Imperatives under Article 83 for a new constitution
By Neville Ladduwahetty
MP Dr. Jayampathy Wickramaratne P.C. during the course of an interview had stated: "We must go for a referendum if we are to introduce a new Constitution. For example, if we want to change even a comma in Article 83 of the Constitution, we must go for a referendum"(Ceylon Today, August 11, 2017). Article 83 requires 2/3 approval of Parliament and approval by the People at a referendum in order to abolish the executive presidential system and introduce a NEW Constitution. The two "official" reasons offered as justification for abolishing the Executive Presidential system are: (1)The belief that the Executive Presidential system concentrates too much power in a single individual, and (2),that it was an election pledge to the People. Instead of abolishing the Executive Presidential system in its entirety,the 19th Amendment in its original form provided the Government an opportunity to seriously derogate the powers of the President if the Government was prepared to subject the Bill to a referendum. The fact that the Government was reluctant to face a referendum at that time, but is now prepared to go for a referendum as stated by Dr. Wickramaratne, must mean that the scope is wider than the two "official" reasons offered above, for public consumption.
It is therefore clear that since the Government is now prepared to conform to the full provisions of Article 83, the opportunity would be exploited to the fullest, and to radically transform the structure of the Sri Lankan State. One radical transformation would be to dismantle the role of the Executive powers of the President in the Provincial Councils through his representative the Governor, and devolve Executive power to Provincial Councils; a fact that was clearly evident from the Sub-Committee Reports. Therefore, in the immediate background of alarming disclosures connected with the Bond Scam,the People are entitled to know the real and honest reasons for a NEW Constitution, in the knowledge of the huge credibility deficit that exists with regard to election pledges.
Before embarking on the task of preparing the draft of a NEW Constitution,two fundamental questions need to be raised relating to the need for a 2/3 majority by Parliament.
1.Does the Government have a mandate from the People to repeal the existing Constitution and replace it with a NEW Constitution?
2. Would not the needed 2/3 approval by Parliament come at the cost of violating the Franchise and hence the Sovereignty ofa section of the People?
TWO THIRD APPROVAL of PARLIAMENT
The current assumption is that if the present Parliament approves provisions in a NEW Constitution with a 2/3 majority,one requirement of Article 83 would be fulfilled. The question arises: How legitimate would such anassumption be considering the present formation of the Parliament in which the UNP has 105 members, the UPFA has 95 members, the TNA has 16 members, the JVP has 6 member with a few individual members making up the total to 225 members. Consequently, no political party has a clear majority. Under the circumstances, the present formation of the Government is that of a Minority Government.
It is therefore abundantly clear that the People of Sri Lanka did NOT give a mandate to any political party to institute any changes that would drastically alter the political structure of the State. Therefore, leaving aside the unethical aspect, would it be constitutionally legitimate for political parties or sections of political parties to form coalitions and attempt to amend or introduce a NEW Constitution? When answering this question a fact that should be borne in mind is that some members of Parliament who would be part of the 2/3 majority that would be voting for a NEW Constitution, could very well be members who were rejected by the People at the 2015 General Election.
A 2/3 majority under such circumstances would amount to going far beyond the boundaries authorized by the People. The question that needs to be asked is under what provision of Sri Lanka’s Constitution, or of what provision of any International Law could a Government made up of a coalition where no political party of the said coalition has a majority to form a Government, be permitted to repeal and replace a Constitution without a clear and unequivocal mandate from the People in the form of an outright majority to implement such a radical transformation?
Article 83 has two components: One is the need for 2/3 approval of Parliament and the other is approval by the People at a referendum. Both components need to be legitimate, each on its own merit. The need for both components to be independently legitimate is reflected by the fact that only those very few Articles in the Constitution that entrench the core values of the State have to comply with both components.
On the other hand, if minority parties in Parliament get together and forge a 2/3 majority, the ONLY safeguard is the decision by the People at a referendum. This single safeguard was certainly what was intended in Article 83. Therefore, the need for the 2/3 approval should at least be the product of a Majority Government with the support of other parties for the approval to be legitimate. Since this is not the case with the present formation in Parliament, it does not have the legitimacy to clobber together the 2/3 majority needed by Article 83.
