Making constitutions and constituent assemblies

By Maduranga Rathnayake

(December 05,Melbourne, Sri Lanka Guardian) Some key political figures have hinted of a possible constituent assembly, of course subject to a couple of big “If”s, in the near future, with a view to enacting a new constitution. The Constitution is unambiguous about the procedure to be followed in amending or repealing it. The Constitution cannot be amended without the approval of a 2/3 majority in parliament while amendment of some entrenched provisions, in addition, requires the people’s approval at a referendum. Thus, the Constitution cannot be repealed without the approval of the Parliament as well as the people. The present Constitution does not provide for a constituent assembly. A constituent assembly is an extra-constitutional device; a device alien to the law and morally weak and resort to which, while many strongly detest it, may, in an appropriate context, be justified as a necessity, a way out of a dead-lock.

There is hardly any dead-lock situation at the moment and one wonders whence this proposal of a constituent assembly? Consequent to the 1970 general election a similar method, in that the members of the Soulbury parliament convened as a constituent assembly, though the Tamil members withdrew from it, was adopted when the Soulbury Constitution was sought to be repealed. This was an extra-constitutional exercise which was justified on the basis of several apparent constitutional obstacles, though some strenuously argued that there was no necessity for a constituent assembly. However, at present, in the absence of any convincing reason or any reason at all for that matter, there is no necessity for a constituent assembly or any other extra-constitutional measure. The constitution being the highest norm, it must be respected and any politically motivated attempt to deviate from it would be in defiance of the rule of the constitution.

What is most repugnant and objectionable about the constituent assembly is that the present Constitution could be declared repealed and a new constitution enacted thereof by a simple majority of the members of the assembly. One would find an undeniable resemblance between the so-called transnational government of the Tamil diaspora and a constituent assembly of this nature, as both measures lack any known legal basis, the so-called doctrine of necessity hardly being a legal norm. On the other hand, what is salutary about the procedure set out in the Constitution is that the people would be directly privy to the repealing of the Constitution as well as the enactment of a new one.

Two important constitutional values

Constitutional supremacy. The constitution of a country should be a people’s constitution, much as the government a people’s government, and for it to be so, the people’s participation at the constitution making process must be guaranteed and further, a true people’s constitution as opposed to a tyranny of the majority, should be the highest norm or the grundnorm . In other words the constitution must be obeyed. A constituent assembly outside the framework of the constitution would be contrary to the constitutional governance.

Secular Constitution. This means that foremost a constitution must be ethnic-blind and religious-blind. It must be ensured that no provisions are made based on the ethnic or religious layout or in order to appease particular ethnic or religious group/s. For instance, Article 9 of the present Constitution grants foremost place to Buddhism and casts a duty on the state to protect and foster the Buddha Sasana. The drafters of the Constitution either could have simply not have this provision or they could have cast a duty on the state to protect and foster all religions while not affording a foremost place to any particular religion. A neutral constitution is also a constitutional endorsement of diversity.

These two principles effectively counter the potential of any “tyranny of the majority”.

-Sri Lanka Guardian