|
|
 |
 |
| Sunday, 14 March 2004 |
 |
|
 |
Features |  |
| News Business Features Editorial
|
Prof. Lakshman Marasinghe on Constitution-making : 'Simple majority in Constituent Assembly sufficient'
Dr. Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Canada is also Visiting Professor of Law, University of Colombo and an Attorney-at-Law and Barrister-at-Law (Inner Temple). In this interview with 'Sunday Observer' he spells out a way of overcoming what are considered to be stumbling blocks to restore the Prime Ministerial system with the checks and balances to absolute power that are non-existent in the present Executive Presidential system. Excerpts of the interview by LALITH EDRISINHA Question: You are known to hold the view that the three Constitutions of our country - the Soulbury Constitution of 1948, the Republican Constitutions of 1972 and 1978 - have failed the nation, that they planted seeds of discord which grew into a massive communal conflagration. The 1978 Constitution which sets out an elaborate procedure for amendment is seen as a stumbling block in a situation where a two-third majority under a Proportional representation system for a single governing group is a dream. Under such circumstances what is your view on extra constitutional methods to change the constitution? Answer: This has been done in many countries. When colonial powers left, bequeathing constitutions with entrenched clauses and the newly independent states had to relieve themselves of them a number of methods were introduced as in Pakistan, Ghana, South Africa, Namibia, Uganda... These methods are based on Kelson's Pure Theory of Law. For example, you draft a constitution through a Constituent Assembly (CA). The important thing is that the people should accept such a Constitution. Only a simple majority is needed to pass it. The legitimacy of such a Constitution would depend on its efficacy. If such a Constitution is efficacious then it is valid. efficacy is determined by the behaviour of the people. This is assumed to be so where the CA is a product of a majority decision of the people at an election at which the establishment of a CA is a matter which has been put to the people. (See box) Now that would be to change the whole constitution. Here I would like to drive a distinction between Abrogation and Amendment of a Constitution. An abrogation would mean adoption of a new Constitution. An amendment would result in only a change of the existing Constitution. Now, you may want to violate only certain items in the Constitution. Here the 'Doctrine of Necessity' would apply. This is very simple. Here one has to weigh in accordance with the new constitution the lesser evil. Is it the departure or the final outcome? The evil inflicted upon the people by departing from any Article of the Constitution must be less than the evil avoided by such departure. This doctrine of necessity was recognised in Ibrahim Mustafa vs Attorney general of Cyprus. In Pakistan Asma Jilani against the Government of West Bengal is another example. This is when the Constitution is not wholly changed - only certain Articles. In such a situation there must be judicial control in the determination of that particular formula. There is no judicial control when changing the whole constitution although it can be challenged. What needs to be established is efficacy. If a government has been established by means of a coup d'tat that would be acceptable if efficacy is obtained. Then that Constitution that emerges from the coup would be valid. If the order established is not efficacious then the coup becomes illegal and it will be treason. Question: The ISGA proposals of the LTTE have also advocated resort to extra constitutional means to set up an interim administration. Your views. Answer: These proposals can be put into effect within the parameters of the present Constitution. (See sections 154 L, 154 M & 154 M 1a). A two-third majority is not relevant here. But if you set up an interim administration outside the constitutional framework then you would be recognising that, that territory is apart from the constitution and not within the territory of Sri Lanka. You would be withdrawing the Constitution from that territorial area. To give a very simple example, if you cover a table with a green cloth and put a white cloth over it and then withdraw parts of the white cloth the green will appear. Setting up an interim administration outside the Constitution would be similar - two different territories. Question: In 1970 the then Parliament set themselves up as a CA and after deliberations for two years adopted a Constitution. What possibilities are there for the 13th Parliament to adopt such a procedure? Answer: The same procedure can be adopted. In 1970, the then Prime Minister Ms Sirimavo Bandaranaike read out a proclamation at Navarangahala - a venue separate from Parliament - where it was decided to meet after that in Parliament. The law-makers then met in Parliament in the afternoons. The Speaker Stanley Tilakaratne was the Chairman. There was no mace. There a new Constitution was drawn up. In India, for example in 1946 they set up a CA with legislative powers. But until 1949 they continued rule under the Government of India Act of 1935. Here, even if the Opposition does not co-operate a simple majority is what is needed at the end of the day. Introduce the new constitution through a simple resolution. This was done in Namibia and India. There is provision for Judicial Review under 129 (1) of the present Constitution but you don't have to refer the matter to the Supreme Court according to Kelson's Theory. Go ahead and pass the Constitution with a simple majority. CA has the power to legislate a new constitution through a simple majority. Acceptance of such a Constitution is sealed when the people by and large behave according to the new Constitution. Question: How can the country extricate itself from the mess of having to conform to a rigid procedure of constitutional amendment? Answer: There is also the possibility to have an interim constitution. Here piecemeal changes are made. It is an ongoing process. The CA adopts changes as and when talks go on. This would prevent parties going back on what has been agreed upon on paper at the talks. This procedure can be adopted to ensure internal self determination. External self determination is another matter. In Canada there is provision for the Right to Secede unilaterally. Quebec for example. external self determination can be exercised (1) If a country is under a colonial power. (2) There is oppression of the people. (3) If people have no meaningful access to government. There can be a floating constitution, where there is a legal structure and then you keep adding on to it as in South Africa. It is a process of concretising and embalming each agreement according to the mandate. Countries with colonial constitutions with entrenched clauses adopt this method. Question: The Freedom Alliance has committed itself to abolish the Executive Presidency and revert to a Parliamentary system. Will this alone suffice to meet the complex of problems characterising our political system today? Answer: One has to come to grips with the situation. To quote British statesmen W. E. Gladstone 'the Prime Minister is a dictator in the Westminster system'. But there is a time limit. Parliament is a check. That is one salutary difference. A movie 'Five Easy Pieces' with Jack Nicholson comes to my mind. He calls for his choice of a snack at a cafeterias but the combination that he desires is not available. So he does the next best thing. He orders 2 pieces of bread, chicken, lettuce and mayonnaise and improvises coming to grips with the situation. That is what has to be done. |
|
News | Business | Features
| Editorial | Security Produced by Lake House |
