Connect with us

Features

Replacing constitutions in a revolutionary struggle

Published

on

By V. K. Nanayakkara

Can the 1978 Constitution of Sri Lanka be replaced without recourse to article 82 of the existing Constitution? In other words, can it be replaced extra-legally and extra constitutionally? Yes, it is possible in certain circumstances. Revolutionary constitutionalism is possible where it is connected with a political struggle. Have any countries adopted extra-legal Constitutions? Yes, there are plenty of examples.

First, what is a revolution? It is a successful attempt by a large group of people to change the political system of a country by force. The leaderless, spontaneous uprising – the Galle Face aragalaya (along with struggles all over the country) that surprised everyone, simply aims at that.

Who represents the sovereign popular will in Sri Lanka today? Is it the elected 225 MPs in Parliament or people in the street (Galle Face dissidents)? Three basic functions are common to all parliaments, namely lawmaking, representation and control of the executive. But the elected MPs do not represent the opinions and interests of the people as evidenced by the deliberations of the past few months. A majority of MPs represent the executive (the President and the cabinet) rather than the people. They do not represent the “Gota Go Home” universal call. Unfortunately, there is no right of recall in Sri Lanka and we are stuck with the corrupt and inept lot of 225 MPs.

Secondly, let us clarify what revolutionary constitutionalism is, and how it differs from non-revolutionary constitutionalism. The drafting of a new constitution by a self-appointed constituent assembly or convention works as a non-legal but politically expedient method of replacing constitutions in authoritarian regimes. We witness today the degeneration of the Sri Lankan polity into tyranny and anarchy through the concentration of power in the hands of a single person or family – a condition ripe for revolutionary constitution making.A Constitution can be replaced when it fails to work or when its design prevents competing political interests from accommodating to changing environments. According to this viewpoint, a Constitution is likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design.

What happens when constitutional paradigms change? Should a new constitution always be authorised or based on an existing Constitution? Revolutionary constitution-making is possible where a struggle (a revolutionary movement, headed by a charismatic leader or not) – where the leadership having engaged in a prolonged struggle against an authoritarian or tyrannical regime steadily wins the support of the people through its commitment. Ultimately, the uprising topples and replaces the government, then adopts the revolutionary principles in a new founding document. Extra-constitutional occasions are usually confined to emergency situations, such as revolutions, coup d’etat, and martial rule.

We do not have to go very far to discern extra constitutional means of introducing new Constitutions. Sri Lanka illustrates the extra constitutional approach to making a constitution. In 1972, deriving a people’s mandate, a Constituent Assembly comprising all MPs drafted and adopted a new constitution in accordance with its own procedures, rather than following those set out in the 1946 Constitution that it replaced. The First Republican Constitution of Sri Lanka was unconstitutional as per the existing 1946 Constitution. In adopting the new Republican Constitution, the Soulbury Constitution was not repealed in accordance with the provisions for repeal in section 29 (4). It was adopted and enacted by a body meeting outside the Parliament. But, in reviewing the position, however, the Sri Lankan Supreme Court upheld its legality with respect to the mode of adoption and composition of the assembly and declared the Constituent Assembly free to decide on the content of the new constitution. Evidently, the First Republican Constitution of 1972 did not owe its existence to a prior law. British sovereignty over Sri Lanka was not ended constitutionally.

Another instance of a new Constitution adopted and validated without prior legal authority is the Constitution of Bangladesh, 1972. East Pakistan was governed by the Constitution of Pakistan. However, East Pakistan (present Bangladesh) adopted the new Constitution extra legally by setting up a Constituent Assembly comprising a few representatives who had been elected to the National Assembly of Pakistan from the former East Pakistan and some of whom had been elected to the Provincial Assembly of East Pakistan. The constitution-making body of Bangladesh was not provided for in prior law.

Examples of constitution-making through irregular conventions established outside legal authorisation abound in Latin America. Irregular conventions have been typical during revolutions, independence processes, and regime transitions, because in these contexts the preexisting legal order was suspended or no longer considered to be legitimate.

