The Ongoing Constitution-Making Process in Sri Lanka:  An Inquiry into its Legality
Posted on August 23rd, 2017

Dharshan Weerasekera, Attorney-at-Law

[Author’s Note:  A version of the present paper has been handed over to the President of the Human Rights Council]

In September 2015, the United Nations Human Rights Council adopted resolution 30/1 on Sri Lanka which called among other things for constitutional reform in this country.  The following remarks by the UN High Commissioner for Human Rights in his update to the Council in June 2016, summarizes the background, main provisions and intention behind the resolution:

Building on the recommendations made in the High Commissioner’s report based on the OHCHR investigation, Resolution 30/1 sets out a comprehensive package of judicial and non-judicial measures necessary to advance accountability and reconciliation in Sri Lanka as well as to strengthen protection of human rights, democracy and the rule of law.  The resolution represents a historic commitment by the Government of Sri Lanka not only to the international community, but also most importantly to the Sri Lankan people, of its determination to confront the past and end corrosive decades of impunity, serve justice, achieve reconciliation, and build inclusive institutions to prevent the recurrence of violations in the future.[1]

On 9th March 2016, the Parliament of Sri Lanka formally initiated a constitution-making process in line with resolution 30/1.  That process is now at an advanced stage:  all that remains is for the ‘Constitutional Steering Committee’ to submit its final report to Parliament, and if it is approved, to draft a Constitutional proposal.  The international community, particularly the High Commissioner, has commended what has transpired so far.[2]

Normally, on account of Article 2(7) of the UN Charter, the UN and its subsidiary organs are prohibited from interfering in the internal affairs of nations.   Therefore, it is important for the international community to know if there is any reason that the present constitution-making process will lead to harm instead of good for Sri Lankans, because the international community will be morally and legally responsible for such harm if it were to occur.  .

The purpose of this paper is to argue that the ongoing constitution-making process is illegal.  My argument is briefly as follows.

The Framework Resolution of 9th March 2016, which officially launched the present process, begins with the preambular statement:  Whereas there is broad agreement among the People of Sri Lanka that it is necessary to enact a Constitution for Sri Lanka.”[3]

Furthermore, Parliament cites Article 75 of the Constitution as the sole legal basis for bringing the Framework Resolution.[4]  Article 75 confers wide powers on Parliament to ‘pass laws’ and that includes the power to amend or repeal the Constitution.

The issue is not whether there is broad agreement among the People that amendments or a new Constitution are needed, but whether there is agreement that the present Parliament ought to bring the said amendments or new Constitution.

Under Article 82(5) of our Constitution, a 2/3 majority in Parliament is sufficient to initiate constitutional changes.  However, the 2/3 majority that was cobbled together to initiate the present constitution-making process is the result of the forming of a ‘National Government,’ the first time such an entity has been formed in the Parliamentary history of this country.

The National Government consists of the UNP[5] that won the 2015 Parliamentary Elections plus about 45 MP’s from the SLFP[6].  The SLFP contested under UPFA[7] banner, and the UPFA won 95 seats at the said elections.

In my view, because of the way that the National Government was formed, circumstances that I shall explain in more detail later, there is a question over the legitimacy of the said entity.  Therefore, there is a question over whether Parliament as constituted by the Framework Resolution into a Constitutional Assembly’ has the requisite mandate from the people to initiate a constitution-making process.

Under the circumstances, the crucial question is, Can Article 75 of the Constitution be interpreted as covering a situation such as the one under which Parliament launched the present constitution-making process?”  I argue that it cannot, because of the irreparable harm caused to the People if Parliament presumes to change the Constitution without a mandate to bring such changes directly from the People.

The paper is divided into 3  parts.  In Part One I provide a brief account of the events leading to the forming of the National Government.  In Part Two, I explain why the present Parliament does not have a mandate to bring constitutional changes.

In Part Three, I discuss the ambit of Articles 75 and 82(5), and draw out the implications of this to the legality of the ‘Framework Resolution,’ and thereby to the constitution-making process as such.

The paper is intended primarily for a Sri Lankan audience, to encourage a richer and more substantive discussion of constitutional reform in this country, but is relevant for international readers also.  It is my hope that information contained in this paper will lead international readers to do what they can to urge the UN and especially the UNHRC to reassess resolution 30/1, because of the ramifications in respect of Article 2(7) of the UN Charter mentioned earlier.

Part One:  A brief account of the events leading to the forming of the National Government

On 8th January 2015, Maithripala Sirisena defeated Mahinda Rakapaksa to become President of Sri Lanka.  Sirisena ran as the ‘Common Candidate’ of a coalition of parties including the UNP, the TNA, the Muslim Congress, and a number of others.  Rajapaksa contested under the UPFA banner.

