{"id":71383,"date":"2017-11-05T15:37:04","date_gmt":"2017-11-05T22:37:04","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=71383"},"modified":"2017-11-05T15:37:04","modified_gmt":"2017-11-05T22:37:04","slug":"president-sirisena-must-invoke-article-129-of-the-constitution-and-ask-the-supreme-court-for-an-advisory-opinion-on-the-legality-of-the-constitution-making-process","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2017\/11\/05\/president-sirisena-must-invoke-article-129-of-the-constitution-and-ask-the-supreme-court-for-an-advisory-opinion-on-the-legality-of-the-constitution-making-process\/","title":{"rendered":"PRESIDENT SIRISENA MUST INVOKE ARTICLE 129 OF THE CONSTITUTION AND ASK THE SUPREME COURT FOR AN ADVISORY OPINION ON THE LEGALITY OF THE CONSTITUTION-MAKING PROCESS"},"content":{"rendered":"

DHARSHAN WEERASEKERA, <\/strong><\/em><\/span><\/h2>\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 a 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\u2026report to the President its opinion thereon.\u2019 \u2013 Article 129(1), Sri Lanka Constitution<\/em><\/p>\n

On 1st<\/sup> November 2017, President Sirisena announced that he will convene three conferences \u2013 one for religious leaders, another for politicians and a third for intellectuals \u2013 to discuss the proposed constitutional changes.[1]<\/a>\u00a0 However, within the past week former Justice Minister Wijedasa Rajapakshe PC has published three articles arguing that the present constitution-making process is illegal.[2]<\/a>\u00a0 Barely a month ago, former Chief Justice Sarath Silva also stated publicly that the constitution-making process is illegal.[3]<\/a><\/p>\n

If a former Chief Justice and a former Justice Minister say that the constitution-making process is illegal, the Government cannot ignore such a warning, or at any rate does so at its peril.\u00a0 Under Article 129 of the Constitution the President can invoke the consultative jurisdiction of the Supreme Court on any matter of public importance.\u00a0 It is hardly possible to think of a more important matter than a new Constitution that might be illegal.<\/p>\n

In this article, I shall briefly discuss the arguments being put forth by the former Chief justice as well as the former Justice Minister, clarify why I think it is incumbent on the President to first settle the question as to the legality of the constitution-making process before convening conferences of politicians, religious leaders and intellectuals to discuss the purported merits of the proposed changes, and explain the consequences to the country if a new Constitution is enacted without settling the question as to its legality.<\/p>\n

THE ILLEGALITY OF THE CONSTITUTION-MAKING PROCESS<\/strong><\/p>\n

To digress a moment, I should mention that I have argued since January 2017 that the constitution-making process is illegal.\u00a0 My first article on this subject, titled \u2018The Illegality of the Ongoing Constitution-making Process in Sri Lanka,\u2019[4]<\/a> was published in lankaweb.com<\/em> on 1st<\/sup> January 2017.\u00a0 A second article titled, \u2018The Ongoing Constitution-making process in Sri Lanka:\u00a0 An Inquiry into its Legality,\u2019[5]<\/a> appeared on 23rd<\/sup> August 2017.<\/p>\n

I am informed that, in June 2017 Rear Admiral Sarath Weerasekera and the Global Sri Lankan Forum forwarded a version of the second paper above to the President of the U.N. Human Rights Council in Geneva.\u00a0 So, it is safe to presume that relevant parties at the Human Rights Council are now aware of, and are monitoring, some of the shenanigans going on in this country with respect to the new Constitution.<\/p>\n

However, for the purposes of the present article, I shall confine myself to the arguments presented by the former Chief Justice and the former Justice Minister.\u00a0 To the best of my knowledge, though their arguments are slightly different, they both start from the premise that the prescribed amending procedure set out in Chapter 12 of the Constitution (Articles 82(1) \u2013 (6) and 83) does not state anywhere that the said amending procedure can start with Parliament turning itself by resolution into a \u2018Constitutional Assembly.\u2019<\/p>\n

Here\u2019s the former Chief Justice Sarath Silva, in an interview with Daily Mirror<\/em> on 6th<\/sup> October 2017:<\/p>\n

