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Constitutional changes must not be done in secrecy or in haste

Jun 26, 2010 4:54:42 PM- transcurrents.com

An Interview with Ruana Rajepakse by Namini Wijedasa

Namini Wijedasa:
How would you assess President Mahinda Rajapa-ksa’s approach towards constitutional change?

Ruana Rajepakse:
The process is the problem. It has been the case where a lot of constitutional amendments are concerned. There isn’t time to study and discuss this properly.

A constitution is supposed to be the country’s basic law. Therefore, if it is to be changed it must be something that is carried out with a lot of deliberation and public discussion. But very often we find there is no public participation in the amendment process.

Sometimes, amendments are even proposed in the form of an urgent bill. A constitutional amendment has to be first drafted in bill form after which it has to go before the Supreme Court which will decide whether it needs just a two-thirds majority-which is a basic requirement for any constitutional change-or whether it also needs to be put to the people at a referendum.

NW:
Could an amendment to the constitution be ushered in as an urgent bill?

RR:
There is a clause in the constitution which provides for the government to submit bills as urgent bills. This means the court must give its decision within twenty four hours. The court has somewhat modified this to mean 24 hours after the first sitting of court after the bill is presented.

For example, if the government gives the bill on a Friday evening, then the 24 hours starts to run at the first sitting of court on Monday. On the other hand, if the government is smart and gives it on Tuesday morning, the court would then have to give their determination by Wednesday morning. It is questionable whether this process was ever meant to be used for constitutional change. It’s even questionable whether any act of parliament needs to be passed as an urgent bill because if an urgent or emergent situation arises, the government can always deal with it under Emergency Regulations that can be promulgated under the Public Security Ordinance.

NW:
Will President Rajapaksa have the proposed amendments introduced in the form of an urgent bill?

RR:
We don’t know for sure but there have been hints in the papers that they will be put forward as an urgent bill and that there is precedent for it. It’s an unhealthy precedent but there is precedent.

NW:
What is the danger in this?

RR:
A lack of proper scrutiny, lack of opportunity for public debate and I would think a lack of opportunity for parliamentarians to study it carefully...and they are the ones who have to pass it.

NW:
Why would a government take such a non-transparent route?

RR:
They may be feeling they have a better chance of getting it (bill) passed if people don’t have a chance of scrutinizing it very carefully. When I say government, I mean various governments. All governments that have had a two-thirds majority or are confident of getting one have tried to do this because obviously only they can do it.

NW:
What is the ideal manner in which the government can see these amendments through?

RR:
I would say any government should indicate their views to the public, put forward a paper setting out the main features of the amendments and allow time for public discussion. They should also take note of what the public says.

NW:
Everything is politicized in this country. Whenever controversial change is attempted, the process is either permanently cobbled or drags on forever. In that context, don’t you think the government is right in thinking this is the best way to approach constitutional change?

RR:
They don’t have to listen to every objection. At some point, the government has to take a decision. I don’t think this is a reason for doing it in secrecy or in haste. Everybody is entitled to express their opinion. The government of the day can ultimately decide which opinion it prefers and which opinion it is going along with.

NW:
According to report, President Rajapaksa has said that if one or two MPs leave the government over the proposed constitutional amendments, ten or fifteen are waiting in line to join. Your comments?

RR:
I’m not going to read the political situation. But I think constitutional change is a matter that affects all people, whether they voted for the government or not. And all citizens have certain rights. When a constitutional change is made, it should be made for the greater good of the country, and not for the purely partisan interests of one political party or coalition. That (the latter) is what we have seen happening quite a lot. We first saw it under the J.R. Jayawardena government. They had a two-thirds majority and he changed the fixed term presidency to a situation where the incumbent president could decide the date of the election and could go for it anytime after four years. That gave an unequal advantage to the incumbent president. The same applies to some of the other amendments.

NW:
How would you assess the amendments that are currently rumored to be in the pipeline?

