CONSTITUTION MAKING: A FLAWED PROCESS



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By PROf. G. L. PEIRIS


The Resolution on the making of a Constitution for our country, moved in Parliament by the Prime Minister on 9th January, has given rise to public debate on a wide range of issues which need to be addressed in earnest if the professed objectives are to be attained.


I. Causes for Concern


(a) Absence of Cabinet Approval


Incredible as it may seem, the 6-page Resolution, setting out in detail the Government’s plans for drafting a Basic Law intended to govern our country for several generations, was presented to Parliament without the approval of the Cabinet of Ministers. It is an essential requirement that all legislation brought to Parliament as Government Business, is discussed at Cabinet and moved in the Legislature by the relevant Minister with the consent of his colleagues in keeping with the principle of collective responsibility.


The Resolution in question dealt with no ordinary legislative business; it related to no less than the formulation of the Constitution of the Republic. And yet, almost defying belief, it saw the light of day, unbeknown even to the body charged with direction of the Government—the Cabinet of Ministers—let alone the general public.


(b) A Strange Animal in the Legal Bestiary


The central aim of the Resolution is the creation of a body known as the "Constitutional Assembly". This nomenclature is alien to our public law. It receives no mention in, and derives no legitimacy from, any provision in our Constitution. By its very nature, it is an extra-legal organ.


As far as its provenance is concerned, no valid analogy can be drawn with our country’s experience of a "Constituent Assembly" in 1972, at the time of drafting of the First Republican Constitution. The architect of that document, Dr. Colvin R. de Silva, has explained the rationale of that initiative in persuasive terms.


The purpose of the innovation was to make clear, beyond any suggestion of doubt, the severance of our nation’s links with the occupant of the British Throne as Head of State and to provide in the most stark and vivid form for the transfer of sovereignty from the monarch of the United Kingdom to the National State Assembly (Parliament) and to the people of Sri Lanka. What was sought to be achieved was the establishment of an entirely new legal pedigree, in respect of the source of sovereign jurisdiction, and the coming into being of a fresh point of departure unencumbered by the legacy of the past.


This was rightly conceived by the Minister of Constitutional Affairs at the time as being so fundamental as to require visual demonstration by the holding of the sessions of the Constituent Assembly at a separate venue, the Navarangahala, far removed from the accustomed precincts of Parliament. No justification of this nature, historical or pragmatic, can possibly be invoked in this instance.


Furthermore, the circumstances in 1972 were a sequel to the General Elections of 1970, in the run-up to which the Leader of the United Left Front, the late Prime Minister Sirimavo Bandaranaike, in her published Manifesto, specifically requested a mandate for the creation of a Constituent Assembly for promulgating a new Constitution, and received, on her own, for the Front which she led, a clear two-thirds majority in the new Parliament.


In both these respects, the present situation is entirely distinguishable.


(c) Dominant role of the "Steering Committee"


The greatest danger attendant on the current adventure arises from key features of the modalities envisaged in the Resolution. The conclusion is inescapable that the crucial body, in the whole process, is the "Steering Committee" sought to be established by paragraph 5(a). The Chairman of this body is the Prime Minister. While other sub-committees may be appointed, the effect of paragraph 16 is that all these sub-committees are required to submit their reports to the Steering Committee which, moreover, appoints the chairmen of all the sub-committees – para 5(b). In terms of para 7, it is the Steering Committee that is called upon by the Prime Minister to present a resolution proposing a Draft Constitution. It is, as well, the Steering Committee that is empowered to seek the services of other institutions (para 9) and to appoint experts from outside (para 10).


The overbearing influence of a small coterie of persons (not including even the Cabinet or Party Leaders, as such) and potential reduction of Parliament to a rubber stamp, each Member not having equal opportunity to make his or her contribution, are the main perils to be guarded against.


(d) Relegation of the Standing Orders of Parliament


This risk of marginalization is enhanced by the reality that the entire process is envisioned outside the framework of the Standing Orders of Parliament.


Standing Order 86(1) makes direct provision for the appointment of a Committee of the Whole House —- the obvious instrument for carrying out the desired task. The appropriate course of action, clearly, is for constitution making to be undertaken not by the alien and unrecognized body designated as a "Constitutional Assembly" but by Parliament itself, within the contours of the Standing Orders which regulate the proceedings of the House.


This is, indeed, a requirement for compliance with Article 76(1) of the Constitution which underlines the non-delegable character of Parliament’s legislative authority. The effect of this provision, at the core of Sri Lanka’s constitutional system, is that Parliament is the exclusive repository of legislative power and that there cannot, under any circumstances, be a collateral organ exercising legislative authority.