Sirisena campaigned on a promise to restore democracy, good governance and the rule of law, and this included an explicit promise to bring sweeping legislative and constitutional changes.[8] He won by 51% of the vote to Rajapaksa’s 47.8%, with 81.52% of eligible voters voting.[9]

While Sirisena got a certain portion of votes from the majority-community, the Sinhala-Buddhists, a more significant factor in his victory was the fact that the minorities voted en mass for him.[10]  In contrast, Rajapaksa’s primary source of support was the Sinhala Buddhist vote, of which he got 58.26%.[11]

As I mentioned earlier, Rajapaksa contested on the UPFA ticket.  The main constituent of the UPFA is the SLFP, of which Rajapaksa at the time was the Chairman.  Sirisena, though he ran against the UPFA (and therefore also the SLFP) was a SLFP’er and in fact the Secretary of that party before he joined the anti-UPFA coalition in order to contest the elections.

After the election, by asserting a certain provision in the SLFP Constitution that says that if a member of the SLFP were to become President of the country such member also automatically becomes the Chairman of the party, Mr. Sirisena took over as Chairman of the SLFP, and proceeded to assert control over that party.  By a similar maneuver, he became Chairman of the UPFA also.

We must now turn to the Parliamentary elections, announced in May and held in August.  For these elections, the parties that backed Sirisena at the Presidential elections were contesting separately.  The UPFA (and this included the SLFP) was contesting as a coalition.

By May, rank-and-file SLFP’ers had come to dislike if not detest Sirisena, because they saw him as a person who had ‘betrayed’ the Party.  Meantime, Rajapaksa’s popularity among rank-and-file SLFP’ers had not waned and in fact appeared to be increasing since his fall in January.[12]

In May, conventional wisdom was that the UPFA could not win if Rajapaksa did not lead the campaign.[13]  Not surprisingly, therefore, Sirisena allowed Rajapaksa to contest under the UPFA banner, but he (Sirisena) made it known that he wanted Rajapaksa to lose.[14]

And so the campaign started, a campaign characterized more than anything by UPFA candidates trying to outdo one another distancing themselves from Sirisena, and associating themselves with Rajapaksa.  And in fact, at the elections, a number of candidates who had persisted in associating themselves with Sirisena were rejected by the voters, precisely for that reason.[15]

The results of the elections were as follows:  The UNP led by Ranil Wickremasinghe won 93 seats (plus 13 National List seats gave it a total of 106 seats), the UPFA led by Rajapaksa won 82 seats (plus 12 National List seats the total became 95), the TNA won 14 seats (with 2 National List seats their total became 16), and the Muslims 1.[16]  The 95 seats secured by the UPFA gave it the potential to form a powerful opposition.

At that point, Sirisena did the following.  Asserting his powers as Chairman of the SLFP, he had a number of his henchmen, including certain UPFA candidates who had been rejected by the voters at the elections that had just been concluded, appointed to Parliament through the National List.[17]

(The Sri Lanka Constitution reserves 29 seats for the National List, which was originally envisioned as a means of bringing to Parliament persons of eminence and proven competence who for whatever reason may not be inclined to contest elections, but whose services would enhance the work of Parliament and thereby also benefit the country.  The seats are allotted to the parties in proportion to their share of the national vote.)

To repeat, Sirisena availed himself of the above facility to appoint a number of his favorites to Parliament, which meant that, out of the SLFP group in Parliament, the number loyal to him increased, thus giving him more control over that group.  In this situation, he got about 45 or so SLFP MP’s (all of whom were offered Ministerial portfolios including cabinet positions along with all accompanying perks) to join the UNP and form a so-called ‘National Government.’

It should be noted that, prior to the election, the UPFA published its manifesto and nowhere in that manifesto did it say that if the UPFA failed to win a majority of seats in Parliament, its MP’s reserved the right to join the party that won the majority of seats and form a ‘National Government.’[18]

Thus, the ‘National Government’ came into being, the net result of which was:  once the 45 or so SLFP’ers joined the UNP, the UNP (which already had 106 seats,) acquired an overwhelming majority in Parliament.  They got within about 4 seats of a 2/3 majority in Parliament (and they can easily get those four seats from the JVP or one of the minority Parties if and when they want it).  With a 2/3 majority in Parliament, the Government can do almost anything it wants.

In short, a situation has been created where the UNP is able to pursue its policies, agendas and programs in a way and to an extent it simply would not have been able to do if the UNPFA, with its original strength of 95 seats, had functioned as an official Opposition.

There is a final ingredient in this story.  The UPFA MP’s who did not join the government formed themselves into something called the ‘Joint Opposition’ (JO) to defend what were considered to be Sinhala Buddhist interests.

Part Two:  Does the present Parliament have a mandate to bring constitutional changes? 

In my view, the answer to the above question is in the negative, because the 45 or so SLFP  MP’s who joined the UNP to form the ‘National Government,’ did not have a mandate from their voters to do so.  My argument is based on the following three considerations.

First, the contents of the UPFA elections manifesto; second, reasonable inferences that can be drawn from the circumstances surrounding the run-up to the elections as to what UPFA voters expected of their candidates; and finally, reasonable inferences that can be drawn from the fact that at present the Government is to postponing local government elections indefinitely.  I shall take each of these in turn.

