And a possible remedy for it from the U.S. Constitution
The objection on principle, basically, is that given the gravity of some of the proposed changes for instance, removal of term-limits for the President, why rush? Why not go through the normal procedure set out for enacting Constitutional amendments, a procedure that allows for at least three weeks for Supreme Court review. In fact, the Bar Association of Sri Lanka had raised a similar argument, and had written to the government, both when the very idea of using the “Urgent Bill” provision to move a Constitutional amendment was first mooted, and also on the very day of the Parliamentary debate. Mr. Sumanthiran quotes from the letter:
The Bar Association of Sri Lanka is perturbed by the move of the Government to introduce the 18th Amendment to the Constitution as an “Urgent Bill”….As the professional body representing all lawyers of this country, we strongly urge the Government not to move this proposed Bill without a further public discussion and debate on such an important matter.[21]
No doubt, Mr. Sumanthiran, the BASL, and everyone who was relying on “principle” had a very good point. The reply, however if one were to argue from the Government’s point of view, is that, technically, there’s nothing prohibiting the use of the “Urgent Bills” provision to enact Constitutional amendments. In other words, nowhere in that provision, or anywhere else in the Constitution, does it say explicitly or expressly that the “Urgent Bills” provision does not apply to Constitutional amendments. So, technically, the Government is perfectly within its rights to resort to the tactic. And that’s the end of the matter.
The second objection is related to the first, and involves the substantive question as to what exactly is “urgent” about this particular Bill. Article 122(1)—i.e., the “Urgent Bills” provision—says, in essence, that it may be resorted to, “In the case of a Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest, and bearing an endorsement to that effect under the hand of the Secretary to the Cabinet.”[22] So, Mr. Sumanthiran asks:
The issue with regard to the removal of the term limits of the President will not be faced by this country at least for another four years and two months. How then can this Bill be “urgent in the national interest” to warrant such indecent haste?[23]
He also points out that the Cabinet in this instance may not even have been given the final version of the proposed Bill, because there is a discrepancy between the version given to the Cabinet, and the one submitted to the Supreme Court. A reference to a “Constitutional Council” in the former had turned into “Parliamentary Council” in the latter.
The gist of the objection is that the people who were supposed to consider the Bill on its merits and determine that it was indeed “urgent in the national interest” did not do their job properly. The principle here is actually a very interesting and important one in Administrative Law as well as in cases dealing with Fundamental Rights: namely, that where a person in authority has been given the power to make a decision, and he makes it, it has to be reasonable and proper not just “in his view,” or “to his satisfaction,” but must also conform to general standards of reasonableness and propriety. In other words, we ought to be able to evaluate the decision by standards independent of the subjective or personal perspectives of the person making it.
To digress a moment, one of the leading Sri Lankan “Fundamental Rights” cases in regard to this matter is Sunil Kumara Rodrigo v. Secretary, Ministry of Defense.[24] There, the court ruled that the Secretary of Defense acted ultra vires in ordering the arrest of two persons on suspicion of conspiring to assassinate the President. The court reasoned that the relevant provision in the law imposed an obligation on the Secretary to make the decision as to arrest not on his subjective belief or impression of the threat posed by the individuals in question, but on criteria that could be judged reasonable and appropriate generally, and independently. In short, if the suspects posed a threat, it really had to be a threat: it couldn’t be something that was a threat only in the Secretary’s “view,” or one just because he says so.
To return, the crucial question is whether the above type of principle applies in the present case. For instance, in this case there is no specific individual whose rights have been violated, and who is now turning to the courts for redress and remedy, which is one of the prerequisites for invoking Fundamental Rights jurisdiction. Article 122(1) indicates very clearly that only two things are necessary to activate the “Urgent Bills” mechanism: one, the proposed Bill has to be urgent in the national interest, “in the view of the Cabinet of Ministers,” and two, it has to also bear an endorsement to that effect “under the hand of the Secretary to the Cabinet.” Nowhere does it say that the “view” of the Cabinet has to be correct, i.e., that it should pass muster in terms of independent criteria of reasonableness or propriety. In fact, nowhere does it say that the Cabinet ought to even read the Bill. For instance, the Cabinet could be of the “view” that the Bill is “urgent in the national interest” simply because the President says so. And this would be perfectly consistent with the provision.
