Some Notes on the Procedure to

Enact a New Constitution

Idont see anything wrong in the proposed or now moved Resolution

referring to the Committee of Parliament consisting of all Members of
Parliament as a Constitutional Assembly under Article 75 of the
Constitution. It would hopefully create a constructive mind set to deliberate
on this important task without dragging on other matters during the
proceedings.

by Laksiri Fernando
( January 12, 2016, Sydney, Sri Lanka Guardian) The Joint Opposition or their
spokespersons seem to take more interest in the constitutional procedure rather than
the need for or the substance of a new constitution. The motive seems to be power
politics rather than the interest of the country or its future. Otherwise, their valid
objections should have been put forward in a constructive manner.
On the other hand, there seem to be some neglect on the constitutional procedure on
the part of the Government or the advocates for a brand new constitution. They also
need to moderate their positions and come down to earth if they want to get the
procedure going and discuss the substance with all stakeholders, amicably, as much as
possible.

I dont see anything wrong in the proposed or now moved Resolution referring to the
Committee of Parliament consisting of all Members of Parliament as a
Constitutional Assembly under Article 75 of the Constitution. It would hopefully
create a constructive mind set to deliberate on this important task without dragging on
other matters during the proceedings.
The Resolution is also consistent with the Standing Order 86 of Parliament. After all,
Parliament is supreme under the present Constitution to declare itself as a
Constitutional Assembly. Under that particular Article 75, Parliament can repeal or
amend the Constitution and what is applied here is Repeal. Only condition stipulated
is that under 75 (b), Parliament shall not make any law repealing the Constitution
as a whole unless such law also enacts a new Constitution to replace it.
Therefore, the draft Bill finally should be to repeal the present and enact a new
constitution. It is not merely to draft a new constitution. This is not clarified in the
Resolution. When the present Constitution is repealed, there are certain procedure/s
to be followed particularly on certain entrenched articles.
However, I dont see anything wrong in the resolution talking about a New
Constitution as some people have objected to. It is clear from Article 75 of the present
Constitution. It is ultimately to enact a new Constitution the procedure should be
followed. That is the main intention of the Resolution. Of course one, or the whole of
the so-called joint opposition can differ on that, but not on procedural or technical
grounds. It is completely a political opinion that they are entitled to. However, they
should not mix-up political objections with technical objections or vice versa.
I have also seen objections to the Public Representation Committee claiming it is an
outside body to Parliament. This is again a political argument and not a procedural
one. The claim is that the involvement of outsiders dilute the power of Parliament.
The most hilarious fact is that the persons who have objected to this committee
themselves are outsiders and non-parliamentarians. The argument precludes the
involvement of the people at large (citizens, academics, professionals, civil society
organizations, legal experts etc.) in the constitutional reform and the drafting process.
The purpose of the Public Relations Committee is to seek the views of the people and

submit them to Parliament through the Steering Committee. Their role is task specific
and time bound. Of course there can be some objections to the role of the Steering
Committee or the way the role is formulated in the Resolution. These are matters to be
resolved amicably. After all, the Government is a national unity government of both
the UNP and the SLFP, while each party has its own views and positions. The views of
the JVP and the TNA also should be taken into account.
In respect of the necessary correct procedure, there is a weakness in the Resolution
without allowing or not specifying the judicial process that it should take after the
Bill to Amend and Enact a New Constitution is gazetted and placed on the Order
Paper of Parliament. In my view, the President should refer the Bill to the Supreme
Court and people should be able to make submissions. However, the proceedings or
submissions should be limited to verify whether the Bill has properly laid down the
correct procedure according to the present Constitution in repealing the same and
enacting the New Constitution.
In the above respect, there is no necessity to refer the Bill to the Provincial Councils as
in the case of ordinary bills although it is laid down in the Resolution. Consultation or
input from the Provincial Councils is necessary not at that last stage, but before
drafting the Bill. At the final stage it could be divisive.
One of the most important procedural condition is to go for a referendum, if the Bill
intends to repeal or amend Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30 (2), 62 (2) or Article 83
itself where the requirement is prescribed. This has to be done, in my opinion,
separately for each article which is not that complicated as many seems to believe. This
is matter on which the opinion of the Supreme Court is important and necessary even
before drafting the Bill. The Election Commission could device the format for the
referendum.
One strategy would be to reduce the number of repeals and/or amendments of Articles
for which a referendum would be necessary. If an article is the same there is no need
for a referendum and two thirds majority in Parliament is sufficient. For example, if
Article 9 (on Buddhism) is not amended or repealed, while Article 2 (on Unitary State)

is amended as necessary, that is a strategy to get through the complicated referendum

process. Likewise, if Article 6 (on National Flag) is untouched, but Article 7 (on
National Anthem) is amendedas necessary, the referendum process would be easier.
There is ample room to repeal and replace Article 4, for example, without a
referendum to make the New Constitution really a New and Democratic One. No
referendum is required for that particular change!
Although the Resolution presented to Parliament talks about a referendum both under
Article 85, and under Article 83 at the very end, that is a matter least clear in the
Resolution. Once the Resolution is approved or agreed to in Parliament, there is a
possibility of the President referring this matter to the Supreme Court for its opinion.
There was an aborted new constitution in August 2000 due mainly to the erroneous
procedure adopted, among other reasons. That time the Minister of Constitutional
Affairs was none other than Professor G. L. Peiris, who is one of the vociferous
objectors to the procedure today! The failure of the past, however should not be a
reason to oppose a possible success in the future.
The possible success of a New Constitution would depend, however, not only on the
correct procedure or the exemplary democratic content that the framers are going to
propose, but also on the credibility, behaviour and performance of the Government
during the coming period. It is unlikely that the people would rally around the
constitutional process unless the theory and the practice of the Government, its
Ministers and advocates of the constitutional change are harmonized and proved
genuine. Most important would be the economic performance of the Government.
Posted by Thavam