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.