If we look at the matter from the Government’s point of view, then, there’s absolutely nothing in the Constitution that says that to resort to the “Urgent Bills” provision, the Cabinet has to be convinced that the issue in question is genuinely urgent in the national interest: technically speaking, all that is required is the endorsement under the hand of the Secretary. Thus, again, technically speaking, the Government is perfectly within its rights to use the provision.
Mr. Sumanthiran’s final objection is technical, and has to do with two of the clauses in the Amendment that involve the Provincial Public Service Commission and the Provincial Police Commission, which, according to him, entail a clash with Articles 154 G (2) and (3). He says that the case law is clear on the matter, and cites two rulings: Water Services Reform Bill (2003) and Local Authorities (special provisions) Bill (2010). In both these cases, court had ruled that since the Bills in question involved matters set out in the Provincial Council List, the proposed amendments could not be placed in the order paper of Parliament without first being referred to each of the Provincial Councils. Mr. Sumanthiran’s general point, then, is that in the extremely short time the Supreme Court had to review the matter, the above two cases and their ramifications had somehow slipped past the court’s attention. He then makes the following interesting comment:
I am now aware that the Supreme Court in this urgent and hurried determination has held that such a procedure was not necessary, forgetting that it has previously determined otherwise. Those were not urgent bills and the Supreme Court had a little more time to consider the law at that time. This principle is known as per incuriam, which means that the court had ruled in forgetfulness of a relevant provision of law or precedent. Such rulings are set aside later as a matter of course when court becomes aware of its mistake. This Bill therefore is in danger of being later ruled as not having become law. I am only referring to a well-established rule of law called the per incuriam rule. I am not being disrespectful to the judges of the Supreme Court.[25]
Let us, for the sake of argument, say that Mr. Sumanthiran may indeed have a point with regard to the relevance of The Water Services Reform Bill and The Local Authorities (Special Provisions) Bill. What would that mean in terms of the 18th Amendment as matters stand now? Unfortunately, nothing. The per incuriam rule cannot come into play in this case—for the simple reason that there is a categorical restriction placed by Article 80(3) of the Constitution. Recall, Article 80(3) says, among other things, that once a Bill is passed into law, “no court or tribunal shall inquire into, pronounce or in any manner call in question the validity of such Act on any ground whatsoever.” So, the government can simply point out the above, and it is “checkmate” as far as any critics are concerned.
That brings to a close, more or less, the general arguments against the Amendment. I next turn to the Supreme Court hearing. I shall confine myself only to the clauses concerning the repeal of Presidential term limits, and also the Constitutional Council, since these were the most serious of the proposed changes under the Bill.
With respect to the clause to repeal Presidential term-limits, the petitioners’ argument was that it interfered with, or undermined, Article 4(e) of the Constitution, i.e. the Franchise of the People. The argument was that if the President were given unlimited terms of office, it would somehow reduce the opportunity that voters had to choose other candidates to that high office, and therefore constitute a restriction of their franchise. By extension, it would also violate Article 3 of the Constitution, which says that “sovereignty” is in the People, and is inalienable. It is generally conceded that Articles 3 and 4 have to be read together. Therefore, as per the dictates of Article 83, where Article 3 is threatened, the proposed Amendment has to be put to a referendum of the People.
