{"id":61970,"date":"2017-01-01T20:53:34","date_gmt":"2017-01-02T02:53:34","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=61970"},"modified":"2017-01-01T13:01:50","modified_gmt":"2017-01-01T20:01:50","slug":"the-illegality-of-the-ongoing-constitution-making-process-in-sri-lanka","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2017\/01\/01\/the-illegality-of-the-ongoing-constitution-making-process-in-sri-lanka\/","title":{"rendered":"THE ILLEGALITY OF THE ONGOING CONSTITUTION-MAKING PROCESS IN SRI LANKA"},"content":{"rendered":"

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

In this article I shall briefly explain why in my view the present constitution-making process in this country is illegal.\u00a0 My argument is based on three considerations:\u00a0 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.<\/p>\n

DIFFERENCE BETWEEN THE ESTABLISHED PROCEDURE AND THE ONE NOW BEING FOLLOWED<\/strong><\/p>\n

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:<\/p>\n

    \n
  1. A Bill to amend or repeal the constitution must state such purpose in its long title. (Article 82(1))<\/li>\n<\/ol>\n
      \n
    1. The constitution cannot be repealed without there also being a replacement for the one being repealed. (Article 82(2))<\/li>\n<\/ol>\n

      3\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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))<\/p>\n

        \n
      1. If it violates any of the entrenched provisions, then a referendum is needed. (Article 83)<\/li>\n<\/ol>\n
          \n
        1. Article 80(6) reiterates that the procedure consisting of the above four steps is the only way to amend or repeal the constitution.<\/li>\n<\/ol>\n

          Now, let\u2019s turn to the procedure that is currently being followed.\u00a0 The crucial step in the said procedure is that on 9 March 2016 Parliament converted itself by resolution into a \u2018Constitutional Assembly,\u2019 or a \u2018Committee of the whole<\/em> Parliament,\u2019 for purposes of generating a new constitution.<\/p>\n

          The resolution begins as follows:\u00a0 \u2018Whereas there is broad agreement among the People of Sri Lanka that it is necessary to enact a Constitution for Sri Lanka.\u2019[1]<\/a>\u00a0 It then lays out the following procedure:<\/p>\n

            \n
          1. Parliament is to appoint a \u2018Steering Committee\u2019 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]<\/a><\/li>\n<\/ol>\n
              \n
            1. 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]<\/a><\/li>\n<\/ol>\n
                \n
              1. The Constitutional Assembly\u2019 then debates the general merits of the said report and draft proposal, and decides whether to request the Steering Committee to submit a final<\/em> report along with a constitutional proposal.[4]<\/a><\/li>\n<\/ol>\n
                  \n
                1. 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]<\/a><\/li>\n<\/ol>\n
                    \n
                  1. 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]<\/a><\/li>\n<\/ol>\n
                      \n
                    1. 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]<\/a><\/li>\n<\/ol>\n

                      Such then is the procedure that is now being followed.\u00a0 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 \u20185\u2019 and \u20186\u2019 involve invoking chapter 12.\u00a0 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.<\/p>\n

                      LEGAL ANALYSIS<\/strong><\/p>\n

                      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.\u00a0 Nowhere in the prescribed procedure is it ever specifically stated that Parliament is to convert itself into a \u2018Constitutional Assembly\u2019 or \u2018Committee of the whole Parliament\u2019 for purposes of generating amendments to the constitution or for drafting a new constitution.<\/p>\n

                      Therefore, the crucial question is: \u2018From the steps set out in Chapter 12, can one infer that our constitution permits<\/em> Parliament to turn itself into a \u2018Constitutional Assembly\u2019 or \u2018Committee of the whole<\/em> Parliament\u2019 for purposes of generating amendments to the constitution or for drafting a new constitution?<\/strong>\u2019\u00a0 In my view, the answer is \u2018no,\u2019 because of two considerations, as follows:<\/p>\n

                        \n
                      1. The nature of the power that Parliament wields when generating legislation<\/li>\n<\/ol>\n
                          \n
                        1. 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.<\/li>\n<\/ol>\n
                            \n
                          1. a) THE NATURE OF THE POWER THAT PARLIAMENT WIELDS WHEN GENERATING LEGISLATION<\/strong><\/li>\n<\/ol>\n

                            Under our constitution, Members of Parliament when enacting laws exercise a delegated power, delegated to them by the People. \u00a0According to Article 3 of the constitution, the sovereignty of the country is in the People, and inalienable.\u00a0 Meanwhile, Article 4 sets out how executive, legislative and judicial power is to be exercised.\u00a0 Our Supreme Court has consistently held that Articles 3 and 4 are to be read together.<\/p>\n

