PRESIDENT SIRISENA MUST INVOKE ARTICLE 129 OF THE CONSTITUTION AND ASK THE SUPREME COURT FOR AN ADVISORY OPINION ON THE LEGALITY OF THE CONSTITUTION-MAKING PROCESS
Posted on November 5th, 2017

DHARSHAN WEERASEKERA,

‘If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit…report to the President its opinion thereon.’ – Article 129(1), Sri Lanka Constitution

On 1st November 2017, President Sirisena announced that he will convene three conferences – one for religious leaders, another for politicians and a third for intellectuals – to discuss the proposed constitutional changes.[1]  However, within the past week former Justice Minister Wijedasa Rajapakshe PC has published three articles arguing that the present constitution-making process is illegal.[2]  Barely a month ago, former Chief Justice Sarath Silva also stated publicly that the constitution-making process is illegal.[3]

If a former Chief Justice and a former Justice Minister say that the constitution-making process is illegal, the Government cannot ignore such a warning, or at any rate does so at its peril.  Under Article 129 of the Constitution the President can invoke the consultative jurisdiction of the Supreme Court on any matter of public importance.  It is hardly possible to think of a more important matter than a new Constitution that might be illegal.

In this article, I shall briefly discuss the arguments being put forth by the former Chief justice as well as the former Justice Minister, clarify why I think it is incumbent on the President to first settle the question as to the legality of the constitution-making process before convening conferences of politicians, religious leaders and intellectuals to discuss the purported merits of the proposed changes, and explain the consequences to the country if a new Constitution is enacted without settling the question as to its legality.

THE ILLEGALITY OF THE CONSTITUTION-MAKING PROCESS

To digress a moment, I should mention that I have argued since January 2017 that the constitution-making process is illegal.  My first article on this subject, titled ‘The Illegality of the Ongoing Constitution-making Process in Sri Lanka,’[4] was published in lankaweb.com on 1st January 2017.  A second article titled, ‘The Ongoing Constitution-making process in Sri Lanka:  An Inquiry into its Legality,’[5] appeared on 23rd August 2017.

I am informed that, in June 2017 Rear Admiral Sarath Weerasekera and the Global Sri Lankan Forum forwarded a version of the second paper above to the President of the U.N. Human Rights Council in Geneva.  So, it is safe to presume that relevant parties at the Human Rights Council are now aware of, and are monitoring, some of the shenanigans going on in this country with respect to the new Constitution.

However, for the purposes of the present article, I shall confine myself to the arguments presented by the former Chief Justice and the former Justice Minister.  To the best of my knowledge, though their arguments are slightly different, they both start from the premise that the prescribed amending procedure set out in Chapter 12 of the Constitution (Articles 82(1) – (6) and 83) does not state anywhere that the said amending procedure can start with Parliament turning itself by resolution into a ‘Constitutional Assembly.’

Here’s the former Chief Justice Sarath Silva, in an interview with Daily Mirror on 6th October 2017:

‘The entire constitution making process is also unconstitutional.  There are particular ways providing for the amendment of the Constitution.  They are given very clearly.  The Bill for the amendment of the Constitution should be determined by the Cabinet.  Then, the Cabinet should decide whether it should be passed by a two-thirds and referendum.  If the Cabinet decides, the Supreme Court won’t exercise its jurisdiction.  It must go according to this.  Otherwise, the Supreme Court can order a referendum.’

‘There is no provision in the Constitution for a Constitutional Assembly.  At least it must derive its authority from the Constitution.  It derives authority from some resolution in Parliament.  The Parliament can’t do that.  The Parliament must act according to the Constitution.  The Government derailed the procedure.’[6]

The following, meanwhile, is a quote from Mr. Rajapakshe’s article, ‘Constitutional Assembly is unconstitutional, null and void ab initio,’ of 3rd November 2017:

‘Articles 75, 82 and 83 of the Constitution have categorically conferred 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 unambiguous.  If so, is the approval of the resolution presented to Parliament to establish a Constitutional Assembly a violation of the affirmation/oath taken by members of Parliament in terms of Article 63 of the Constitution with utmost honesty and dignity?’[7]

And he goes on,

‘At present, we being the legislators, have lost the grip on the purported Steering Committee and the task has been taken over by highly paid so-called foreign experts, NGO activists who patently act against the national interest in return for what they are paid by foreign masters some of whom have been advocating federalism.  There is influence from western countries where Tamil Diaspora is active and their efforts to interfere were defeated by some members of the committee.  A question has now arisen as to what is the use of the Parliament if it entrusts its duties and obligations to an organ which is not recognized by the Constitution.’[8]

To repeat, the arguments of both the former Chief Justice and the Justice Minister start from the assertion that the present constitution-making process is contrary to the prescribed amending procedure set out in Chapter 12.  What can the Government say in reply?

