Why Sri Lanka deserves a new constitution
If Sri Lanka is to consolidate the democratic gains of 2015, it is
vital that President Maithripala Sirisena's SLFP and Prime Minister
Ranil Wickremesinghe's UNP overcome their differences, rivalries and
ideological differences and jointly provide leadership to introduce a
Third Republican Constitution.
A new constitution that learns from the mistakes of the 1972 and 1978
Constitutions, adapts features from international best practice and
which is compatible with basic principles of constitutionalism, is vital
for the introduction of good governance, the protection of human rights
and national reconciliation and unity.
Why a new constitution?
The first two republican constitutions were partisan, were not
supreme and suffered from the same basic flaws:
1. they were designed to promote the political vision and ideology of
the party in power
2. they entrenched, rather than countered, majoritarianism, and
3. they were designed with the convenience of the executive, rather
than the empowerment of the People, as their primary motivation or
The First Republican Constitution of 1972 was essentially a United
Front Constitution, which introduced what Neelan Tiruchelvam has called
the "instrumental" use of constitutions by governments to further their
own political agendas. The Second Republican Constitution of 1978 was
instrumental in introducing what its most credible critic, Chanaka
Amaratunga, described as the authoritarian and realpolitik vision of its
principal architect, J.R. Jayewardene.
Both constitutions were introduced by governments that possessed
two-thirds majorities in Parliament, thereby removing the need for
striving for consensus across the political and ethnic divide. Both
constitutions concentrated power in a single institution (the National
State Assembly or Parliament under the 1972 and the office of the
Executive President under the 1978). Both were drafted and adopted with
little meaningful public participation. Despite the fundamental flaws
being the same, the most vocal critics of one were the principal
architects of the other.
If Sri Lanka is serious about consolidating the democratic
achievements of 2015, and preventing a return of the authoritarianism of
a kind experienced in the country since 1982, it must introduce a new
constitution that divides power, promotes effective checks and balances
and empowers the People so that their elected politicians remain
accountable to them between elections. A new constitution that is a
non-partisan, consensus document is essential for responsive and
A constitution is meant to protect the People from the people who
exercise political power and empower the people, vis-a-vis the rulers.
If a constitution is to achieve such an objective, the people have to
be actively engaged and involved in the constitution making process. The
pro-ruler and pro-executive convenience biases of the 1972 and 1978
Constitutions, which undermined people empowerment features existed
because these constitutions were designed by the government, for the
government and of the government. It is vital that the same mistake is
not repeated in 2016.
The theory of constitutionalism highlights what the objectives of a
constitution should be.
1. It should provide a political frame for society or the
institutional architecture for the governance of the country.
2. It should protect the freedom and autonomy of the individual and
the rights of minorities-all minorities, not just ethnic and religious
3. It should enshrine values and principles by which the society
should be governed.
A constitution is assessed on the basis of how it achieves these
In Sri Lanka, the constitution reform debate has tended to focus
almost exclusively on the first objective; the debate on whether the
executive should be presidential or parliamentary; the electoral system
for electing members to the legislature, should it be 'first past the
post' or based on proportional representation etc. While these are
important issues, it is important to recognise the significance of the
other two objectives.
Why do we need a constitution? If one looks to constitutional history
one sees that the raison d'Ítre for a constitution was to act as a check
on majoritarianism. While it was recognised that in a democracy,
decision making by determining what the majority desired was an
important working principle, it was also recognised that in relation to
some matters, particularly those dealing with human rights, majoritarian
decision making was NOT appropriate as it would result in 'the tyranny
of the majority'. It was decided that such issues should then be taken
outside the scope of the majoritarian decision making power of the
legislature, removed from the jurisdiction of elected Parliament and
placed within the scope of a supreme constitution.
An example would be inserting a Bill of Rights into the constitution
to protect basic fundamental rights even from the reach of the elected
representatives of the people. A constitution was therefore conceived to
protect certain important matters from the reach of the legislative and
executive branches of government. It was conceived,, in the words of
Eugene Rostow, a former Dean of Harvard Law School, as a "counter
In recent years the norm setting and values and principles enshrining
aspects of a constitution has been highlighted. The Constitution of
South Africa, 1996, which is still seen as one of the most progressive
constitutions in the world, offers an excellent example.