With respect to the manifesto, my argument is this.  For the act of voting to have any meaning, one must suppose that voters must have the assurance that if they vote for a particular candidate, say candidate ‘X,’ and ‘X’ says before the elections that if elected he will do such and such things, then if he is elected he will do what he said and not something entirely different.

As I pointed out earlier, the UPFA manifesto for the 2015 Parliamentary Elections did not state anywhere that in the event the UPFA lost, UPFA candidates reserved the right to join their rivals in the UNP or other winning Party and carry on a common legislative program that would include bringing constitutional amendments.  I take as self-evident that an elections manifesto is the best documentary means through which voters for any particular Party can know what their candidates stand for.

Therefore, prima facie, UPFA voters could not have intended their candidates, in the event they lost, to join with the UNP or any other winning party and carry on a common legislative program including constitutional changes.   However, it is true that just because the UPFA manifesto does not state anything about UPFA candidates reserving a right to carry on a common legislative program with other Parties, it doesn’t mean that UPFA voters would have necessarily disapproved of what their candidates did.

One must therefore probe a little more into what may have been the real intentions or expectations of UPFA voters before the elections.  For that purpose, I shall turn to the two factors mentioned earlier.  I shall first turn to the circumstances surrounding the run-up to the elections (circumstances I have discussed in Part One of this essay) in order to draw certain reasonable inferences as to the possible mind-frame of UPFA voters going into the said elections.

Recall that, Mr. Rajapaksa led the UPFA election campaign, and Mr. Sirisena had been forced to permit this because of Rajapaksa’s enormous popularity among UPFA voters.  Therefore, it is reasonable to suppose that a UPFA voter’s vote at the 2015 Parliamentary elections was really a vote for Rajapaksa – or at any rate policies and programs associated with Rajapaksa – than policies and programs associated with Sirisena.

The above supposition gains further support from the fact that after the elections Sirisena was forced to bring in a number of MP’s through the National List in order to increase the number of UPFA MP’s in his camp.  It is significant that, a number of MP’s thus brought in had been voted out at the elections, precisely because UPFA voters had seen them as being loyal to Sirisena.

Finally, I shall turn to the fact that the Government keeps postponing local government elections.  The term of local government councils is four years, and the last local government elections were held in 2011.  So, elections were due in 2015.  They have not been held since then, and the Government has been forced to resort to various tactics in order to keep postponing elections indefinitely.

One such tactic is to claim that elections could only be held after the new Delimitation Report is filed, a seemingly reasonable pretext.  However, the lengths to which the Government has gone in order to maintain this pretext is now generally recognized by most Sri Lankans as bordering on the comic.

To convey something of the general opinion in the country as to the real reasons behind the postponement of LG elections, and also the Delimitation Committee report saga, I present below three quotes from newspapers and other relevant sources.  The first is from an editorial in The Island, one of Sri Lanka’s leading English newspapers, the second from CAFFE[19], a respected elections-monitoring group, and third from a published interview with the Chairman of the Delimitation Commission.

The following is the quote from The Island editorial:

President Maithripala Sirisena not only accepted but also praised the original report submitted by the delimitation Committee headed by Jayalath Dissanayake.  It was duly ratified by Parliament and signed by Speaker Karu Jayasuriya.  But, the government made a volte-face as it was looking for an excuse to postpone the local government polls which it was not ready to face.  It appointed the Asoka Peiris committee to review the Jayalath committee report obviously in a bid to delay the mini polls in the hope that it would be able to get its act together in time for the next electoral contest.  But, its plans have manifestly gone awry and it is scared of an election owing to several factors such as the ignominious defeats its constituents have suffered at the first round of co-operative society elections, over rising cost of living, mega rackets like the central bank bond scandal, unfulfilled pre-election pledges, rampant corruption, the absence of development drive and the not-so-cold war within the ruling coalition between the UNP and the SLFP.[20]

The following, meanwhile, is the quote from CAFFE:

Although the Committee was to hand over its report to the Minister of Local Government and Provincial Councils yesterday (27) [27th December 2016] it has not handed over the report stating that they still need to finalize translating the document to all three languages.  The Committee initially said that they will hand over the report on March 2016 but it continuously extended the deadline stating various reasons.  Chairman of the Committee Asoka Peiris once said that they were given an extension even without them requesting for such an extension adding the report can be presented by 30th November.  However a few days later he stated that the report can be only handed over on the 15th December and the Minister of Local Government and Provincial Councils said that if he receives the document on 15th December he will gazette it on the 16th.  But as usual the deadline was extended again and the Committee was to hand over the report yesterday but the report was not handed over.  CAFFE believes that the Committee has come under the influence of a powerful force that wants to delay the election to fulfill narrow political agendas.’[21]

Finally, the following is a portion of an interview with Mr. Asoka Peiris the Chairman of the Delimitation Committee published in the Daily Mirror on 4th January 2017.

Q:  ‘Could you explain to us the present status of the Delimitation Report?’

