Chapter 13 | The Need for a New Constitution for Sri Lanka

Rohan Edrisinha

If Sri Lanka is to consolidate the democratic gains of 2015, it is vital that President Sirisena’s Sri Lanka Freedom Party (SLFP) and Prime Minister Wickremesinghe’s United National Party (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 do we need a new Constitution? 

The first two republican constitutions were partisan, were not supreme, and suffered from the same basic flaws: they were designed to promote the political vision and ideology of the party in power; they entrenched, rather than countered, majoritarianism; and they were designed with the convenience of the executive, rather than the empowerment of the People, as their  primary motivation or rationale.

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 consensus across the political and ethnic divide. Both constitutions concentrated power in a single institution (the National State Assembly under the 1972 Constitution and the office of the Executive President under the 1978 Constitution). 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 accountable governance.

The Criteria for Evaluating a Constitution

A constitution is meant to protect the people from those who exercise political power and empower the people vis-à-vis the rulers. Friedrich Hayek in his seminal work, The Constitution of Liberty, highlighted this fundamental objective as follows:

“The formula that all power derives from the people referred not so much to the recurrent election of representatives as to the fact that the people, organised as a constitution-making body, had the exclusive right to determine the powers of the representative legislature. The constitution was thus conceived as a protection of the people against all arbitrary action, on the part of the legislative as well as the other branches of government.”[1]

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 their 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 minorities.
  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 three objectives. In Sri Lanka the constitutional 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 significant 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’être 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 what John Stuart Mill called ‘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 the 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 majoritarian document.’

In recent years, the norm-setting aspect of a constitution – its values and principles – has been highlighted. The 1996 Constitution of South Africa, 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 responsiveness. 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. 

The Constitution must really be Supreme

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 constitutions. The 1978 Constitution contains three provisions that 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 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 1972 Constitution and continued under the present constitution. Article 84, believe it or not, instructs Parliament how it can introduce unconstitutional laws.

These three 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 three 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 Nineteenth 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 Nineteenth Amendment is worse than under the Seventeenth 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 process? 

Some Observations on Current Constitutional Issues

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.”[2]

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 multiparty 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.[3] 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. There needs to be a more nuanced understanding of the meaning of stability in the context of Sri Lanka’s political culture, for, as was seen since 1982, there is a fine line between a simplistic definition of stability and authoritarianism.

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 abandoned.

The Electoral System

There was a consensus at the elections in 1994 that Sri Lanka should opt for a genuinely mixed system (Mixed Member Proportional or MMP) similar to that practiced in Germany, New Zealand, and now Scotland. Such a system combines the best features of the simple plurality system (first-past-the-post) 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.[4]

The mixed system is also easy for the people to understand, easy to administer, can include mechanisms to ensure inclusion and women’s representation (an important consideration given that the Sri Lankan legislature has the lowest women’s representation in South Asia), and can be designed to prevent floor-crossing while ensuring that Members of Parliament also possess a degree of independence from their party leadership.

The Twentieth Amendment proposed but eventually aborted in 2015 was flawed in all these respects and should be completely discarded. It was incomprehensible even to lawyers, was designed to favour larger political parties to the disadvantage of smaller 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. 

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.[5] The following improvements must be made in designing the bill of rights of a Third Republican Constitution:

  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 violations 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 and 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 level. 

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.

Devolution of Power in a Unitary State

The devolution of power to the provinces under the Thirteenth Amendment to the Constitution is weak, fragile, and therefore can be undermined by the centre. Significant provisions of the amendment remain unimplemented nearly 30 years after its introduction, which again raises the question of whether our constitution is supreme. There is something fundamentally wrong with a constitution that enables the executive to disregard constitutional provisions it views as inconvenient, and which provides no remedy for the people to ensure constitutional compliance. The shortcomings of the Thirteenth Amendment have been experienced by Provincial Councils, Chief Ministers, and Boards of Ministers throughout the country.[6] 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 retained.

It is vital that following the defeat of the LTTE that 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 2015 elections, rejected Tamil hard-line nationalist parties and groups, and that a failure to respond adequately to reasonable demands for devolution and equality will ultimately 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 Thirteenth Amendment is the best way to generate trust and goodwill among the Sinhalese, Tamils, Muslims, and other communities in the country. Creating such inclusivity and national reconciliation through genuine power-sharing is the best guarantee against threats to the unity and territorial integrity of the country.

