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


(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 Constitution by which the Supreme Court categorically ruled that any postponement of the Provincial Council election is unconstitutional and any change to the said provision of the Constitution needs an approval of the people at a referendum. The Parliament in doing so indirectly violated the Supreme Court decision. That violation of the constitution became far more serious as the provisions for the postponement of the elections were introduced by way of amendments at the committee stage which had no relevance to the proposed original amendment. Thereby they had gone beyond the scope of the amendment and passed the committee stage amendments in gross violation of the Constitution.

It is sad to note that the Attorney-General had advised the Speaker that in the event of the said amendment being passed with a 2/3 majority, it would be deemed legitimate. But the Attorney-General has no necessity or capacity to give such opinion as the said amendment revolves upon the franchise of the people which is not a subject devolved on the provincial councils. Although we have no doubt about the honesty and integrity of the Speaker, it is clear that the Minister of Provincial Council and Local Governments and the Attorney-General by abusing their authority, misled the Speaker on the law and took undue advantage of it for their ulterior motive. No one can deny that it is a death blow to democracy.

Now people have a reasonable suspicion that this government would proceed to pass a new constitution by hoodwinking the Speaker and the people. The Speaker has stated that he will not sign any constitution if it is adverse to the country. But there is no validity of this statement as he has no power to refrain from signing any legislation, if it is passed according to the rules of the Parliament. On the other hand the opinion of the people is that one cannot rule out the possibility of removing the incumbent Speaker and replacing another person to sign any legislation passed by the Parliament.

Similarly when Minister Arjuna Ranathunga opposed the alienation of Hambantota Port to China, the government removed him from that portfolio and appointed Minister Mahinda Samarasinghe and put the transaction through. Why can’t this government follow the said procedure in the Parliament as well?

Federalism alias the commencement of severance

When Mr. Vigneshwaran, Chief Minister of the Northern Province, met the prelates of Malwatta and Asgiri Chapters recently explained to the prelates that we need to go for a devolution of power as done in Belgium and the system is smoothly functioning in that country. S.W.R.D. Bandaranaike in his first speech in the Parliament, after becoming the Prime Minister in 1956 also admired the devolution model in Belgium. But at present the State of Belgium is so fragile. The South of Belgium, known as Walloon, consist of people speaking French. The northern part of the Belgium Flemish consist of people speaking the Dutch language. Now the debate is going on as to whether they should severe. The Great Britain which had controlled 20% of the Earth’s surface and 1/3 of the population at one time is now faced with a threat of break away. With the result of the referendum held on 23rd June 2016 to exit from European Union, now Scotland and North Ireland are seriously considering whether to remain or breakaway from Britain. One time, Spain was a very powerful nation in the world, but today Catalane Province is fighting to breakaway from Spain and it has now reached the climax. The referendum which was held on the above issue was disrupted by the Spanish government. If such a thing occurred in Sri Lanka, Europeans would raise their big voice to condemn us, but they keep mum because it happened in Europe.

In 1940 people of Korea never aspired or dreamt to divide Korea. But the United Nations was instrumental in dividing it into South Korea and North Korea. Today their decision has boomeranged and North Korea is becoming a threat to the whole world because of their experiments of nuclear powers and missiles. We have no doubt that as Donald Trump stated, the US and Europe will get together and destroy North Korea. A neighboring powerful country which helped North Korea tactically develop such devastative weapons is now waiting until such destruction occur in North Korea with the target of aligning North Korea as a province of its territory. Their next target will be to capture South Korea as well. UN was instrumental in dividing Kosovo from Serbia and also dividing Sudan in 2011. But with such divisions we cannot see that their problems are resolved, instead it looks they are much aggravated.

What reforms are needed?

The public debates and agitation against the constitution of Mr. J. R. Jayawardena in the recent past reflects four main features which need constitutional amendments or changes.