According to Dr. Wickramaratne, "Today, the people clamour to have the executive presidency abolished" (Ibid). That is obviously his own interpretation. If in fact the issue of abolishing the Executive Presidency was a major concern of the People they would have given a positive mandate to the party that made such a pledge. The fact that no political party was given such a mandate means that what the Government is planning to do is not lawful, because it does NOT have the mandate to undertake such a radical and transformative task as changing the structure of the State without it being sanctioned by the People.
VIOLATION of FRANCHISE
The two major political parties that contested the August 2015 election were the UNP and the UPFA. Neither secured an outright majority. Consequently, the type of Government Sri Lanka currently has is a coalition made up of the entirety of the UNP and a minority of the UPFA, while the majority of the UPFA consisting of 52 members out of a total of 95 are NOT part of the coalition. Such an arrangement would undoubtedly compromise the Franchise and hence of the Sovereignty of the voters who voted for the 52 members of the UPFA that are NOT part of the coalition. This is what makes the formation of the present Government unlawful and a direct affront to the fundamental principles of representative Democracy.
Other countries too have experienced minority Governments. For instance, in U.K. Prime Minister Theresa May’s Conservative Government is a minority Government because it failed to secure sufficient seats in Parliament to form a Government. This outcome has caused it to look for a coalition partner to form a Government, or in the least, a partner who would support them in Parliament. Similarly, countries such as Canada and Australia too have experienced minority Governments. And when faced with such a predicament they look for a coalition partner to form a Government.
In all these instances where the formation of coalition Governments were inevitable, the entirety of each party in the coalition committed itself to the formation of a legitimate Government, without violating the Franchise expressed by the People who voted for the parties in the coalition.
The difference between the coalition formations in these countries and the coalition formation in Sri Lanka is that ONLY a minority of the partner UPFA is part of the coalition Government, while the majority of the UPFA remains outside without an official status. Consequently, the majority of those that voted for the UPFA remains unequal before the law. This is in violation of a Fundamental Right; a right that has gone unchallenged since this Government came into power.
The present formation of the Government is unique in the history of representative Democracy. It is unique not because all the political parties in the present Parliament are minority parties, since similar minority formations exist and have existed in other countries as well. However, when coalition Governments are formed with minority parties, the entirety of each party forming the coalition are legitimate partners of the Government in order to preserve the sanctity of the Franchise of the People who voted for each partner of the coalition. What is unique about Sri Lanka’s coalition is that it is made up of the entirety of the UNP and a minority of the other member of the coalition (the UPFA), while the majority of the UPFA remains outside the coalition and the Government.
This unique formationof the coalition makes a 2/3 majority invalid for two reasons. Firstly, a coalition formation made up of minority parties does not have a legitimate mandate to repeal an existing Constitution and replace it with a NEW Constitution and secondly, the Franchise and hence the Sovereignty of the majority of the UPFA that is not with the Government and therefore excluded from the coalitionis compromised, thereby violating the Fundamental Right of Equality before the Law.
On the other hand, it would be legitimate for a coalition Government made up of minority parties to pass laws that require ONLY SIMPLE MAJORITIES provided ALL members that constitute the coalition are recognized as members of the Government so formed. In view of the uniqueness of the coalition in Sri Lanka even such a concession would not be legitimate. However, under no circumstances would it be legitimate for a coalition Government of minority parties to amend or revise any provisions in the Constitution that would require special majorities such as a 2/3 majority.
Despite the stated claim that the NEW Constitution is meant to abolish the Executive Presidential system on the grounds that it was a pledge made to the People, the real reason is to dilute the Executive powers of the President through the Governors in the Provinces and transfer Executive powers to the Provincial Councils. The result would be to devolve Executive and Legislative powers to the Provinces; powers that are typically characteristic of Federal Arrangements. All of this is to be achieved by conforming to provisions of Article 83 of the Constitution that require a 2/3 approval of Parliament and approval by the People at a referendum.
The flaw in the strategy is that the 2/3 approval of Parliament has no legitimacy for the two reasons cited above. For a 2/3 majority to have any legitimacy, at least one party in the coalition should have a minimum of 50%+members in Parliament if the sanctity of Article 83, which isthe ONLY Article that entrenches the core values of the Sri Lankan Nation and State is to be honoured. Since such a condition does NOT exist the present Parliament does not have the mandate and therefore lacks the legitimacy to repeal the existing Constitution and replace it with a NEW Constitution.