{"id":52728,"date":"2016-03-08T22:24:37","date_gmt":"2016-03-09T04:24:37","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=52728"},"modified":"2016-03-07T15:27:58","modified_gmt":"2016-03-07T22:27:58","slug":"the-trap-that-will-be-sprung-on-march-9th","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/03\/08\/the-trap-that-will-be-sprung-on-march-9th\/","title":{"rendered":"THE TRAP THAT WILL BE SPRUNG ON MARCH 9TH"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

The resolution to turn Parliament into a \u2018Constitutional Assembly\u2019 is scheduled to be taken up for debate on the 9th<\/sup> of March.\u00a0 If the Joint Opposition presumes to represent the Sinhala Buddhists (and if it doesn\u2019t there\u2019s really no need for its existence) it should oppose the said resolution.<\/p>\n

I am informed that the Joint Opposition has 50 members. That is not enough to prevent the Government from pushing the resolution through with a 2\/3 majority using the UNP votes, the minorities, plus Sirisena\u2019s SLFP\u2019ers.\u00a0 But that\u2019s not the point.\u00a0 The Joint Opposition has to stall the Constitution-making process and give the Sinhala Buddhists time to mobilize and prepare for the referendum.<\/p>\n

If the above is not done, the consequences are too horrific to imagine, given the type of Constitution that will be foisted on this country.\u00a0\u00a0 In this article I shall briefly explain what I think is the reason for turning Parliament into a \u2018Constitutional Assembly,\u2019 the type of Constitution that will be brought in, and what is going to happen afterwards.<\/p>\n

THE NEED FOR A \u2018CONSTITUTIONAL ASSEMBLY\u2019<\/strong><\/p>\n

I take it that most Sinhala Buddhists are now in agreement that the troika running Sri Lanka\u2014which is to say the U.S., U.K. and India\u2014have figured out a way to rig a referendum on the Constitution if and when it comes to that stage.\u00a0 So, the Government has to only get the draft through Parliament (before the Sinhala Buddhists mobilize).<\/p>\n

In my opinion, the reason for a \u2018Constitutional Assembly\u2019 is to legitimize the \u2018National Government.\u2019 If the \u2018National Government\u2019 is illegal, then the draft Constitution is also illegal, because the only way it would get 2\/3 approval in Parliament is if the bulk of those votes came from MP\u2019s holding portfolios in the \u2018National Government.\u2019<\/p>\n

There is a possibility that, if the draft is brought to Parliament under the normal procedure for amending or replacing the Constitution, a legal challenge to the legitimacy of the \u2018National Government\u2019 will be made, and from the Government\u2019s point of view that has to be prevented at all costs:\u00a0 hence the need for a \u2018Constitutional Assembly.\u2019<\/p>\n

I shall first explain why I think the \u2018National Government\u2019 is illegal, and then explain the ramifications to the Constitution-making process.<\/p>\n

Article 3 of the Constitution says, \u2018Sovereignty is in the People and is inalienable,\u2019 and goes on to say that said Sovereignty includes the franchise.\u00a0 Article 4(e) explains how the franchise is to be exercised, and says inter alia<\/em>:\u00a0 \u2018The franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament.\u2019<\/p>\n

To the best of my knowledge, in the Parliamentary elections held last August, a political party called the United Peoples Freedom Alliance (UPFA) won 95 seats in Parliament.\u00a0 Again to the best of my knowledge, this UPFA issued an election manifesto prior to the election.<\/p>\n

It is not in dispute that an election manifesto is the official program of action of any political party, and, for any given election, the principal means by which voters who vote for a party know what they are voting for.\u00a0 To put it another way, the manifesto is the contract between the candidates representing a Party and the voters.<\/p>\n

Through the manifesto, the candidates offer to do certain things if elected, and the voters, by electing the candidates in question, are signifying that they accept the offer.\u00a0 (Thus, if I\u2019m not mistaken, the two essential requirements of a valid contract, offer and acceptance, are met, and the candidates, once elected, have an obligation to follow the program of action they said they would follow.)<\/p>\n

To my knowledge, nowhere in the UPFA\u2019s manifesto did it say that if after the election the UPFA did not win enough seats gain a majority in Parliament, its members will join the rivals whom they campaigned against, and form a Government.\u00a0 True, as per the relevant Supreme Court ruling, they can switch<\/em> to the other side, but in that case they must leave the UPFA fold.\u00a0 The point is that they cannot remain in the UPFA and form a government with their rivals.<\/p>\n

But the above, as far as I understand it, is exactly what has happened under the present set-up:\u00a0 a group of MP\u2019s elected under the UPFA banner, and thus bound to the UPFA\u2019s program of action, have joined their rivals in the UNP and are carrying on a government.\u00a0 If the act of voting is to mean anything, we must suppose that a voter must have the assurance that if he votes for candidate \u2018X\u2019 and \u2018X\u2019 says he will do such and such, that once elected he will in fact do what he said and not something else.<\/p>\n

As I explained earlier, Article 3 of the Constitution says that Sovereignty is inalienable, and the franchise is an integral part of Sovereignty.\u00a0 Therefore, the MP\u2019s who won under the UPFA but who have joined the UNP and are carrying on a government with the latter have abrogated the franchise of the voters who voted for them in the August elections.\u00a0 In short, the \u2018National Government\u2019 violates the Constitution, which is to say it is illegal<\/em>.<\/p>\n

I shall now turn to the ramifications of the above to the Constitution-making process.\u00a0 The normal procedure for amending or repealing and replacing the Constitution is set out in Articles 82(1) – (6) and Article 83 of the Constitution.\u00a0 Article 82(6) states:<\/p>\n

