Authority and the Procedure of amending the constitution
In our view Parliament should not be bypassed even with the consent of Parliament itself for the purpose of bringing in a new Constitution.
An improperly motivated act even if done through proper means will never give a wholesome result. Similarly, an act though claimed to be done with proper motives, if carried out by improper means would still give the same unwholesome result.
Thus the motive and the means to achieve the end both have to be proper when creating a new Constitution. Though one may argue that the motives are not visible and therefore have to be taken at face value, the means cannot be justified in that manner since they are specified in our Constitution for all to see.
The many friends this Country never had when there was an actual need (during the period this Country was held to ransom by Terrorists) cannot claim to have ” moral ” authority to preach to us that we aught to violate our own Constitutional provisions since they were the most vociferous in insisting that we strictly follow the Rule of Law.
In terms of our Constitution, which is the Supreme Law of this Country, “Parliament shall not abdicate or in any manner alienate its legislative power, and shall not set up any authority with legislative power. “Vide. Article 76.(exemptions are provided for with regard to public security and for subsidiary legislation which are not relevant for Constitutional making)
Legislative power includes adding , amending or repealing any provision of the Constitution. However, Parliament cannot suspend the operation of the Constitution. But it can bring a law to repeal the whole Constitution provided the same law enacts a new Constitution to replace it (Vide. Article 75.
The manner in which amendments (including additions and repealing) should be done is provided in Chapter XII of the Constitution. Due to its importance when following the ” Rule of Law” for the purpose of enacting a new Constitution the entire chapter is reproduced below.
Amendment of the Constitution
82. (1) No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution.
(2) No Bill for the repeal of the Constitution shall be placed on the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.
(3) If in the opinion of the Speaker, a Bill does not comply with the requirements of paragraph (1) or paragraph (2) of this Article, he shall direct that such Bill be not proceeded with unless it is amended so as to comply with those requirements.
(4) Notwithstanding anything in the preceding provisions of this Article, it shall be lawful for a Bill which complies with the requirements of paragraph (1) or paragraph (2) of this Article to be amended by Parliament provided that the Bill as so amended shall comply with those requirements.
(5) A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with the provisions of Article 80 or 79.
(6) No provision in any law shall, or shall be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.
(7) In this Chapter, “amendment” includes repeal, alteration and addition.
83. Notwithstanding anything to the contrary in the provisions of Article 82 –
(a) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 or of this Article; and
(b) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph (2) of Article 30 or of, paragraph (2) of Article 62 which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80.
84. (1) A Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, but which is inconsistent with any provision of the Constitution may be placed on the Order paper of Parliament without complying with the requirements of paragraph (1) or paragraph (2) of Article 82.
(2) Where the Cabinet of Ministers has certified that a Bill is intended to be passed by the special majority required by this Article or where the Supreme Court has determined that a Bill requires to be passed by such special majority, such Bill shall become law only if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and a certificate by the President or the Speaker, as the case may be, is endorsed thereon in accordance with the provisions of Article 80 or 79.
(3) Such a Bill when enacted into law shall not, and shall not be deemed to, amend, repeal or replace the Constitution or any provision thereof, and shall not be so interpreted or construed, and may thereafter be repealed by a majority of the votes of the Members present and voting.”
Unless the correct procedure is followed any amendment will be invalid.
From the above it can be seen that the only method of enacting a new Constitution without violating the “Rule of Law” would be by bringing a Bill containing the entire proposed ( new) Constitution. (Vide Article 82(2) above). In fact unless it is done in that manner it will not be considered valid Law (Vide. Article 82(6) above).
Sovereignty of people and the consequence of violation of the same
Any conspiracy to bypass Parliament in Constitutional making would also amount to an attempt to deprive the people of Sri Lanka of their Sovereignty.
The legislative power of bringing in a new Constitution is part of the Sovereignty of the people which shall only be exercised by Parliament(Vide. Article 4(a) of the Constitution)
Section 115 of our Penal Code states inter alia, ” whoever conspires to deprive the people of the Republic of Sri Lanka of their Sovereignty shall be punished with imprisonment of either description which may extend to twenty years…”
Thus it should be clear, to follow the Constitution when bringing in a new Constitution should not only be for the purpose of following the ” Rule of Law” but to give the new Constitution validity and for Parliamentarians to avoid being imprisoned by not being a part of any conspiracy to abdicate their legislative powers exercised on behalf of the people.
