And a possible remedy for it from the U.S. Constitution
The “normal” procedure to amend the Constitution takes full cognizance of the above situation, and, in fact, addresses it. Article 82(1) explicitly says that any Bill intended to amend the Constitution has to expressly specify this function in its long title—i.e. that it is “An Act for the Amendment of the Constitution.”[30] In other words, the first step when attempting to amend the Constitution is to designate with absolute clarity the purpose of the Bill in question. Once this is done, there is no question of looking for any “inconsistencies” with other provisions of the Constitution other than those specified under Article 83, to which we will turn in a moment.
Meanwhile, Article 82(5) says, “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 favor thereof amounts to not less than two-thirds of the whole number of members (including those not present).”[31] In other words, the obvious inconsistency between the proposed Amendment and its “twin” already existing in the Constitution doesn’t matter: if two-thirds of members of Parliament support the new Amendment, it passes into law.
Article 82(6) then says: “No provision in any law shall, or be deemed to, amend, repeal or replace the Constitution or any provision thereof, or to be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.” We shall consider the full relevance of this provision in a moment, but first let’s turn to Article 83.
Article 83 is crucial, because it is the only occasion where “inconsistencies” become relevant—namely, where the proposed Amendment clashes with Articles 1,2,3,6,7,8,9,10, and 83 itself, or, with Articles 30(2) and 62(2). In these cases, the Amendment in question becomes law “If the number of votes cast in favour thereof amounts to not less than two-thirds of the 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.”[32] In other words, on those occasions where there are clashes between the proposed Amendment and the Articles listed under Article 83, two basic things are needed for the Amendment to pass: a two-thirds majority in Parliament, plus approval by the People at a Referendum.
The question then is, “What happens when a Constitutional Amendment is filed as an “Urgent Bill”? In that case, the provisions set out in Article 82 and its subsections, i.e. the “normal” procedure to enact Constitutional Amendments, no longer apply. That means the court, when reviewing whether the proposed Amendment has inconsistencies with existing provisions of the Constitution, has to consider the inconsistency that the proposed Amendment has with its “twin” already in the Constitution. Court will not— indeed cannot—proceed to review the Bill as if the “twin” doesn’t exist, or has already been repealed. The Constitution is the Supreme Law of the Land, the ultimate and definitive expression of the “sovereignty” and “will” of the People, and not a comma in such a document can be removed or altered except by proper and prescribed procedures.
So, there we have the conundrum: Article 82(5) allows a Constitutional Amendment to be passed regardless of whether there are inconsistencies with existing provisions, other than those listed under Article 83. All that is required is a two-thirds majority in Parliament. But 82(5) cannot be resorted to if one files the Amendment under Article 122(1), i.e., the “Urgent Bills” provision. This is where Article 82(6) becomes crucial. Recall, it says that no provision in any law shall be deemed to amend the Constitution “or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.” Article 122(1), by no stretch of the imagination, can be deemed a “preceding provision” of Article 82(6)! If one files under 122(1), and there is an inconsistency, then the remedy is in Article 123(2), not 82(5).
So, let’s turn to Article 123(2). It says:
Where the Supreme Court determines that the Bill or any provision thereof is inconsistent with the Constitution, it shall also state-
(a) whether such Bill is required to comply with the provisions of paragraphs (1) and (2) of Article 82; or
(b) whether such Bill or any provision thereof may only be passed by the special majority required under the provisions of paragraph (2) of Article 84; or
(c) whether such Bill or any provision thereof requires to be passed by the special majority required under the provisions of paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of the provisions of Article 83,
and may specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent.[33]
To turn to Article 84 for a moment, this Article is very interesting, because, other than Article 82(5), it is the only other Article which explicitly addresses the issue of enacting Bills into law which are inconsistent with the Constitution. Article 84, however, relates to Bills other than Constitutional Amendments. It explicitly says, “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.” The 18th Amendment, for example, would most definitely not come under this Article, because its long title explicitly says that it is a Bill for the Amendment of the Constitution.