\u2018The entire constitution making process is also unconstitutional.\u00a0 There are particular ways providing for the amendment of the Constitution.\u00a0 They are given very clearly.\u00a0 The Bill for the amendment of the Constitution should be determined by the Cabinet.\u00a0 Then, the Cabinet should decide whether it should be passed by a two-thirds and referendum.\u00a0 If the Cabinet decides, the Supreme Court won\u2019t exercise its jurisdiction.\u00a0 It must go according to this.\u00a0 Otherwise, the Supreme Court can order a referendum.\u2019<\/p>\n

\u2018There is no provision in the Constitution for a Constitutional Assembly.\u00a0 At least it must derive its authority from the Constitution.\u00a0 It derives authority from some resolution in Parliament.\u00a0 The Parliament can\u2019t do that.\u00a0 The Parliament must act according to the Constitution.\u00a0 The Government derailed the procedure.\u2019[6]<\/a><\/p>\n

The following, meanwhile, is a quote from Mr. Rajapakshe\u2019s article, \u2018Constitutional Assembly is unconstitutional, null and void ab initio<\/em>,\u2019 of 3rd<\/sup> November 2017:<\/p>\n

\u2018Articles 75, 82 and 83 of the Constitution have categorically conferred power on the Parliament to repeal the existing Constitution and replace it with a new one.\u00a0 The limitations of such powers are clearly stipulated in Article 76(1) in the following manner:<\/p>\n

\u2018Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with any legislative power<\/em>\u2019<\/p>\n

\u2018The provisions are unambiguous.\u00a0 If so, is the approval of the resolution presented to Parliament to establish a Constitutional Assembly a violation of the affirmation\/oath taken by members of Parliament in terms of Article 63 of the Constitution with utmost honesty and dignity?\u2019[7]<\/a><\/p>\n

And he goes on,<\/p>\n

\u2018At present, we being the legislators, have lost the grip on the purported Steering Committee and the task has been taken over by highly paid so-called foreign experts, NGO activists who patently act against the national interest in return for what they are paid by foreign masters some of whom have been advocating federalism.\u00a0 There is influence from western countries where Tamil Diaspora is active and their efforts to interfere were defeated by some members of the committee.\u00a0 A question has now arisen as to what is the use of the Parliament if it entrusts its duties and obligations to an organ which is not recognized by the Constitution.\u2019[8]<\/a><\/p>\n

To repeat, the arguments of both the former Chief Justice and the Justice Minister start from the assertion that the present constitution-making process is contrary to the prescribed amending procedure set out in Chapter 12.\u00a0 What can the Government say in reply?<\/p>\n

If I were a Government lawyer, I would inter alia<\/em> point out three things.\u00a0 First, Article 75 of the Constitution gives Parliament wide powers to \u2018makes laws\u2019 and this includes the power to amend or repeal the Constitution, and these powers are wide enough to cover the setting up of the \u2018Constitutional Assembly.\u2019<\/p>\n

Second, Article 82(5) only says that a 2\/3 majority is sufficient to pass a proposed amendment in Parliament but it does not preclude the amendment being submitted to a referendum of the people.\u00a0 So, the interests of the people have not been harmed by the present constitution-making process because whatever final proposal is generated will be submitted to a referendum and the people can have their say then.<\/p>\n

Finally, the present process does not circumvent the prescribed procedure because, once the final constitutional proposal is produced, the Government has every intention submitting such proposal to Parliament sitting as Parliament \u2013 and not as the \u2018Constitutional Assembly\u2019 \u2013 that is, of initiating the amending process at Article 82(2) and proceeding thereon.<\/p>\n

Needless to say, there are good counter-arguments to the above points, but I shall not go into those here.\u00a0 The point is this.\u00a0 The fact that a former Chief Justice and a Justice Minister have publicly raised a question as to the legality of the present constitution-making process means that the Government can no longer ignore it, because of the following reasons.<\/p>\n