The most difficult challenge for the framers of the Third Republican Constitution is how to deal with the provision entrenched in the constitution that declares Sri Lanka to be a unitary state. Is it possible to grant enhanced and effective devolved power to the provinces within the framework of a unitary state? It is important to remember that when the Thirteenth Amendment was introduced in 1987, several petitioners challenged the Bill on the grounds that the devolution to Provincial Councils envisaged under the amendment violated the unitary character of the constitution. The Supreme Court in a 5-4 split decision held that it did not, with the majority referring to the various provisions in the amendment that effectively ensured the dominance of the centre over the provinces.[7] The minority held that the powers devolved to the provinces were sufficient to undermine the unitary principle. Given the divided opinion on the court, it is possible to argue that what was introduced under the Thirteenth Amendment amounted to ‘maximum devolution within a unitary state.’ How then does one strengthen devolution, introduce ‘Thirteenth Amendment Plus’ that has been the minimum demand of the Tamil political leadership as well as minority groups in general, since 1995, that was proposed by the All Party Representative Committee (APRC)[8] and supported at various times both by the Rajapaksa regime and the present one, within the confines of the unitary state?

There are three reasons why, in my view, the term ‘unitary’ should be removed from the Third Republican Constitution. They are: (1) Historical; (2) Conceptual; and (3) Jurisprudential.

  • Historical Reasons

The political context in which the unitary label was introduced in the First Republican Constitution cannot be ignored. The Federal Party which had since the early 1950s emerged as the main representative of the Tamil people had on two occasions negotiated with Prime Ministers of Ceylon and agreed to political arrangements that fell short of a federal model.[9] On both occasions, the Prime Ministers had to renege on their commitments due to pressure from within their own parties and from the main opposition political party at the time.  At the time of the 1970 general election, some individuals and groups had begun to question the moderate, democratic, and Gandhian approach of the leader of the Federal Party, S.J.V. Chelvanayakam, which had produced few results, and contested the Federal Party on a separatist platform. Chelvanayakam’s response was to call upon the Tamil people to reject separation while affirming his and the party’s commitment to a federal and united Ceylon. The Federal Party was swept to power and the separatist candidates fared so badly that they lost their deposits.[10]

When the United Front government established a Constituent Assembly to draft and adopt a new, autochthonous, republican constitution through a process that was extra-constitutional, the Federal Party agreed to support the process and participate in the assembly. However, then followed a decision that certainly with the benefit of hindsight, must be the most insensitive, short-sighted decision that had the most adverse long-term consequences for national reconciliation and unity in post independence Ceylon/Sri Lanka. The United Front government and its Minister of Constitutional Affairs, Colvin R. de Silva proposed in Basic Resolution No.2 that the new constitution should contain a clause that declared that ‘Sri Lanka is a unitary state.’ This was a move that was completely unnecessary as the Soulbury Constitution contained no such provision but was undoubtedly unitary in character.[11] Viewed in the context of the politics of the time and the general election result in particular, the initiative was both provocative and humiliating for the Federal Party. Several Federal Party leaders appealed to the Minister to withdraw the proposal, but given that the United Front government possessed a two-thirds majority in Parliament due to the distortions created by the simple plurality electoral system that existed at the time, Minister de Silva and his colleagues saw no reason to compromise. It should be noted also that the process leading to the adoption of the First Republican Constitution began the trend of governments in power drafting constitutions to enshrine and facilitate their political and ideological agendas and also to suit the convenience of the executive. However, for purposes of this chapter, it is clear that the introduction of the unitary label in the constitution was a particular affront to the moderate Tamil political leadership and the Tamil people who had overwhelmingly endorsed them at the recent elections. This historical context cannot be ignored.[12]

  • Conceptual Reasons

The term ‘unitary’ is traditionally defined as the habitual exercise of political power by one, central authority. Its Latin root unus – one – is significant. Power may be decentralised or devolved within a unitary constitution, but this is granted or given by the central authority and therefore can be taken back by that authority unilaterally (Note the root unus, again.) The power granted to the decentralised authority is therefore relatively insecure. As C.F. Strong has observed, “It does not mean the absence of subsidiary law making bodies, but it does mean that they exist and can be abolished at the discretion of the central authority.”[13]