If I were a Government lawyer, I would inter alia point out three things.  First, Article 75 of the Constitution gives Parliament wide powers to ‘makes laws’ and this includes the power to amend or repeal the Constitution, and these powers are wide enough to cover the setting up of the ‘Constitutional Assembly.’

Second, Article 82(5) only says that a 2/3 majority is sufficient to pass a proposed amendment in Parliament but it does not preclude the amendment being submitted to a referendum of the people.  So, the interests of the people have not been harmed by the present constitution-making process because whatever final proposal is generated will be submitted to a referendum and the people can have their say then.

Finally, the present process does not circumvent the prescribed procedure because, once the final constitutional proposal is produced, the Government has every intention submitting such proposal to Parliament sitting as Parliament – and not as the ‘Constitutional Assembly’ – that is, of initiating the amending process at Article 82(2) and proceeding thereon.

Needless to say, there are good counter-arguments to the above points, but I shall not go into those here.  The point is this.  The fact that a former Chief Justice and a Justice Minister have publicly raised a question as to the legality of the present constitution-making process means that the Government can no longer ignore it, because of the following reasons.

  1. It is well-established in law that:  ‘Ignorantia facti excusat; ignorantia juris non excusat (Ignorance of fact excuses; ignorance of the law does not excuse.)
  2. It is also well-established that, in any dispute questions of law must be settled before questions of fact
  3. Under our Constitution, only the Supreme Court has the authority to interpret the Constitution, and the President has the capacity under Article 129 to invoke the Supreme Court’s consultative jurisdiction on any matter of public importance.
  4. It is reasonable to suppose that, a former Chief Justice and a former Justice Minister of Sri Lanka have sufficient knowledge about the Constitution of this country, and in any event, even if one suspends one’s judgment about their interpretation of Chapter 12 vis a vis the ‘Constitutional Assembly,’ what they are pointing out – namely, that provision for a ‘Constitutional Assembly’ is not made anywhere in Chapter 12 – is literally correct.  Therefore, their interpretation as to the illegality of the ‘Constitutional Assembly’ might be correct.
  5. Maithripala Sirisena cannot indemnify the people of Sri Lanka for any harm including loss of life and property that might result from the promulgation of an illegal Constitution.
  6. Therefore, it will be an act of the grossest possible negligence not to mention dereliction of duty if the President does not use his power under Article 129 of the Constitution to obtain a definitive ruling from the Supreme Court as to whether or not the constitution-making process that has been followed thus far is lawful.
  7. Since much is made of the fact that under the 19th Amendment to the Constitution the President has been made responsible to the Cabinet and also the Parliament, if Mr. Sirisena fails to invoke Article 129 and obtain a Supreme Court ruling on the issue in question, not just he but the Cabinet as well as Parliament can be held responsible said failure, because they had every opportunity to formally request the President to obtain the said ruling.  They cannot all claim that they did not read the newspapers, or were completely unaware that there may be questions as to the legality of the constitution-making process.

CONSEQUENCES

In the event an illegal Constitution is enacted, and a future Government obtains a ruling confirming such illegality it will render every single act performed under the impugned Constitution null and void and of no effect in law.

Among other things, every transaction including international agreements and contracts with foreign governments and companies signed during the period when the impugned Constitution was in operation will be null and void and subject to renegotiation at the discretion of the new Government.

In domestic law, every case where a judge has issued a divorce decree, partition decree, a criminal conviction, and so on, during the period when the impugned Constitution was the ‘supreme law of the land’ will have to be reheard, because the judge when issuing such order derived his or her authority from the said Constitution.

I leave the reader to imagine the chaos, not to mention drain on the public funds that will result from all of the above.  To put it simply, Sri Lanka will quite literally become a ‘Banana Republic,’ the laughingstock of the entire world.

OBJECTIONS

A critic might raise two objections to what I have said above.  First, ‘how can a future Government obtain a ruling on the legality of the new Constitution if your premise is that that Constitution itself is illegal?’  For instance, in order to obtain a ruling, the future Government will have to turn to an institution such as the ‘Constitutional Court’ – or ‘NGO Court’ as it is already being called by many Sinhalas – but that court would be illegal by definition if the Constitution is illegal.

