Playing with the sovereignty of the people

According to the normal rule any draft legislation must be examined by the Attorney General. Before a draft legislation is included in the agenda of Parliament it must be gazetted at least 4 days beforehand. That is for the information of the public. During that period the people have the right to go before the Courts against the draft legislation if necessary. 

Thereafter the draft legislation must be passed in Parliament in accordance with the Constitution and the standing orders of the Parliament. However, there is also a way in which a draft legislation can be taken up in Parliament without informing the people. A draft legislation which is for the benefit of the people and which has urgent importance according to the Cabinet can be directed to the Supreme Court by the President to consider whether the draft accords with the Constitution. 

In such an occasion the Supreme Court is obliged to hand over its observations to the President and the Speaker within 24 hours or within a period not exceeding 3 days. 

A new draft Constitution cannot be considered an urgent legislation of national importance. A legislation is a law enacted in Parliament for day to day needs in accordance with the Constitution. When Sepala Ekana-yake seized an Italian airplane and came to Sri Lanka, the government had to make a law as a matter of urgency with national importance because there were no laws in the country necessary for taking action in such circumstances. It is justified for such legislation to be sent to the Supreme Court to consider its constitutionality and get it passed leaving all other work in Parliament, without gazetting the draft. 

However the Constitution of a country is different. It is like a social consensus arrived at by the society for a new mode of administration. It can be considered an ordinary legislation. The very fact of getting a Constitution passed in the manner of some urgent legislation of national importance illustrates well the nature of the democracy prevailing in our country. 

In a democratic political system it is the people who have sovereignty. That includes powers of administering the country, the fundamental rights, the power to direct representatives to the legislature and the right to join in the process of legislation. 

Although there are laws which the legislature alone can pass without the participation of the people in the process of legislation, it is not possible for the legislature alone to enact a Constitution without getting the people to participate in the process. 

The people's participation is an accepted fundamental requirement in the matter of making a Constitution. When the South African Constitution was made, the original draft was brought to the hands of the people and they were given a long period of time to discuss it and express their views on it. 

Thereafter when the final draft was prepared the ideas expressed by the people were considered well, and there were nearly four million written expressions of views. A policy was followed for taking into consideration all those written expressions and views when making the final draft. 

However, the manner in which such matters were and are dealt with in our country is different. There was no public discussion of the Constitution although there were talks with the main opposition and the minority parties to a certain extent. A group of other organisations who may be considered social forces was not made to participate in the process of discussion. 

The period of time given to officers who drafted the Constitution to do that job was less than a month. When even the drafting of simple law takes about two weeks time, it is impossible to think that a massive document like the Constitution can be drafted successfully in such a short period as one month. 

Although the Cabinet has given unanimous approval to the draft, it can not be said that it was done and after considering the relevant matters well. Even those who went before the supreme court to protest against the draft had to do so without being given adequate time to study the draft. 

When the necessary amount of time had not been given for the purpose it is improbable that the draft was considered well even by the Parliament. The fact that the people were kept outside this total process may be considered the inherent and the most special feature of that process. 

It may be seen that even in getting the agreement of the MP's, bribery rather than conviction is the main factor. All members of one government party will be voting for the passage of the draft not because they consider it to be a new consensus that gives a solution to all the crises in the country but because it is essential to do so for the purpose of preserving their power. 

A number of members of the opposition too appear to be supporting it, not because of the excellence of the draft but because the high price allegedly being offered for such support. In the final analysis this Constitution too is not one that will help solve the burning issues of the country but one that will inevitably aggravate them.

Inside the glass house

Editorial/ Opinion Contents