Features
Drafting of new Constitution
By Neville Ladduwahetty
The Expert Committee, appointed to draft a new constitution, has invited the public to “submit their ideas and views” relating to the topics listed by them. This approach was confirmed by the Minister of Justice Ali Sabry in a media report that stated: “A new constitution is to be drafted to replace the Second Republican Constitution of Sri Lanka, and we are inviting the general public to submit their ideas, or views, under the topics of; nature of state, fundamental rights, language, directive of principles of state policy, the executive (President/Cabinet of Ministers/public service), the legislature, franchise and elections including referenda, decentralisation/devolution of power/power sharing, the judiciary, public finance, public security, and any other area of interest, not specified in the notice,”
The question that begs to be asked is; under what system of government, namely Parliamentary as in the U.K where Parliament is Supreme, or Presidential, under provisions of Separation of Powers, as in the USA, are the “topics” to be addressed by the public? Since these are the two broad systems of government that Democracies function with or without variations to accommodate particularities of each country, it is absolutely vital that these broad parameters are established prior to calling for views from the public.
Since such fundamental choices impact on the processes of governance, the choice as to the system of government should not be based on the views of the public, but on a determination made by the elected representatives of the People – the Parliament. Such a proposal was incorporated in an article titled “Constitutions and amendments” (The Island, September 19, 2020).
The relevant paragraph stated: “The few examples cited above amply demonstrate that while the framework of the 1978 Constitution is essentially Presidential, it has sufficient elements of a Parliamentary Democracy to warrant the Judiciary from giving contrasting opinions, depending on which Article it interprets. This ambiguity requires Sri Lanka to adopt either a Presidential or a Parliamentary system, but not a mix of both systems. Despite the fact that such contradictions have been brought to the attention of the public, confusion has reigned uninterrupted. Therefore, the need is for Parliament to vote on which system of government is best suited to govern Sri Lanka”.
It is only after such a clear and unambiguous determination by Parliament that the Expert Committee, set up to draft a new Constitution, would have a clear mandate for them to function. However, this was my view in September. My present view is that Parliament should go even further, and in addition to determining the system of governance, Parliament, should as a first step, determine the core principles under which the Nation and the State should function. Such principles should define who and what we are as a Nation and State, and it is only after establishing the core principles that define the Nation and State that the system of government is selected which would best make the core principles deliverable.
PREAMBLE and CORE PRINCIPLES of a CONSTITUTION
Constitutions do not as a practice list the core principles that guide the functioning of Nations and States. The practice normally adopted by most drafters of Constitutions is to incorporate the core principles of the nation concerned in the Preamble to its Constitution. Thus, Preambles become the platform to convey the core principles of a Nation and State. According to an article, cited below, the increasing importance attached to Preambles is reflected in the fact that some Judiciaries rely on the core principles stated in a Preamble when there are ambiguities in the texts in a Constitution. However, despite its importance, the contents of Preambles are often ignored.
The Preamble to the US Constitution states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”. Having established these broad parameters, the framers of the US Constitution decided that a government, based on separation of power, would serve their interests best.
On the other hand, the Preamble to the 1972 Constitution of Sri Lanka states that the People resolved to exercise their freedom and independence and declare Sri Lanka to be a “free sovereign and independent Republic”, and how such a nation proposes to realize the objectives of a Socialist Democracy.
The Preamble to the 1972 Constitution of Sri Lanka states: “We the People of Sri Lanka resolved in the exercise of our freedom and independence as a nation to give ourselves a constitution which will declare Sri Lanka a free sovereign and independent Republic pledged to realize the objectives of a Socialist Democracy including the Fundamental Rights and Freedoms of all citizens and which will become the fundamental law of Sri Lanka deriving its power and authority solely from the People…through a Constituent Assembly”. Having established the broad parameters, the then government decided that a Parliamentary system, where Parliament would be Supreme, would best enable them to realize their objectives.
Judging from the Preamble of the 1978 Constitution, its core principles are different from the 1972 Constitution other than to state that it is “a new Republican Constitution. The key elements of the Preamble to the 1978 Constitution are:
“The People of Sri Lanka having by their mandate freely expressed and granted…their representatives…to draft, adopt and operate a new Republican Constitution in order to achieve the goals of a Democratic Socialist Republic… whilst ratifying the immutable republican principles of Representative Democracy and assuring to all peoples Freedoms, Equality, Justice, Fundamental Human Rights and the Independence of the Judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations…”.
