Option of a new constitution | Daily News


 

Option of a new constitution

Aristotle says, “Constitution is the way of life the state has chosen for itself.” There is a constitution in every country to guide the government and to govern the people. Both the government and people are bound to obey it. The constitutional law contains provisions relating to the powers and duties of government, the relations between government and people and the rights and duties of people.

According to Prof Dicey, the constitution is a combination of those rules which, directly or indirectly, influence the distribution and use of sovereign power. The constitution consists of those basic principles which determine the form of the state, namely, Parliamentary type or presidential system or other form. The constitution determines the distribution of powers to various organs of the government, namely: legislature, executive and judiciary, and the general principle on which these powers are to be exercised.

Constitution is the supreme law of each State. The process of drawing up a new constitution for Sri Lanka has already initiated by the government. Hence, it is appropriate time for the citizens of the Sri Lanka to study and analysis the constitutional history, logic and tendency on the global, national constitutional change.

Constitutional history

Under the Soulbury Constitution, which consisted of The Ceylon Independence Act, 1947 and The Ceylon (Constitution and Independence) Orders in Council 1947, Sri Lanka was then known as Ceylon. The Soulbury Constitution provided a parliamentary form of Government for Ceylon. Minority rights were safeguarded by Article 29(2) of the Constitution on January 10, 1958, Government set up a Joint Select Committee of the Senate and the House of Representatives to consider a revision of the Constitution, but the Committee was unable to come to a final conclusion on account and in 1968, a similar attempt was also failed.

Sirima Bandaranaike came to office as the world's first Woman Prime Minister in May 1970. Her United Front Government used the parliament as a Constituent Assembly and drafted a new Constitution. It was promulgated on May 22, 1972. This Constitution provided for a unicameral legislature named the National State Assembly with a term of office of six years and Sovereignty was entirely vested in it. A nominal President with a term of office of 4 years was appointed as the Head of State by the Prime Minister, Head of the Cabinet of Ministers responsible to the National State assembly. Ceylon was replaced by Republic of Sri Lanka.

Before the 1977 general election, the United National Party had sought a mandate from the people to adopt a new constitution. Accordingly, a select committee was appointed to consider the revision of the existing Constitution. The new Constitution, promulgated on September 7, 1978, third constitution since the country received autonomy in 1948, provided unicameral parliament and an Executive President. The new Constitution also introduced a form of multi-member proportional representation for elections to parliament.

The Constitution provided for an independent judiciary and fundamental rights, providing for any aggrieved person to invoke the Supreme Court for any violation of his or her fundamental rights.

In January, 2016, the resolution presented by Prime Minister Ranil Wickremesinghe to convert parliament into a Constitutional Assembly governs the necessary framework for its functioning to make new constitution. In April 2016, Sri Lanka’s Parliament converted into a Constitutional Assembly for the first time with the aim of enacting a new constitution and the Chairman, seven deputy chairman, steering committee with 21 members were elected. The Prime Minister of Sri Lanka was unanimously appointed as the Chairman of the Steering Committee.

The six subcommittees on various subjects had submitted their reports based on the widest possible public consultations. The Steering Committee had considered these reports and drafted its own report. Once the Constitutional Assembly adopts the draft Constitution Bill with two-thirds majority, the Bill will be sent to Provincial Councils for opinion and eventually, tested through referendum for the approval of people. In these circumstances, it is essential to know the classification of constitution, method of transformation and logic of change.

Classification of the constitution

Whether a constitution is codified or uncodified, flexible or inflexible, presidential or monarchical, republican or parliamentary, political or legal, the one thing they have in common is that all constitutions are unique. In general, constitutions are widely classified into two categories, firstly written and unwritten; and secondly, rigid and flexible.

A written constitution means a constitution written in the form of a book or a series of documents combined in the form of a book. It is a consciously framed and enacted constitution. It is formulated and adopted by a constituent assembly or a council or a legislature. A written constitution can be amended only in accordance with a settled process of amendment written in the constitution itself. U.S.A., India, Germany, Japan, Canada, France, Switzerland and several other states have written constitutions including Sri Lanka.

An unwritten constitution is one which is neither drafted nor enacted by a Constituent Assembly and nor even written in the form of a book. It is found in several historical charters, laws and conventions. It is a product of slow and gradual evolution. The government is organised and it functions in accordance with several well settled, but not wholly written rules and conventions. The people know their Constitution. They accept and obey it, but do not possess it in a written form. An unwritten constitution cannot be produced in the form of a book. However, an unwritten constitution is not totally unwritten. Some of its parts are available in written forms but these do not stand codified in the form of a legal document or a code or a book. The Constitution of the United Kingdom is a best example for unwritten constitution.

