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Lawyers for Democracy responses to BASL on the constitution making process

(28  October 2017/LfD)It was reported that the Bar Council of the Bar Association of Sri Lanka, at a special meeting, held on 23rd October 2017 resolved to express its grave concern about the proposed amendments to Articles 1 and 2 of the present Constitution. The Statement of the Bar Council also alleges that proposed amendments in the Interim of the Constitutional Assembly of Sri Lanka had the effect of converting the Unitary character of the State to a Federal structure.

The Bar Association of Sri Lanka (BASL) has also forwarded 12 questions for the Government to answer and the first question was “What is the need/requirement for a new Constitution?” Considering the history of this country, it is indeed disappointing that the BASL would raise such an ignorant question at this stage of the reform process.

In response to this question, at the outset we note that the BASL has, in the past, stood to protect Rule of Law, Human Rights and Democratic form of government. Thus, in or about early 2016, the BASL made proposals to the Public Representations Committee on Constitutional Reforms and subsequently to subcommittees of the Constitutional Assembly dealing with Independence of the Judiciary and Fundamental Rights.

We note that a ‘New Constitution’, which would include abolishing the Executive Presidency in its present form, greater devolution of power, and electoral reform, has been an unrealised electoral promise of Presidential Candidates since 1994.

A large section of the Bar welcomed the steps taken to formulate a new constitution where thousands of people and professionals (including the BASL) have given their proposals.

We are also mindful of the fact that the present Constitutional reform exercise also seeks to address the ‘national question’, an issue which has remained unresolved since independence, and, in its unresolved form has plagued Sri Lanka, and been the cause of a three decade long Civil War which has claimed the lives of countless thousands of Sri Lanka’s sons and daughters, while leaving many more countless thousands maimed, displaced, orphaned and widowed. The importance of a political solution to the ‘National question’ has been accepted since the late 1980’s, and even the Lessons Learnt and Reconciliation Commission (LLRC) appointed in 2010 recognises this;

The Commission takes the view that the root cause of the ethnic conflict in Sri Lanka lies in the failure of successive Governments to address the genuine grievances of the Tamil people. The country may not have been confronted with a violent separatist agenda, if the political consensus at the time of independence had been sustained and if policies had been implemented to build up and strengthen the confidence of the minorities around the system which had gained a reasonable measure of acceptance. A political solution is imperative to address the causes of the conflict…” (LLRC Report p 291, Para 8.150, 8.151)

In this background we are appalled by the position taken by a small section of the Bar Council, based on a meeting held on a Monday afternoon to seek to discredit the present constitutional making process.

The form of Government is a political and ideological issue that transcend all ethnicities which need to be answered politically and not by a small and unrepresentative section of a professional association. The questions that have been formulated shows that BASL at present has also taken a hard ideological line akin to the extremist elements, undermining value of diversity respected by the BASL before.

We note that in a very recent and progressive judgment of the Supreme Court, his Lordship Dep PC CJ held that “The labelling of states as unitary and federal sometimes may be misleading. There could be unitary states with features or attributes of a federal state and vice versa. In a unitary state if more powers are given to the units it could be considered as a federal state. Similarly in a federal state if the centre is powerful and the power is concentrated in the centre it could be considered as a unitary state.” (SC Spl 03/2014, S.C. Minutes 4.8.2017).

The Statement of the Bar Council appears to have been released without reading the Interim Report of the Steering Committee of the Constitutional Assembly of Sri Lanka (‘Interim Report’). The Statement has been issued based on a reading of one paragraph of the report, considered in isolation.

It is misleading (if not palpably false), to suggest that the present proposals advocate federalism.

A reading of the Interim Report makes it clear that:

  • In Sri Lanka, sovereignty will vest with the people and shall be inalienable and indivisible.
  • Sri Lanka should remain one undivided and indivisible country.
  • There shall be specific provisions included in the Constitution to prevent secession (division of the country).
  • The Constitution shall be the Supreme Law of Sri Lanka.
  • The power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Parliament and the People of Sri Lanka (where applicable), in the manner set out in the Constitution.

(page 1 of the Interim Report)

The Interim Report clarifies the matter further in its suggested formulation as to the nature of the State:

Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya rajyaya / orumiththa nadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution.

 To prevent any misapprehension as to the meaning of the nature of the State, the phrase “aekiya rajyaya / orumiththa nadu” has been defined, to provide a fixed definition:

In this Article aekiya rajyaya / orumiththa nadu means a State which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Parliament and the People of Sri Lanka as provided in this Constitution

(page 2 of the Interim Report)

The Interim Report also provides additional safeguards against secession (which are not contained in the present 1978 Constitution):

  1. No Provincial Council or other Authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka. (page 2 and 5 of the Interim Report)

 Granting special powers to the President which can be exercised in the event of a threat of secession etc by a provincial administration (page 26 of the Interim Report)

Anyone who bothered to read the Interim report, which has been in the public domain since the 21st of September, would appreciate that it is within this framework that it is suggested that there be maximum devolution of power. Devolution of power is essential to ensure greater political accountability and balanced regional development, not only in the Northern and Eastern Provinces, but also in other underdeveloped regions such as the Uva Province.

Questions from 6 to 12 are dealt with in the Reports of the Sub-Committees of the Constitutional Assembly, and are to be debated by the Assembly. Hence, while proposals with regard to those questions are contained in the Sub-Committee Reports (for anyone interested enough to read same), it is apparent that a final decision will be made after the debates of the Constitutional Assembly. This could not have escaped the attention of the Bar Association, which also made submissions before one or more of those sub-committees.

It is regrettable that some elements within the BASL appear to have taken an irresponsible approach in dealing with the multi-party Constitutional reform process. This is particularly regrettable in light of the divisive speeches made by politicians (including one in which the speaker called on all those supporting constitutional reform to be murdered). The BASL needs to be a force for reason and unity not an instrument of division and narrow political gain. We call upon the leadership of the BASL to engage constructively in the reform process, in a professional manner, and bearing in mind the need to urgently resolve the national question, which has plagued our motherland.

 On behalf of the Conveners

Lal Wijenayaka  / Chandrapala Kumarage / JC Weliamuna / K.S. Ratnavale / Sunil Jayaratne / Harishke Samaranayake

Sudath Neththisinghe


[email protected]


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