Article 1 of the Constitution declares that "South Africa is a
republic founded on the following values" and then lists a series of
them. These include human dignity, non-racialism; non sexism; the rule
of law; multi-party democracy; accountability, openness and
Article 2 declares: "The Constitution is supreme. All law
inconsistent with it is void."
The contrast between the first two articles of the South African
Constitution and the Sri Lankan Constitution is striking. The former
highlights values and principles and their supremacy. The latter is
obsessed about power and who exercises power.
A constitution is the supreme law of the land. But even this basic
and to many, obvious first principle has been rejected by the drafters
of Sri Lanka's autochthonous (made in Sri Lanka) constitutions. The 1978
Constitution contains 3 provisions, which not only undermine the
supremacy of the constitution, but are unparalleled in constitutional
democracies. These are Articles 16, 80 (3) and 84 of the Constitution.
Article 16 of the Sri Lankan Constitution basically states the
opposite of Article 2 of the South African Constitution. It declares
that ALL existing law, written and unwritten is valid even if it is
inconsistent with the Supreme Law, the Constitution.
Article 80(3) prevents the people from challenging provisions in laws
that have been enacted by the legislature on the ground that the
legislature has enacted an unconstitutional law. This is a right that
the people in India, Nepal, Bangladesh, Pakistan, South Africa, the USA,
Canada, and all constitutional democracies have and is a vital safeguard
for the people in protecting their rights and upholding the supremacy of
their constitution. This right, which existed under the Soulbury
Constitution, was done away with by the framers of the Constitution of
1972 and continued under the present Constitution.
Article 84, believe it or not, instructs Parliament how it can
introduce unconstitutional laws!
These 3 provisions are instructive in demonstrating the (lack of)
commitment of Sri Lanka's constitutional framers to the principle of the
supremacy of the constitution. If the new constitution is to be
compatible with international best practice and basic principles of
constitutionalism and promote good governance and accountability, these
3 provisions should not be part of the new constitution.
It is not surprising that the main political parties have
demonstrated little, if any, interest in the important issues
highlighted above. These issues strengthen the powers of the People at
the expense of the politicians and impose constitutionally mandated
qualifications on how governmental power is exercised.
The manner in which the 19th Amendment to the Constitution was
adopted in 2015 reminds us of the importance of continuous public
engagement in the constitution making process. The composition of the
Constitutional Council under the 19th Amendment is worse than under the
17th Amendment; various clauses such as those on dual citizenship were
inserted without any public consultation and were politically motivated.
The Members of Parliament, both from government and opposition, engaged
in a process of closed door 'political wheeler dealing' without any
sense of shame or guilt that in so doing they were violating first
principles of constitution making. Can this same Parliament be trusted
with the task of leading the Third Republican Constitution making
How should a new constitution be adopted? Challenges of process
In recent weeks, there has been a debate with respect to the process
of constitutional reform. The government has made it absolutely clear
that it intends to follow the procedure for constitutional reform
spelled out in the existing constitution (Articles 82 and 83).
Parliament will have to pass the new constitution with a two-third
majority vote and thereafter the constitution will have to be approved
by the people at a national referendum.
Given the rationale for a constitution outlined above it is far from
ideal for Parliament or a Select Committee of Parliament to draft and
adopt a constitution. Parliament is a creature of the constitution and
should be subordinate to the constitution, which is expected to reflect
the will of the sovereign People and protect and empower the People from
the politicians. A Committee of Parliament designing a constitution
without active and effective public engagement will involve a serious
conflict of interest. Countries which have been mindful of the need for
a broader and more inclusive approach to constitution making, such as
South Africa and Nepal, adopted special measures such as the election of
an inclusive Constituent Assembly to draft and adopt a new constitution,
to ensure that the sui generis character of constitution making was
A Constituent Assembly has constitutive powers to draft and adopt a
new constitution. Such an option is not available in Sri Lanka as there
was no mandate from the People to support such an extra-constitutional
process. Furthermore, notwithstanding the theoretical anomalies with
respect to parliamentarians drafting constitutions, practical
considerations and political realities require that Parliament, which
consists of the elected representatives of the People, provide
leadership in the constitution making process.