A flexible Constitution is one which can be easily amended. Constitutional amendments are passed in the same manner by which an ordinary law is passed. British Constitution presents a classic example of a most flexible constitution. The British Parliament is a sovereign parliament which can make or amend any law or constitutional law by a simple majority. The Rigid Constitution is one which cannot be easily amended. Its method of amendment is difficult. For amending it, the legislature has to pass an amendment bill by a specific, usually big, majority of 2/3rd or 3/4th. For passing or amending an ordinary law, the legislature usually passes the law by a simple majority of its members. A rigid constitution is considered to be the most fundamental law of the land. It is regarded as the basic will of the sovereign people. That is why it can be amended only by a special procedure requiring the passing of the amendment proposal by a big majority of votes which is often followed by ratification by the people in a referendum. The Constitution of United States of America is an example for the very rigid constitution.

Constitutional amendments, replacements, creating new constitution by integrating amendments are different means of constitutional transformation, which are formal mechanisms of constitutional change.

The first mode to change constitutions is through textual alterations by amendments. The constitutional amendment implies its continuity of existing constitution. The Constitution of USA provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. Thirty-three amendments to the United States Constitution have been proposed by the United States Congress and sent to the states for ratification since the Constitution was put into operation on March 4, 1789. Twenty-seven of these, having been ratified by the requisite number of states, are part of the Constitution. The first ten amendments were adopted and ratified simultaneously and are known collectively as the Bill of Rights. Six amendments adopted by Congress and sent to the states have not been ratified by the required number of states.

In India, Constitution may be amended with a two-thirds majority vote in both the House of parliament. For some changes, the consent of two-thirds states is along with the above procedure. As of September 2016, there have been 101 amendments to the Constitution of India since it was first enacted in 1950. Most provisions of the Constitution of Sri Lanka can be amended by a two-thirds majority in parliament. However, the amendment of certain basic features such as the clauses on language, religion need support of Provincial Councils and people's referendum. As of April 2015, there have been 19 Amendments to the Constitution of Sri Lanka since it was first enacted in 1978.

The second mode to change is by way of wholesale replacement. That means displaces an existing constitution by way of new constitution. Replacement of Constitution occurs without following existing procedures of law only during extraordinary times as in a revolution or freedom from foreign rule.

In general, the replacement of Constitution will follow the procedures stipulated in the existing Constitution. In some western European countries, such as Spain, Portugal, and Greece, constitutional replacements have been more frequent, but several other countries of the region, such as Norway, Belgium, and Denmark, retain constitutions enacted in the nineteenth century. Since 1789, France has had no less than twelve regimes and thirteen constitutions. Since 1978, all countries in Latin America have either replaced or amended their constitutions.

The third mode to change is by way of integrating amendments without any textual change. In Switzerland, in view of numerous amendments, since 1874, it was felt desirable to integrate the accumulated amendments into new text. The new constitution was came into force on the first day of 2000.

The informal mode to change Constitutions is without textual changes, typically by means of constitutional court rulings. The judicial interpretation constitutes an alternative to amendments as a mechanism of constitutional change. Less visibly, constitutions may also be transformed by legislative and executive decisions, or by the informal practices of political actors.

Logic of change

In general, the reason for drafting a new constitution is usually related with the time in which a particular State is created. For instance, United States of America and India drafted a codified constitution upon independence in 1787 and 1950 respectively. In 1949, the civil war ended in China and the constitution of China was adopted in 1954.

In sometimes, drafting a new constitution by means of replacing existing one is associated with a major change that has taken place at national level. For instance, Italy drew up a new constitution in 1948 and Germany did the same in 1949 following their defeat in World War II and also to mark the destruction of their previous regimes. China framed a new constitution in 1978 and again in 1982 for the betterment of people. The doctrine of democratic deficit advocates that the substantive contents of a constitution adopted by a country at a particular time reflect the will of its framers. However, it is not necessary that the intent of the framers corresponds to the will of the majority of the population at any given time. Constitutions cannot remain immutable, they need to be transformed to adapt to deep changes in the political, social, economic and other environment.

The aim of constitutional change ought to be a road to the peace of citizens of the county through democracy after the internal conflicts by way of following the procedures stipulated in the existing Constitution in Sri Lanka. Any constitutional change is in consonance with the need of the time, for proper functioning of democracy and in national interest. The proposed constitution must have the concept of Rule of law, Principles of Nature Justice, doctrine of separation of powers. The independence of judiciary with the power of judicial review is inevitable for the interpretation of the constitution.

All the power is a trust, which are accountable for its exercise, that form the people and for the people, all springs and all must exist. The power of legislature, executive and judiciary in every democratic republic nation must be accountable to the citizens, which is essential to avert disaster for any democratic system. Every democratic Constitution must provide guarantee to the citizen's fundamental rights, mainly right of equality, right to peace and protection against arbitrary governmental actions.


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