Constitutional Assembly unconstitutional, null and void ab initio Part 1 ,2 and 3
Posted on November 3rd, 2017

DR. WIJEYADASA RAJAPAKSHE, President’s Counsel

What could be comprehended by the Word Constitution?

Constitution is recognised as a document made by law makers inserting a set of rules which are needed for the governance of the relevant territory, and it is considered supreme and unchallengeable. Inclusion of the following mandatory features could be seen in a constitution.

1. Provisions to guarantee/assure the rights of the citizens and the mechanisms to be operated for above purpose

2. Definition of the powers conferred on the Legislature, the Executive and the Judiciary and by whom such said powers are to be exercised

3. State policies to be followed with regard to respective sectors

4. To define and characterize the institutions/departments that are under the government and to define the powers vested upon each such institution/department

A constitution shall contain the nature of the State and it should ensure that the Rule of Law is upheld among the subjects equally, without any discrimination. It is a time tested and renowned rule in constitutional law that “not only the ruled, but also the rulers have to abide by the law”.

Constitution Making in Sri Lanka

When we explore the history of constitution-making in Sri Lanka, the first such constitutional form of reforms had taken place in 1833 in the form of “Colebrooke–Cameron Reforms”. Centralized administration, establishment of the Executive Council and the Legislative Council, the establishment of Ceylon Civil Service and the reforms in the judicial system were among the main concerns of the Colebrooke–Cameron Reforms. During the McCallum Reforms that took place in 1911, this was more formalized and by the Manning Reforms in 1920, the power vested upon the legislative council was more reinforced. The Sri Lankans were bestowed with the universal adult franchise in 1931 together with Donoughmore Reforms. We gained Dominion Status which did not amount to full independence with Soulbury Constitution and Ceylon Independent Ordinance in 1947/48.

First Republican Constitution

Although Sri Lanka (then Ceylon) gained dominion status through the Soulbury Constitution, it did not confer the powers on the Parliament to replace it with a new constitution. In considering the aspirations of the citizens, the United Front Coalition which came forward in 1970 general election, sought a mandate from people to enact a Republican Constitution by repealing the Soulbury Constitution. With the landslide victory by the said coalition in the election, the coalition government formed with the leadership of Mrs. Sirimavo Bandaranaike, the Prime Minister, resorted to a revolutionary model to enact a new constitution by establishing a Constituent Assembly which consisted of all the members of the Parliament. The task of drafting the proposed constitution was entrusted to Dr. Colvin R. de Silva, who was a renowned legal luminary in the country and who also was the Minister of Constitutional Reforms. He, with his wisdom realizing the legal barriers of the Soulbury Constitution to replace it, advised to form the said Constituent Assembly outside the Parliament and accordingly it was set up and met at Nawarangahala premises of Royal Collage. The draft of the constitution made by the constitutional assembly was presented to the Parliament and it passed with the majority of 2/3 on 22nd May, 1972 by replacing the Soulbury Constitution. Thereafter, the then Parliament of Ceylon was changed into National State Assembly of Sri Lanka.

Second Republican Constitution

Article 51 of the first Republican Constitution of 1972 has conferred the power on the National State Assembly to repeal it by promulgating a new constitution to replace it and the procedure to be followed therein also clearly described. The new government was made accessible in promulgating a new constitution in 1978 in compliance with powers and the procedures laid down in the first Republican Constitution. Articles Nos. 78 and 82 (2) of the second Republican Constitution have conferred the powers on the Parliament to replace it with a new constitution by abolishing the existing constitution. Thus such powers could and should only be exercised in compliance with the procedure stipulated in the constitution and the standing orders of the Parliament. Hence at present, there is no impediment to adopting a new constitution by repealing the existing constitution.

Constitutional Assembly is unconstitutional ab initio

Since Soulbury Constitution had not provided the authority and a procedure to adopt a new constitution by repealing the existing one, the government elected in 1970 had no option but to establish a Constituent Assembly operating outside the Parliament. Since there were no such barriers in the constitution of 1972, J. R. Jayewardene entrusted the task of drafting a new constitution to one of his allies Professor Alfred Jayaratnam Wilson, a political science expert and the son in law of late Mr. S. J. V. Chelvanayagam, the leader of the TULF. The draft he made was received with the assent of the cabinet of ministers and then presented to the National State Assembly in terms of Article 51 of the 1972 constitution. Similarly Article No. 82 of the 1978 Constitution has conferred the powers and authority on the Parliament enabling it to promulgate a new constitution by replacing it. What should be noted here is that under no circumstances, power has been conferred by the 1978 constitution on the Parliament to establish a Constitutional Assembly in Parliament. If the Parliament is not competent to draft a new constitution in an ordinary manner, the only procedure to be adopted in terms of the constitution is to seek assistance of a parliamentary select committee which could be consisted of members who are skilful and competent in making appropriate recommendations. Accordingly, the purported Constitutional Assembly is null and void per se as well as ab initio. Similarly the Steering Committee appointed for the said purpose was also null and void per se as well as ab initio.

