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Constitutional changes through an ‘Urgent Bill’

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An interim-government has no right to make

On January 8, 2015 Sri Lankan voters voted for a President to lead the nation. The election that was to vote a President ended up with a Prime Minister being sworn in followed by close to 50 MPs majority belonging to the UNP while the rest composed of MPs that crossed over from the previous government and those that were part of the common alliance. With the next election being the general where all MPs will need to go before the people including the PM, there appears to be a rush to resort to change the constitution.

Transferring powers from the Executive President to the Prime Minister is a major political shift and when sovereignty of the nation lies in the hands of the People, their consent must take place. The crux of the argument is that Constitutional Changes cannot be done and should not be done by resorting to ‘Urgent Bills’.

The argument that Constitutional Changes cannot be made through an ‘Urgent Bill’ was presented by Dharshan Weerasekara in a paper that appears in the foreign policy journal of 2012. Please view this important article http://www.foreignpolicyjournal.com/2012/07/09/the-fatal-flaw-in-the-sri-lanka-constitution/ The Fatal flaw in the Sri Lankan Constitution’.

Opportunity to challenge
Dharshan Weerasekera’s lengthy essay with examples takes readers through the logic of his assessment exploring the fundamental nature of using an Urgent Bill.

Dharshan’s argument, in brief, is as follows:
The Constitution sets out a regular procedure for enacting Constitutional amendments, and that procedure gives citizens an opportunity, albeit a brief and limited one, to challenge proposed amendments before the Supreme Court. Citizens have this same right with respect to any proposed new law.

Since the Constitution is the Supreme Law of the Land, it stands to reason that if citizens get an opportunity to challenge other laws before they are enacted, they ought to have that right more than ever when it comes to proposed changes to the Constitution.

The “Urgent Bills” provision allows the President and the Cabinet to bypass the normal procedure for enacting new laws, which means citizens do not have a chance to challenge the proposed law, at the Bill stage, even to the limited extent they are normally allowed. All that is needed to pass an “urgent Bill” is an endorsement by the Cabinet that the Bill in question is “urgent in the national interest,” and a two-thirds majority in Parliament on the day the vote is taken on the Bill.

With regular legislation (i.e. proposed laws other than Constitutional amendments) the law in question, even if it is passed as an “Urgent Bill” it can be repealed later with just a simple majority in Parliament. So, for instance, if a law passed as an “Urgent Bill” becomes obnoxious to the people later on, it can be repealed by a simple majority in Parliament, and that’s the end of the matter.

Dangerous invention
With a Constitutional amendment, if it becomes obnoxious later on, a simple majority in Parliament cannot repeal it. One has to obtain a two-thirds majority, which is obviously much more difficult.

So, in essence, what using the “Urgent Bill” provision to enact Constitutional Amendments does is, it deprives the citizen of even the limited chance he or she has to challenge the proposed amendment before it becomes law, and makes it more or less impossible to repeal the new amendment were it to become obnoxious later on. It is a thoroughly dangerous invention, to say the least.

Dharshan has a further technical argument to show that, according to the inherent logic of the Constitution itself, the “Urgent Bills” provision could never have been intended as a means for bringing about Constitutional changes, (but it is best for the reader to read this in the original.)

To return to the present, a President that has promised good governance which became the basis on which people took a decision to vote for change should not be hijacked to satisfy the political careers, agendas and aspirations of a handful of people who command a key component in the alliance.

Is it not bad governance, lack of ethics and complete disregard to the spirit of law to use the Urgent Bill provision to change the constitution and in a hurry before the general elections?

People need to be given time to think over the changes that are proposed. They need to be given the arguments as to what the changes are likely to be and why they are being done and if there are no other alternatives without changing the constitution.

Irremediably harm
What will remain a concern for the country is that given the national security question the People do not wish the country to have a weak executive handling issues, when provinces under ethnic-based parties remain vocal about separatism and autonomy only for their ethnic group. In particular, the Northern Province now under the Tamil National Alliance a key party ITAK which is being challenged to prove its constitution is federal and not confederal. If Confederal, despite present claims by the PM that 13th Amendment will be given within a UNITARY Sri Lanka, the ITAK and TNA can and will call for a referendum to separate - which is the ultimate game plan. Therefore, the unitary status will be meaningless and this is what the new Government and in particular the President and his advisors need to take stock of.

It doesn’t take much imagination to see that, if a weak executive is imposed, and the minorities start overtly pursuing a separatist agenda soon afterwards, including demanding “referendums” on self-determination, and so on, it will be impossible to take decisive action against such attempts.

Meanwhile, with the minorities voting as blocs, and the majority vote divided among a number of contending factions in Parliament, it might be very difficult to get a two thirds majority to re-impose change the Constitution and re-impose a strong-executive. The damage, in short, will have been done, and without a single citizen having had a chance to challenge the original amendment that imposed the weak executive!

So, to repeat, it is dangerous to allow anyone to use the Urgent Bill provision to bring Constitutional changes. If a new Government wants to introduce Constitutional changes, they should follow the regular process wherein the People who control the sovereignty of the land are able to challenge and question the planned action, at least to the limited extent they are allowed.

With the people looking forward to a new governance culture under President Maithripala Sirisena they should not be disappointed, not to mention irremediably harmed, by an interim government attempting to make sweeping changes before elections.

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