Given the traditional definition of the term unitary outlined above, the question that arises is whether power that is secure, guaranteed, and effective can be devolved within the framework of a unitary state. The practice or implementation of the Thirteenth Amendment or maximum devolution within a unitary state supports the argument that devolution is vulnerable in such a context.[14]

  • Jurisprudential Reasons

The recent jurisprudence of the Si Lankan Supreme Court has provided a clear answer to the question posed above. The most unequivocal of its decisions is the case of Solaimuthu Rasu v Superintendent, Stafford Estate, Ragala (2013)[15] where all three judges of the court, Mohan Peiris CJ, Sripavan J, and Eva Wanasundera J, wrote separate concurring opinions, a rather uncommon practice in the Sri Lankan Supreme Court.[16] The case dealt with the interpretation of the provisions of the Thirteenth Amendment dealing with land, one of the contentious issues when the Thirteenth Amendment was negotiated and drafted with Indian facilitation. The Supreme Court had to decide whether the Court of Appeal had erred in holding that the Provincial High Court had jurisdiction to hear cases dealing with the dispossession or alienation of state lands. The Court held that the alienation of state land remained a central government responsibility. Peiris CJ used controversial and unconvincing approaches to interpretation to justify his position that the intention of the framers of the Thirteenth Amendment was to retain central control over state land. In In re the Thirteenth Amendment (1987) Wanasundera J cited a famous quotation from Lord Denning warning against a literal approach to interpretation and justifying filling in the gaps in the text to make sense of the enactment rather than “opening it up to destructive analysis,” and then made the startling observation that “as such” the Thirteenth Amendment should be interpreted to “never pave way (sic) to destruction of any sort.”  Both judges adopted questionable approaches to interpretation and the citation of authority to support their view that under the Thirteenth Amendment, institutions of the centre retained overriding control over the subject of land.

Both judges, however, buttressed these arguments by referring to the term ‘unitary’ and its traditional definition, which had been cited by Sharvananda CJ in the majority decision in the Thirteenth Amendment judgment. Peiris CJ referred in this context to the power structure and power relationships under the Thirteenth Amendment. He stated that the term unitary implied the dominance of the centre and the subsidiary nature of the provincial councils. Wanasundera J took the view that there could be no conflict between the centre and the provinces under a unitary constitution, as the centre would always prevail in such situations.

In many of the constitutional cases dealing with the Thirteenth Amendment in the first ten years after its adoption, the Supreme Court displayed some sensitivity to the concept of devolution of power and the text of the amendment to ensure that the Provincial Councils and their representatives possessed a reasonable degree of power and autonomy. There was hardly any reference to the term ‘unitary’ and references instead to the linkages between provincial institutions and democracy, accountability, and participatory democracy. In the past ten years, however, the Supreme Court has displayed a lack of empathy for such values and the attitude of the court in the Solaimuthu Rasu Case is a culmination of a process of increasing support for the political branches’ attempts to undermine the devolution of power to the provinces. While this may be part of a larger trend of the judiciary under pliant Chief Justices being willingly co-opted by the executive, the jurisprudence of the Court which follows the traditional conceptual understanding of the term ‘unitary’ supports the argument that there can be no effective devolution of power within the framework of a unitary state as traditionally defined.

This will therefore be the most difficult challenge faced by the Constitutional Assembly. The term unitary should never have been introduced into the constitution and must be removed in order to ensure ‘Thirteenth Amendment Plus’ or meaningful devolution of power. This however will only be possible if the opposition adopts a responsible approach to the constitution-making project, and allows a rational debate on the pros and cons of retaining the unitary label in the new constitution. There are problems relating to myths and misconceptions about the term, accentuated by issues of language and translation. Since the Sinhala terms for ‘united’ (eksath) and ‘unitary’ (ekeeya) are often used interchangeably, many Sinhalese believe that for a country to be united it has to be ‘ekeeya.’ If these issues can be discussed reasonably openly and an informed debate takes place on the limitations in the Thirteenth Amendment (led ideally by the Chief Ministers of all provinces and from all political backgrounds who have experienced the frustrations of trying to implement the amendment), and on the meaning of the term unitary and why deleting it from the constitution does not necessarily have any implications for the unity and territorial integrity of the country and indeed could promote unity by facilitating a durable political and constitutional settlement, then there is a chance that the Third Republican constitution will lay the foundation for a new social contract that promotes equality, dignity, and responsive governance.