                            More important, the Court has held that, because of the wording of Article 4(a), (b) and (c), which refer to the executive power \u2018of the People,\u2019 legislative power \u2018of the People,\u2019 and judicial power \u2018of the People,\u2019 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.\u00a0 The court gives eloquent expression to this idea in Re:\u00a0 19th<\/sup> Amendment to the Constitution<\/em>, as follows:<\/p>\n

                            \u2018The 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.\u00a0 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 \u2018of the People\u2019 shall be exercised by Parliament, the executive power \u2018of the People\u2019 shall be exercised by the President, and the judicial power \u2018of the People\u2019 shall be exercised by Parliament through courts.\u00a0 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.\u2019[8]<\/a><\/p>\n

                            The interpretation by court that the exercise of the related powers \u2018by the particular organs of government being its custodian for the time being, is for the People,\u2019 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\u2019s exercise legislative power they do so in trust for the People.<\/p>\n

                            The above means that, MP\u2019s invariably assume the duties that customarily accompany fiduciary relations, i.e. relations of trust.\u00a0 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.\u00a0 For instance, some experts on trusts have said:\u00a0 \u2018The essence of fiduciary duty requires the trustee to be always promoting the beneficiary\u2019s interests.\u2019[9]<\/a><\/p>\n

                            Therefore, when MP\u2019s 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.\u00a0 Conversely, if a legislative act harms or compromises the interests of the People, or is carried out where harm can reasonably be anticipated<\/em>, such act is contrary to the letter as well as spirit of Articles 3 and 4, and by definition illegal<\/em>.<\/p>\n

                              \n
                            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<\/strong><\/li>\n<\/ol>\n

                              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.\u00a0 Article 82(5) does not expressly indicate whether the 2\/3 majority that approves a constitutional amendment should be comprised of MP\u201ds who at some level or other have a mandate for such action from their constituents.<\/p>\n

                              There are two ways that a Government in power that aspires to change the constitution can get a 2\/3 majority in Parliament:\u00a0 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.<\/p>\n

                              The question is whether, in light of the matters discussed in section \u2018a\u2019 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.\u00a0 In my view, it is, because of the following reasons.<\/p>\n

                              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.\u00a0 Under the circumstances, I do not dispute that, subject to Article 83, such a Government can pursue any constitutional changes that it wishes.<\/p>\n

                              Now, let\u2019s 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.\u00a0 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?<\/p>\n

                              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.\u00a0 However, Article 84 also explicitly states that any law enacted in that way can be repealed by a simple majority<\/em>.<\/p>\n

                              Therefore, if any law other<\/em> than a constitutional amendment is passed by a 2\/3 majority that includes MP\u2019s who don\u2019t have a mandate to approve the law in question, the voters whose interests are thereby compromised do not suffer irreparable<\/em> harm.\u00a0 This is because of two reasons, as follows.<\/p>\n

                              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.\u00a0 So, voters whose wishes are contravened when their MP\u2019s participate in passing such a law have a chance later on to bring pressure on those MP\u2019s to join with others in Parliament and repeal the law in question by a simple majority.<\/p>\n

                              Second, in the event the MP\u2019s fail to take action, the voters can always elect different MP\u2019s at the next elections and get the impugned law repealed.\u00a0 Either way, for any law other than a constitutional amendment, the voters who are \u2018betrayed\u2019 when their MP\u2019s participate in enacting a particular law, have a chance to hold those MP\u2019s accountable, and thereby to undo the damage caused by the impugned law.<\/p>\n

                              Now, let\u2019s turn to a constitutional amendment.\u00a0 If the Government gets a constitutional amendment approved in Parliament with a 2\/3 majority but some of the MP\u2019s in the coalition don\u2019t 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.\u00a0 This is because of two reasons, as follows.<\/p>\n

                              First, a constitutional amendment cannot be repealed by a simple majority.\u00a0 So, voters whose interests are compromised as aforesaid need to get a 2\/3 in Parliament to support their \u2018cause\u2019:\u00a0 obviously, that is much harder to do than getting the support of a simple majority.<\/p>\n

                              Second, with a constitutional amendment the Government can postpone elections, or even cancel them.\u00a0 That means that, voters who wish hold their representatives accountable at a future election have to wait longer<\/em> for their chance, and there is a possibility they may never get that chance at all.<\/p>\n

                              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 \u00a0defeating the Government.\u00a0 (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.)<\/p>\n

                              To digress a moment, there is historical precedence in this country for some of the things suggested in the points above.\u00a0 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.<\/p>\n

                              If I\u2019m 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.<\/p>\n

                              I am hardly a fan of \u2018Mrs. B,\u2019 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.<\/p>\n

                              History is known to repeat itself (\u2018the first time as tragedy, and the second as farce\u2019 as Marx observed), so it is not inconceivable that some version of the tactics once deployed by JRJ will be repeated again.<\/p>\n

