FB   
 
Powered bysps
        Society for Policy Studies
 
 

 
Constitutional Reform Essential Requirements of Validity
Posted:Jan 5, 2016
 
Print
Share
  
increase Font size decrease Font size
 
By Prof. J.L. Peiris
 
There appears to be considerable confusion about the legally prescribed procedure for repeal or amendment of the Constitution.  In view of the impending exercise which the Government proposes to embark on at the end of the week, it is important that there should be clarity in the public mind in this regard.
The essential principles, simple and straightforward in content, are the following:
 
1 Constitutions must, of course, be changed from time to time to serve vital social interests, but there is a mandatory procedure for repeal or amendment of the Constitution.  Compliance with this procedure is compulsory; violation carries the consequence of nullity of the resulting document.
 
 
2 The Constitution, being the highest law of the land, is qualitatively distinguishable from all other laws.  Public confidence in a Constitution is largely dependent on stability and continuity.  This is why, in legal systems across the world – irrespective of cultural and other differences – reform of the Constitution is governed by principles which are not applicable to changes in other laws.
 
3 There is a whole Chapter in our Constitution entitled “The Legislature: Amendment of the Constitution”.  There are two main principles 
embodied in this Chapter.
 
4 The first of these is insistence on a special majority in Parliament for repeal or amendment of any provision contained in the Constitution.  There are 172 Articles in the Constitution.  None of these can be validly repealed or amended without a two-thirds majority of the total membership of Parliament.  This is the plain effect of Article 82(5).
 
 
"There appears to be a growing body of opinion that, during the exercise which the Government wishes to engage in, some basic provisions should be left entirely untouched"
 
 
5 This is not all. There is a second defining principle. This relates to a category of provisions which the Constitution invests with particular sanctity, a very special procedure being laid down for any form of interference with the content of these provisions, deliberately identified and marked out from the rest.
6 In some Constitutions – for example, that of India – the effect of judicial interpretation by the apex court is that some provisions reflecting the essential characteristics of the State cannot be deleted or changed at all, by recourse to any procedure known to the law.  They are absolutely unalterable, and form a body of permanent public law.
 
7 There are no provisions of this nature in the Constitution of Sri Lanka.  However, our Constitution specifically identifies several provisions which are not capable of repeal or amendment solely by compliance with the requirement relating to a two-thirds majority in Parliament.    In respect of this limited group of provisions, a further mandatory requirement is imposed for repeal or amendment.  This consists of endorsement by the People at a Referendum.
 
8 Article 83 sets out 11 Articles which attract this very special procedure.  These 11 Articles, together with Article 83 itself, enjoy a degree of entrenchment which does not attach to the other provisions of the Constitution.  The supreme law of our country provides, in terms, that no purported law for the repeal or amendment of “any” of these provisions will be valid in the absence of conformity with the Referendum requirement.  
 
9 As far as these 11 Articles, and Article 83 itself, are concerned, the gist of the mandatory constitutional requirement is that the People of Sri Lanka, in whom sovereignty in the Republic resides, must, as a condition of validity, approve at a Referendum any proposed law to repeal or amend any one or more of these entrenched provisions. 
 
10 This necessarily means that, for any change to be lawfully made in respect of any of these entrenched provisions, the People must have the opportunity to focus on the content of the current provision and the change that  is sought to be made, and express their own judgement whether they favour or disapprove of the proposed change.  This requires that a separate question be formulated on the change contemplated with regard to each provision, so as to enable the public to answer ‘Yes” or ‘No” to each question.
 
11 To present to the public the entire text of a proposed new Constitution consisting of a couple of hundred provisions and to pose to them, one single question whether they approve the draft as a whole, or not, is a cynical violation of the Referendum requirement insisted upon by Article 83.  This subterfuge, calculated to circumvent the central purpose of the mandatory requirement relating to the holding of a Referendum on a limited number of specifically identified provisions, takes away without any vestige of justification, the right of the People to reject any proposed repeal or amendment of the entrenched provisions, while signifying approval of some or all of the other provisions.
 
12 There appears to be a growing body of opinion that, during the exercise which the Government wishes to engage in, some basic provisions should be left entirely untouched.  This view, which is in accord with the structure of Constitutions in several other countries, involves a policy judgement.  But, whatever the response may be to this substantive issue, the whole constitutional reform exercise, whether by Parliament or by another body called a Constitution Assembly, will necessarily be rendered nugatory if mandatory provisions of the law are disregarded or infringed.   - See more at: http://www.dailymirror.lk/101939/constitutional-reform-essential-requirements-of-validity#sthash.FTwrW2y0.dpuf
 
Daily Mirror, January 6, 2016
 
 
 
 
Print
Share
  
increase Font size decrease Font size
 

Disclaimer: South Asia Monitor does not accept responsibility for the views or ideology expressed in any article, signed or unsigned, which appears on its site. What it does accept is responsibility for giving it a chance to appear and enter the public discourse.
Comments (Total Comments 0) Post Comments Post Comment
Review
 
 
 
 
Thirteen year old Bhuma (name changed) spends his day at home. He does not go to school, or play with children in his neighborhood to avoid being laughed at.
 
read-more
A pre-dawn  suicide terror attack (fidayeen)  on an army camp in the Kupwara district of Jammu and Kashmir on Thursday (April 27)   resulted in the death of three army personnel including an officer,  while two terrorists were neutralized. Combing operations are in progress to ascertain if any of the attackers have
 
read-more
The April 13 Mother of All Bombs (MOAB) strike by the United States on ISIS terrorists in Afghanistan has triggered suggestions that a second round of the Cold War is set to begin. Particularly as the new US President, Donald Trump, seems to be brash, abrasive and capable of taking action without thinking of consequences.
 
read-more
India should be extremely wary of any Trump involvement on the Kashmir issue because he would do anything to bring India to the table, writes Dr. Susmit Kumar for South Asia Monitor.
 
read-more
The core parts of the controversial Terminal High Altitude Area Defense (THAAD) anti-missile system have been moved to the site of what had been a golf course in southern South Korea.
 
read-more
spotlight image Mahmoud Ahmadinejad sprang a surprise when he registered himself as a candidate in Iran’s presidential election scheduled for May 19. After leaving the office of President in 2013 at the end of two controversial terms, the firebrand populist has been largely inactive in politics. 
 
read-more
spotlight image I am honored to be here today for the first U.S. government exchange alumni conference for India and Bhutan.
 
read-more
Health of the citizens and the economy of the nation they inhabit go hand in hand and every buck spent on former guarantees a manifold increase in the latter,  said noted public health expert K Srikant Reddy. The lecture 'Health and Development: India Must Bridge the Disconnect' was ...
 
read-more
Column-image

Title: Bollywood Boom; Author: Roopa Swaminathan; Publisher: Penguin; Price: Rs 399; Pages: 221

 
Column-image

Title: Defeat is an Orphan: How Pakistan Lost the Great South Asian War; Author: Myra Macdonald; Publisher: Penguin Random House India; Pages: 328; Price: Rs 599

 
Column-image

  The story of Afghanistan -- of the war against the Soviets and of terrorism that has gripped the landlocked country ever since -- is in many ways also the story of diplomat Masood Khalili, who motivated his people and led them...

 
Column-image

Title: The Golden Legend; Author: Nadeem Aslam; Publisher: Penguin Random House; Pages: 376; Price: Rs 599

 
Column-image

Over the Years, a collection of 106 short articles, offers us interesting sidelights on the currents and cross- currents in the public life of India during two distinctive periods: (I) 1987 to 1991 and (II ) 2010 to the present.

 
Subscribe to our newsletter
Archive