Since there is currently a discussion of replacing the entire Constitution, assuming that the calls for the implementation of the ” Rule of Law” by ” Civil Society Activists”, “International Community (that does not respect this Country’s Sovereignty)”and their fellow travelers in the recent past was a genuine call, it is hoped they would join hands with us when we call upon our legislators not to violate our Constitution.
Lack of trust on the Prime Minister who spearheads the proposed amendments
Unfortunately, the people of this Country would find it difficult to trust the incumbent Prime Minister on his genuineness and suitability to spearhead the amendment/new constitution given his past record.
The obvious example that comes to any body’s mind would be the infamous CFA which he signed violating the very same Constitution he voted for as a member of parliament in 1978.
In his previous term as Prime Minister in2002 bypassing the elected head of State, he signed this agreement with a terrorist organization headed by a convicted criminal compromising the sovereignty, defense, & security of the Country.This act in our view amounts to Treason.
Though subsequently with a change of Government terrorism was overcome and National security preserved, the cost was that much more due to the benefits derived by the terrorists and their supporters by the CFA.In fact much of our present day predicament is due to this unwarranted recognition given to a band of terrorists and their supporters.
Fate of previous new constitutions and amendments
Any procedure which seeks to bypass the established norms and procedure as per the Constitution for the purpose of creating a new constitution or amending it , without people feeling that they are part of it will result in opposition and continued criticism of the final product.
Even though the 1978 constitution may have been passed legally, the drastic changes in the structure of the Constitution were never debated among the people. The result is even those who were part of the making and approving process now criticize the very same and want to change it!
The 13th amendment was imposed on us in the background of the ill conceived Indo-Lanka accord notwithstanding the opposition of the majority in this country. To date the opposition to the 13th amendment continues and if a referendum is taken on this today one will see the true picture.
The same fate was experienced by the 18th amendment which was passed in the parliament legally but never tested for acceptance by the public.
Therefore if any more amendments/or a new constitution is made without the content being first put forward to the public for discussion with wide participation and inclusiveness of the people, another set of problems and a long drawn resistance would be the result.
The correct way of obtaining the peoples mandate
The correct way of bringing amendments and seeking the peoples mandate is stipulated in the Constitution. There should be an opportunity for people to take their concerns to the Supreme Court and debate them adequately.
The commission that went around may have collected ideas.However, even ideas of certain people who made written representations have not been produced by the commission as an appendix.Thus ideas not to the liking of the commissioners have obviously been left out.
Thus their report or new reports or suggestions that the commission may subsequently produce CANNOT BE CONSIDRED AS CONSENSUS OPINION OF THE PEOPLE OF THIS COUNTRY.
Unless each separate amendment is taken separately through the correct process through Parliament and tested at a referendum such will lack both moral and legal authority.
Therefore Citizens must express and continue to express our views in public and protest against any deviation in the process of making a new constitution/amendments or inclusion of any clauses which could harm the national interest.
Our Suggestions on concepts and the content of amendments or a new Constitution.
As to the content of any proposed amendment (provided it is done within the Law as aforesaid) we would insist that our legislators stick to at least the basic safeguards of the Unitary character of our State, Sovereignty not to be alienated from the Parliament and the President( or any future head of State in any other form) and the protection of our National culture by genuinely affording protection to our Buddhist way of life.
With the above basic safeguards in place, any amendment which enhances quality of life of our Citizens, while constantly protecting our National interest may be carried out.
Any amendment which seeks to achieve what the terrorists and their supporters sought to achieve through violence but failed , but is now being proposed by those who claimed that the LTTE were their sole representatives should not be considered.
This is based on the following moral and legal argument.
a) Successive Governments offered negotiated settlements of whatever grievances that were claimed to have existed.
b) These were all rejected by their sole representative the LTTE who wanted a “solution” by separation of the Country based on military strength.
c) This attempt by the LTTE was defeated militarily by the Democratically elected Government of this Country.
d) Those who sought a final “solution” in that manner have no moral or legal right to renegotiate after such a defeat. If a precedent from a source that is close to the heart of the present Government is required, the imposition of a Constitution by America on Japan after the 2nd World war may be cited.
e) The collaborators of the Natzi’s were not permitted to negotiate after the Natzi defeat.
We suggest that entrenched clauses be incorporated to the Constitution vis-a-vis the LTTE and their supporters that are similar to those which are still in place against the Natzis in Europe.
Professionals with National interest at heart should form a committee and draft an entire new Constitution based on the above basic principles and submit to all our legislators for their consideration in due course.
– Samantha Ratwatte