DHARSHAN WEERASEKERA

In this article I shall briefly explain why in my view the present constitution-making process in this country is illegal.  My argument is based on three considerations:  the difference between the amending procedure as set out in Chapter 12 of the constitution, and the present procedure; the nature of the power that Parliament wields when enacting legislation; the irreparable harm caused to the People if Parliament presumes to change the constitution without a mandate to bring such changes directly from the People.

DIFFERENCE BETWEEN THE ESTABLISHED PROCEDURE AND THE ONE NOW BEING FOLLOWED

The procedure for amending the constitution is set out in Chapter 12 of the constitution (Articles 82(1) – 82(6) and Article 83) and involves five steps, as follows:

1. A Bill to amend or repeal the constitution must state such purpose in its long title. (Article 82(1))

2. The constitution cannot be repealed without there also being a replacement for the one being repealed. (Article 82(2))

3          Once the amending Bill is placed on the Order Paper, and the relevant steps under Article 122 taken, it can be passed by a 2/3 majority if it does not violate any of the entrenched provisions of the Constitution. (Article 82(5))

4. If it violates any of the entrenched provisions, then a referendum is needed. (Article 83)

5. Article 80(6) reiterates that the procedure consisting of the above four steps is the only way to amend or repeal the constitution.

Now, let’s turn to the procedure that is currently being followed.  The crucial step in the said procedure is that on 9 March 2016 Parliament converted itself by resolution into a ‘Constitutional Assembly,’ or a ‘Committee of the whole Parliament,’ for purposes of generating a new constitution.

The resolution begins as follows:  ‘Whereas there is broad agreement among the People of Sri Lanka that it is necessary to enact a Constitution for Sri Lanka.’[1]  It then lays out the following procedure:

1. Parliament is to appoint a ‘Steering Committee’ along with a number of sub-committees for purposes of initiating the constitution-making process. These sub-committees are to produce reports on various areas of constitutional reform and submit them to the Steering Committee.[2]

2. The Steering Committee is to take into consideration the recommendations made in those reports and produce a report along with a draft constitutional proposal, and submit them to the Constitutional Assembly.[3]

3. The Constitutional Assembly’ then debates the general merits of the said report and draft proposal, and decides whether to request the Steering Committee to submit a final report along with a constitutional proposal.[4]

4. If such a request is made, the Steering Committee prepares the final report and the constitutional proposal and forwards them to the Constitution Assembly, at which time the Chairman of the Assembly proposes a resolution on the proposal.[5]

5. If a simple majority of the Constitutional Assembly approves the resolution, it is submitted to Parliament (i.e. Parliament sitting as Parliament and not as Constitutional Assembly) and if the resolution passes with a 2/3 majority, the constitutional proposal is submitted to the Cabinet of Ministers, and thereon the provisions of Chapter 12 of the constitution are followed.[6]

6. Conversely, if the Constitutional Assembly approves the proposal with a 2/3 majority, it is submitted directly to the Cabinet of Ministers, and the provisions of Chapter 12 followed.[7]

Such then is the procedure that is now being followed.  On the face of it, it seems no different from the established procedure, or at any rate it appears not to be in conflict with the latter, because steps ‘5’ and ‘6’ involve invoking chapter 12.  In my view, however, Parliament has done something very sneaky, dangerous and illegal when it devised the present procedure, and my argument with respect to this matter is as follows.

LEGAL ANALYSIS

Recall that, the prescribed procedure set out in Chapter 12 consists of five steps, and the initial step is that a Bill whose long title says it is a Bill to amend or repeal the constitution, as the case may be, is presented in Parliament.  Nowhere in the prescribed procedure is it ever specifically stated that Parliament is to convert itself into a ‘Constitutional Assembly’ or ‘Committee of the whole Parliament’ for purposes of generating amendments to the constitution or for drafting a new constitution.

Therefore, the crucial question is: ‘From the steps set out in Chapter 12, can one infer that our constitution permits Parliament to turn itself into a ‘Constitutional Assembly’ or ‘Committee of the whole Parliament’ for purposes of generating amendments to the constitution or for drafting a new constitution?’  In my view, the answer is ‘no,’ because of two considerations, as follows:

1. The nature of the power that Parliament wields when generating legislation

2. The irreparable harm caused to the People if Parliament presumes to change the constitution without a mandate to bring such changes directly from the People.