The Latin American democracies used national conventions outside the legislature to replace their constitutions. They came into conflict with the legislature. An extra constitutional but legal constitution was adopted in Ecuador in 1997-1998. Extra constitutional but illegal constitutions were adopted in Colombia 1990-1991, Ecuador 2007-2008, Venezuela 1998-1999. The non-constitutionalist revolutions led by Lenin, Mao, Castro, and Ayatollah Khomeini brought about revolutionary Constitutions not sanctioned by the prevalent law.

Although extra-constitutionality seems a slippery slope, the principle of “necessity” which enabled the courts of a democracy, such as Canada or Cyprus to prevent a breakdown in the legal system can also be employed to legitimate a coup d’etat, as in Pakistan, Uganda, the Seychelles, Nigeria and Grenada. The Constitution of Russia in 1993 is a further example of extra-constitutional constitution making.Here are some examples from the US. The State of Virginia called, and 12 states, staffed the 1787 constitutional convention outside the Articles of Confederation. And in 1861, seceding southern states called and staffed a constitutional convention in Montgomery, Alabama.

Both of these Constitutions were extra-constitutional. The right of revolution safeguarded in the Declaration of Independence is the American people’s ultimate extra-constitutional remedy.

Conclusion

Can we reach a popular consensus to resolve the existing impasse? The problem is resolved by those who believe that political/revolutionary constitutionalism in contrast to legal constitutionalism consults popular views directly. The entrenched Second Republican Constitution could be repealed and replaced either by the prescribed supermajority of the elected representatives or by the people as a whole in a direct expression of the popular will. The legitimacy of a Constitution thus established outside the pre-existing legal order is admirably summed up by M. J. A. Cooray. To quote: “In non-legal language, it may be said that the validity of a constitution is initially a political fact and legality is derived from acceptance of the Constitution by the people, the courts and the administration.” (Cooray: 1982. Judicial Role under the Constitutions of Ceylon/Sri Lanka, p. 220)

Are the pre-conditions for revolutionary constitutionalism ripe in Sri Lanka?

First necessary precondition of a revolutionary opportunity is the widespread and increasingly visible, loss of authority of the old regime. Second, there should be a genuine form of mass mobilisation, in which the raw, constituent power of the people is directly engaged. These pre-conditions are manifest in Sri Lanka today.

Extra-constitutional constitution-making should always be just a last resort. Compared to the present Parliament, a people’s assembly specially commissioned to write a Constitution is better able to reflect citizens’ preferences. Exceptional responses may be necessary to deal with the crisis in the present exceptional circumstances. There is nothing wrong in bringing to a successful conclusion the aragalaya—the mass uprising with the adoption of a revolutionary Constitution at the Galle Face Green rather than at Diyawanna Oya.

(V. K. Nanayakkara, formerly of the Sri Lanka Administrative Service authored the book, In Search of a New Sri Lankan Constitution, a comparative analysis of the three post war Constitutions of Sri Lanka)



Continue Reading
Advertisement
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Features

Political violence stalking Trump administration

Published

on

A scene that unfolded during the shooting incident at the recent White House Correspondents’ Dinner in Washington. (BBC)

It would not be particularly revelatory to say that the US is plagued by ‘gun violence’. It is a deeply entrenched and widespread malaise that has come in tandem with the relative ease with which firearms could be acquired and owned by sections of the US public, besides other causes.

However, a third apparent attempt on the life of US President Donald Trump in around two and a half years is both thought-provoking and unsettling for the defenders of democracy. After all, whatever its short comings the US remains the world’s most vibrant democracy and in fact the ‘mightiest’ one. And the US must remain a foremost democracy for the purpose of balancing and offsetting the growing power of authoritarian states in the global power system, who are no friends of genuine representational governance.

Therefore, the recent breaching of the security cordon surrounding the White House Correspondents’ Dinner in Washington at which President Trump and his inner Cabinet were present, by an apparently ‘Lone Wolf’ gunman, besides raising issues relating to the reliability of the security measures deployed for the President, indicates a notable spike in anti-VVIP political violence in particular in the US. It is a pointer to a strong and widespread emergence of anti-democratic forces which seem to be gaining in virulence and destructiveness.

