|
|
 |
 |
 |
| Tuesday, 18 May 2004 |
 |
|
 |
Features | |
| News Business Features Editorial Security Politics World Letters Sports Obituaries
|
A constitution in the making by L. V. P. Wettasingha There is no gainsaying the fact that the present constitution is a colossal aberration and an anachronism that has been plaguing our country and standing in the way of its progress. The general elections held under its aegis in 1994, 2000, 2001 and 2004 have repeatedly bared its inherent nature as a recipe for instability in government and distortion of the electoral verdict. It is not a constitution that the people mandated or directly assented to, but one made by an unofficial extra-parliamentary group and adopted by their representatives in parliament elected under a system that made possible the securing of the constitutional requirement of a 2/3 majority. (a facility denied, as it were by sleight of hand, to succeeding parliament). While all concerned are aware of this sorry state of affairs and want to do away with this constitution, some have axes to grind when it comes to the putsch. Their stock answer given parrot-wise in mock defense is that one cannot go beyond the existing constitutional provisions to change the constitution. On the contrary, when the necessary conditions for changing a constitution through is inbuilt mechanism are not realisable, do we not have a situation of a recurring impossibility which gives rise to the necessity to resort to other methods of change which are not per-seillegal or violent. Even the law will not frown on this course of action - lex non cogit ad impossibilia. Making a change of constitution possible only exclusively in terms of its own mechanism flows from the rigid and out-moded Austinian concept of the need to ensure continuity in the legal order under all circumstances. The error that is implicit in this line of thinking is further compounded with some protagonists confusing the legal order with the rule of law, thereby making it appear that a break in the un-interrupted flow of the legal order, results in a jettisoning of the rule of law leading to an anarchical situation. Whereas in fact the search for a new legal order is a continued commitment to the rule of law. This line of thinking also makes a fetish of this continuity even at the expense of the progress and well-being of the people which the very legal order is intended to serve. What is needed is not continuity by itself but an appropriate legal order that would serve the common interest best. By contrast the rule of law as coming down to us from its hoary past is a result of social contract (albeit notional) in which the sovereign people mutually participated. The setting up of the legal order starting with the constitution or fundamental law which regulates the manner of exercise of the peoples' sovereignty is the act of concretising the contract and is subsequent to it. From this elemental position it is obvious that what gives validity to a constitution and its source of power is an act of the sovereign. That is the basic norm. If in a parliamentary democracy an unworkable constitution cannot be got rid of within its own mechanism then the hand of the sovereign must be sought elsewhere. If authority is needed for this proportion it is found in Kelson's postulate of the grundnorm and the many court decisions adopting it. To my understanding although the word grundnorm is vicariously used to denote the basic law or constitution, the theory of the grundnorm simply means - do the ground conditions justify the validation of the new constitution, the ground conditions being (1) has the sovereign electorate consented by ballot (2) is the new constitution one imposed by force of arms through a violent revolution or coupdetat, leaving no other alternative but to live with it. (3) while conditions (1) and (2) have imparted temporary "efficacy" to the constitution (when answered in the affirmative), the "efficacy" or effectiveness of the constitution as a matter of law is finally confirmed when the courts accept it and act upon it. The Sri Lankan situation is a rare instance of a constitution being sought to be replaced in a parliamentary democracy through extra-constitutional means, other than force of arms. The several objections that have been raised in this connection must needs to be addressed. These objections are: The Freedom Alliance that sought a mandate for this purpose does not have the backing of the majority of the electorate who voted - only 46.5%. (2) The Freedom Alliance does not have a majority in parliament - only 106 or 108 our of 225 (3). Even if a simple majority is obtained and a new constitution is passed, this will open the flood-gates for successive governments to change the constitution at will. (4) It is premature to embark on constitutional change at this juncture since a final settlement with the LTTE will have to be incorporated in the constitution. Mandate not backed by majority in electorate The question here is what was the mandate sought - it was for the Parliament that was elected to sit as a constituent assembly and not to implement this or that constitution. The party that sought the mandate received the highest number of votes and formed a government. Now it is up to Parliament to resolve to sit as a constituent