How should a new Constitution be adopted? Challenges of Process

The resolution requiring Parliament to sit as a Constitutional Assembly to deliberate on the new constitution was finally adopted unanimously after a long delay.[17] The delay was unnecessary and was caused by the opposition trying to insert into a resolution that was essentially about process, matters relating to substance. Another strange feature of the debate on the resolution was that several opposition leaders who took the lead in criticising the 1978 Constitution at the time of its adoption and subsequently, became the main opponents of the process to adopt a ‘new’ constitution.[18]

From the outset, the government made it absolutely clear that it intended to follow the procedure for constitutional reform spelled out in the existing constitution (Articles 82 and 83). Parliament would have to pass the new constitution with a two-thirds majority vote and thereafter the constitution would 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 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. In some countries which have been mindful of the need for a broader and more inclusive approach to constitution-making such as South Africa and Nepal, special measures, such as the election of an inclusive Constituent Assembly to draft and adopt a new constitution, were adopted to ensure that the sui generis character of constitution-making was recognised. A Constituent Assembly has constitutive powers to draft and adopt a new constitution. Such an option was not available in Sri Lanka as there was no mandate sought 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. One can only hope that they recognise the special responsibilities involved in constitution-making as opposed to their normal legislative functions.

The draft resolution therefore outlined a process that sought to provide for effective public engagement in the constitution-making process, ensure that Members of Parliament recognised their special responsibility when participating in the constitution-making process, while also following the amendment and repeal procedures in the existing constitution. It provided that Parliament 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 fact that the deliberations of the Constitutional Assembly will be recorded in Hansard and therefore made available to the public will help to overcome a basic flaw in the 1995-2000 constitution-making process where the deliberations of the Select Committee of Parliament were shielded from public scrutiny.[19]

The Constitutional Assembly will then present the draft constitution to Parliament so that Parliament can adopt the constitution 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. In the circumstances, the process proposed in the resolution was fair.

The argument made by some opposition leaders and commentators that the basic features doctrine developed by the Indian Supreme Court to protect core constitutional values and principles is applicable in Sri Lanka is ludicrous. The Indian constitution was adopted after an inclusive and democratic process of constitution-making by a Constituent Assembly soon after independence. The Indian constitution was not a partisan document designed to serve the party in power at the time. It stands above party politics, is supreme, and remains broadly a consensus document. It was in such a context that the Indian Supreme Court developed the basic structure doctrine to protect the people and their constitution from their politicians. Applying the basic structure doctrine to a partisan, fundamentally flawed constitution that reflected the interests of J.R. Jayewardene’s United National Party, would be utterly inappropriate and demonstrates a lack of appreciation of the fundamental rationale for the doctrine on the part of its Sri Lankan proponents.

It is also vital that the lessons of the Nineteenth Amendment be learned. The manner in which the amendment was finally adopted was unacceptable. The final version that was passed was very different from what was initially proposed to the public. Various backroom deals were negotiated by politicians in Parliament without public engagement and participation. It was not surprising therefore that the provisions relating to the composition, powers, and functions of the Constitutional Council, or the provisions relating to a ‘national government,’ reflected the interests of the politicians rather than the people. One can only hope that the procedure adopted by the resolution will prevent such a process from being repeated and ensure a culture of justification and accountability on the part of the members of the Constitutional Assembly and Parliament.

Conclusion

A new constitution that is compatible with first principles of constitutionalism and which includes the values, principles, and substantive features outlined above can only be adopted if the President, the Prime Minister, and the Leader of the Opposition work together, and also harness the support of other sections of the opposition, minority parties, and the Janatha Vimukthi Peramuna (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 commenced in 2015 and will continue 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, supreme law that protects and empowers its people: a constitution drafted by ‘reason and choice’ rather than ‘accident and force.’[20]

[1] F.A. Hayek, (1972) The Constitution of Liberty (Chicago: Chicago University Press): p.178.

