Laying the foundation for the 3rd Republican Constitution

A Constitution is meant to control those in power. It shouldn't be the people in power writing it - Rohan Edirisinha

by Rukshana Rizwie

Starting this week, the government will lay the foundation for what would be Sri Lanka's third Republican Constitution. This Constitution as Dr. Nihal Jayawickrama, Sri Lanka's former Secretary of Justice rightfully pointed out is "A document that crystallises a 'consensus' among the citizens as to the nature and character of their State and the manner of its governance."

Do we need a new constitution?

Prime Minister Ranil Wickremesinghe outlined the need for a new Constitution, saying the devolution of power, electoral reform and the replacement of the Executive Presidential system would be three key areas for those drafting the new Constitution.

The objective is to quell rising ethnic tension and advance national reconciliation.

"We cannot and we should not miss this opportunity," the Prime Minister emphasised during the Sujatha Jayewardene Memorial Oration where his keynote address was on the need for a new Constitution.

Formulating a new constitution was also one of the promises made to the UN Human Rights Council last year. A strongly-worded statement delivered by Minister of Foreign Affairs, Mangala Samaraweera, in Geneva scored political points, eliciting a softer stance from the Council. Where the human rights issue is concerned, the Minister said a political solution to the ethnic conflict will be sought through a new constitution.

A Constitutional Assembly

"The best guarantee for a non-recurrence of ethnic tension, is a political settlement that addresses the grievances of the Tamils. We hope we can achieve by adopting a new constitution. A Constitutional Assembly will be set up for this purpose shortly," he said.

The Office of the High Commissioner of the Human Rights Commission is expected to "present an oral update" to the Council at the 32nd session in June this year and a "comprehensive report followed by discussion to implement the present Resolution at its 34th session" in March 2017.

Sri Lanka's 1978 Constitution is believed to be woefully inadequate and cumbersome for a modern democracy such as the one led by President Maithripala Sirisena. Both Constitutions of 1972 and 1978 were widely criticized for failing to resolve the grievances of the minority communities, including their basic rights, religion and language.

It is well-known that the past two constitutions were enacted by political parties and the 1978 Constitution was made to serve the interests of the one-time President J.R. Jayewardene.

Prof. Lakshman Marasinghe, Chairman of the Law Commission, an expert on Constitutional Reform told the Sunday Observer, while the 1972 Constitution was democratic and established the supremacy of the legislature, the 1978 Constitution established the supremacy of the Executive Presidency.

"Under the supremacy of Parliament, the 1972 Constitution restricted the liberties of people. By incorporating national security laws into the 1978 Constitution, a deadly blow was dealt to the liberties of people. It was through this formula - making national security laws part and parcel of the Constitution - that J.R. Jayewardene attacked trade unions, political parties and the minorities.

Wield power

"The Executive President thus 'enforced' disappearances under Emergency Laws. Blatant abuse of State property, under the Mahinda Rajapaksa regime, was possible due to the 1978 Constitution," the Asian Human Rights Commission noted in a statement.

Both constitutions served the interests of political groups in the South and the voices of the North went unheard. Dr Siri Gamage, a senior lecturer in Contextual Studies at the University of New England opined that even after Independence, the political and party system encouraged a high degree of elitism permitting a select group of urbane and wealthy, Westernised families to wield power.

The new political culture created by changing the coterie of politicians, he says made them feel they were above law. They dealt with the public as those who should be controlled rather than to be listened to - a typical colonial attitude.

Questions are being floated in the legal fraternity over the legitimacy of a new Constitution by converting Parliament into a Constitutional Assembly. It is understood that the making of a new constitution is the sole prerogative of the public.

In 1972, the Centre-Left Coalition Government, headed by Sirimavo Bandaranaike had in its Election Manifesto included the setting up of a Constitutional Assembly to draft a new Constitution through national consensus.

By voting that government into power, the citizens of Sri Lanka gave their approval to set up the constitutional Assembly which gave the mandate for the Republican Constitution.