It is important to insist that there must be genuine, as opposed to merely formal, adherence to this seminal principle.


(e) Unwarranted Ouster of the Supreme Court’s Jurisdiction


The terms of the Resolution relating to the jurisdiction of the Supreme Court could well give rise to acute unease.


The clear provision embodied in Article 120(b) of the Constitution is that, where the Cabinet of Ministers certifies that a Bill will be presented to the People at a Referendum, no jurisdiction may be exercised by the Supreme Court. On the other hand, paragraph 24 of the Resolution provides that the Cabinet of Ministers "shall certify" that the Bill drafted by the Constitutional Assembly will be so submitted to the People at Referendum.


This is, manifestly, a disingenuous attempt to preclude judicial review within its legitimate domain. In the first place, Parliament has no authority to require the Cabinet of Ministers to embark on a particular course of action; this is a matter for the Cabinet to decide at its own discretion. Secondly, and more importantly, forestalling of pre-enactment review is permissible under the Constitution only where the Cabinet has, as a matter of fact, made the certification in question, not where it is expected to do so, as a contingent event, at some point of time in the future.


This is an issue which infringes the basic right of the public to have access to the Supreme Court for the purpose of ensuring that the proposed Bill does not, in any of its provisions, contravene the Constitution.


II Structure and Format of the Resolution


The widespread confusion enveloping the process is largely the result of the format, as well as the substantive content, of the Resolution. It is submitted that both are misconceived.


The Resolution consists of 33 paragraphs. They contain, inter alia, detailed information regarding the quorum for meetings of the Constitutional Assembly, the mode of staffing and financing, the method of conducting sittings, the categories of persons whose aid and advice may be sought, arrangements in respect of media and publication of proceedings.


These detailed provisions were considered necessary only because the "Constitutional Assembly" is a distinct entity, organically separate from Parliament, and consequently not subject to the procedures which regulate the functioning of Parliament.


It is this circumstance that accounts for the absence of reference, in any form, to the Standing Orders of the House. This is a cardinal error. What is required, as a matter of imperative obligation, in deference to governing provisions of the Constitution, is overt indication that the whole process is being taken in hand, and carried through in its successive stages, within the domain of Parliament and in complete consonance with its Standing Orders.


Once this is done, and a Committee of the Whole House is expressly appointed under the aegis of Standing Order 86(1), the contents of the Resolution become, substantially, redundant. All that is sought elaborately to be provided for, is already embedded in the terms of the relevant Standing Orders. For example, Standing Order 130(4) clarifies issues relating to advice and information to be obtained from outsiders. It is the disconnect between the proposed constitution making organ and the identity of Parliament, with all the systems which buttress it, that generates many of the fears and reservations regarding integrity of the process.


The suggested course of action, salutary in every respect, serves as well to remove another significant source of apprehension. This has to do with the very first operative paragraph of the Resolution, which mandates the Constitutional Assembly to prepare "a draft of a Constitution Bill". This is anomalous. The proper function to be assigned to a delegate of Parliament should be to prepare not a draft Bill but a Report of the kind specifically and advisedly contemplated in Standing Order 130(2). Such a Report, upon submission to Parliament, will be deliberated upon by the latter, in proceedings which will culminate in total or partial acceptance, or rejection, of the Report by Parliament itself. In the event of acceptance, preparation of the draft Bill is a task which, of necessity, must belong to Parliament, and to Parliament alone, with the Government naturally taking the initiative, assisted as it is in the normal course by the Attorney-General, the Legal Draftsman and other functionaries of the State. Public confidence will no doubt be strengthened immeasurably by resorting to this regular procedure.


III Confusion Worse Confounded


With the introduction of the Resolution in Parliament on 9th January, pervasive disenchantment was evident from the very outset. The Government’s intention was that the Resolution should be debated throughout the day, and adopted at the conclusion of the sitting that evening. However, it soon became clear that this outcome could not realistically be arrived at, because of starkly conflicting points of view articulated by political parties early in the proceedings. In view of this situation, it was agreed, contrary to the Government’s expectation, that the debate, far from being concluded, would not even begin that day. The Prime Minister would merely read out the Resolution, and the debate would commence on Tuesday 12th January.