To return to Article 123(2), in the case of a Constitutional Amendment which contains the abiding and inherent inconsistency with its “twin” already in the Constitution that we discussed earlier—an inconsistency that is incurable—what are the options available? Clearly, the only option available is sub-paragraph ‘a’ of 123(2), meaning, the Bill is referred back to Article 82(1) and the normal procedure is triggered. The other two options are expressly intended for Bills which fall under the purview of Article 84, which latter, as we have seen, is for Bills other than Constitutional Amendments. If a Bill comes under paragraphs (1) and (2) of Article 82, it has to also go through 82(5), and perhaps also Article 83, if necessary. But the important point is that there is no way to “short cut” this process by leaping to Article 122(1)—because, even if we start at 122(1), by virtue of 123(2), we are taken right back to 82 (1). Hence, by the inexorable logic of the Constitution itself, the “Urgent Bills” provision cannot be used for purposes of enacting Constitutional Amendments.
Earlier, I said that there were only two ways to counter the practice of resorting to the “Urgent Bills” provision to enact Constitutional Amendment on the letter of the law: one was to show that the Constitution itself explicitly prohibits the tactic, an option unavailable in the present case. The other was to look into the intention of the Constitution-makers and show that they never intended the “Urgent Bill” provision to be used for such a purpose. We found that this also was difficult, since it entailed looking outside the Constitution for material that could be used to interpret key passages within the Constitution. But now we see that the Constitution itself—in terms of the logic inherent in the literal meaning of its own words—does not, indeed cannot, allow the “Urgent Bills” provision to be used to enact Constitutional Amendments.
That, then, is the argument. Once again, the key to the whole thing is that when a Constitutional Amendment is submitted as an “Urgent Bill,” and, in fact, any form other than the “normal” procedure set down under Article 82 and its subsections, there is an inherent inconsistency between the proposed Amendment and its “twin” already existing in the Constitution. Article 82(5) allows the new Amendment to be passed, as long as it has a two-thirds majority in Parliament to support it. Article 82(6), meanwhile, emphasizes that the “preceding provisions of this Article,” i.e., Article 82, set out the only way to amend the Constitution in the face of inconsistencies with existing provisions, other than those listed under Article 83. To submit an Amendment that is already, and always, inconsistent with the Constitution and to expect to pass it into law by circumventing Article 82 is therefore a clear violation of the “letter” of the law as set down in 82(6).
That it was done, and all perfectly “legally,” is, as I have said, the most eloquent possible testimonial as to the fundamental weakness of the Sri Lanka Constitution. Reform, therefore, is essential.
Section Four: “Solutions”
From the foregoing discussion, and as per the conclusions reached at the end of Section Three, it seems to me two particular solutions suggest themselves, which, in my view, should top any list of possible future Constitutional reforms.
First, the Sri Lanka Constitution must have a genuine and meaningful separation of powers, and this means separation of powers as an “auxiliary precaution,” in my view, along the lines of the American system. There is absolutely nothing wrong with relying on things like the “Public Trust Doctrine,” and even elections. With regard to the latter, for instance, as Madison himself put it, “A reliance on the People is, no doubt, the primary control on government.” Nevertheless, Sri Lanka needs a mechanism independent of all the other mechanisms. Without it, in the final analysis, the People are left only with the internal or personal morality, ethics, and sense of propriety and decency of politicians, to help the latter control themselves, something which, though no doubt devoutly to be hoped for, is hardly to be expected, even in the best of times.
The second solution follows directly from the first, and it is this: Sri Lanka needs a new Constitution. In my view, the changes involved in instituting a proper system of separation of powers go to the very heart of the Constitution, and can’t be carried out piece-meal, through one or two “Amendments.” If the job is to be done right, the entire Constitution has to be re-vamped and re-ordered.
This last suggestion, however, raises an important and interesting issue, which I have not alluded to thus far, but which, under the circumstances, has to be touched on even in passing. That matter is the following: 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. One of the continuing and abiding complaints made by certain Tamils, however, is that they continue to be discriminated against, and that it is impossible for them to live in dignity, or expect justice, in this country. Hence, they say, their only hope is a separate state.
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?