A:  The Committee had taken a decision to hand over the report the Delimitation Committee report on December 27, 2016.  Though it was not a constitutional requirement we felt that it was getting dragged on.  I with my experience in a government department, we know that the date for an election is decided early, and we strive together to hold the election.  Following the same procedure, we handed over the report on the above date.  There are three sections to this report.  One about the changes to the electorates and our comments, second the gazette notification showing the composition of the electorate, and third the relevant map which refers to the gazette.  We finalized all these, including the criteria of delimitation.  But in accordance with the State language policy this had to be translated into the Tamil and English languages.  It was apparent that certain individuals were keen on delaying this.

Q:  ‘Who is keen on delaying this?’

A:  ‘The Ministry or better to say the government.  Both the main parties in the government are keen to delay this.’

Q:  ‘What do you think is the main reason for these groups to delay this?’

A: ‘There is a political need.  It is very clear but it does not apply to us.  Due to an administrative issue, the Tamil translations were not available in five districts up to December 27.  This has happened in the most essential districts such as Jaffna, Kilinochchi, Mannar, Mullatitivu and Vavuniya.  Without Tamil translations, introducing the report was very unjustifiable.  We had only two translators and that was inadequate.  These facilities were to be provided by the Ministry of Local Government and Provincial Councils.  I am not leveling allegations but the Ministry failed to provide these facilities well in time.  I made a request about two months ago for additional translators since two were inadequate.  As we failed to get the two translators whom I knew personally were attached to the Ministry of Lands were taken by us for this job.  Even after acting in this manner, and if someone is trying to delay it, it is an act against the people of this country.’[22]

Anyone with an ounce of common sense can gather from the above quotes that the Government does not want to have elections because it is afraid of losing very badly at those elections.  The question is, from this state of affairs, can we infer anything about the possible mandate that UPFA voters may have given their candidates at last year’s Parliamentary Elections?  I believe we can.

Mr. Sirisena as President is the head of the government, and he can order the LG Polls to be held post haste if he so wished.  So, regardless of who else in the government may not want the polls to be held, it is impossible not to conclude that, in the final analysis, Sirisena himself is either directly or indirectly for the delays, i.e. it is being done with his knowledge and consent.

But, why would Sirisena be afraid of elections?  As the editorial in The Island quoted earlier makes clear, the country is in a bad way, with rampant corruption, soaring cost of living, and so on.  So, this is a perfect opportunity for Sirisena to advance his Party.  It is not in dispute that, between the UNP and SLFP faction in the Government, the UNP is the predominant partner:  the UNP after all has 106 seats in Parliament.

No SLFP voter will vote for the UNP, especially if the country is in as bad a shape as suggested by The Island’s editorial.  Is it possible that Sirisena fears that SLFP voters will abandon their party because the SLFP (at least Sirisena’s faction) has been cooperating with the government?

In my view, it is unreasonable to suppose so, because Sirisena’s faction can make the excuse that, it is the UNP that is responsible for the various disasters, and they (i.e. Sirisena’s SLFP’ers) have been out-voted when they have tried to prevent the disasters in question.  Besides, they can ask the SLFP voter, If you leave us, where would you go?  The UNP?”

Therefore, if Sirisena is afraid of facing elections, it is because he knows that SLFP voters will go somewhere other than the UNP.  But, where could they go?  Clearly, to Rajapaksa, or some other SLFP’er with the requisite credentials.

 

So, Sirisena’s fear is that the SLFP voter will turn to Rajapaksa, or at any rate some SLFP’er other than Sirisena, at a future election.  But, why would Sirisena have this fear if just a year-and-a-half ago those voters voted wholeheartedly for a Party that he headed?

The natural inference that flows from the above is that, Sirisena’s fear stems from the knowledge that the vast majority of SLFP voters voted at the 2015 Parliamentary elections not because of Sirisena’s association with the SLFP, but in spite of it:  in other words, because of their loyalty to Rajapaksa.  (It should be noted that, Rajapaksa was the de facto Prime Ministerial candidate of the UPFA, until Sirisena wrenched that option away at the last moment.)

To put it another way, Sirisena’s fear stems from his knowledge that nothing he has done since August 2015 has made SLFP voters change their opinion of him:  i.e. they loath him just as much today they did in August 2015, perhaps more.  The only reasonable inference possible from this situation is that SLFP voters could not and would not have endorsed 45 of their MP’s joining the UNP, at Sirisena’s behest.

The sum of the above considerations is that, it cannot be said by any stretch of the imagination that the 45 or so SLFP MP’s who joined the UNP to form the ‘National Government had a mandate to do such a thing.  Hence, the present Parliament does not have a mandate to bring constitutional changes.

A critic, however, can raise the following objection at this stage:  Even if everything you say is true, all that it proves is that the present Parliament does not have the moral right to bring constitutional changes.  Unfortunately, what is moral and what is lawful can sometimes be different.  In order for the present constitution-making process to be considered illegal, one has to make an argument with reference to the relevant constitutional provisions, in this case Articles 75 and 52(5).”