\u2018No provision in any law shall, or shall be deemed to amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.\u2019<\/p>\n

(It should be noted that nowhere in the \u2018preceding provisions\u2019 of Article 82(6), which is to say Article 82(1) \u2013 (5) is there any mention of a \u2018Constitutional Assembly\u2019)<\/p>\n

If either Article\u2019s 82(1) or (2) are invoked, and a Bill to amend or repeal and replace the Constitution is placed on the Order Paper, then Article 121(1) is automatically triggered and members of the public can challenge the Bill before the Supreme Court, unless the Cabinet certifies in advance that the Bill needs a 2\/3 majority in Parliament plus approval at a referendum.<\/p>\n

Let\u2019s suppose the Cabinet certifies that the draft Constitution requires a 2\/3 majority plus a referendum.\u00a0 What will happen?\u00a0 Obviously, the draft will be brought to a vote in Parliament.\u00a0 That\u2019s when there\u2019s potential for serious trouble.<\/p>\n

If the \u2018National Government\u2019 is prima facie <\/em>illegal, either the Joint Opposition or even a single MP can raise a point of order and raise an objection, and say that, on an issue as important as a new Constitution, if there is even a hint of suspicion that its approval may be illegal, that issue has to be first resolved before going for the vote.<\/p>\n

The Government will not be able to ignore such a request, because the Government (in this case the President) is the only person with the legal capacity to invoke the Supreme Court\u2019s jurisdiction to provide opinions on questions such as the above.\u00a0 Article 129(1) of the Constitution says:<\/p>\n

\u2018If 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 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, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion its opinion thereon.\u2019<\/p>\n

If the Government refuses to seek the required opinion, that itself will look suspicious, and that in turn will stain the credibility of the new Constitution. In any event, the new Constitution is supposed to be the \u2018consensus Constitution\u2019 meaning it had the unstinted support of all the ethnic, religious and linguistic groups in the country.<\/p>\n

It will be impossible to maintain the above charade if the suspicion persists that the franchise of the majority ethnic group in the country may have been abrogated at the very inception of the Constitution-making process, and the means were at hand to get a definitive legal opinion on the issue.\u00a0 So, to repeat, it will be difficult for the Government to refuse to provide the opinion.<\/p>\n

Obviously, the Court might say the \u2018National Government\u2019 is perfectly lawful. \u00a0But then again it might not, and that\u2019s<\/em> the problem.\u00a0 If the Court rules that the \u2018National Government\u2019 is illegal, then the entire house of cards that the U.S. U.K and India have spent so much time, and money building collapses.\u00a0 It is unreasonable to suppose they will let this happen, and no doubt have instructed their local puppets accordingly.<\/p>\n

The only way to solve the above problem is to get the entire Parliament to endorse the Constitution-making process from the very start, which is to say, to turn Parliament into a \u2018Constitutional Assembly.\u2019\u00a0 In law, a particular technical meaning is given to Acquiescence<\/em><\/strong>, to wit:\u00a0 where a person or party acquiesces<\/em> in a wrongful act, they are not entitled to contest the legality of that act later, because it is presumed they conceded such legality when they acquiesced in the act.<\/p>\n

If the Joint Opposition joins the \u2018Constitutional Assembly,\u2019 they will be impliedly conceding the legality of the \u2018National Government\u2019 and will not be able to agitate that issue at a future time when the draft Constitution is tabled.<\/p>\n

So, in my view, that is the game being played.\u00a0 To digress a moment, as I read it, the Joint Opposition has as usual been taken for a ride by Sirisena.\u00a0 He got his henchmen to endorse the \u2018amendments\u2019 that the Joint Opposition proposed to the original resolution, which blunted the Joint Opposition\u2019s initial criticisms.\u00a0 Now, the Government has agreed to all those amendments, which pulls the rug from under the Joint Opposition.<\/p>\n

If members of the Joint Opposition oppose the resolution now, they will be accused of being spoil-sports, unprincipled obstructionists of much-needed Constitutional reforms, and so on.\u00a0 In short, they are trapped.<\/p>\n

How they get out of this trap is not my concern.\u00a0 My point is that at least a faction within the Joint Opposition has to insist that the principal issue here is the possible abrogation of the franchise of a significant proportion of Sinhala Buddhists voters, and that any Constitution-making process predicated on such an abrogation is null and void ab initio<\/em>, and the matter has to be looked into first before proceeding any further.<\/p>\n

In my view, if the above is not done, and the new Constitution is allowed to sail through, it will be a betrayal of the Sinhala Buddhists far greater than the betrayal handed them by Sirisena\u2019s men in August last year.\u00a0 I shall deal with the type of Constitution that is to be brought in, and what I think will happen afterwards, in subsequent articles as time permits.<\/p>\n

Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of two books:\u00a0 The UN\u2019s Relentless Pursuit of Sri Lanka (2013), and, The UN\u2019s Subversion of International Law:\u00a0 The Sri Lanka Story (2015)<\/em><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

DHARSHAN WEERASEKERA The resolution to turn Parliament into a \u2018Constitutional Assembly\u2019 is scheduled to be taken up for debate on the 9th of March.\u00a0 If the Joint Opposition presumes to represent the Sinhala Buddhists (and if it doesn\u2019t there\u2019s really no need for its existence) it should oppose the said resolution. I am informed that […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-52728","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/52728","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=52728"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/52728\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=52728"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=52728"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=52728"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}