    \n
  1. It is well-established in law that:\u00a0 \u2018Ignorantia facti excusat; ignorantia juris non excusat<\/em> (Ignorance of fact excuses; ignorance of the law does not excuse.)<\/strong><\/li>\n
  2. It is also well-established that, in any dispute questions of law must be settled before questions of fact<\/li>\n
  3. Under our Constitution, only the Supreme Court has the authority to interpret the Constitution, and the President has the capacity under Article 129 to invoke the Supreme Court\u2019s consultative jurisdiction on any matter of public importance.<\/li>\n
  4. It is reasonable to suppose that, a former Chief Justice and a former Justice Minister of Sri Lanka have sufficient knowledge about the Constitution of this country, and in any event, even if one suspends one\u2019s judgment about their interpretation<\/em> of Chapter 12 vis a vis the \u2018Constitutional Assembly,\u2019 what they are pointing out \u2013 namely, that provision for a \u2018Constitutional Assembly\u2019 is not made anywhere in Chapter 12 – is literally correct.\u00a0 Therefore, their interpretation as to the illegality of the \u2018Constitutional Assembly\u2019 might be correct.<\/li>\n
  5. Maithripala Sirisena cannot indemnify the people of Sri Lanka for any harm including loss of life and property that might result from the promulgation of an illegal Constitution.<\/li>\n
  6. Therefore, it will be an act of the grossest possible negligence not to mention dereliction of duty if the President does not use his power under Article 129 of the Constitution to obtain a definitive ruling from the Supreme Court as to whether or not the constitution-making process that has been followed thus far is lawful.<\/li>\n
  7. Since much is made of the fact that under the 19th<\/sup> Amendment to the Constitution the President has been made responsible to the Cabinet and also the Parliament, if Mr. Sirisena fails to invoke Article 129 and obtain a Supreme Court ruling on the issue in question, not just he but the Cabinet as well as Parliament can be held responsible said failure, because they had every opportunity to formally request the President to obtain the said ruling.\u00a0 They cannot all claim that they did not read the newspapers, or were completely unaware that there may be questions as to the legality of the constitution-making process.<\/li>\n<\/ol>\n

    CONSEQUENCES<\/strong><\/p>\n

    In the event an illegal Constitution is enacted, and a future Government obtains a ruling confirming such illegality it will render every single act performed under the impugned Constitution null and void and of no effect in law.<\/p>\n

    Among other things, every transaction including international agreements and contracts with foreign governments and companies signed during the period when the impugned Constitution was in operation will be null and void and subject to renegotiation at the discretion of the new Government.<\/p>\n

    In domestic law, every case where a judge has issued a divorce decree, partition decree, a criminal conviction, and so on, during the period when the impugned Constitution was the \u2018supreme law of the land\u2019 will have to be reheard, because the judge when issuing such order derived his or her authority from the said Constitution.<\/p>\n

    I leave the reader to imagine the chaos, not to mention drain on the public funds that will result from all of the above.\u00a0 To put it simply, Sri Lanka will quite literally become a \u2018Banana Republic,\u2019 the laughingstock of the entire world.<\/p>\n

    OBJECTIONS<\/strong><\/p>\n

    A critic might raise two objections to what I have said above.\u00a0 First, \u2018how can a future Government obtain a ruling on the legality of the new Constitution if your premise is that that Constitution itself is illegal?\u2019\u00a0 For instance, in order to obtain a ruling, the future Government will have to turn to an institution such as the \u2018Constitutional Court\u2019 – or \u2018NGO Court\u2019 as it is already being called by many Sinhalas \u2013 but that court would be illegal by definition if the Constitution is illegal.<\/p>\n

    Second, suppose the Sinhalas persuade Sirisena to request the Supreme Court for an advisory opinion on the legality of the constitution-making process, and the Court after due consideration says that it is perfectly legal.\u00a0 In other words, what if the Sinhalas lose the case?\u00a0 Won\u2019t they be worse off than if they had never pursued the issue at all?<\/p>\n

    With respect to the first objection, I concede that there is a problem, but not an insurmountable one.\u00a0 For instance, a new Government can be elected on the basis of a Constitutional Proposal that is put to the people before<\/em> the elections.\u00a0 If the Government is elected with an overwhelming majority, the document that was put to the people before the elections will assume the status of a \u2018People\u2019s Constitution\u2019 and will derive its authority directly from the people, and independently of the impugned Constitution.<\/p>\n

    Under those circumstances, the People\u2019s Constitution can have provisions and procedures for obtaining a ruling on the legality of the impugned Constitution.\u00a0 With respect to the whether the Sinhalas will be worse off if they lose the case, I reply that they won\u2019t be, because of the following reasons.<\/p>\n

