Constitution making and options

By Neville Ladduwahetty-July 17, 2017, 8:33 pm

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repealed and replaced with a new Constitution that would be so broad in scope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 Lankas 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 Governors
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,
shouldnt 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 Lankas
interests best because it would bring stability and cohesion to Sri Lanka as a
unitary State and not as a united State.

Posted by Thavam