That section 29

By Maduranga Rathnayake
Writes from Melbourne

(December 03, Melbourne, Sri Lanka Guardian) We need some drastic constitutional reforms, not because political expediency and survival of some, if not all, politicians require it at this hour, because it is indispensable if we are to progress as a nation. Our constitutional making history is marred with corruption and deceit. Dire have been the consequences. The Tamils rejected both the so-called home-grown Constitutions; the short-lived 1972 Constitution and the much pulverized present 1978 Constitution. First and foremost, the lack of broad-based consultative processes before the enactments rendered those processes as well as the final constitutional documents insubstantial and unworthy. And this myriad of deception caused a deep resentment among the minority Tamils. Though any Ceylonese at the time could have done very little about the Soulbury Constitution, the Tamils felt, more importantly, recognised and to a greater extent safeguarded, by Section 29(2) and (3) of the Ceylon (Constitution) Order-in-Council 1946 which effectively barred the dominion parliament from legislating against ethnic and religious rights of the minorities.

The deliberate exclusion of a provision similar to section 29(2) and (3) in the 1972 Constitution was more catastrophic than it was utterly myopic. The probity of the so-called Constituent Assembly is certainly debatable. Though Kodeeswaran v. Attorney-General (1969) and Bribery Commissioner v. Ranasinghe (1964) judicially (the Privy Council) affirmed the entrenched character of section 29(2) and (3) it is once again arguable whether these pronouncements mandated the inclusion of the very section in a future Constitution. While one must appreciate the pragmatic relevance of the idea of a Constituent Assembly, particularly, given the constitutional technicality involved, what is unpardonable, however, is the Constituent Assembly’s failure to make a more secular Constitution by including, inter alia, a provision similar to section 29(2) and (3). This is one grave mistake in our constitutional history. Unfortunately, the 1978 Constitution was too enacted with little remorse. That too the Tamils received in the same way; outright rejection.

On both occasions, in 1972 and 1977, the respective parliamentary elections were contested, by the parties that would be elected, on an election pledge, more vigorously in 1972, for a new Constitution. It is appalling how a parliamentary election could have been an alternative to a broad-based public consultation before a new Constitution could have actually been enacted. This was and is a hoax; and a blatant abuse of a most democratic institution, the franchise. In both these instances, rather manoeuvres, the mandate was interpreted and taken as an endorsement by the people of the new constitution, which either had already been drafted and ready or swiftly finalised thereafter, whereas the mandate, in fact, ought to have been the very basis of a prospective consultative process on the enactment of a new Constitution.

What we see now is the beginning of an even horrendous process. Already private-agreements have been entered into by some presidential candidates and party political leaders regarding changing the present executive presidential system to an executive prime-minister system. Even dates and months have been set for this adventure. Firstly, are these private agreements legal? It is clear that these agreements are utterly unenforceable and of no legal, much less constitutional, force at all. Secondly, does one have a moral right to seek a mandate from the people based on these private agreements? To do so would be obnoxious to both the very essence of the franchise as well as the modern principles of constitution making. The people’s mandate should be sought only after the core principles on which the new constitution would be based on have been deliberated in a widest possible consultative process. Thus, the people’s mandate should be sought at that stage with a view to obtaining the final consensus. The recent South-African experience in this regard has shown us that such a broad-based consultative process, much as it is imperative, is possible.

What we need at this point in time are not piece-meal constitutional adjustments for leaders to secure power, instead a genuine constitutional making process wherein the rights of the majority Sinhalese and the minority communities would be vigorously examined and specific provisions that balance the rights of different ethnic groups would be introduced.

-Sri Lanka Guardian