The court replies to this as follows:
It is to be noted that the aforesaid Article 4(e) of the Constitution refers to the Franchise of the People and the Amendment to Article 31(2) of the Constitution by no means restricts the said franchise. In fact, in a sense, the Amendment would enhance the franchise of the People granted to them in terms of Article 4(e) of the Constitution, since the voters would be given a wide chance of candidates including a President who had been elected twice by them. It is not disputed that the President is directly elected by the People for a fixed tenure of office. The Constitutional requirement of the election of their President by the People of the Republic strengthens the franchise given to them under Article 4 of the Constitution.[26]
There is no question that the court is perfectly right. Allowing a sitting President to contest an election beyond a second term of office does, in fact, increase the possibilities or options the voters have to pick a President—i.e., the available pool of candidates is always increased by one. No doubt the petitioners were relying on certain ancillary or presumptive arguments—for instance, in practical terms, allowing a sitting President to contest elections indefinitely means that he or she can then bring to bear on those elections the entire weight of the organization, party apparatus and political machinery at his or her disposal, and which, it is reasonable to suppose, would put the other candidates at a certain disadvantage. In other words, letting a President contest elections indefinitely means that, in practical terms, the voters’ choice is reduced.
It was Yankee Dickey’s constitution that initiated this vicious cycle of undemocratic action by government after government. Again it was the British who issued these worthless papers to all of their colonies. It was them who called these papers constitution. Historically there has been no need for this island not rely on these worthless papers. The absolute monarchy governed according to Dasa Raja Dharma. This is also the period when there was no Magna Carta!
Well said, a dictatorial kingdom with fraudulent nepotism is getting created in sri lanka, while the masses are silent and celebrating triumphalism
Changes to the constitution of Sri Lanka are made to suit individuals and not necessarily the country. On 11 December 1969 the Privy Council ruled in favour of Kodeeswaran in the case of Kodeeswaran vs Attorney General. The Privy Council directed the Supreme Court to address the constitutional question of whether the Official Language Act of 1956 which made Sinhala the official language was in violation of Section 29 of the constitution, which prohibits discrimination. Dr Colvin R de Silva changed the constitution so that there will be “no more Kodeeswaran type challenges”. Can go on and on but a recent change needs mention. Till recently the constitutional requirement of two term limitation on the Office of President was removed. Why? Political interference with the judiciary is rampant. International Bar Association’s Human Rights Institute has raised concerns on this matter several times. Are the Police, armed forces, the Reserve Bank independent? The constitution will remain flawed if the rulers constantly transgress. Dharshan, have you read the Audrey Erskine Lindop’s book “The singer and not the song”?. Why did you waste so many words to intellectualize the weakness in the Lanka constitution?
Actually, you are wrong with regard to your comments about Kodeeswaran v. Attorney General. This case is famous because it highlighted a conflict between the Roman-Dutch Law and English Law in Sri Lanka. Kodeeswaran sued the Government for arrears in pay, and the Sri Lankan Supreme Court dismissed the action, saying that under English law a civil servant had no right to remuneration that could be enforced against the State. Kodeeswaran appealed to the Privy Council, claiming that Roman-Dutch law governed the issue, and that under R-D Law, an action against the State for arrears in pay was allowed. The Privy Council said that neither English Law nor R-D Law allowed for the type of action Kedeeswaran was bringing, but that the Sri Lankan courts, over the years, had recognized such an action. In other words, what the Privy Council said was that the Sri Lankan courts had developed, through interpretation, a body of laws, and that this was what constituted the “common law” of Sri Lanka. The Privy Council therefore held for Kodeeswaran.
The issue with regard to language policy was a secondary issue in this case, and the Privy Council emphatically refused to comment on it. Here’s what the Privy Council actually said: “There are more important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships would think it inappropriate to enter into any of these matters without the considered opinion of the Supreme Court of Ceylon thereon.” (Kodeeswaran v. Attorney General (1969) 72 NLR 337, pp. 347)
What any of this has to do with the thesis I have argued in this paper—which has to do with the “fatal flaw” in the present Sri Lanka Constitution (i.e., the 1978 Constitution) and how, in my view, a proper application of the American notion of separation of powers is the only way to remedy that flaw—I really don’t know. But since you appear to be a history buff, and have thought fit to mention Kodeeswaran, I thought I’d just point out the above. It might be a more productive use of your time for you to brush up on your own knowledge of Sri Lanka history and related matters, instead of worrying about how I, or anyone else, choose to “waste” our time.