The issues raised by the attack are in the main for the US’ political Right and its supporters. They have smugly and complacently stood by while the extremists in their midst have taken centre stage and begun to dictate the course of Right wing politics. It is the political culture bred by them that leads to ‘Lone Wolf’ gunmen, for instance, who see themselves as being repressed or victimized, taking the law into their own hands, so to speak, and perpetrating ‘revenge attacks’ on the state and society.

A disproportionate degree of attention has been paid particularly internationally to Donald Trump’s personality and his eccentricities but such political persons cannot be divorced from the political culture in which they originate and have their being. That is, “structural” questions matter. Put simply, Donald Trump is a ‘true son’ of the Far Right, his principal support base. The issues raised are therefore for the President as well as his supporters of the Right.

We are obliged to respect the choices of the voting public but in the case of Trump’s election to the highest public position in the US, this columnist is inclined to see in those sections that voted for Trump blind followers of the latter who cared not for their candidate’s suitability, in every relevant respect, and therefore acted irrationally. It would seem that the Right in the US wanted their candidate to win by ‘hook or by crook’ and exercise power on their behalf.

By making the above observations this columnist does not intend to imply that voting publics everywhere in the world of democracy cast their vote sensibly. In the case of Sri Lanka, for example, the question could be raised whether the voters of the country used their vote sensibly when voting into office the majority of Executive Presidents and other persons holding high public office. The obvious answer is ‘no’ and this should lead to a wider public discussion on the dire need for thoroughgoing voter education. The issue is a ‘huge’ one that needs to be addressed in the appropriate forums and is beyond the scope of this column.

Looking back it could be said that the actions of Trump and his die-hard support base led to the Rule of Law in the US being undermined as perhaps never before in modern times. A shaming moment in this connection was the protest march, virtually motivated by Trump, of his supporters to the US Capitol on January 6th, 2021, with the aim of scuttling the presidential poll result of that year. Much violence and unruly behaviour, as known, was let loose. This amounted to denigrating the democratic process and encouraging the violent take over of the state.

In a public address, prior to the unruly conduct of his supporters, Trump is on record as blaring forth the following: ‘We won this election and we won by a landslide’, ‘We will stop the steal’, ‘We will never give up. We will never concede. It doesn’t happen’, ‘If you don’t fight like hell, you’re not going to have a country anymore.’

It is plain to see that such inflammatory utterances could lead impressionable minds in particular to revolt violently. Besides, they should have led the more rationally inclined to wonder whether their candidate was the most suitable person to hold the office of President.

Unfortunately, the latter process was not to be and the question could be raised whether the US is in the ‘safest pair of hands’. Needless to say, as events have revealed, Donald Trump is proving to be one of the most erratic heads of state the US has ever had.

However, the latest attempt on the life of President Trump suggests that considerable damage has been done to the democratic integrity of the US and none other than the President himself has to take on himself a considerable proportion of the blame for such degeneration, besides the US’ Far Right. They could be said to be ‘reaping the whirlwind.’

It is a time for soul-searching by the US Right. The political Right has the right to exist, so the speak, in a functional democracy but it needs to take cognizance of how its political culture is affecting the democratic integrity or health of the US. Ironically, the repressive and chauvinistic politics advocated by it is having the effect of activating counter-violence of the most murderous kind, as was witnessed at the White House Correspondents’ Dinner. Continued repressive politics could only produce more such incidents that could be self-defeating for the US.

Some past US Presidents were assassinated but the present political violence in the country brings into focus as perhaps never before the role that an anti-democratic political culture could play in unraveling the gains that the US has made over the decades. A duty is cast on pro-democracy forces to work collectively towards protecting the democratic integrity and strength of the US.

Continue Reading

Features

22nd Anniversary Gala …action-packed event

Published

on

The Skyliners: Shanaka Viswakula (bass), Mario Ranasuriya (lead guitar), Daryl D'Souza (keyboards) and Kushmin Balasuriya (drums)

The Editor-in-Chief of The Sri Lankan Anchorman, a Toronto-based monthly, celebrating Sri Lankan community life in Canada, is none other than veteran Sri Lankan journalist Dirk Tissera, who moved to Canada in 1997. His wife, Michelle, whom he calls his “tower of strength”, is the Design Editor.