assembly. If Parliament representing all sections of the electorate resolves to sit as constituent assembly doesn't that justify the implementation of the mandate irrespective of who called for the mandate. Isn't the fact that the voters responded in such numbers to the party which called for a mandate so as to make the formation of a government possible, sufficient, or is a mandate a matter of mathematical precision requiring a percentage of 50.1 votes as against 46.5. A mandate is not going to do any damage to the country or take away the people's democratic rights since the constitution has to be passed by a majority in parliament and approved by the people at a referendum. Not having a majority in Parliament The "recurring impossibility" earlier referred to preventing any government from changing the constitution, goes even beyond the non-securement of a 2/3 majority and has resulted in no government obtaining a clear and outright majority in any election held under the PR system. This is the basic malady that the new constitution is intended to correct, and which is holding up all other reforms in abeyance. A constitution is not the work of anyone party but a joint effort. Therefore the fact that the Freedom Alliance does not have a majority in Parliament (when the reality is that no party can ever have one) is not relevant. If there was a majority for the Freedom Alliance there is a real danger that the Freedom Alliance (and indeed any party so placed, as did happen in 1978) would bull-doze its way and come out with a constitution to its own liking. The absence of a clear majority is therefore working towards the country's benefit, as all parties can contribute to this national endeavour and even come out with a consensus document. In any event whether there will be a majority or not to adopt a constitution is a matter that has yet to be tested, politics being the art of the possible. Opening the flood-gates for the future It is agreed that the constitution should not take the form of a periodical and be liable to constant change for that would hinder political stability and progress. Also a priori the fundamental law of the land must be placed on a higher footing than ordinary legislation and therefore invested with a more rigorous method of change. In the present Sri Lankan context the justification for invoking a simple majority is the exception that proves the rule. It is occasioned by the recurring impossibility to obtain a 2/3 majority for constitutional change owing to the drawbacks of the PR system. Once corrective action is taken to remove or suitably modify the PR system, there will be no more need for a simple majority. hence it is suggested as coming from the citizenry of this country that when the proposed new constitution is being drafted the 2/3 majority principle should be enshrined. There will be no justification to stage constitutional revolutions thereafter. The question whether constitutional reform should await a final settlement with the LTTE is a vexed question, but it is also a question that puts the bona-fides LTTE to the test. The LTTE has been playing a lone innings long enough and in the process holding the country to ransom. Presently the LTTE is insisting on an interim self-governing authority even before talks resume, leave alone constitutional reform. Premature vis-a-vis LTTE settlement The danger for the country is that, if by any chance the talks fail, all the accompaniments for a separate State will be in place. And the longer the talks last, the more will these accompaniments get entrenched, leading possibly to a point of no-return. On the other hand reason demands that in order to avert this danger there should be discussion on the core issues before details of a settlement including the ISGA are worked out. It is in this background that the LTTE's stance to represent the Tamil people in the North and East as confirmed by the election of 22 TNA members to Parliament as their proxy has to be viewed. While this stance is a handy weapon in the hands of the LTTE to confront the Sri Lankan government it is also a double-edged weapon in that the Sri Lankan government has every justification to call upon the LTTE to voice their concerns in Parliament especially at the constitution making process. In other words there is a forum for core issues to be discussed in a democratic setting. If this two-pronged approach cannot be implemented for some reason, then constitution making must proceed, and the settlement with the LTTE incorporated by way of amendments for which transitional provisions will have to be made for a simple majority to adopt these amendments. The LTTE cannot logically reject this two-pronged procedure, particularly since sooner a final settlement is reached, sooner will be the completion of the task of rehabilitating the North and East. This is not to say that rehabilitation work should not proceed in the interim, but on a low trajectory such as an interim council. At the same time going by the pace at which talks have so far proceeded it will be iniquitous if constitutional reform aimed at the integrated development of the South and the country as a whole is held up till a final solution is reached with the LTTE. |
|
News | Business | Features
| Editorial | Security
Produced by Lake House |