[2] Dudley Senanayake and Colvin R. de Silva were the two most persuasive critics of the presidential system when it was discussed in the early 1970s in Ceylon. See also for academic critiques essays by Amaratunga and Chandra R. de Silva in C. Amaratunga (1989) Ideas for Constitutional Reform (Colombo: Council for Liberal Democracy).

[3] C.R. de Silva, ‘The Overnighty Executive? A Liberal Viewpoint’ in Amaratunga (1989): pp.313-326; C.R. de Silva, ‘The Overmighty Executive Reconsidered’ in A. Welikala (Ed.) (2015) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects, Vols. 1 & 2 (Colombo: Centre for Policy Alternatives): Ch.26.

[4] See R. Edrisinha & A. Welikala (Eds.) (2008) The Electoral Reform Debate in Sri Lanka (Colombo: Centre for Policy Alternatives).

[5] See Centre for Policy Alternatives (2008) GSP+ and Sri Lanka: Economic, Labour, and Human Rights Issues (Colombo: Centre for Policy Alternatives).

[6] See R. Edrisinha & A. Welikala (Eds.) (2008) Essays on Federalism in Sri Lanka (Colombo: Centre for Policy Alternatives).

[7] See In Re the Thirteenth Amendment to the Constitution (1987) 2 SLR 312.

[8] Rohan Edrisinha, Mario Gomez, V.T. Thamilmaran & Asanga Welikala (Eds.) (2009) Power Sharing in Sri Lanka: Political and Constitutional Documents 1926 – 2008 (Colombo & Berlin: Centre for Policy Alternatives): Ch.37.

[9] Ibid: Chs.9, 10.

[10] A.J. Wilson (1988) The Break-Up of Sri Lanka: The Sinhalese-Tamil Conflict (London: Hurst): Ch.5.

[11] N. Jayawickrama, ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in A. Welikala (Ed.) (2012) The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Colombo: Centre for Policy Alternatives): Ch.1.

[12] See Edrisinha et al (2008) for more information on the history of the conflict in Ceylon/Sri Lanka and attempts to resolve the conflict through political and constitutional means.

[13] C.F. Strong (1963) A History of Modern Political Constitutions (New York: Puttnam’s).

[14] Cf. N. Walker, ‘Beyond the Unitary Conception of the United Kingdom Constitution’ in Welikala (2012): Ch.11; A. Welikala, ‘The Sri Lankan Conception of the Unitary State: Theory, Practice and History’ in A. Amarasingham & D. Bass (Eds.) (2016) Sri Lanka: The Struggle for Peace in the Aftermath of War (London: Hurst).

[15] S.C. Appeal 21/2013, Supreme Court Minutes 26th September 2013. Judgment of Peiris CJ available at: https://www.colombotelegraph.com/wp-content/uploads/2013/09/Supreme-Court-29-09.pdf.  Judgment of Sripavan J available at: http://www.supremecourt.lk/images/documents/sc_appeal_21_13sc.pdf. Judgment of Wanasundera J available at: http://www.supremecourt.lk/images/documents/sc_appeal_21_13w.pdf (all last accessed 21st March 2016).

[16] The difference in approach and emphasis among the three opinions is striking and revealing.

[17] Resolution of Parliament, 9th March 2015, available at: http://www.parliament.lk/en/news-en/view/1160 (last accessed 14th March 2015)

[18] Dinesh Gunewardena and Vasudeva Nanayakkara are 2 MPs who were leading and persuasive critics of the Second Republican Constitution of 1978 who were part of the Opposition group that were reluctant to support a resolution calling for the adoption of a new Constitution.

[19] Draft Resolution, Prime Minister’ s Office, available at: http://www.pmoffice.gov.lk/download/Constitutional%20Reform%20-%20Resolution%20E%2020151117.pdf (last accessed 21st March 2016).

[20] A. Hamilton, Federalist No.1 in C. Rossiter & C.R. Kesler (Eds.) (1999) The Federalist Papers (New York: Mentor).

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