A typical writing of a true Sri Lankan. Blame the west blame the US blame everybody for all wrong doings of Sri Lankan. The problem in Sri Lanka is not constitution law or agreements etc. It is the culture of showing no respect to law and order human values human rights and any thing that is human. You can rewrite the constitution a thousand times as you have done so many times, but as long as you dont have the basic human culture and nature to abide by the constitution and law and order nothing will work.
All the constitutions and acts that has been in existence is Sri Lanka is sufficient enough to safeguard all the thousands of life that has been lost and thousands who are in jails without any charges for many years. What is the point in changing or lecturing about constitution. It is an attempt to mislead the world by buying time.
This paper is written by a Sinhalese (which are the ethnic group in conflict with Tamils). The writers opinion resonates similarly to many nationalist Sinhalese living in Sri Lanka.
A neutral stand would have taken into consideration that Tamils lived in the north and east separate from the culturally/ethnically/religiously differing Sinhalese community since before the British colonialism took place.
In fact the north and east of Sri Lanka was majority Tamils. Since Sri Lanka’s independence which resulted in unification of Sri Lanka, Tamils became minorities in their own land. Any sort of majority based rule democracy would never let Tamils express their way of living their life because they will always be outvoted by the majority Sinhalese.
Thus the unitary constitution of Sri Lanka fails due to the fact that Tamils having been a nation with a distinct culture, language, economy and territory, cannot express their democratic voice in Sri Lanka’s faulty system.
In fact, there has been documentation of various anti-Tamil laws that couldn’t be over turned because of this majority system such as the Sinhala only act, University standardization act which kept fewer Tamils into Universities, etc.
As well, many genocidal acts against Tamils have occurred by the Sri Lankan army which is almost exclusively Sinhalese. THese include the 1980’s anti-Tamil riots as well as the 2009 Mullivyaikal genocide in which atleast 40,000 to 140,000 Tamils were massacred by the military.
In such a situation, Sri Lanka’s unitary constitution would fail no matter how much its amended because Tamils will be treated unequally.
I would like to correct the author on a point in which they say that, ” Sri Lanka is today embarked on a great project of reconciliation and “mending of fences,” particularly with its Tamil community, after three decades of civil war. ” THIS point is totally inaccurate. Whats happening now, as Washington Post has articulated clearly, is the building of SInhala buddhist statues in areas where TAmils live and no SInhalese live. WHats also happening is a systematic colonization of Tamil lands with SInhalese settlers using the Sri Lankan army. This is the reality. And the reality is that Tamils in Sri Lanka protest against this tyranny despite the huge military instalments and Sinhala soldiers in areas of Tamil majority population. Some say this is done to make Tamils a minority within their own traditional homeland.
Regards,
Natasha Simmons
University of Waterloo
You obviously write with conviction and sincerity, and I have to respect that. But there are so many mistakes in your argument that I really don’t know where to start. I can’t spend too much time on this, but let’s take just one example. Take your passage: “In fact, there has been documentation of various anti-Tamil laws that couldn’t be overturned because of this majority system such as the Sinhala Only Act, University Standardization act which kept fewer Tamils into Universities, etc.” Let’s say, for a moment, that those “acts” were “anti-Tamil.” So, your argument is that they never could be overturned because the Sinhalese majority would always veto such attempts. Right? Okay, what happened to these “acts?”
Sinhala Only Act (1956): Completely abolished by 1978. Tamil was made a “National Language” in 1978 and given parity of status with Sinhalese as an Official Language in 1987.
Standardization (1974): Scrapped in 1978, four years after its introduction.
We can go down the list if you want, but you’ve mentioned only these two.