1. The abolition of the Executive Presidency.

2. Change of the proportional representation electoral system.

3. Insertion of good governance principles.

4. Devolution of power in considering the demands of the minorities. (This is only a demand of a minority)

The powers of the Executive President have already been pruned to a great extent by the 19th Amendment to the Constitution. It appears from the public perception that people are not anymore very keen on abolishing the Executive Presidency. The reason being the serious allegation of corruption such as the Central Bank Bond Scam against the government has come to the prominence in the public sector. At least a commission of inquiry to probe into the said corruption was appointed because of the existence of the Executive Presidency. With regard to the change of the proportional representative electoral system, alternate election modality had been proposed in the 20th amendment to the constitution presented to Parliament in 2015.

If the minority groups are interested in the devolution of powers, it could be a matter for dialogue, but there is no need of international organization or other countries or NGOs or Diasporas to interfere in these matters. We cannot expect any solution for any problem from people who are egoistic and concerned only with their political survival. Truly benevolent political leaders as well as religious and social dignitaries also could explore the avenues for inter-racial and inter-religious harmony and reconciliation. At present we have to inject antibiotic to control the virus and bacteria which had crept into the reconciliation mechanism. During the last 100 years, Tamil politicians in the North and the East had been agitating for a separate state and devolution of power by arousing communal hatred among the ethnic groups, but nothing noteworthy has been done to their own people. Finally they groomed terrorists who destroyed not only the country, but also the Tamil community itself.

What should be done?

In considering the political and social turmoil that had been created in the country, expectations are far remote to have a new constitution adopted. Although an appropriate environmental prevailed in the country in 2015, that atmosphere has now completely disappeared as a result of maladroit conduct on the part of the government. Obtaining a 2/3 majority in the Parliament for the proposed constitution is only a figment of imagination. Even if it is passed with a 2/3 majority in the Parliament it cannot become law unless it is approved by the people at a referendum. It is similar to pursuing a mirage. Vast majority of Sinhala and Muslim people also have expressed their opposition to the proposed constitution.

In considering the present environment of the country, it will be a prudent decision for the government to discuss with party leaders and to agree on suitable amendments to the existing constitution to make it much more meaningful and vibrant. The priorities of the needed amendments could be set in the following manner.

1. To change the proportional representative electoral system by introducing a more favorable system to the people.

2. To introduce the reforms into the judicial system to enhance its efficiency and thereby to minimize the laws delay. (I have already submitted an appropriate amendment to the system, but it is kept aside with the expectation that they could incorporate the same into the proposed new constitution).

3. To make necessary restructures to provincial councils and local governments institutions enabling them to be more efficient and functional. More administrative powers could be devolved in a symmetric way.

4. To establish a mechanism/reinforce the existing mechanism for accountability of the public sector.

There could be a dialog about the defining and refining of the powers of the provincial councils, but the government should not rush into decisions at this stage as it could create more confusions than finding solutions.

The present Constitution does not allow the establishment of a constitutional assembly as it has conferred clear and unambiguous powers on the Parliament itself with a well structured procedure for doing so. Standing Order No. 116 provides the specific procedure for effecting legislative reforms and it is a simple procedure.

I have to expect a reasonable criticism against me too for not taking up this constitutional intricacy at the beginning and remained as a member of that assembly and also in the steering committee. Although I pointed out the said illegality to the relevant persons in the government, I did not want to express a voice on it for the reason that I believed in good faith that we would be able to enhance the standard of the constitution as we did in passing the 19th Amendment. But when we lost our grip and task is being handled by outsiders with hidden motives and agendas, I consider it my duty to make people aware of the correct legal position as regards the constitutional making process.

Dr. Wijeyadasa Rajapakshe

President’s Counsel

Dharma Neethi Visharada Shasana Vibhushana

Ph.D –University of Colombo – Constitutional Law

Ph.D – University of Kelaniya– Buddhist Philosophy

M.Phil – University of Sri Jayewardenepura– Buddhist Ecclesial Law

Masters– University of Ruhuna– Buddhist Philosophy

Bachelor of Law – University of Colombo

Diploma – University of Freiburg, Switzerland – Conflict Resolution and Federal System

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