                              The point is this.\u00a0 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.\u00a0 There is always a possibility that the voters whose interests are compromised when their MP\u2019s participate in enacting a constitutional amendment will never be able to hold those MP\u2019s accountable for the said actions.<\/p>\n

                              A critic, however, might point out that the voters have a safeguard in Article 83.\u00a0 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.\u00a0 That means that, voters whose interests are compromised as aforesaid have a chance to block that amendment at the referendum.<\/p>\n

                              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.\u00a0 Therefore, it is possible to pass a constitutional amendment into law even if it is rejected by close to 50% of voters.<\/p>\n

                              The practical effect of the above is that, even if all<\/em> the voters whose wishes are contravened when their MP\u2019s join the Government in order to pass a particular constitutional amendment reject it at a referendum, such amendment can nevertheless become law.<\/p>\n

                              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:\u00a0 if their MP\u2019s betray the trust place in them and participate<\/em> in enacting the amendment, they lose that chance.\u00a0 In short, the voters suffer irreparable harm.<\/p>\n

                              Recall that, for any law other than a constitutional amendment, voters whose wishes are contravened when their MP\u2019s help enact such a law always have a chance to hold those MP\u2019s accountable at a future election, and thereby to recoup their losses.<\/p>\n

                              Is it reasonable to suppose that the constitution which gives to voters such a safeguard against their MP\u2019s 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\u2019 try to change the constitution, a task which invariably carries with it far graver consequences to the voters?\u00a0 In my view, it is not: in fact it is an absurdity.<\/p>\n

                              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\u2019s that make up a coalition that approves a constitutional amendment must themselves have received a mandate for such action directly from their constituents.<\/p>\n

                              THE ILLEGALITY OF THE PRESENT PROCESS<\/strong><\/p>\n

                              Recall that, the Preamble to the Framework Resolution says:\u00a0 \u2018Whereas there is broad agreement among the People of Sri Lanka that it is necessary to enact a constitution for Sri Lanka.\u2019\u00a0 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.<\/p>\n

                              Under our constitution, there are two objective ways for the Government to find out the sentiments of the People on important issues:\u00a0 the referendum, and elections.\u00a0 If the Government wanted to find out whether the People approved of Parliament turning itself into a \u2018Constitutional Assembly\u2019 to draft a new constitution, or amendments to the present one, that question could have put to the People at a referendum.<\/p>\n

                              The Government could then have relayed the said information to Parliament.\u00a0 It was not done.\u00a0 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.<\/p>\n

                              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.<\/p>\n

                              Therefore, the statement by Parliament that there is \u2018broad agreement among the People for a constitution,\u2019 if we are to take that as meaning that there is broad agreement for the present Parliament to bring constitutional amendments, is without basis.\u00a0 In other words, the resolution lacks warrant<\/em>.<\/p>\n

                              I now come to the crux of the matter.\u00a0 A critic might say something like this:<\/p>\n

                              \u2018The sole purpose of the \u2018Constitutional Assembly\u2019 is to generate the constitutional amendments or a new constitution as the case may be.\u00a0 Once these are produced, Parliament has every intention of following the prescribed procedure.\u00a0 So, the fact that the People have not given a specific warrant for a \u2018Constitutional Assembly\u2019 doesn\u2019t mean that what Parliament has done is illegal.\u00a0 Besides, under Article 75 of the constitution Parliament has very wide powers to \u2018pass laws\u2019 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 \u2018Constitutional Assembly.\u2019\u2019<\/p>\n

                              In my view, the \u2018Constitutional Assembly\u2019 is illegal, regardless of the purported ambit of Article 75, because of the following reasons.\u00a0 Recall that, in section \u2018b\u2019 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.<\/p>\n

                              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.<\/p>\n

                              At that point, MP\u2019s representing the interests of voters who for whatever reason are opposed to the constitutional changes\u2014i.e. voters who are of the view that the amendments in question ought not to be pursued at all\u2014raise objections.\u00a0 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.<\/p>\n

                              I emphasize that, under the prescribed procedure, it is the Government<\/em> that drafts the proposed constitutional amendment or amendments, and there is at all times within Parliament a certain number of MP\u2019s who represent the interests of voters who don\u2019t want the proposed changes.<\/p>\n

                              If we apply the above considerations to the facts surrounding the commencement of the present constitution-making process, 3 things follow.\u00a0 First, under normal circumstances, i.e. if the wishes of UPFA voters had been honoured<\/em>, the Government would not have been able to commence the said process at all.<\/p>\n

                              (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\u2019s who contested under the UPFA banner along with a handful of other MP\u2019s appointed through the National List have decided to join the UNP and form something called a National Government,\u2019 the purpose of which is to pursue a common legislative program.)<\/p>\n