In a similar manner, almost all the statements you make in your other paragraphs contain serious errors. All I can say is, since you’re already in a university, please do some research and better inform yourself.
In any event, this paper is not about the Tamils and the Sinhalese. I am trying to raise certain large issues in Constitutional Law, and how Sri Lankans, in my view, can learn certain things from the Americans. Now, whether that is the case or not, and why not, is open to debate. I am hoping that at some point, some of the people making comments, including of course you, will address those larger issues.
Sorry to nudge in. Any citizens ought to be able to look up to the government of the day to do no wrong which affect their basic rights at any time.In the “Kodeeswaran” case one has to sart with the judgement issued by judge O.L.De Kretzer in the Distict courts which held with his contention that he is entitled to his annual increments as he was an “old entrant”, meaning he joined prior to the Sinhala only Act of 1956. Treasury Circulars issued therafter regularised that decision.
Some of the Acts may have been rectified in part on paper only. The Constitution of 1978 may have regualarised what was alredy in the 1976 constitution about 3 languages -English, Sinhala and Tamil- but only after much human blood was spilt in between! Even then Tamil as a language of administration between the government and the people is still dead! It is one thing to put provisions into constitutions and quite another at implementation! It is not serious, in other words. Governments are not supposed to cheat! In other words, when, oh when, will there be serious good governance?!
Sri Lankan constitution was to give absolute powers to the president (has always been and will be a Sinhalese) marginalise the ethnic-minorities to the extent of destroying their cultural and linguistic identities without being challenged in courts. The president also has powers, which no UK or US practises to dissolve the local bodies including Provincial Councils or Chief Ministers at any time without being challenged.
Dharshan, is Zimbabwe facing a problem with the constitution or is it Mugabe? In early forties, was the constitution of Germany the problem? “It is the singer and not the song”. The title of your article implies that if the flaws in SL constitution are fixed, then Lankans will live happily ever after. We can fix the flaws till the cows come home but SL will remain in the critical group of the Failed States Index. Does this worry you? Do the IBAHRI reports on SL worry you? Did the assassination of two JVPers in Hambantota worry you? My quote on Kodeeswaran vs Attorney General was taken from Privy Council judgement. I was present at a meeting when Colvin R de Silva (after modifying the SL constitution) said “No more Kodeeswaran challenge”. By the way a renowned SL Librarian once said that one must search in the book section for information on the constitution of most countries but for SL look in the periodical section.
The article is a commendable one. It analyses in great detail the flaws in the SL constitution. It reminds readers of the facts that there r more than 1 community living in the island & the fact that all the major religions r practiced.It refers to the American constitution & points out the separation of powers between the 3 arms of the Govt.
In my reactions in the past on SL’s political matters I have been refering to the comendable separation of powers in the USA constitution and the way India is keeping together its over 1.21 billion people w/out serious political problems in its 28 states without the centre infringing on the powers of the many states & the freedom of the people on Language & religion tho they made HINDI as the official language & religion Secular.
Ours is a small island of 20m people. The Sinhala speaking majority & the Tamil speaking TAMILS & Muslims. All major religions r practiced & there is ehnic harmony. But the Singala political leaders want to make SL a Budhist & Singala speaking State. In fact it gives pride of place to Singala & Budhism in its const.
Constitutions of the many countries in the world are secular. National flags r also neutral unlike the SL flag which shows a ferocios lion with a sword pointing at 2 stripes said to refer to the minority Tamils & Muslims in a threatening manner-Senator Nadesan refered to it as the work of uncivilised people.
What more can one say of this FLAWED const?
To start with I am not a lawyer, still less a constitutional lawyer. Yet I enjoyed reading your paper becasue I know pretty well the political, social and economic situatiuon of the differnt peoples that have inhabited the country for generations. Any meaningful constitution as you rightly emphasise should give intent of law and in fact for ALL the citizens of the country to be justly governed and be treated equal before the law. This has clearly not been the case due to dismal failure of governance and equally failure of the law enforcing agencies to implement the law deu to supreme political.To sidetrack the real issues and get into the type of constitution or its finer details will be purely esoteric and bound to not bear the fruits of all the labour expended in making the case.