"Shouldn't we go for a Referendum before going in a constitution-making process and thereafter refer it to the public," asked Prof. Marasinghe. He explained that Parliament under Article 83 had to pass a Resolution to transform into a Constitutional Assembly. However that Resolution should be decided on at a Referendum and with a majority consent; then Parliament has received the approval from the people.

According to the 1978 constitution, under Article 75b, Parliament is bestowed with the legislative authority to formulate a constitution. "However, this doesn't give Parliament the authority to reconstitute itself into a Parliamentary Assembly," he said. Parliament, under Article 83 can go for a Referendum and under 120b, if the draft constitution is passed by Parliament with a 2/3 majority, it cannot be challenged in its entirety.

Forty years ago the case which saved the Indian democracy, thanks to Shri Kesavananda Bharati, an eminent jurist Nanabhoy Palkhivala and the seven judges who were in the majority.

In 1971, Indira Gandhi attempted to empower the Indian Parliament to amend any part of the Constitution. However, the Supreme Court ruled that such amendments could not destroy the 'basic structure' of the Constitution. Fundamental rights were a part of the 'basic structure'.

The Indian Supreme Court prevented her from doing so, stating that the elected legislature only had legislative power and the making of Constitutions did not fall within that power as that power belonged to the people.

"The case stems from the simple fact that the basic doctrine cannot be amended by the legislature," Prof Marasinghe said. "If a new Constitution is to be introduced in Sri Lanka, what is the basic structure of the Sri Lankan Constitution?"

The Prime Minister has set March31 this year as the deadline for public consultations which would deliberate on the key facets of the draft constitution, through the sub-committee which will handle the subject.

We favour select committee not constitutional assembly - D.E.W.Gunasekara

Communist Party Leader D.E.W.Gunasekara said, "We are not in favour of a Constitutional Assembly but a of Select Committee. We have no objections to formulating a new Constitution. We have our reservations about their modus operandi and as to how they are going to make it. We should be satisfied with the parliamentary system and it is not necessary to bring a Resolution and transform Parliament into a Constitutional Assembly. Parliament can perform that function.

"We met President Maithripala Sirisena on January 7 and drew his attention to this. Why are they bringing a Resolution to transform Parliament into a Constitutional Assembly? We can do it within the framework of Parliament. Another body is not needed to form a constitution."

"Here normal Parliamentary functions and every other thing is recorded in the Hansard and the Speaker is also present. The Constitutional Assembly doesn't have a Speaker and it has only some Chairs. We don't need to deviate from Parliament. In 1972, the need was there to draft a new Constitution because the 1946 Constitution was imposed on us by the British Parliament. We had to go for a new Parliament as executive anarchy was there. Even if we attempted to bring in a new Constitution at that time, there was a possibility that they would put a stop to that. That is why a decision was taken to transform Parliament into a Constituent Assembly and that was necessary at that stage, because the Queen was our Head of State. Today, we are a sovereign republic so that question doesn't arise and Parliament can continue its function."

Inclusive committee of parliament - the need - Prof. Tissa Vitharana

Lanka Sama Samaja Party Leader Prof. Tissa Vitharana said the procedure that is now being adopted is not based on Standing Orders of Parliament but one determined by the Prime Minister as the Head of the Cabinet. He is directing operations to make use of not only Parliament but an external mechanism as well. For instance, the committee that has been set up to seek the views of the public as well as other political parties, does not directly interact with the Members of Parliament. There is a separate committee set up by the Prime Minister as the Head of the Steering Committee and consists of people, even outside Parliament.

What is necessary is a Select Committee, besides representatives elected by the people in Parliament and representatives of political parties not represented in Parliament and representatives of civil society groups.

This can be done through a Select Committee. But unlike a normal Select Committee which is limited in number, here we need to have a committee which includes all Members of Parliament. You can't call it a Select Committee and it should be an inclusive committee of Parliament.