It is a fair objection.  I shall proceed to my argument with respect to the aforesaid provisions.

Part Three:  The ambit of Articles 75 and 82(5) and whether the present constitution-making process can be justified under those Articles.

Recall that, Article 75 is the sole legal authority that Parliament cites for the Framework Resolution.  It is not in dispute that Article 75 gives Parliament wide powers to make laws” and that includes the power to amend or repeal the Constitution.  Meanwhile, Article 82(5) of the Constitution states inter alia:

A Bill for the Amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law is the number if the votes cast in favor thereof amounts to not less than two-thirds of the whole number of Members (including those not present[23]

 

The question is, Can Article 75 be interpreted as covering a situation such as the one under which the present constitution-making process was initiated?”  In my view it cannot, because of the following reasons.

It is well-established in Sri Lankan constitutional jurisprudence that when Parliament exercises legislative power it exercises a delegated power, delegated to it by the People.  As such, when Parliament exercises legislative power it does so in trust for the People.  (Vide 19th Amendment to the Constitution, 2002, 3 SLR 85)

Therefore, the relationship between voters and their MP’s envisioned by our Constitution is basically that of a fiduciary relationship, which means that the principles associated with such relationships necessarily apply here.  One of the key principles that underpins fiduciary relationships is that of loyalty, i.e. the trustee must administer the trust solely in the interest of the beneficiary.  For instance, some experts have said:

The essence of fiduciary duty requires the trustee to be always promoting the beneficiary’s interests.[24]

To put it in layman’s terms, under our Constitution – as is the case with most representative democracies – elected officials have a duty to actually represent their constituency.

It is now clear that, at the time Parliament adopted the Framework Resolution, there were at least 45 MP’s within its ranks who were actively violating their fundamental obligation to their voters.  Therefore, what the Framework Resolution has done is to permit Parliament to hide the aforesaid fact and set in motion a constitution-making process which would not have been possible under normal circumstances, i.e. if the wishes of UPFA voters who voted at the 2015 parliamentary Elections had been honored.

I concede that, in a representative democracy, a certain leeway and freedom of action is allowed to the representatives of the people, during national emergencies such as natural disasters or foreign invasions, to act according to their conscience and what they consider to be the best interests of the country, even if such actions are against the wishes of their particular voters.

I am willing to concede further that, the aforesaid discretion can be extended to  occasions where there is a need to break a stalemate or deadlock in Parliament over an issue of national importance, if a representative sincerely believes it is in the interests of his or her voters.

However, one cannot by any stretch of the imagination suppose that the aforesaid discretion extends to permit representatives of the people to do whatever they want, including to bring constitutional changes, against the wishes of their voters, while denying to those voters the protections available to them under the Constitution itself.

The Constitution does not privilege Article 75 over other Articles.  For instance, it does not preface Article 75 by saying something like, Notwithstanding anything contained in other provisions of the Constitution, Article 75 empowers Parliament to pass laws, etc.”  Therefore, Article 75 must be read in the context of the other provisions of the Constitution, which necessarily includes the safeguards both expressed and implied in those provisions.

Under the circumstances, the crucial question is, In initiating the present constitution-making process under the Framework resolution, has Parliament denied to the people rights or safeguards they have under other provisions of the Constitution, and if so, what safeguards?”

I shall now discuss three safeguards found in the prescribed amending procedure set out in the Constitution (i.e. Chapter 12 which includes Article 82(5)) and the irreparable harm caused to the People as a result of Parliament deviating from that procedure.  For convenience, I shall discuss general reasons first, and then turn to the specific ones.

First, as a general matter, under the prescribed procedure, there are two safeguards for the People when it comes to constitutional changes:  one, there has to be a 2/3 majority in Parliament in order to bring such changes; and two, for entrenched provisions (i.e. Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11), there has to be a 2/3 majority plus a referendum.

However, to win a referendum, the Government only needs to get 50% + 1 of the valid votes cast at such referendum.  Therefore, if a large segment of the population, say, as high as 45% oppose a particular constitutional change for whatever reason, but the Government can generate 2/3 support for that change within Parliament, the change can be made.  So, the one and only chance the aforesaid voters have to block the changes in question is in Parliament.

Suppose for a moment that a large segment of the population, say 45% or something close, have the requisite number of representatives in Parliament to prevent the forming of a 2/3 majority, but a portion of those representatives choose to join the Government in order to give it a 2/3 majority, and help push though a particular constitutional change.

In that event, the voters ‘betrayed’ by their representatives lose their only real chance to protect their interests.  The UPFA voters who voted at the 2015 parliamentary Elections have now suffered such harm.

Second, under our Constitution, all laws other than constitutional amendments can be repealed by a simple majority. So, voters whose wishes are contravened when their MP’s participate in passing such a law – – and this includes laws (other than constitutional amendments ) that require a 2/3 majority in order to pass – have a chance later on to bring pressure on those MP’s to join with other in Parliament and repeal the law in question by a simple majority.

