The Centre for Policy Alternatives (CPA) is delighted to publish four new papers in its CPA Working Papers on Constitutional Reform series.
In Working Paper No.15, A Constitutional Court for Sri Lanka? Perceptions, Potential and Pitfalls, Dr Tom Gerald Daly asks, what promise does the possible establishment of a constitutional court hold out for Sri Lanka in the context of the ongoing constitution drafting process? This Working Paper, building on the recent Working Paper No.13 by Dr Nihal Jayawickrama, aims to encourage reflection on three inter-related overarching questions: What, overall, do we expect a constitutional court to do that an alternative (e.g. reform of the Supreme Court) could not achieve? What powers and jurisdiction would a constitutional court have? Considering experiences in other countries, what possible pitfalls need to be considered? The fundamental message of this paper is to guard against expecting too much from a constitutional court, and that the potential of any constitutional court would lie in the details of not only whether Sri Lanka provides fertile soil for such an institution, the achievement of wider structural reforms, and how it is constructed, but also on unknown factors such as whether judges on a constitutional court would take an assertive approach.
The next two papers are concerned with aspects of electoral reform. In Working Paper No.16, A System of Electoral Representation for Sri Lanka: The Principles behind the Choice, Kåre Vollan and Luwie Ganeshathasan, consider recent discussions about a Mixed Member Proportional system (MMP) to replace the current system. The authors argue that in approaching electoral reform, it is important to bear in mind the objectives and principles of reform. It is only once there is, to the extent possible, clarity and agreement on these that a system may be designed to achieve them. Some principles may be mutually contradictory and different people would weigh the relative importance of the objectives and principles in different ways. The solution will therefore have to be a compromise, balancing the various qualities of the system. The aim of this Working Paper is to discuss various principles behind a system of representation for the lower house of Parliament, and how an MMP system can fulfil these principles.
In Working Paper No.17, Representative Democracy and the Role of the Member of Parliament, Rohan Edrisinha reflects on recent developments that have highlighted the question of the role of the Member of Parliament in a democracy, in particular the importance of the freedom of conscience of Members of Parliament, and the indispensable nexus between this fundamental principle and a truly representative democracy. The decline in the authority of Parliament is not only due to the concentration of power in the Executive Presidency, but also due to the development of the dangerous, ‘anti-people’ theory of ‘party democracy’. Moreover, he argues, in more recent times we have witnessed another ‘anti-people’ phenomenon that undermines credibility in process and encourages corruption: Members of Parliament crossing the floor from the opposition to the government lured by positions and perquisites in the executive. This Working Paper discusses some of the constitutional issues that arise as a result of floor-crossing, and critiques some of the early judicial decisions for failing to consider many of these constitutional issues. It argues in favour of a compromise that seeks to protect the freedom of conscience of Members of Parliament, while also discouraging floor-crossing for less altruistic and legitimate reasons, in the context of the Constitutional Assembly deliberations on the introduction of a new Mixed Member Proportional (MMP) model of representation.
The last paper in this set takes an historical turn in looking at the constitution-making process that led to independence, through the prism of the key role played by the academic constitutional lawyer who was the architect of the independence constitution. In Working Paper No.18, ‘Specialist in Omniscience’? Nationalism, Constitutionalism and Sir Ivor Jennings’ Engagement with Ceylon, Dr Asanga Welikala considers the historical lessons and precedents that might inform contemporary constitution-making in respect of models of Sri Lankan nationhood and constitutionalism.
Download the PDFs of the Working Papers here.
All Working Papers in the series can be downloaded from http://constitutionalreforms.org.
The series is a product of the partnership between CPA and the Edinburgh Centre for Constitutional Law in support of the Sri Lankan constitutional reform process.