The government has proposed a process that seeks to provide for
effective public engagement in the constitution making process, ensure
that Members of Parliament recognise their special responsibility when
participating in the constitution making process, while also following
the amendment and repeal procedures in the existing constitution. It has
proposed that Parliament resolves that it should sit as a Constitutional
Assembly (not a Constituent Assembly) to focus exclusively on
deliberation on the substance of a new constitution in a manner that
facilitates maximum public scrutiny and engagement. The Constitutional
Assembly will then present the draft Constitution to Parliament so that
Parliament can adopt it with a two thirds majority vote. If this is done
then the draft Constitution will be presented to the People for their
approval in a national referendum.
A new constitution which is compatible with first principles of
constitutionalism and which includes these features can only be adopted
if the President and his party, the Prime Minister and his party, the
Leader of the Opposition and his party work together and also harness
the support of minority parties and the JVP. These parties and forces
will inevitably have differences and rivalries in the next few months.
They must resolve however to transcend such divisions with respect to
the vital responsibility of providing leadership to the constitution
making process. This must coincide with a process of public education
and engagement to ensure that the new constitution is not just a
political deal of convenience, but rather, a genuine attempt to learn
the lessons of the past, consolidate constitutionalism and democracy and
forge a new social contact that has a broad consensus among the various
political, ethnic and religious groups in the country. The process of
constitutional change that will commence in 2016 must not suffer the
same fate as the process of 1995-2000 when the then opposition UNP
behaved irresponsibly and effectively sabotaged the reform process. Our
politicians must stop 'monkeying' with the constitution. Sri Lanka
deserves a new constitution that is truly a non partisan, consensus,
1. The Executive
An important lesson from the experience of the Second Republican
Constitution is that a person elected by the whole country tends to have
an exaggerated notion of his/her own importance, legitimacy and
authority. This was foreseen by Dudley Senanayake who opposed
Presidentialism when it was discussed in the early 1970s:
"The Presidential system has worked in the United States where it was
the result of a special historic situation. It works in France for
similar reasons. But for Ceylon it would be disastrous. It would create
a tradition of Caesarism. It would concentrate power in a leader and
undermine Parliament and the structure of political parties."
As predicted, the executive presidency has, since its introduction,
fostered authoritarianism, undermined other democratic institutions such
as the Cabinet of Ministers, Parliament and the judiciary, and through
the device of the Referendum, as was seen in 1982, even elections and
multi party democracy. The locus of power shifted from Parliament which,
with all its shortcomings, was at least relatively open and transparent,
to a closed Presidential Secretariat with unelected and powerful
Presidential advisors and officials. Presidential Advisors who were
often more powerful than Cabinet Ministers (especially during the
Premadasa Presidency), were not accountable to the public.
An 'overmighty' nationally elected President also subverts coalition
government and power sharing as was seen in the brief period of
co-habitation between Chandrika Kumaratunga and Ranil Wickremesinghe.
J.R. Jayewardene and his admirers often defended the presidential system
as promoting stability. In the Sri Lankan context, stability could mean
a government consisting of several political parties across the
ideological and ethnic divide, rather than the concentration of power in
a single individual.
It is a matter of concern that some elements in the government are
promoting the idea of a nationally elected Prime Minister who will sit
in Parliament. The Prime Minister can be defeated on a vote of
confidence in Parliament, but this will in turn, cause Parliament to be
dissolved. This ill conceived idea which retains the basic flaws of
concentrating an unacceptable degree of power in a single person was
tried unsuccessfully in Israel in the mid 1990s and subsequently
2. The Electoral System
There was a consensus at the elections in 1994 that Sri Lanka should
opt for a genuinely mixed system (MMP) similar to that practiced in
Germany, Scotland and New Zealand. Such a system combines the best
features of the simple plurality system ('first past the post system')
and the cardinal principle of Proportional Representation that
representation in Parliament should be in proportion to the votes
received by parties rather than the 'winner takes all' principle that
creates a mismatch between votes received by parties and the seats
allocated in Parliament.