Having thus established the core principles cited above, the then government determined that the best system of government to realize its objectives was under provisions of a Presidential system that functions under provisions of Separation of Power.
THE NEW CONSTITUTION
The approach of the Expert Committee is to seek views and ideas from the public under topics listed by them. Judging from the nature of the topics listed it is highly improbable that the Committee would be able to develop a set of core principles that would be sufficiently broad in scope as in the two previous constitutions. However, whether the new constitution is drafted, based on the views expressed by the public or any other, there is a procedural issue that would determine the final shape and form of the new constitution.
Although the 1972 constitution was the product of a Constituent Assembly, it was not subjected to a Referendum. On the other hand, the 1978 constitution was not formulated by a Constituent Assembly. It was drafted for the Parliament that had existed under the 1972 constitution.
This constitution too had not been subjected to a Referendum. The justification in both instances was that the People empowered the elected representatives to draft the respective constitutions based on mandates sought and given. In keeping with past practices there is a strong possibility that the new constitution too would not be subjected to a Referendum either, because of the mandate asked and given. If that be the case, the new constitution would have to comply with the provisions of the 1978 constitution. Furthermore, since the new constitution is not an amendment but one intended to repeal and replace the 1978 constitution, it would have to comply with provisions of Article 120 of that constitution which gives the authority to repeal and replace the constitution subject to certain conditions.
Article 120 (a) states: “In the case of a Bill described in its long title being for the amendment of any provision of the constitution, or for the repeal and replacement of the constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83”.
Article 83 (a) states: “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 of this Article…shall become law’ if approved with a two-third majority of Parliament and by the People at a referendum. Similar procedures are required if the durations relating to Articles 30 and 62 are extended.
Since these Articles embody the name of the State, its unitary character, that sovereignty is in the People and is inalienable, its National Flag, National Anthem, National Day, foremost place for Buddhism, freedom of thought, conscious and religion and no person shall be subjected to torture or cruel and inhuman treatment, and the fact that they cannot be amended, repealed or replaced without the consent of the People at a Referendum, they become the entrenched core principles of the Sri Lankan People. Therefore, whatever approach the Expert Committee adopts the core principles on which the new constitution would be founded would be predetermined.
CONCLUSION
An article titled “The preamble in constitutional interpretation” in an International Journal of Constitutional Law refers to the increasing importance of Preambles attached to Constitutions. For instance, the Preamble to the US Constitution “highlights the legal and social functions of preambles”. The article cited in the Journal “discusses the growing use of preambles in constitutional interpretation. In many countries, the preamble has been used, increasingly, to constitutionalize unenumerated rights. A global survey of the function of preambles shows a growing trend toward its having greater binding force—either independently, as a substantive source of rights, or combined with other constitutional provisions, or as a guide for constitutional interpretation. The courts rely more and more on preambles as sources of law. While in some countries this development is not new, and dates back several decades, in others, it is a recent development. From a global perspective, the U.S. preamble, which generally does not enjoy binding legal status, remains the exception rather than the rule” ( International Journal of Constitutional Law, Volume 8, Issue 4, October 2010, Pages 714–738, https://doi.org/10.1093/icon/mor010)
In the Sri Lanka context little or no attention is paid to Preambles in our constitutions despite the primacy given them when drafting or interpreting constitutions by other countries. Therefore, those engaged in drafting constitutions should pay attention to the content in the Preamble, because it is recognized as a statement that embodies the core principles as to who and what Sri Lanka is as a Nation and State.
What is evident from the material presented above is that any attempt by any government to draft a new constitution would be compelled to incorporate the entrenched Articles listed in Article 83 of the 1978 constitution if it intends to avoid having to face a Referendum. On the other hand, if any government is prepared to face a Referendum, the Parliament concerned would have to reconstitute itself into a Constituent Assembly in order to be free of any constraints imposed by the existing constitution. However, since this would amount to a totally fresh exercise, the process should start by first establishing its core principles on which to base the constitution, and having done so, determine which of the two primary systems of government, namely Presidential based on separation of power, or Parliamentary wherein Parliament is supreme in order to realize its objectives.
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
US sports envoys to Lanka to champion youth development
Rahuman questions sudden cancellation of leave of CEB employees