    If they lose on the question of the legality of the constitution-making process, they can immediately resume their objections on the facts, i.e. the merits or demerits of the proposed changes, which is what outfits such as the JO are doing at present anyway.\u00a0 The advantage in an action under Article 129 is that if the Sinhalas win, they win big \u2013 i.e. it puts an end to the new Constitution once and for all.<\/p>\n

    RECOMMENDATIONS<\/strong><\/p>\n

    I repeat my warning made in a number of previous articles that, the Americans are ultimately behind what is happening to this country at present.\u00a0 The Americans are in the process of integrating Sri Lanka into their strategic matrix in the Asia-Pacific region.\u00a0 They are going about it systematically \u2013 putting the hooks in as it were \u2013 but the hooks have not yet locked-in fully.\u00a0 There\u2019s still a small window of opportunity to wriggle free.<\/p>\n

    It is no longer in dispute among informed observers that the present Government will suffer a crushing defeat at the 2020 General Elections, i.e. it will be a repeat of \u201977, except it\u2019ll be the Sinhala Nationalists who will romp to power rather than the UNP.\u00a0 The only way for the UNP, and ultimately the U.S. to prevent what is going to happen is to postpone the 2020 elections.\u00a0 A new Constitution will give them a pretext to do this.<\/p>\n

    So, all that the Sinhalas have to do is to prevent<\/em> a new Constitution from being enacted in the next two years, or to discredit any such Constitution to such an extent that even if enacted it is not worth the paper it is written on.\u00a0 In my view, Sirisena probably understands what the Americans are doing to Sri Lanka, but he can\u2019t fight it because he\u2019s afraid that, if he helps the Sinhalas get back in power, the Sinhalas instead of thanking him will hound him and his family to kingdom come.<\/p>\n

    So, the Sinhalas have to allay his fears. \u00a0\u00a0They should ask the Sangha to mediate a deal.\u00a0 The Sinhalas will take a solemn oath, before Daladawa<\/em> or Ruwanveliseya<\/em>, in the presence of the Sangha, that if the Sinhalas return to power Sirisena, his family and a select number of Sirisena\u2019s henchmen that he will specify will not be harassed or harmed in any way.\u00a0 It will be a general amnesty.\u00a0 They can take their \u2018winnings\u2019 and retire.<\/p>\n

    In return, Sirisena will not permit the new Constitution to be enacted, and will start by instituting action under Article 129.\u00a0 At a minimum, a hearing of this type, which I presume will involve submissions by members of the public also, will buy the Sinhalas at least six months respite, plenty of time, in my view, for the Government\u2019s 2\/3 majority in Parliament to collapse of its own decrepit weight.<\/p>\n

    [1]<\/a> \u2018MS to call All-Party conference to allay fears,\u2019 Daily Mirror<\/em>, 1st<\/sup> November 2017<\/p>\n

    [2]<\/a> \u2018Constitutional Assembly is unconstitutional, null and void ab initio<\/em>,\u2019 The Island<\/em>, 2nd<\/sup> November 2017, 3rd<\/sup> November 2017 and 4th<\/sup> November 2017 respectively.<\/p>\n

    [3]<\/a> Interview with former Chief Justice Sarath Silva, Daily Mirror<\/em>, 6th<\/sup> October 2017<\/p>\n

    [4]<\/a> Dharshan Weerasekera, \u2018The Illegality of the ongoing constitution-making process in Sri Lanka,\u2019 1st<\/sup> January2017, www.lankaweb.com<\/em><\/p>\n

    [5]<\/a> Dharshan Weerasekera, \u2018The ongoing constitution-making process in Sri Lanka:\u00a0 An inquiry into its legality,\u2019 23rd<\/sup> August 2017, www.lankaweb.com<\/em><\/p>\n

    [6]<\/a> Interview, Daily Mirror, \u00a0<\/em>6th<\/sup> October 2017<\/p>\n

    [7]<\/a> \u2018Wijedasa Rajapakshe PC, \u2018Constitutional Assembly unconstitutional, null and void ab initio<\/em>,\u2019 The Island<\/em>, 3rd<\/sup> November 2017<\/p>\n

    [8]<\/a> Ibid<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

    DHARSHAN WEERASEKERA, \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 a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[100],"tags":[],"class_list":["post-71383","post","type-post","status-publish","format-standard","hentry","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/71383","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=71383"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/71383\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=71383"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=71383"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=71383"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}