The proposed 20th Amendment was flawed in all these respects and
should be completely discarded. It was incomprehensible even to lawyers,
was designed to favour of larger political parties and failed to provide
an appropriate mix between the simple plurality system and proportional
representation as it favoured the former at the expense of the latter.
3. The Bill of Rights
Sri Lanka's Bill of Rights falls short of international norms and
standards. The basic flaws are with respect to the rights enumerated,
the restriction/limitation clause that makes it too easy for the
political branches to curtail such rights and with respect to their
scope and enforcement.
1. The rights and their scope need to at least be compatible with the
international covenants on human rights.
2. The restriction or limitation clause (Article 15) is drafted in a
manner that makes it possible for the executive and legislature to
impose restrictions with no criteria of objectivity and proportionality.
This weakness has been highlighted for many years including during the
deliberations of the All Party Conference convened by President
Premadasa in the early 1990s.
3. The First and Second Republican Constitutions both contained
provisions that validated laws even though they were inconsistent with
the Bill of Rights and the Constitution- Article 16 of the present
Constitution. This anomalous feature that is inconsistent with first
principles of Constitutionalism should be removed.
4. The provision that requires a fundamental rights application for
violation by executive and administrative action be filed in the Supreme
Court (Article 126) is inconsistent with principles of access to justice
and the rule of law. Persons living outside Colombo find it difficult to
invoke the jurisdiction of the court; this provision undermines the role
of the Supreme Court as the final appellate court of the country, which
is expected to deal with questions of law rather than fact; it also
creates the anomaly of providing for no appeal in an important area of
jurisprudence which could amount to a violation of the rule of law.
Allowing fundamental rights applications to be made in Provincial High
Courts will not only address such weaknesses but also help to mainstream
human rights among the judiciary and the legal community at a broader
4. The Independence of the Judiciary and other legal institutions
The present constitutional provisions protecting the independence of
the judiciary should be strengthened particularly with respect to the
disciplinary control and removal of appellate court judges. However the
damage done to this important institution over the past twenty years in
particular means that it will need more than constitutional reform to
restore the institution's integrity and credibility.
Another institution that lacks credibility is the Attorney General's
Department. It has proved particularly incompetent in its role as a
reviewer of the constitutionality of draft legislation and advising the
State on the constitutional propriety of its actions. Indeed it is seen
as an institution that defends and seeks to justify unconstitutional
laws and actions. The reintroduction of constitutional review of
legislation by the courts through the initiative of the public will not
only protect the supremacy of the constitution but also serve as an
incentive for the Attorney General's Department to improve its
performance in this area.
5. Devolution of Power
The devolution of power to the provinces under the 13th Amendment to
the Constitution is weak, fragile and therefore can be undermined by the
centre. Significant provisions of the amendment remain unimplemented 28
years after its introduction, which again raises the question of whether
our constitution is supreme. These weaknesses have been experienced by
Provincial Councils, Chief Ministers and Boards of Ministers throughout
the country. With respect to the subjects that are to be devolved it is
vital that the Provincial Councils have the power to exercise such
powers without the centre undermining or reclaiming such powers as it
has often done since 1987. The powers of the centre to respond
effectively to any threats to the unity and territorial integrity of the
country, which in my view, already exist in the Constitution, should be
It is vital that following the defeat of the LTTE, the roots causes
of the conflict are addressed and power sharing and genuine devolution
of power are important components of such a response. It is important to
recognise that the Tamil people voted for moderation at the January and
August elections, rejected Tamil nationalist parties and groups and that
a failure to respond adequately to reasonable demands for devolution and
equality will strengthen the forces of Tamil extremism.
Addressing the reasonable demands for genuine and secure devolution
of power to the provinces by overcoming the weaknesses in the 13th
Amendment to the Constitution is the best way to generate trust and
goodwill among the Sinhalese, Tamils, Muslims and other communities in
the country. Creating such good will through genuine power sharing is
the best guarantee against threats to the unity and territorial
integrity of the country.