1. a) THE NATURE OF THE POWER THAT PARLIAMENT WIELDS WHEN GENERATING LEGISLATION

Under our constitution, Members of Parliament when enacting laws exercise a delegated power, delegated to them by the People.  According to Article 3 of the constitution, the sovereignty of the country is in the People, and inalienable.  Meanwhile, Article 4 sets out how executive, legislative and judicial power is to be exercised.  Our Supreme Court has consistently held that Articles 3 and 4 are to be read together.

More important, the Court has held that, because of the wording of Article 4(a), (b) and (c), which refer to the executive power ‘of the People,’ legislative power ‘of the People,’ and judicial power ‘of the People,’ when the President or Parliament as the case may be exercise the said powers they do so at all times on behalf of the People.  The court gives eloquent expression to this idea in Re:  19^th Amendment to the Constitution, as follows:

‘The powers of government are separated as in most Constitutions, but unique to our Constitution is the elaboration in Article 4(a), (b) and (c) which specifies that each organ of government shall exercise the power of the People attributed to that organ.  To make this point clearer, it should be noted that subparagraphs (a), (b) and (c) not only state that the legislative power is exercised by Parliament, executive power is exercised by the President, and judicial power by Parliament through courts, but also specifically state in each subparagraph that the legislative power ‘of the People’ shall be exercised by Parliament, the executive power ‘of the People’ shall be exercised by the President, and the judicial power ‘of the People’ shall be exercised by Parliament through courts.  This specific reference to the power of the People in each subparagraph which relates to the three organs of government demonstrates that the power remains and continues to be reposed in the People who are sovereign, and its exercise by the particular organ of government being its custodian for the time being, is for the People.’[8]

The interpretation by court that the exercise of the related powers ‘by the particular organs of government being its custodian for the time being, is for the People,’ clearly indicates that the Public Trust Doctrine is to be considered as applying to the relationship between Parliament and the People, which is to say, when MP’s exercise legislative power they do so in trust for the People.

The above means that, MP’s invariably assume the duties that customarily accompany fiduciary relations, i.e. relations of trust.  To the best of my knowledge, the primary fiduciary duty is that of loyalty, i.e. the trustee must administer the trust solely in the interests of the beneficiary.  For instance, some experts on trusts have said:  ‘The essence of fiduciary duty requires the trustee to be always promoting the beneficiary’s interests.’[9]

Therefore, when MP’s exercise legislative power in our country, they have an imperative duty to protect and advance the interests of the People, and not do anything to harm or compromise such interests.  Conversely, if a legislative act harms or compromises the interests of the People, or is carried out where harm can reasonably be anticipated, such act is contrary to the letter as well as spirit of Articles 3 and 4, and by definition illegal.

1. b) THE IRREPARABLE HARM CAUSED TO THE PEOPLE IF PARLIAMENT PRESUMES TO AMEND OR REPEAL THE CONSTITUTION WITHOUT A MANDATE FOR SUCH ACTION DIRECTLY FROM THE PEOPLE

Under Article 82(5) of the constitution, a 2/3 majority in Parliament is sufficient to enact into law any constitutional amendment other than one that violates the entrenched provisions.  Article 82(5) does not expressly indicate whether the 2/3 majority that approves a constitutional amendment should be comprised of MP”s who at some level or other have a mandate for such action from their constituents.

There are two ways that a Government in power that aspires to change the constitution can get a 2/3 majority in Parliament:  either it must receive the 2/3 majority at an election, which is to say the People directly give the Government in question a 2/3 majority in Parliament; or, it has the capacity to get other parties in Parliament, along with crossovers, to join it in order to bring the proposed changes.

The question is whether, in light of the matters discussed in section ‘a’ hereinbefore, an implied condition can be read into or interpreted as being included in Article 82(5), namely, that a 2/3 majority that endorses a constitutional amendment (as opposed to any other type of law) must at some level or other be able to claim a direct mandate from the People for such action.  In my view, it is, because of the following reasons.

If a Government gets a 2/3 majority at an election, there is no question that the said 2/3 majority reflects the support of roughly 2/3 of the voters, meaning that the Government has the overwhelming support of the People.  Under the circumstances, I do not dispute that, subject to Article 83, such a Government can pursue any constitutional changes that it wishes.

Now, let’s turn to a situation where a Government has cobbled together a 2/3 majority in Parliament by getting other parties and crossovers to join it for purposes of pursuing a common legislative program, including bringing constitutional amendments.  What happens to the interests of the voters if the parties or crossovers that join the Government for the aforesaid purpose do not have a mandate to engage in such action?