The Judiciary has ample jurisdiction to declare that the Constitutional Assembly null and void

It is an accepted and time-honoured convention in democracies all over the world that no court should entertain or hear cases against an act committed or omitted by the parliament, since it is an organ of the government which should function and operate independently of the other organs. There are already set precedents on this issue by both the courts as well as the parliament. This privilege of parliament is extended to its sub organs too, such as select committees, standing committees, special committees and the committee of whole parliament. The purported constitutional assembly which is unconstitutional in law is neither covered by the purview of the constitution nor by the standing orders of the parliament. Since the constitution has already provided a crystal clear and unambiguous procedure for adopting a new constitution, the constitutional assembly which is unconstitutional per se, court has ample jurisdiction to declare the illegality of it. Similarly the steering committee appointed by the purported constitutional assembly itself is null and void and no avail of law. Accordingly the so-called Interim Report submitted by the purported steering committee dated 21st September 2017 has no validity and authority and automatically becomes ineffective.

The Responsibility of the Parliamentarians

In democratic forms of States, people elect their representatives with the prime objective and aspirations that their elected representatives are competent and skillful in making laws to ensure the national security and public well-being and they incur a substantial amount of money for the maintenance of the parliament and its members. In punishing offenders in criminal cases court impose punishment on them presuming that all such accused have committed offences knowing that they were prohibited by law. Similarly people also presume that their elected representatives are making laws with a comprehensive understanding of them and their consequences. When Mrs. Sirimavo Bandaranaike and Mr. J. R. Jayewardene wanted to enact new constitutions in 1970 and 1977 respectively, they did not seek advice of any overseas experts or spent public funds in millions on expert advice. If the members of the legislature are not competent and have capacity to make the laws necessitated for the country, what is the use of maintaining such a Parliament? Whole parliament must be ashamed of spending public funds for seeking advice of so-called foreign experts for making the laws for the country.

The voters of this country must take the responsibility for electing their representatives who are not eligible or competent to perform their duties as contemplated in the constitution and the aspirations of the people. It is a deep rooted culture ingrained in our system to elect candidates with high preferences those who distribute dry rations, liquor, exercise books, plantains etc during the election period. Similarly those who regularly attend funerals, weddings, dansal etc are considered the best candidates for the election and engage in national politics. People expect that those who are in national politics also must engage in repairing roads, providing electricity and water likewise Pradesheeya Sabha members. This is a classic example to demonstrate that voters can make voting right itself a means to dig their own graves instead of prospering in democracy. We are now experiencing a living example of the drawbacks of the democratic election system.

19th Amendment to the Constitution

The 1978 constitution was subject to severe criticism basically on two grounds. One being the excessive powers conferred upon the executive presidency and the second being the drawbacks and ill effects on the proportional representative electoral system which lead to diminishing democratic and human values. The agitation against the executive presidency aggravated during the period of President R. Premadasa. Mrs. Chandrika Bandaranaike Kumaranatunga, presidential candidate in 1994 presidential election commenced her manifesto by vouching to abolish the executive presidency which had been a curse to the nation, on a priority basis within six months. She called it as Bahubutha (nutty) Constitution. Until the 19thAmendment to the Constitution was passed on 28th April 2015, the same “nutty” constitution prevailed over the years. After the 18thAmendment was passed in 2010, factually the constitution had basic features of fascism.

The most lesser minority government ever formed in Sri Lankan parliamentary history, in January 2015, with 47 members, in the 225-member parliament, was able to pass the 19th Amendment to the constitution with a 2/3 majority. It brought prolonged drastic changes to the constitution by ensuring the democratic rights of the people and accountably for good governance in the public sector. We formulated the amendment with neither the assistance nor the influence of any foreign organization, NGO or foreign powers.

In realizing the genuineness and benevolence of the spirit of which it was made, we were able to have the blessings of all the people and political parties. We managed to conclude it by accepting three amendments, out of 144 amendments moved by the opposition parties in the parliament. At this stage we must remember with gratitude that if it were not for the support of the opposition and special dedication of the then Speaker Chamal Rajapaksa, it could never have become a reality.

 

 

Constitutional Assembly unconstitutional, null and void ab initio Part 2

DR. WIJEYADASA RAJAPAKSHE, President’s Counsel Courtesy The Island
Continued From yesterday November 2, 2017, 12:00 pm Reasons for the failure of the proposed constitution Articles 75, 82 and 83 of the constitution have categorically conferred the power on the Parliament to repeal the existing constitution and replace it with a new one. The limitations of such powers are clearly stipulated in Article 76(1) in the following manner; “Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with any legislative power.” The provisions are crystal clear and unambiguous. No confusion… -Full Story-
 (LankaWeb – 03/11/17)

 

Constitutional Assembly unconstitutional, null and void ab initio Part 3

DR. WIJEYADASA RAJAPAKSHE, President’s Counsel
November 3, 2017, 12:00 pm (Continued From yesterday) People’s Lack of confidence in Parliament The media and the public always express their displeasure at Parliament and its members. They allege incompetence, corruption and immorality of the members of parliament. This loss of confidence reached its climax on 21st September 2017, when Parliament passed an amendment to the Provincial Council Elections Act which is an ordinary statute including the provisions for the postponement of Provincial Council elections, indirectly disobeying and deviating from the determination of the Supreme Court made in the 20th Amendment to the… -Full Story-
 (LankaWeb – 04/11/17)

 

2 Responses to “Constitutional Assembly unconstitutional, null and void ab initio Part 1 ,2 and 3”

  1. Dilrook Says:

    Good points.

    However, Wijeyadasa was playing a completely different tune while in the UNP government! He was one of the strongest supporters of the new constitution. Removing him was a victory of the nation.

  2. Senerath Says:

    Katussa Desapalanaya shall be brought to an end. But we should appreciate whatever correct thing he is saying at the present moment, regardless of the person.

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