In the event that the MP’s fail to take action, the voters can always elect different MP’s at the next elections and get the impugned law repealed.  Either way, for any law other than a constitutional amendment, the voters who are ‘betrayed’ when their MP’s participate in enacting such a law, have a chance to hold those MP’s accountable and thereby to undo the damage caused by the impugned law.

Now, let’s turn to a constitutional amendment.  If the Government gets a constitutional amendment approved in Parliament with a 2/3 majority but some of the MP’s in the coalition don’t have a mandate to participate in such action, the voters whose interests are thereby compromised have a much more difficult time if they want to recoup their losses.  This is because of three reasons, as follows.

First, a constitutional amendment cannot be repealed by a simple majority.  So, voters whose interests are compromised as aforesaid need to get a 2/3 in Parliament to support their ‘cause’:  that is much harder to do than getting the support of a simple majority.

Second, with a constitutional amendment the Government can postpone elections, or even cancel them.  That means that, voters who wish to hold their representatives accountable at a future election have to wait longer for their chance, and there is a possibility they may never get that chance at all.

Finally, and most importantly, by changing the Constitution, the Government can change the political and legal environment in the country in such a way that it becomes easier to carry out various actions against political rivals and thereby prevent them from giving leadership to popular fronts capable of  defeating the Government.  Since the Constitution is the framework within which all other laws function, if the framework changes, it has the potential to affect the operation of all those other laws.

To digress a moment, there is historical precedence in this country for some of the things suggested in the points above.  The UNP Government of Mr. J. R. Jayawardena that enacted the present Constitution cancelled the General Elections scheduled for 1982 and held a referendum instead.[25]  They also prosecuted Mrs. Sirimavo Bandaranaike, the leader of the SLFP, considered at the time the person most capable of marshalling a successful campaign against the UNP, and deprived her of her civic rights.[26]

It is the considered view of many commentators that, the aforesaid two acts, more than anything else, helped the UNP at the time to extend its reign of power for more than a decade, when in all likelihood it would have ended with the `1982 elections.[27]  History is known to repeat itself (‘the first time as tragedy, and the second as farce’ as Marx observed) so it is not inconceivable that some version of the tactics once deployed by JRJ will be repeated again.[28]

The point is this.  With constitutional amendments, there is always a possibility that the voters whose interests are compromised when their MP’s participate in enacting constitutional changes against their (the voters’) wishes, those voters will never be able to recoup their losses.  We must presume that, UPFA voters have potentially suffered this harm as well.

Finally, if the prescribed amending procedure had been followed, it is the Government – or the ‘National Government’ in this case – that would have drafted the amendments.  Actions of the Government can be challenged in courts of law, i.e. government officials no matter how high their positions can be hauled up before the courts.  But, actions of Parliament cannot be so challenged, or at any rate such challenges usually fail in the preliminary stages.[29]

So, if the Government had initiated the process of drafting the present amendments, then voters aggrieved by the forming of the ‘National Government’ could have challenged the said act in the courts.  I am not saying they will have necessarily won the case.  But, at the very least, they will have been have been able to obtain a definitive ruling on the legality of the ‘National Government.’

The ruling itself might have gone either way. But, the voters will have been able to vindicate their rights under the Constitution, something which the citizens of this country are entitled to do with respect to practically any other issue, and something which no one, especially the MP’s who have betrayed the trust place in them, ought to be able to deprive them of.

In sum, the Framework Resolution has permitted Government to do three things:  first, undertake a constitution-making process without a requisite mandate for it; second, set up an opportunity to prolong its life beyond 2020 by postponing Parliamentary Elections (the next Parliamentary Elections are scheduled to be held in 2020); and finally, deprive aggrieved voters of the chance to challenge the legitimacy of the ‘National Government’ in the courts.

To interpret Article 75 as permitting a situation such as the above is to make a mockery of the very concept of representative democracy.  The conclusion is inescapable that, the present constitution-making process, which derives its purported validity from the Framework Resolution and the related ‘Constitutional Assembly,’ is quite illegal.

Meanwhile, reason, common sense and the interests of justice dictate that Article 82(5), which says that a 2/3 majority in Parliament is sufficient to initiate constitutional changes, must be read as including an implied condition, namely, that when the 2/3 majority in question is the result of a coalition of Parties, those Parties must themselves have received a mandate to bring the proposed constitutional changes directly from their constituents.

I would be remiss if I didn’t address an objection from history that certain critics have raised to the argument in this paper.  They say that, there is precedence in this country for Parliament turning itself into a ‘Constitutional Assembly,’ i.e. that Parliament converted itself into a ‘Constitutional Assembly’, therefore the present process cannot be illegal.

I have two replies.  First, the United Front Government that enacted the ’72 Constitution had an overwhelming majority in Parliament, which it had received at the 1970 elections.[30]  So, there is no similarity between the possible mandate that the ’72 parliament may have had to bring change the Constitution and the mandate that the present Parliament has to bring such changes.

I am, however, aware that the longstanding claim of the Tamils is that they were shortchanged in ’72, because the Sinhala majority took full advantage of its superiority in numbers[31] to bind the Tamils to an unfair Constitution.