In other words, what is suggested is also a serious and critical analyses of past constitutions, not just from 1978, which incidentally has created far more confusion and real chaos, but from 1948 at the dawn of independence of the first constitution, onwards to the endless gerrymandring with constitutions resulting in social upheavals and even mass crimes against innocent civilians of all communities.
What does all this say for the constitution makers? Pitifully not much. The grim reality is that many politicians themselves who make constitutions in SL are not educated enough either in constitution making or in the political sciences or have their own agendas that the sort of refined constitutions of the British or American models do not fit the local realm in reality. Even if it is difficult to envision voter education on constitution making at least the elected ought to be prepared for the important tasks through familiarisation and discussion processes.
Frankly I agree with your view that a new constitution is a real need based importantly on the bitter experiences and sufferings of the peoples of all races and religions ansd which must be brought to bear in any emergent background new constitution making.
In my view the first constitution of 1948 was a consensual one while the one of 1972 was the most divisive and paved the way for the dictatorial Presidential type cosntitution which according to teh founder, the late JR Jayewardene, can even “make a man out of a woman and woman out of man” (his own words)! Is this what the peoples
need? It is no wonder an elected PM was sacked in 2005 by then Presdient by a gazette notification issued overnight without any reason being advanced! That single incident advanced the zany nature of that constituion in that the PM holds office at the will and pleasure of the President alone! The creation of the 18th Amendment sounds similar in paving the way for a dictatorship like in Libya, Iraq and Egypt. No wonder there are calls for an Arab Spring!
The so-called unitary constitution is not suited to the social and economic needs of the country nor its constituent peoples, be it the Sinhala people of the South, nor Of the Kandyan hills nor the Tamil/Sinhala speaking peoples of the north and east. The Sinhala Only Act had brought about a remarkable identity crisis and ensuing social tensions but it is the order of the day. Along with this is the recognition for enhancng local development which calls for a highly decentralised political set up much like in the USA but on a smaller scale, of course, where the real drivers will be locally elected Provincial Administrations accountable to their voters.
If the US had the British form of a parliamentary system then President Obama would have lost his position when his party lost during the last mid term elections.
the US constitution has been shredded by this administration:
-amendment 4: the right to privacy has been made into a joke by the US NSA spy network.
-Amendment 10 which clearly states the limitations of the Central government is now obsolete as the powers of Washington have greatly increased.
-In the body of the Constitution an accused has the right to face his accuser. that is now a joke as machines routinely issue traffic tickets to cars. The driver has no choice in the matter and cannot contest it in court. He certainly cannot face his accuser.
-In the body of the Constitution and essential to the US government is the “checks and balances” brought up in this article. President Obama has Gone.. out…his… way to violate this. He has used the Executive office to veto bills supported by the house and senate. threatens to do so for the remaining 2 years and above all used “Executive Orders” to pass laws that are well beyond the limits of that office and more in the manner of a Dictator. I do not use that term lightly.
-President Obama has gone on a crusade to render Amendment 2 of the Constitution null and void. the right for Americans to bear arms.
Outside of these Constitutional violations President Obama has
-compromised on the integrity of the nation with his ‘open borders policy’ allowing millions of illegal immigrants enter the US and by his “Dream act” to give citizenship to millions of other illegal immigrants already in the US.
-It is inherent in the US form of governance for the President to the Congress to pass laws that DO NOT EFFECT THEM but effect those who elected them. Obama care is a health care horror that we have to bear.
– President Obama and his administration makes speeches about “global warming” and passes bills to raise our utility bills. including encouraging the US citizen to “conserve” while he is accompanied by a 45 car limousine. That also includes the first lady. they do not abide by the laws or dictates they intend the electorate to follow. Then what is the difference between the US form of Democracy and a Monarchy?