Second, suppose the Sinhalas persuade Sirisena to request the Supreme Court for an advisory opinion on the legality of the constitution-making process, and the Court after due consideration says that it is perfectly legal.  In other words, what if the Sinhalas lose the case?  Won’t they be worse off than if they had never pursued the issue at all?

With respect to the first objection, I concede that there is a problem, but not an insurmountable one.  For instance, a new Government can be elected on the basis of a Constitutional Proposal that is put to the people before the elections.  If the Government is elected with an overwhelming majority, the document that was put to the people before the elections will assume the status of a ‘People’s Constitution’ and will derive its authority directly from the people, and independently of the impugned Constitution.

Under those circumstances, the People’s Constitution can have provisions and procedures for obtaining a ruling on the legality of the impugned Constitution.  With respect to the whether the Sinhalas will be worse off if they lose the case, I reply that they won’t be, because of the following reasons.

If they lose on the question of the legality of the constitution-making process, they can immediately resume their objections on the facts, i.e. the merits or demerits of the proposed changes, which is what outfits such as the JO are doing at present anyway.  The advantage in an action under Article 129 is that if the Sinhalas win, they win big – i.e. it puts an end to the new Constitution once and for all.

RECOMMENDATIONS

I repeat my warning made in a number of previous articles that, the Americans are ultimately behind what is happening to this country at present.  The Americans are in the process of integrating Sri Lanka into their strategic matrix in the Asia-Pacific region.  They are going about it systematically – putting the hooks in as it were – but the hooks have not yet locked-in fully.  There’s still a small window of opportunity to wriggle free.

It is no longer in dispute among informed observers that the present Government will suffer a crushing defeat at the 2020 General Elections, i.e. it will be a repeat of ’77, except it’ll be the Sinhala Nationalists who will romp to power rather than the UNP.  The only way for the UNP, and ultimately the U.S. to prevent what is going to happen is to postpone the 2020 elections.  A new Constitution will give them a pretext to do this.

So, all that the Sinhalas have to do is to prevent a new Constitution from being enacted in the next two years, or to discredit any such Constitution to such an extent that even if enacted it is not worth the paper it is written on.  In my view, Sirisena probably understands what the Americans are doing to Sri Lanka, but he can’t fight it because he’s afraid that, if he helps the Sinhalas get back in power, the Sinhalas instead of thanking him will hound him and his family to kingdom come.

So, the Sinhalas have to allay his fears.   They should ask the Sangha to mediate a deal.  The Sinhalas will take a solemn oath, before Daladawa or Ruwanveliseya, in the presence of the Sangha, that if the Sinhalas return to power Sirisena, his family and a select number of Sirisena’s henchmen that he will specify will not be harassed or harmed in any way.  It will be a general amnesty.  They can take their ‘winnings’ and retire.

In return, Sirisena will not permit the new Constitution to be enacted, and will start by instituting action under Article 129.  At a minimum, a hearing of this type, which I presume will involve submissions by members of the public also, will buy the Sinhalas at least six months respite, plenty of time, in my view, for the Government’s 2/3 majority in Parliament to collapse of its own decrepit weight.

[1] ‘MS to call All-Party conference to allay fears,’ Daily Mirror, 1st November 2017

[2] ‘Constitutional Assembly is unconstitutional, null and void ab initio,’ The Island, 2nd November 2017, 3rd November 2017 and 4th November 2017 respectively.

[3] Interview with former Chief Justice Sarath Silva, Daily Mirror, 6th October 2017

[4] Dharshan Weerasekera, ‘The Illegality of the ongoing constitution-making process in Sri Lanka,’ 1st January2017, www.lankaweb.com

[5] Dharshan Weerasekera, ‘The ongoing constitution-making process in Sri Lanka:  An inquiry into its legality,’ 23rd August 2017, www.lankaweb.com

[6] Interview, Daily Mirror,  6th October 2017

[7] ‘Wijedasa Rajapakshe PC, ‘Constitutional Assembly unconstitutional, null and void ab initio,’ The Island, 3rd November 2017

[8] Ibid

Leave a Reply

You must be logged in to post a comment.

 

 


Copyright © 2018 LankaWeb.com. All Rights Reserved. Powered by Wordpress