The constraints of time prevent me from going into the merits of the Tamils’ argument, since, to do the matter justice, one must go into issues such as whether the ’72 Constitution was in fact prejudicial to the Tamils, i.e. whether the Tamils were denied any of the rights given to the Sinhalese, and also whether a minority group has a right to prevent the majority from changing the constitution at any cost.

One must also consider that, the UNF could not have gained its overwhelming majority in Parliament without getting at least a fraction of its vote from the Tamils.  In any event, the point is that, there is no similarity between the mandate that the present Parliament has to bring constitutional changes, with what the ’72 Parliament had to do such a thing.

Second, and more important, to the best of my knowledge, what happened in ’72 was that the House of Representatives first abolished the Senate by amending the Constitution, and then turned itself into a Constitutional Assembly in order to generate the new constitution.  In other words, they first amended the amending process.[32]

In the instant case, there has been no attempt to amend Chapter 12.  Quite the contrary, what Parliament is trying to do, is to resort to Chapter 12 after the new Constitution has been generated.  (If there’s an attempt to amend the prescribed procedure, the safeguards associate with that procedure discussed earlier come into play.)  So, there’s no comparison with what happened in ’72.  On this ground also the objection fails.

Conclusion

I have in this paper argued that the ongoing constitution-making process in this country is illegal, because it is being carried out without the requisite mandate from the people, and in fact by the use of a certain trick or ploy the effect of which is to invalidate the franchise of a significant portion of the voters who voted at the August 2015 Elections.

On account of the dire consequences for Sri Lanka, it is my hope that international readers will urge the UN and especially the UNHRC to stop pushing for constitutional reform in this country, or to do so in a more informed and fair manner, commensurate with the real needs of the people, and the political realities of the country.

[1] A/HRC/32/CRP.4, Paragraph 2, 28 June 2016, www.ohchr.org

[2] For instance, in his report to the Council in March 2017, the High Commissioner said:  Unlike the limited progress made with regard to transitional justice, some visible progress has been made in the constitutional reform process commencing in March 2016….The High Commissioner is encouraged by the manner in which political dialogue has progressed, and understands that there is a focus on political settlement and devolution.”  A/HRC/34/20

[3] Preamble, Framework Resolution, The Secretariat of the Constitutional Assembly of Sri Lanka, www.constitutionalassembly.lk

[4] Paragraph 1, Framework Resolution

[5] United National party

[6] Sri Lanka freedom Party

[7] United Peoples Freedom Alliance

[8] Manifesto:  Maithri, New Democratic Front, www.president.gov.lk

[9] ‘Presidential Elections 2015 – Final Results’, www.news.lk

[10] Sirisena got 84% of the minority vote while Rajapaksa got 12.79% (‘2015 Sri Lanka Presidential Elections, Analysis of Voting Patterns’, www.argylex.com)

[11] ‘2015 Sri Lanka Presidential Elections, Analysis of Voting Patterns’, www.argylex.com

[12] See, ‘Sri Lanka Between Elections,’ International Crisis Group, Asia Report No. 272, 12 August 2015, www.crisisgroup.org

[13] See ‘Sri Lankan President Postpones Parliamentary Elections,’ K. Ratnayake, World Socialist Website, 29 May 2015, www.wsws.org ; also, ‘Heavy wait battle:  Sirisena wants to wait, but UNP cannot,’ Political Columns, 21 June 2015, The Sunday Times, www.sundaytimes.lk

[14] See ‘President battles with his own Party amid furor and turmoil,’ Political Columns, 19 July 2015, The Sunday Times, www.sundaytimes.lk ; also, ‘Outcome of tomorrow’s poll crucial for Lanka,’ Political Columns, 16 August 2015, The Sunday Times, www.sundaytimes.lk

[15] See ‘Another Jumbo Cabinet with National Govnt,’ Political Columns, 23 August 2015, The Sunday Times, www.sundaytimes.lk

[16] ‘Sri Lanka Parliamentary Elections 2015 Result:  What Direction Will Foreign Policy Take?’ Dr. M. Samatha, Indian Council on World Affairs, 1 September 2015, www.icwa.in

[17] See footnote 15

[18] The version of the manifesto I have relied on is the one posted on www.adaderana.com , titled, UPFA Manifesto, Long Version, 28th July 2015”

[19] Campaign for Free and Fair Elections

[20] ‘Waiting for Godot,’ The Island, Editorial, 4 January 2017

[21] ‘Legal action against those who delay delimitation report – CAFFE, 1st January 2017, www.lankaweb.com

[22] Interview of  Asoka Peiris, Delimitation Committee report, Daily Mirror, 4th January 2017)

 

[23] Article 82(5), Sri Lanka Constitution

[24] Fiduciary Duties and Trustees,” www.inbrief.co.uk

[25] See ‘1982 Referendum and July 1983,’ Rajan Hoole, 7th January 2017, www.colombotelegraph.com

[26] See ‘Sirimavo Bandaranaike,’ The Telegraph, 11th  October 2000, www.telegraph.co.uk

[27] For instance, the article by Rajan Hoole cited in footnote 25, if I’m not mistaken, takes this position.