According to reports coming my way, the paper has turned out to be extremely popular in Toronto.

In fact, The Sri Lankan Anchorman won a press award in Toronto for excellence in editorial content and visual presentation.

However, the buzz in the air in Canada, right now, is The Sri Lankan Anchorman’s 22nd Anniversary Gala, to be held on Friday, 12 June, 2026, at the J&J Swagat Banquet Convention Centre, in Toronto.

An action-packed programme has been put together for the night, featuring some of the very best artistes in the Toronto scene.

The Skylines, who are classified as ‘the local musical band in Toronto’, will headline the event.

Dirk Tissera and wife Michelle: Supporting Sri Lanka-Canada community events, in Toronto, since launching The Anchorman
in 2002

They have performed and backed many legendary Sri Lanka singers.

According to Dirk, The Skylines can belt out a rhythm with gusto … be it Western, Sinhala or Tamil hits.

Also adding sparkle to the evening will be the legendary Fahmy Nazick, who, with his smooth and velvety vocals, will have the crowd on the floor.

Fahmy who was a household name, back in Sri Lanka, will be flying down from Virginia, USA.

He has captivated audiences in Sri Lanka, the Middle East and North America, and this will be his fourth visit to Toronto – back by popular demand,

Cherry DeLuna, who is described by Dirk as a powerhouse, also makes her appearance on stage and is all set to stir up the tempo with her cool and easy delivery.

“She’s got a great voice and vocal range that has captivated audiences out here”, says Dirk.

Chamil Welikala, said to be one of the hottest DJs in town, will be spinning his magic … in English, Sinhala, Tamil and Latin.


Both Jive and Baila competitions are on the cards among many other surprises on the night of 12 June.

This is The Anchorman’s fifth annual dance in a row – starting from 2022, 2023, 2024 and 2025 – and both Dirk and Michelle, and The Anchorman, have always produced elegant social events in Toronto.

“We intend to knock this one out of the park,” the duo says, adding that Western music and Sinhala and Tamil songs is something they’ve always delivered and the crowd loves it.

“We have always supported Sri Lanka-Canada community events, in Toronto, since launching The Anchorman, in 2002, and we intend to keep it that way.”

No doubt, there will be a large crowd of Sri Lankans, from all communities, turning up, on 12 June, to support Dirk, Michelle and The Anchorman.

Continue Reading

Features

Face Pack for Radiant Skin

Published

on

* Apple and Orange:

Blend a few apple and orange pieces together. Add to it a pinch of turmeric and one tablespoon of honey. Apply it to the face and neck and rinse off after 30 minutes. This face pack is suitable for all skin types.

According to experts, apple is one of the best fruits for your skin health with Vitamin A, B complex and Vitamin C and minerals, while, with the orange peel, excessive oil secretion can be easily balanced.

* Mango and Curd:

Ripe mango pulp, mixed with curd, can be rubbed directly onto the skin to remove dirt and cleanse clogged pores. Rinse off after a few minutes.

Yes, of course, mango is a tasty and delicious fruit and this is the mango season in our part of the world, and it has extra-ordinary benefits to skin health. Vitamins C and E in mangoes protect the skin from the UV rays of the sun and promotes cell regeneration. It also promotes skin elasticity and fights skin dullness and acne, while curd, in combination, further adds to it.

*  Grapes and Kiwi:

Take a handful of grapes and make a pulp of it. Simultaneously, take one kiwi fruit and mash it after peeling its skin. Now mix them and add some yoghurt to it. Apply it on your face for few minutes and wash it off.

Here again experts say that kiwi is the best nutrient-rich fruit with high vitamin C, minerals, Omega-3 fatty acids and vitamin E, while grapes contain flavonoids, which is an antioxidant that protects the skin from free radical damage. This homemade face pack acts as a natural cleanser and slows down the ageing process.

Continue Reading

Trending