It should be noted that, under Article 84 of the constitution, a Bill that is not intended to amend or repeal the constitution but which is incompatible with the constitution can be enacted into law by a 2/3 majority in Parliament.  However, Article 84 also explicitly states that any law enacted in that way can be repealed by a simple majority.

Therefore, if any law other than a constitutional amendment is passed by a 2/3 majority that includes MP’s who don’t have a mandate to approve the law in question, the voters whose interests are thereby compromised do not suffer irreparable harm.  This is because of two reasons, as follows.

First, as explained above, a law other than a constitutional amendment that is passed by a 2/3 majority can be repealed by a simple majority.  So, voters whose wishes are contravened when their MP’s participate in passing such a law have a chance later on to bring pressure on those MP’s to join with others in Parliament and repeal the law in question by a simple majority.

Second, in the event the MP’s fail to take action, the voters can always elect different MP’s at the next elections and get the impugned law repealed.  Either way, for any law other than a constitutional amendment, the voters who are ‘betrayed’ when their MP’s participate in enacting a particular law, have a chance to hold those MP’s accountable, and thereby to undo the damage caused by the impugned law.

Now, let’s turn to a constitutional amendment.  If the Government gets a constitutional amendment approved in Parliament with a 2/3 majority but some of the MP’s in the coalition don’t have a mandate to participate in such action, the voters whose interests are thereby compromised have a much more difficult time if they want to recoup their losses.  This is because of two reasons, as follows.

First, a constitutional amendment cannot be repealed by a simple majority.  So, voters whose interests are compromised as aforesaid need to get a 2/3 in Parliament to support their ‘cause’:  obviously, that is much harder to do than getting the support of a simple majority.

Second, with a constitutional amendment the Government can postpone elections, or even cancel them.  That means that, voters who wish hold their representatives accountable at a future election have to wait longer for their chance, and there is a possibility they may never get that chance at all.

Most important, by changing the constitution, the Government can change the political and legal environment in the country in such a way that it becomes easier to carry out various actions against political rivals and thereby prevent them from giving leadership to popular fronts capable of  defeating the Government.  (Since the constitution is the framework within which all other laws function, if the framework changes, it has the potential to affect the operation of all those other laws.)

To digress a moment, there is historical precedence in this country for some of the things suggested in the points above.  The UNP Government of Mr. J. R. Jayawardena that enacted the present constitution cancelled the General Elections scheduled for 1982 and held a referendum instead.

If I’m not mistaken, they also prosecuted Mrs. Sirimavo Bandaranaike, the leader of the SLFP, considered at the time the person most capable of marshalling a successful campaign against the UNP, and deprived her of her civic rights.

I am hardly a fan of ‘Mrs. B,’ or for that matter the SLFP; neither am I a student of Sri Lankan politics, but in my view the aforesaid two acts, more than anything else, helped the UNP at the time to extend its reign of power for more than a decade, when in all likelihood it would have ended with the `1982 elections.

History is known to repeat itself (‘the first time as tragedy, and the second as farce’ as Marx observed), so it is not inconceivable that some version of the tactics once deployed by JRJ will be repeated again.

The point is this.  With a constitutional amendment as opposed to any other law, the People invariably lose the control they have over when, whether and under what conditions future elections are held.  There is always a possibility that the voters whose interests are compromised when their MP’s participate in enacting a constitutional amendment will never be able to hold those MP’s accountable for the said actions.

A critic, however, might point out that the voters have a safeguard in Article 83.  For instance, if a proposed constitutional amendment threatens any of the entrenched provisions of the constitution, which is to say poses an especially grave danger to the interests of the People, such amendment must be put to a referendum.  That means that, voters whose interests are compromised as aforesaid have a chance to block that amendment at the referendum.

It should be noted that, under Article 85(3) of the constitution, the threshold for wining a referendum is an absolute majority (i.e. 50% +1) of the votes cast at such referendum.  Therefore, it is possible to pass a constitutional amendment into law even if it is rejected by close to 50% of voters.

The practical effect of the above is that, even if all the voters whose wishes are contravened when their MP’s join the Government in order to pass a particular constitutional amendment reject it at a referendum, such amendment can nevertheless become law.

Therefore, when a constitutional amendment runs counter to the interests of a group of voters, the one and only chance they have to protect their interests is by blocking the passage of the amendment when it is brought up in Parliament:  if their MP’s betray the trust place in them and participate in enacting the amendment, they lose that chance.  In short, the voters suffer irreparable harm.

