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Wednesday, September 27, 2023

Learning From Our Past Constitution-making Efforts – Kishali Pinto Jayawardene

The Government’s frantic rush towards finalizing a new Constitution for Sri Lanka has, in its path, several formidable obstacles. These include cautions emanating from established legal precedent in regard to the necessary formulation of valid questions at a Referendum.

The first law of the land
Marking one year following his election to office, President Maithripala Sirisena has stated that his coalition administration will place the proposed constitutional text for approval before the people. This is necessitated by the fact that the Constitution requires the precondition of a referendum for certain provisions that are protected by extraordinary safeguards. But before this stage of a referendum is arrived at, we must learn from past mistakes, recent as well as historical.

First, we appear to see a hurried public consultation process engaged in as a superficial exercise to tick off a box that the views of the public have been sought. This is not what drafting the first law of the land should mean. Rather, it follows precisely in the path of Sri Lanka’s past constitution-making exercises which were distinguished by political expediency. These efforts generally attracted unity in opposition among the most unlikely bedfellows as evidenced in 2001 when Buddhist monks, liberal democratic activists and nationalists of all colours competed with each other in being the first to oppose a proposed new Constitution in the Supreme Court.

True, the many objections to that proposed constitutional document were widely varied in their content and thrust. But the fact remains that these are pitfalls best avoided by genuine public consultations. Even where the intent has been genuine, the effort has been defeated in large part due to the absence of political will in actually taking the people into the equation as partners.

Being clear on the legal imperatives
Second, all effort must be made to avoid the embarrassing spectacle that took place in 2015 when laboriously drafted provisions of the new ‘yahapalanaya’ government lessening the power of the Executive Presidency were struck down by the Supreme Court acting in consonance with constitutional imperatives, This did not take much grey matter to foretell. It was acutely predictable that the Court would not allow constitutional changes requiring a referendum to pass judicial review without conformity to that essential precondition. This pattern must not be repeated.

The issue that now confronts us is the manner in which the constitutional proposals will be placed before the people. The Government has gone on record in stating that the proposed constitutional text, requiring, under Article 83, not only a two-thirds majority in Parliament but also the stamp of approval at a referendum will be submitted to the people. It appears that what is contemplated is the placing of the constitutional text in its entirety. However, this exercise is attendant with several difficulties which needs sober and judicious consideration.

One matter which is beyond doubt is that the manner in which the Referendum question is formulated is not solely within the province of the Government. On the contrary, the Supreme Court has asserted the right to examine the content of that question and decide if the Referendum Proposal has been ‘duly formulated.’ The notion that this would be a ‘political question’ beyond the review of Court is an argument that has been dismissed with force by the Court.

Referenda is not to be taken lightly
Pivotal in this regard are the provisions of the Referendum Act No 7 of 1981 which specify that the questions to be put to the people must be validly capable of being answered by a “Yes” or a “No.” In Semasinghe v Karunatilleke (2003) for example, the Court examined the question whether then President Chandrika Kumaratunga’s Referendum Proclamation on the need for a “new Constitution issued was legally valid. An extensively reasoned judgment of MDH Fernando J (with Justices Gunesekera and Wigneswaran agreeing) concluded that the Referendum Proposal at that time was not in conformity with the law.

Extraction of core principles of the judgment discloses a typically clear and cogent rationale. At the very outset, the Court warned that a Referendum is an electoral process which attracts ‘enormous expenditure of public funds and the disruption of day-to-day life – including danger to life and limb and damage to property.’ It is not to be taken lightly. An intelligible, meaningful and useful result must therefore be intended by the way that the question for answer is drafted. It must be done in such a manner that the opinion of the People is capable of being conveyed with sufficient clarity and precision as to constitute a mandate for future governmental action. Assessed on that basis, the 2001 Referendum Proposal which asked the people to answer ‘yes’ or ‘no’ in regard to the proposed new Constitution was found to be wanting.

For example, as the Court pointed out, the answer “no” given to a new Constitution in its entirety was pregnant with ambiguity. This answer could accurately have been given by three different groups of persons; those who thought that a new Constitution was not a national imperative in that other matters were more deserving of attention, those who thought that the existing one needed amendment and those who thought that neither a new Constitution nor amendments were needed. Equally, the answer “Yes” could have been given by several different groups of persons, agreed only upon the need for a new Constitution but holding completely divergent views as to what that Constitution should provide.

Unambiguous and participatory process needed
The signal warning administered in this case by the judges was that the Referendum Proposal should contain a series of questions formulated so that a majority “Yes” vote would clearly disclose the main features that a new Constitution would contain. Equally, a “No” vote should disclose without ambiguity why a new Constitution was not desired.

Meanwhile, cynics who scoff at a wide-based model of constitution-making may direct their attention to examples elsewhere including in South Africa. Here, a peoples’ participatory process resulted in a document which represented the actual will of the people as opposed to theoretical words.

Surely even at this most devastated point in our history, we should look back critically at our miserable markers of constitution-making that stand in contrast? Undeniably we need to learn from our past mistakes and tread a different path


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