Is the Constitutional Assembly (CA) constitutional?
Posted on January 13th, 2019

Editorial Courtesy The Island

The UNP, which was instrumental in leasing out the Hambantota White Elephant (read the inland port) to the Chinese in 2017, has apparently sold the Sirikotha Elephant to the TNA. There is nothing the UNP (or any other political party, for that matter) will hesitate to do to remain in power, and the TNA is using its support for the minority government to make the UNP do its bidding. Whoever would have thought the UNP would go hell for leather to submit the Expert Panel report to the Constitutional Assembly (CA), whose proceedings were in abeyance for about one year?

The report at issue seems to mean different things to different people. The government insists that it is not a draft Constitution. The government may be right, but the question is how a document which looks like a draft Constitution and reads like a draft Constitution could be anything other than a draft Constitution.

Who are the members of the Expert Panel, which purportedly prepared the report? The Opposition claims that their names were neither presented to Parliament nor given parliamentary approval. The public has a right to know their identities.

What was presented to Parliament, on Friday, was, in our book, a ballon d’essai. The government is testing the water. In days of yore, burglars would hold black pots, through holes they made in walls, at night, before putting their heads in to make sure that people were not awake and ready for attack; they would run away if the pots got smashed. The burglars’ trick has apparently worked for the government. Now that the UNP has drawn heavy flak for the report, some of its coalition partners are wary of sticking their necks out; they claim that they also have issues with some sections of the report!

The focus of our comment is not on the report as such, but the modus operandi the government has adopted to introduce constitutional reforms. One school of thought holds that the CA itself is unconstitutional in that the legislature cannot double as the CA in the parliamentary chamber itself, and the existing Constitution prescribes the manner in which it can be replaced.

Former Minister and UNF MP Dr. Wijeyadasa Rajapakshe, PC, wrote to Speaker Karu Jayasuriya, in Nov. 2017, pointing out that the resolution adopted by Parliament, in 2016, to appoint a CA was unconstitutional and null and void ab initio. He based his argument on a Supreme Court determination by a seven-judge bench on the 19th Amendment, presented to Parliament, in 2002. (This amendment should not be confused with the one passed by Parliament, in 2015.) He said, in his letter, that, in 1971/72, Parliament had met as a Constituent Assembly at Nawarangahala because the Soulbury Constitution did not provide for being abrogated. The draft Constitution prepared by the CA was adopted, and simultaneously the Soulbury Constitution and Parliament, which had been in existence until then, were done away with. The National State Assembly came into being. Such revolutionary measures were acceptable only in situations where no powers were conferred constitutionally on Parliaments to introduce new Constitutions, Dr. Rajapakshe maintained, pointing out that if Parliament needed assistance of experts, the Speaker was empowered to appoint a special Select Committee for that purpose.

Speaker Jayasuriya upholds the supremacy of Parliament and, recently, fought a successful battle to ward off executive interventions in the affairs of the legislature. It will be interesting to see the Speaker’s response to Dr. Rajapakshe’s letter, which has also been copied to President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, among others.

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