Recall that, for any law other than a constitutional amendment, voters whose wishes are contravened when their MP’s help enact such a law always have a chance to hold those MP’s accountable at a future election, and thereby to recoup their losses.

Is it reasonable to suppose that the constitution which gives to voters such a safeguard against their MP’s when the latter pass laws that are by nature inferior or secondary to the constitution, will deny to the same voters a a minimal safeguard on occasions when their MP’ try to change the constitution, a task which invariably carries with it far graver consequences to the voters?  In my view, it is not: in fact it is an absurdity.

Under the circumstances, reason, common sense as well as the interests of justice dictate that Article 82(5) must be read as including an implied condition, namely, the MP’s that make up a coalition that approves a constitutional amendment must themselves have received a mandate for such action directly from their constituents.

THE ILLEGALITY OF THE PRESENT PROCESS

Recall that, the Preamble to the Framework Resolution says:  ‘Whereas there is broad agreement among the People of Sri Lanka that it is necessary to enact a constitution for Sri Lanka.’  The relevant issue is not whether there is broad agreement among the People that amendments or a new constitution are needed, but whether there is agreement that the present Parliament ought to bring the said amendments or new constitution.

Under our constitution, there are two objective ways for the Government to find out the sentiments of the People on important issues:  the referendum, and elections.  If the Government wanted to find out whether the People approved of Parliament turning itself into a ‘Constitutional Assembly’ to draft a new constitution, or amendments to the present one, that question could have put to the People at a referendum.

The Government could then have relayed the said information to Parliament.  It was not done.  That leaves us with the results of the elections, and the evidence is that UPFA voters did not give a mandate to their candidates to pursue a common legislative program with the UNP.

For instance, the election manifesto of the UPFA for the August 2015 General Elections does not state anywhere that in the event the UPFA lost, its candidates retained the right to join the UNP (or whatever other party won the elections) and pursue a common legislative program including constitutional amendments.

Therefore, the statement by Parliament that there is ‘broad agreement among the People for a constitution,’ if we are to take that as meaning that there is broad agreement for the present Parliament to bring constitutional amendments, is without basis.  In other words, the resolution lacks warrant.

I now come to the crux of the matter.  A critic might say something like this:

‘The sole purpose of the ‘Constitutional Assembly’ is to generate the constitutional amendments or a new constitution as the case may be.  Once these are produced, Parliament has every intention of following the prescribed procedure.  So, the fact that the People have not given a specific warrant for a ‘Constitutional Assembly’ doesn’t mean that what Parliament has done is illegal.  Besides, under Article 75 of the constitution Parliament has very wide powers to ‘pass laws’ and that includes the power to amend or repeal the constitution, and these powers are sufficient to cover the conduct of Parliament in forming the ‘Constitutional Assembly.’’

In my view, the ‘Constitutional Assembly’ is illegal, regardless of the purported ambit of Article 75, because of the following reasons.  Recall that, in section ‘b’ hereinbefore, I showed that Article 82(5) must be read as including an implied condition that a 2/3 majority in Parliament that passes a constitutional amendment must have at some level or other a mandate for such action directly from the People.

Therefore, on a plain reading of the prescribed procedure set out in Chapter 12, what it envisions is for a Government elected with overwhelming support of the People, or which is capable of forming a coalition with other parties or crossovers for purposes of pursuing a common legislative program including constitutional amendments, to draft the proposed amendments and present them in Parliament.

At that point, MP’s representing the interests of voters who for whatever reason are opposed to the constitutional changes—i.e. voters who are of the view that the amendments in question ought not to be pursued at all—raise objections.  If the Government can maintain its 2/3 majority support for the amendments in the face of those objections, then the Government can pass the amendments subject to Article 83.

I emphasize that, under the prescribed procedure, it is the Government that drafts the proposed constitutional amendment or amendments, and there is at all times within Parliament a certain number of MP’s who represent the interests of voters who don’t want the proposed changes.

If we apply the above considerations to the facts surrounding the commencement of the present constitution-making process, 3 things follow.  First, under normal circumstances, i.e. if the wishes of UPFA voters had been honoured, the Government would not have been able to commence the said process at all.

(It is not in dispute that, the only reason that Government commands a 2/3 majority in Parliament at present is because about 40 SLFP MP’s who contested under the UPFA banner along with a handful of other MP’s appointed through the National List have decided to join the UNP and form something called a National Government,’ the purpose of which is to pursue a common legislative program.)

