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 None of these can be validly repealed or amended without a two-thirds majority of the total membership of Parliament.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