturupane observed that global economic integration had enabled several East Asian economies, including South Korea, Singapore, Taiwan and Hong Kong, to achieve remarkable economic advancement through export-led growth strategies. Sri Lanka similarly benefited from this process through the expansion of its apparel industry and increased integration into global value chains.
Turning to Sri Lanka’s recovery programme, Dr. Aturupane emphasised that the ongoing stabilisation process should be viewed as a national programme supported by the International Monetary Fund rather than solely as an IMF initiative. He observed that strong worker remittances, improved tourism earnings, enhanced government revenue mobilisation and prudent import management have contributed significantly to economic stabilisation.
Despite this progress, he cautioned that rebuilding foreign exchange reserves and meeting future debt obligations remain major challenges. He underscored the need to strengthen export performance, attract investment and generate sustainable foreign exchange earnings to ensure long-term economic resilience.
The discussion also focused on monetary stability, inflation management and exchange-rate policy. Dr. Aturupane stressed that maintaining price stability was fundamental to sustainable growth and household welfare, while sound monetary policy remains essential for preserving economic confidence.
Looking beyond stabilisation, he argued that Sri Lanka must transition towards a broader economic transformation agenda. Sustainable growth, he noted, will depend on expanding productive capacity through investment, technological advancement, innovation, skills development and structural reforms.
Among the key constraints identified was the high cost of energy, which continues to affect competitiveness and investment attractiveness. Dr. Aturupane emphasised the importance of improving efficiency and affordability within the energy sector to enhance Sri Lanka’s business environment.
He further highlighted the social dimensions of the crisis, noting the rise in poverty and economic vulnerability among households. Strengthening social protection systems and ensuring inclusive growth, he argued, must remain central components of the national development agenda.
Another critical challenge identified was Sri Lanka’s demographic transition. With an ageing population, outward migration and evolving labour market dynamics, the country is increasingly confronting labour shortages in several sectors. Dr. Aturupane suggested that greater automation, increased labour-force participation and strategic workforce planning would be necessary to address these emerging realities.
Concluding his presentation, he emphasised the need to improve governance, strengthen institutions, enhance competitiveness and create an enabling environment for private sector investment. Sri Lanka’s future success, he noted, will depend on its ability to move decisively beyond crisis management towards a development model founded on resilience, innovation, productivity and inclusive growth.
Dr. Achinthya Koswatta reiterated the importance of policy consistency and predictability in fostering investment and industrial development. She observed that frequent policy changes create uncertainty and discourage long-term investment decisions, whereas stable and coherent policy frameworks build confidence and support sustainable economic transformation.
Meanwhile, Anushan Kapilan highlighted the substantial progress achieved in restoring macroeconomic stability following the recent crisis. He noted significant improvements in fiscal performance, including increased government revenue, reduced reliance on debt financing and a historically low fiscal deficit.
He further observed that public debt levels are declining faster than anticipated, economic growth has exceeded expectations and inflation has been brought under control more rapidly than forecast. Nevertheless, he cautioned that the recovery remains uneven, particularly within the industrial sector and that many households have yet to experience a meaningful improvement in living standards.
The seminar was expertly coordinated by Eng. Chamil Edirimuni, Vice President of the OPA and Chairman of the Seminars, Workshops and Programmes Committee, while the technical moderation and interactive discussion session were facilitated by Bhanu Wijeyaratne, Vice President of the OPA and Chairman of the National Issues Committee.
The event was attended by Tisara De Silva, President-Elect of the OPA, Eng. Ravi Rupasinghe, General Secretary, Past Presidents, members of the Executive Council, representatives of the General Forum and professionals representing a wide range of disciplines.
The seminar concluded with a vibrant exchange of ideas and perspectives, reaffirming the importance of evidence-based policy dialogue, institutional collaboration and collective national commitment in advancing Sri Lanka’s economic recovery, resilience and sustainable growth.
Features
Her roots run deep in Sri Lanka
Yes, for UK-based presenter and artiste Samantha Kay, home is where the heart – and the roots – are. And her roots run deep in Sri Lanka.
In an exclusive interview with The Island, Samantha says “I’m proud to be Sri Lankan. My mum is from Kandy and my dad is from Colombo, so Sri Lanka has always held a very special place in my heart.
“Whenever I visit Sri Lanka, I love spending time on the beautiful south coast, especially Hikkaduwa and Mirissa. It’s somewhere I always feel connected to my roots and completely at peace.”
Now living in Bournemouth, on the south coast of England, where, she says, she is lucky to be close to some of the UK’s most beautiful beaches, including the iconic Sandbanks, Samantha has built a career that refuses to fit into one box.
She is a radio presenter, podcast host, singer-songwriter, personal trainer and life coach.
“I genuinely love the variety because every role allows me to connect with people and, hopefully, make a positive difference in someone’s day.”
Of course, music has taken her far.
One of her proudest achievements, she says, was releasing a song with 90s music icon Angie Brown, which reached No. 9 in the UK Club Charts.
She also reached the final stages of The X Factor and performed at Wembley Stadium in front of thousands.
Beyond music, Samantha competed in bikini bodybuilding across the UK, winning several titles. “It taught me discipline, resilience and self-belief,” she recalls.
Today, her focus is on radio, podcasting and coaching women. Her podcast encourages people to live life on their own terms rather than feeling pressured to follow society’s expectations.
Says Samantha: “Whether someone is single, changing careers, travelling solo or simply trying to find their purpose, I want them to know that it’s never too late to create a life that feels authentic. If you’ve ever felt like you don’t fit into the box, maybe you were never meant to.”
Samantha Kay also spent a year in Dubai, performing at five-star hotels, including FIVE, and coaching at the iconic outdoor gym on Palm Jumeirah.
“I taught strength and conditioning classes, and hosted wellness retreats, combining my passion for music, health and inspiring others.”
However, with family matters calling her back to the UK, she made the choice to return. “Family comes first,” she says.
Looking ahead, Samantha plans to grow her radio and podcast work, release more music, and expand her wellness retreats.
“My biggest passion is helping people, especially women, build confidence and believe in themselves,” she says.
“Wherever my career takes me, I hope to continue inspiring others to live with courage, kindness and authenticity, while never forgetting my Sri Lankan roots.”
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