15th July 2001
With the people to be consulted through a
Justice Minister says Parliament won't be bypassed for a new constitution
By our Political EditorThe Government has no intention of replacing the constitution of the country through the August 21 referendum, Justice Minister Batty Weerakoon said yesterday.
The minister told The Sunday Times the proposed new constitution would need a two thirds majority in parliament and should be put forward for a fresh referendum before being implemented.
He said the August 21 referendum was non-binding and was only to ascertain the people's opinion whether they wanted a new constitution.
Once the people agreed that the country needed a new constitution, then the draft bill for such a constitution would be placed before parliament and then put to the people in another referendum.
President Chandrika Kumaratunga on Wednesday explained to the cabinet that she was unable to consult ministers before proroguing parliament and the decision was taken in consultations with constitutional lawyer R.K.W. Goonesekera.
Meanwhile, a close advisor to President Kumaratunga told The Sunday Times that the referendum of August 21 was not a move to replace the existing constitution without the approval of Parliament.
But he admitted that this position could not be treated yet as the official government position because there were other schools of thought as well within the government.
He was trying to allay fears widely expressed by the opposition that the government was planning to circumvent Parliament where it is now in a minority, and bring in a new constitution.
Opposition critics have charged that President Kumaratunga shut down parliament for two months to stave off certain defeat after the Parliamentary opposition last Monday produced a petition signed by 115 MPs, calling for an early vote on the no-confidence motion against the government.
While opposition critics said the wording of the question to be asked at the referendum was vague, a senior government official said the exact wording in English should read as "Do you agree that as a matter of national importance, and necessity, there should be a new constitution?". He said the wording was taken from the constitution itself where it states that the President can ask the people for their views on a matter of "national importance".
He assured that the referendum vote would not be taken as a mandate to introduce a new constitution without parliamentary approval, but would only be a mandate to proceed to draft either amendments to the existing constitution or introduce a new one thereafter.
"Any other method would be extra-constitutional," he said but conceded that there were those in government advocating this approach as well.
The official said if the people rejected the referendum, the government would take it that the people did not want constitutional reforms, and the entire constitutional reform process would be stopped with that.
If the people voted in favour of constitutional reforms, Parliament would, in all likelihood, have a Constitutional Commission comprising 12 MPs from all parties. The commission would provide a report to Parliament on agreed grounds and would take the existing route of the draft being first tested by the Supreme Court, then obtain a two-thirds majority of Parliament, and finally, approval by the people at another referendum.
The official said "the vehicle of the present constitution will be used for these changes" and that the mandate would be an argument for consensus of the people, and not a mandate for the draft constitution which was presented last year and aborted when the government realised it was falling short of the required two-thirds majority.
This would be a mandate for re-starting the constitutional process he said. The public will once again be invited to send in memoranda and in order to avoid filibustering only major organisations would be permitted to make oral submissions for an hour or two.
On an earlier occasion Justice Minister Weerakoon supporting the call for a referendum had mentioned that Constitutions must not be "cooked in a laboratory. It must be cooked in the streets and only then brought to the laboratory for fine-tuning."
President Kumaratunga in her address to the nation on Thursday did not
specify what route would be taken to introduce a new constitution, except
to say it would be done this year and in consultation with all parties.
The proposal was made at a secret and controversial meeting between Mr. Wickremesinghe and President Kumaratunga at 10 p.m. on July 4.
The President told the Cabinet that the UNP leader had pleaded for a meeting, a charge vehemently denied by Mr. Wickremesinghe, who said it was held at her request, and she had wanted it kept secret.
The UNP sources said the state media were attempting to give the impression that the meeting had taken place on the initiative of Mr. Wickremesinghe.
The UNP leader had proposed at this meeting that President Kumaratunga should not hold any portfolios and should name the cabinet in agreement with the prime minister, who would be himself.
Under the system the prime minister should be able to direct affairs
of the cabinet, but the President would be consulted on all matters.
By Shelani de SilvaThe August 21 referendum — described by critics as meaningless or non-binding — will cost at least Rs. 600 million in public funds and probably upto one billion rupees if transport, security and other costs are added.
Elections Department officials said the estimate of Rs. 600 million was based on the amounts spent for the two national elections last year.