[28] In this regard, it is pertinent to consider an editorial in The Island that discusses a recent attempt by the Government to set up a special tribunal to handle bribery and corruption cases (which cases would invariably involve political rivals).  The paper opines:  ‘One is reminded of how the late Prime Minister Sirimavo Bandaranaike was stripped of her civil rights and her parliamentary seat in the most despicable manner for seven years through a special Presidential Commission in 1980. …The Civil Rights Movement, in a hard-hitting statement on Dec. 10, 1980 said the course of action the JRJ government had resorted to had ‘inflicted a kind of second class justice for political offenders.’  Is the UNP-led government planning a repeat performance?’  Justice hurried, justice buried,’ The Island, 6 January 2017

[29] The principal reason for this is, Article 4(c) says that judicial power is to be exercised by Parliament though courts, tribunals etc.  Our courts have consistently interpreted this as conveying on Parliament a certain immunity from suit.  The following, from the ruling of the Supreme Court that overturned a judgment of the Court of Appeal with respect to the impeachment of Chief Justice Shirani Bandaranaike, is representative of the reasoning of the court on this matter:  ‘It is significant that the legislative, executive and judicial powers of the People is vested either with Parliament or the President, both elected by the People, so as to maintain accountability and transparency, and the courts and like tribunals and institutions which are not elected by the People, are accountable and responsible to the People through Parliament….In light of the constitutional arrangements contained in Article 4 and other provisions of our constitution, there is no room for doubt that Parliament including its select committees cannot be regarded as inferior to our Court of Appeal when it exercises its writ jurisdiction conferred by Article 140 of the constitution, and would therefore not be amendable to such jurisdiction.’  (SC/Appeal No. 67/2013, p.18)

[30] The UNF Government had a majority of 121 members in the 157 member House.  (See L. J. M. Cooray, Constitutional Government in Sri Lanka, 1796 – 1977 (Stamford Lake, 1984 and 2005, p. 155)

[31] The Sinhalas comprise roughly 75% of the population while the Tamils comprise roughly 15%.

[32] See L.J.M Cooray, Constitutional Government in Sri Lanka 1796 – 1977,  Stamford  lake, Colombo, 1984, pages 155 – 158

4 Responses to “The Ongoing Constitution-Making Process in Sri Lanka:  An Inquiry into its Legality”

  1. Christie Says:

    ඉන්දියානු අදිරදයේ කොලනියක් වන තිස් ලක්ශයකට වඩා වැඩි ඉන්දියානු කොලනිවාසීන් විසින් පාලනය කරන ඉන්දියානු යටත්විජිතයේ මුල් වැසියෝ එකිනෙකා කුලල් කාගනිති. ඇයි සින්හල අපි අපි කුලලල් කාගන්නේ කියා විපරම් කර බලාන්න. අපි බනින්නෙත් ගරහන්නෙත් සින්හලයන්ටය. මම කියන දේ ගැන සිතා බලන්න. ඔබේ අදහස් දක්වන්න.

    Ceylon the Indian Colony run by three million Indian colonists. They are doing well. We are fighting among ourselves like the oppressed in any society.

    Please think why do our leaders behave like that they do and why do we blame them one or the other. How come we are divided. Please think of what I am saying and respond.

  2. Dilrook Says:

    The fate of 20A clearly proves Sri Lanka is a federal or confederated country. The parliament is at the mercy of provincial councils! The parliament cannot change the constitution (in certain respects) without approval from each and every provincial council. This is far worse than a federal country. It is rather similar to a confederation. The same fate befell the “Divi Neguma” bill in 2012.

  3. Fran Diaz Says:

    Thank you for this article, Dharshan.

    —–

    Remove the illegal 13-A imposed on Sri Lanka by INDIA in 1987 on the JRJ govt.
    Remember how JRJ was intimidated to sign this 13-A in ?
    Deals done under Duress are ILLEGAL, are they not ?

    Now INDIA is trying hard to please Sri Lanka ! Time to tell them that Lanka wants the illegal 13-A OUT !
    An Amendment to that effect can be passed in Parliament.

  4. nilwala Says:

    Dharshan is correct in that the MPs who moved into the Unity Govt. did indeed “betray” the citizens who voted for them. Second, he is also correct in that for a suggested constitutional change to go to the Referendum level, it has to first go through Parliament and obtain a 2/3 majority.
    As Dharshan has suggested in his example, if “45% oppose” the change at the Referendum, it must follow that 55% approve the change. This would result in the Constitutional changes being passed.
    Dharshan argues very correctly, as have many others, that it is imperative that it is at the Parliamentary level that the Constitutional changes must be blocked, by NOT permitting a 2/3 majority.
    Clearly, a Referendum must be avoided at any cost since the Constitutional changes seem to aim for a federal or confederal arrangement.

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