RR:
They relate again to the idea of giving the president the option of running for a third term or even any number of terms. That will, of course, have to apply to any future president also. So you can’t say it is only to benefit Mr Rajapaksa. But we must look into it carefully. Why was it limited to two terms? Is there a policy that other people must be given a chance? Even a popular president has to first get re-elected. The fact that he has the chance to go on for any number of terms doesn’t mean he will be president for all those years. But maybe the original framers of the constitution thought one person shouldn’t enjoy more than 12 years of power, that there should be an opportunity for others.

After all, there are 20 million people in this country. I have also heard another view that when the president knows he’s in his second term and he can’t have another term, he has no interest in governing well. There may be some merit in this idea but it’s the principle of it that it should be properly debated. People who wish to object or file objections in court should be given the chance to do so. The court must be adequate time to deliberate.

NW:
What are the demerits of removing the term limit?

RR:
The same person can go on for a long time, provided he is elected. I think some of the disquiet about this amendment also relates to the electoral process. In a country where the electoral process is above suspicion, then this kind of amendment will probably not cause the same amount of disquiet. Unfortunately, many times in our recent past, from 1982 onwards, there have been serious doubts of the integrity of the process and many facts have come to light.

There has been a high level of violence; there have been allegations of other forms of electoral fraud. Even now there is a petition pending about the last presidential election. Therefore, the reluctance to give more than two terms is to some extent tied up with the fear that the longer a particular person remains in power, the more he will be able to influence the electoral process-the media and the agencies of government- and thereby keep himself in power. The gap between the advantage enjoyed by the incumbent and the challenges faced by the other candidates will be bigger the longer a particular person remains as president.

NW:
Is there a justification for introducing a second chamber, or senate, as is reportedly being proposed?

RR:
A second chamber costs money. We are a country which right now is in dire need of money, or are very much in debt. If you’re going to spend on a second chamber, it must serve some definite purpose. It hasn’t been indicated very clearly what the purpose of a senate is going to be. I think there is a school of thought that it might help to resolve the ethnic problem...and the differences among the communities... but it has to be thought out clearly. Firstly, you can’t possibly do this as an urgent bill. The senators will have to be chosen differently to parliamentarians.

Otherwise it will be just another reflection of parliament. Then there is the question of whether they are to be elected or chosen in some other way. These are all weighty issues which need to be gone into.
In a paper hastily presented to cabinet on a day when the president and most ministers were absent, permission was sought to make “minor” changes to certain sections of the constitution. What do you think of these proposals being termed as “minor” changes?

None of these things are minor. First of all, no amendment to the constitution is minor. But these are particularly significant ones.

NW:
You have studied earlier amendments to the constitution. How would these compare with what is being envisaged now?

RR:
In substance and in process, I think there is great similarity. Everything emanates from the president. That’s the first thing. The other thing is that it’s not in the public domain long enough for the public to really understand it. I see a lot of similarities between what’s happening now and what happened in the 80s with regard to constitutional change. And you must remember that the 80s became one of the most violent decades in this country so something went wrong.

NW:
Is it entirely up to the Supreme Court to decide whether or not the proposed bill must to be tested at a binding referendum?

RR:
If it is inconsistent with certain clauses of the constitution, the court could call for a referendum. The constitution provides for two kinds of referenda. One is just to get public opinion before a law is drafted. That is good. Parliament can take into account both majority and minority opinion. If you have a majority of six to four, for instance, parliament must look to see what the four percent are also wanting and they can, maybe, find some middle ground which is the healthier thing to do. My view is that putting it to a binding referendum is not a good idea.

Normally, a constitutional amendment has to first be passed by a two-thirds majority in parliament which should represent roughly two-thirds percentage of the voters. What is the point if parliament passes it by two-thirds and the people reject it by, say, 51 per cent to 49 percent? Where do you stand? A binding referendum is not a good idea also in the context of our communal problems. Suppose something is put to them regarding the 13th amendment and the Sinhalese vote rejects it, you will have a situation like in Kosovo where the minority communities will appeal to the international community saying they can’t get justice from the majority community regime.

(Eminent Lawyer,Ruana Rajepakseis author of the book” A Guide to Current Constitutional Issues in Sri Lank”. These are Excerpts from an interview appearing in “Lakbima News”.)