Second, if the prescribed procedure had been followed, it is the Government—or the ‘National Government’—that would have drafted the amendments.  Actions of the Government can be challenged in courts of law—i.e. government officials no matter how high their positions can be hauled up before the courts.  But, actions of Parliament cannot be so challenged, or at any rate such challenges usually fail in the preliminary stages.

If the Government had initiated the process of drafting the present amendments, then voters aggrieved by the forming of the ‘National Government’ could have challenged the said act in the courts.  I am not saying they will have necessarily won the case.  But, at the very least, they will have been have been able to obtain a definitive ruling on the legality of the ‘National Government.’

The ruling itself might have gone either way. But, the voters will have been able to vindicate their rights under the constitution, something which the citizens of this country are entitled to do with respect to practically any other issue, and something which no one, especially the MP’s who have betrayed the trust place in them, ought to be able to deprive them of.

Third, if the prescribed procedure had been followed and the Government had drafted the amendments or new constitution, then at the point in time when those documents were first introduced in Parliament, UPFA voters would have had MP’s in Parliament who could raise objections on grounds of principle, i.e. on grounds that the amendments or new constitution as the case may ought not to be brought at all.

Since the ‘Constitutional Assembly’ is comprised of the whole of Parliament which means the entire Parliament will have participated in drafting the amendments, it is difficult to see how any particular faction within the Constitutional Assembly (and this includes the JO) can now object to the amendments on grounds of principle, i.e. that they ought not to be brought at all.

There could be disagreements, but those would be on how far the suggested reforms should go, not whether the reforms are needed at all at this particular point in time.  It is true that under the present procedure the amendments once drafted will be re-submitted to Parliament.  So, the JO can claim that it can still raise objections on principle at that stage.  I concede that this is possible.

Nevertheless, there is no excuse for failing to raise objections on principle when the constitution-making process commenced, since the underlying reality is that the majority of UPFA voters did not give a mandate to their candidates to join the UNP in order to bring constitutional amendments.  The sum of these considerations is that the device of a Constitutional Assembly’ has permitted the Government to do the following three things:

First, commence a process of changing the constitution that was not possible under normal circumstances i.e. if the wishes of voters had been honoured; second, preclude legal challenges being made to the ‘National Government’ and thereby to the constitution-making process; finally, deny UPFA voters an opportunity to raise objections on principle at the commencement of the said process.

In short, on each the aforesaid three matters, the ‘Constitutional Assembly’ has permitted the Government to materially harm the interests of the UPFA voters who voted at the August 2015 General Elections, and do so under cover of the law.  Since the entire Parliament approved the resolution that established the ‘Constitutional Assembly’ the entire Parliament is complicit in the said act of the Government.

Recall that, as per the discussion in section ‘a’ hereinbefore, Parliament cannot act in ways that harm the interests of the People:  if it does, such act is by definition illegal.  UPFA voters are citizens of this country; furthermore, to the best of my knowledge, UPFA voters comprised roughly 40% of the voters who voted at the August 2015 General Elections.

I concede that, Article 75 confers very wide powers on Parliament to ‘pass laws’ and that includes the power to amend or repeal the constitution.’  But, Article 75 cannot be interpreted as granting unlimited or absolute power:  Parliament is not above the law, it is subject to the law, which is to say, it is at all times bound by the terms and conditions, both implied as well as expressed, imposed by the constitution.

What then do we have here?  The constitution prohibits Parliament from acting in ways that harm the interests of the People, and the creation of the ‘Constitutional Assembly’ has indisputably harmed the interests of UPFA voters as aforesaid.  Meanwhile, UPFA voters indisputably comprise a portion of the ‘People’ of this country.  The conclusion is inescapable that the present constitution-making process, which derives its purported validity from the said ‘Constitutional Assembly,’ is quite illegal.

Dharshan Weerasekera is an Attorney-at-Law.  His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka, will be in bookstores shortly.

[1] Framework Resolution, The Secretariat of the Constitutional Assembly of Sri Lanka, www.constitutionalassembly.lk

[2] Ibid, Paragraph 5, 15

[3] Ibid, Paragraph 16

[4] Ibid, Paragraph  17

[5] Ibid, Paragraph 18

[6] Ibid, Paragraph  20, 21

[7] Ibid, Paragraph 21

[8] Re:  19^th Amendment to the Constitution, (2002) 3 SLR 85, p. 97

[9] ‘Fiduciary duties and Trustees,’ www.inbrief.co.uk