Prior to adjournment, the Joint Opposition submitted its Amendments to the Speaker. These consisted of three simple clauses, the effect of which was the following:


(i) The exercise would be firmly located within the setting of the Standing Orders, and it would be the function of a Committee of the Whole House to deliberate and, after seeking the views of the public, to submit a Report for the consideration of Parliament;


(ii) Need for the controversial provisions in the Resolution was obviated by the invocation of Standing Order 130 and, in particular, the provision that the powers, in their entirety, conferred by this Standing Order would be available to the Committee appointed by Parliament;


(iii) Upon submission of the Committee’s Report, it is for Parliament to adopt it in whole or part, or to reject the Report and, in the former event, to take such further action as it may deem expedient.


These Amendments, duly signed by eight Members of Parliament of the Joint Opposition, were handed in to the Speaker. The signatories to the Amendments were Dinesh Gunwardena, Udaya Gammanpila, Sriyani Wijewickrema, Bandula Gunewardena, Sisira Jayakoday, Mahindanananda Aluthgamage, Gamini Lokuge, Keheliya Rambukwella and C.B. Ratnayake.


A significant development took place when Parliament reconvened on Tuesday 12th January. A further set of Amendments were submitted on this day, and these Amendments were proposed by a group of Ministers of the Sri Lanka Freedom Party, holding office in the Government. These Amendments were identical in content with those submitted by the Joint Opposition three days previously. This convergence of opinion was foreshadowed at a meeting in the precincts of Parliament just before the commencement of sittings on 12th January. The SLFP Ministers who signed the Amendments were W.D.J. Seneviratne, Mahinda Samarasinghe, S.B. Dissanayake, A.D. Susil Premajayantha, Sarath Amunugama, Faiszer Musthapha, Anura Yapa and Dilan Perera.


The Janatha Vimukthi Peramuna, quite independently expressing some degree of reservation about the Resolution in its original form, wished to have time to consider the Amendments already submitted and to decide on their own course of action.


In this state of things, the next development was hardly helpful. Responding to a public comment of mine suggesting the need for flexibility with regard to the Resolution in order to allow the process to move forwarded constructively, the Prime Minister’s Office, in a media release, announced that there would be no amendment at all to the Resolution. The categorical and uncompromising tenor of this assertion contrasted strikingly with the obvious complexities of the unfolding situation.


IV Implications for the Substance of Constitutional Reform


An event of the first importance occurred when Parliament met on Tuesday 12th January. This was the statement delivered on the floor of the House by Minister Susil Premajayantha.


Making emphatic reference to the Election Manifesto of President Maithripala Sirisena, and insisting that the national mandate is that of President Sirisena, he underlined a salient feature of the President’s declared approach to constitutional reform. He reminded the House and the country that the President’s pledge was to undertake, and to carry through to conclusion, such constitutional reforms as were capable of being effected without resorting to Referendum. The President’s commitment, then, in keeping with his social compact with the nation, is to give leadership to a constitutional reform process operating within these confines and extending no further.


This approach, linked to the mandate sought and obtained at the Presidential Election of January 2015, is diametrically at variance with the Prime Minister’s Resolution. Paragraph 24 of the latter expresses the intent "to repeal and replace the Constitution as a whole in terms of Article 75(b) and Article 120(b) of the Constitution". But this is precisely what the Presidential Manifesto, in specific terms, declines to do. The cornerstone of the latter approach is selectivity, in that the thrust of the initiative is to reduce the total exercise to its constituent elements, action in respect of each component being identified in relation to the applicability or otherwise of the Referendum requirement.


V Conclusion


Constitutional change is an urgent necessity, and there is a simple way forward if the current initiative is sincerely intended to produce actual results within a reasonable time-frame. The practicality of this hinges on two basic questions being formulated, and honest, clear-cut answers being given to each of these questions.


The first question is whether the Government intends to have the present Constitution superseded in toto by a new and complete Constitution, or whether amendment of selected areas of the present Constitution is the preferred option. If it is the latter, a second question calls for a candid and definitive answer: whether amendments will be formulated only to those provisions which are capable of amendment without a Referendum, or whether it is the intention of the Government to extend the reform effort to provisions which require a Referendum as a compulsory condition of repeal or amendment. This is a political judgment call which needs to be taken to dispel the prevailing uncertainty and confusion.


The core of the problem is this: when there is a straightforward way of enacting, and implementing on the ground, constitutional changes for which there is a broad spectrum of support in the country, why does the Resolution choose to embroil the government in needless difficulties, of its own making? It is this inexplicable behaviour that justifies the construction that the true purposes underpinning the Resolution may well be different from the professed objectives.


 
 
 
 
 
 
 
 
 
 
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