                              Second, if the prescribed procedure had been followed, it is the Government\u2014or the \u2018National Government\u2019\u2014that would have drafted the amendments.\u00a0 Actions of the Government can be challenged in courts of law\u2014i.e. government officials no matter how high their positions can be hauled up before the courts.\u00a0 But, actions of Parliament cannot be so challenged, or at any rate such challenges usually fail in the preliminary stages.<\/p>\n

                              If the Government had initiated the process of drafting the present amendments, then voters aggrieved by the forming of the \u2018National Government\u2019 could have challenged the said act in the courts.\u00a0 I am not saying they will have necessarily won the case.\u00a0 But, at the very least, they will have been have been able to obtain a definitive ruling on the legality<\/em> of the \u2018National Government.\u2019<\/p>\n

                              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\u2019s who have betrayed the trust place in them, ought to be able to deprive them of.<\/p>\n

                              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\u2019s in Parliament who could raise objections on grounds of principle<\/em>, i.e. on grounds that the amendments or new constitution as the case may ought not to be brought at all.<\/p>\n

                              Since the \u2018Constitutional Assembly\u2019 is comprised of the whole<\/em> of Parliament which means the entire Parliament will have participated<\/em> 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.<\/p>\n

                              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.\u00a0 It is true that under the present procedure the amendments once drafted will be re-submitted to Parliament.\u00a0 So, the JO can claim that it can still raise objections on principle at that stage.\u00a0 I concede that this is possible.<\/p>\n

                              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.\u00a0 The sum of these considerations is that the device of a Constitutional Assembly\u2019 has permitted the Government to do the following three things:<\/p>\n

                              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<\/em>; second, preclude legal challenges being made to the \u2018National Government\u2019 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.<\/p>\n

                              In short, on each the aforesaid three matters, the \u2018Constitutional Assembly\u2019 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.\u00a0 Since the entire<\/em> Parliament approved the resolution that established the \u2018Constitutional Assembly\u2019 the entire<\/em> Parliament is complicit in the said act of the Government.<\/p>\n

                              Recall that, as per the discussion in section \u2018a\u2019 hereinbefore, Parliament cannot act in ways that harm the interests of the People:\u00a0 if it does, such act is by definition illegal.\u00a0 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.<\/p>\n

                              I concede that, Article 75 confers very wide powers on Parliament to \u2018pass laws\u2019 and that includes the power to amend or repeal the constitution.\u2019\u00a0 But, Article 75 cannot be interpreted as granting unlimited or absolute power:\u00a0 Parliament is not above the law, it is subject<\/em> 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.<\/p>\n

                              What then do we have here?\u00a0 The constitution prohibits Parliament from acting in ways that harm the interests of the People, and the creation of the \u2018Constitutional Assembly\u2019 has indisputably harmed the interests of UPFA voters as aforesaid.\u00a0 Meanwhile, UPFA voters indisputably comprise a portion of the \u2018People\u2019 of this country.\u00a0 The conclusion is inescapable that the present constitution-making process, which derives its purported validity from the said \u2018Constitutional Assembly,\u2019 is quite illegal.<\/p>\n

                              Dharshan Weerasekera is an Attorney-at-Law.\u00a0 His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka<\/em><\/strong>, will be in bookstores shortly.<\/p>\n

                              [1]<\/a> Framework Resolution, The Secretariat of the Constitutional Assembly of Sri Lanka, www.constitutionalassembly.lk<\/a><\/em><\/p>\n

                              [2]<\/a> Ibid, Paragraph 5, 15<\/p>\n

                              [3]<\/a> Ibid, Paragraph 16<\/p>\n

                              [4]<\/a> Ibid, Paragraph\u00a0 17<\/p>\n

                              [5]<\/a> Ibid, Paragraph 18<\/p>\n

                              [6]<\/a> Ibid, Paragraph\u00a0 20, 21<\/p>\n

                              [7]<\/a> Ibid, Paragraph 21<\/p>\n

                              [8]<\/a> Re:\u00a0 19th<\/sup> Amendment to the Constitution<\/em>, (2002) 3 SLR 85, p. 97<\/p>\n

                              [9]<\/a> \u2018Fiduciary duties and Trustees,\u2019 www.inbrief.co.uk<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

                              DHARSHAN WEERASEKERA In this article I shall briefly explain why in my view the present constitution-making process in this country is illegal.\u00a0 My argument is based on three considerations:\u00a0 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12,100],"tags":[],"class_list":["post-61970","post","type-post","status-publish","format-standard","hentry","category-forum","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/61970","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=61970"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/61970\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=61970"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=61970"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=61970"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}