They said poll cards from the standby stocks of the department would be sent to the districts within a week but additional staff would be required for the other work because of the short notice.
Government Printer Neville Nanayakara told The Sunday Times that the
printing of ballot papers for the referendum would begin within a few days.
By M. IsmethWith the Speaker's much-awaited ruling on the prorogation of Parliament being delayed, the UNP and other opposition parties decided yesterday they would meet in the parliamentary complex tomorrow to map out action, opposition sources said.
Speaker Anura Bandaranaike had been expected to give a ruling yesterday on the opposition request for him to summon parliament to meet tomorrow despite the presidential order for a two-month suspension of sittings.
The sources said they had been informed yesterday that the Speaker was still consulting legal opinion on the matter.
The ruling is likely to be given today. They said at tomorrow's meeting staring at 9. a.m. they would map out action to protest against what they see as the undemocratic and illegitimate shutting down of Parliament. A spokesman for the JVP which has 10 crucial seats said they also had been invited for tomorrow's meeting in Parliament but he was not clear on whether they would take part.
In submissions to the Speaker, the UNP's Constitutional expert K.N. Choksy said the July 11 proclamation was not a due and constitutionally valid exercise of the President's power under Article 70 and therefore not binding on Parliament. He said the president was not performing a purely executive function , but was acting so as to arrest the legislative power of the people by rendering Parliament functus for a period.
Mr. Choksy said it was his view that the prorogation was not bona fide and was intended to prevent Parliament from meeting and debating the vote of no-confidence. "It is an abuse of power with a self serving and extraneous objective namely to save the administration of which the President is the political leader from defeat in Parliament," he said.
He said the prorogation was not a valid exercise of power binding on Parliament as there was no valid reason for it.
In the light of 43 (3) which provides for the president appointing a Prime Minister Mr. Choksy draws reference to Article 49(2) which states in the event of Parliament passing a vote of no confidence in the Government the Cabinet stands dissolved and the President has then (unless Parliament is dissolved) to proceed to appoint a new Prime Minister and Cabinet.
However by the prorogation the President has sought to avoid the above constitutional provisions and continue with the administration which does not have the confidence of the House.
Mr. Choksy claimed "due exercise" as stated in Article 42 which makes the president liable to Parliament, expressly means the president must be in a position to justify her actions in the eyes of Parliament as being valid.
He states that Parliament can question the manner in which the President exercises her powers. Therefore Parliament can scrutinise the reason behind the prorogation whether it is bona fide or an abuse of power.
He stated that Article 35 which provides for Presidential immunity, precludes only a court of law from examining the official acts of the president and not Parliament.
In other words "Parliament has the jurisdictional avenue or gateway
through which the Speaker and Parliament could enter lawfully as a matter
of right and examine the validity of the President's order of prorogation,"
The not-guilty or not-out verdict was given by top lawyer Desmond Fernando who had been appointed by the Cricket Board as a one-man committee to probe the charges. Mr. Fernando in a full report said the charges made by bookmaker M. K. Gupta were "inadequate, untested and impossible to be acted upon."
Mr. Fernando, who is a member of the International Cricket Council's Code of Conduct Commission, also criticised the India's Central Bureau of Investigation for releasing its preliminary report naming foreign cricketers as being part of a massive international match-fixing racket, without getting their side of the story.
"The reason given by the CBI is that it had no jurisdiction over the foreign cricketers. However, it would have been just and fair on its part if it had deleted those portions relating to foreign cricketers and sent it to the respective foreign governments and their cricket authorities.
"Publication of this report with the allegations against the foreign cricketers was unfair as it was one-sided and adversely affected the reputation of several highly respected foreign cricketers", the 11 page report said. Mr. Fernando said there was no prima facie evidence against Arjuna Ranatunga or Aravinda de Silva who were acclaimed as national heroes but were under a cloud after the match-fixing allegations.
The two have been Sri Lanka's leading test batsmen and were accused by Mr. Gupta of throwing away a test match against India in 1994 at Lucknow, and had received a payment of US dollars 15,000 for this. Both cricketers denied the allegations.
Both cricketers appeared with their lawyers before the inquiry committee and flatly denied the charges.
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