by Romesh Abeywickrema; The Sunday Leader, Colombo, April 18, 2004
For the constitution to be amended or replaced a consensus or in other words a two third majority in parliament is an essential requirement says Dr. Nihal Jayawickrama, an expert on constitutional law. By taking part in a constituent assembly, opposition parties are being party to an ‘un-constitutional’ process he told The Sunday Leader in an interview. This is so, since the whole process of forming a constituent assembly is illegal and against the present constitution he says, adding that parliament cannot transfer its powers to any other authority since it cannot abdicate its legislative duties to any other body as specifically stated in Article 76 (1) of the constitution.
Dr. Jayawickrama was Professor of Law at the Universities of Hong Kong and Saskatchewan, where he taught comparative constitutional law. He was permanent secretary to the Ministry of Justice when the constituent assembly was convened in 1970, and was involved in the processes that led to the drafting and adoption of the 1972 constitution. In 1978 he participated in the proceedings of the select committee on the revision of the constitution as legal adviser to its two SLFP members, Sirima Bandaranaike and Maithripala Senanayake.
Following are excerpts:
Q: What is a constituent assembly and when is it usually convened?
A: A constituent assembly is a body which is fully representative of the country and its people. It is convened when it becomes necessary for a country to make a new beginning, to establish a new legal order. This usually occurs when military rule comes to an end (as in Sudan and Nicaragua), when a dictator flees the country (as happened in the Philippines), when minority rule is terminated (as in South Africa), or when a country emerges from colonialism (as in India) or wishes to sever its links to a foreign monarch and draft its own constitution (as in Ceylon). It is essentially a device adopted by countries in transition to re-establish democracy and the rule of law.
Q: What is the legal basis for the establishment of a constituent assembly in Sri Lanka?
A: There is no legal basis for establishing a constituent assembly. In fact, Article 76(1) of the Constitution states that parliament shall not abdicate or alienate its legislative power, and shall not set up any authority with any legislative power. It is, therefore, expressly prohibited to set up a constituent assembly for the purpose of making law (i.e. amending or replacing the constitution).
Q: Is the constitution in need of reform?
A: There are many provisions in our constitution which need to be reviewed and revised. These include the executive powers of the president, the electoral system, the chapter on fundamental rights, the judicial review of legislation, and the independent commissions. But the time for doing so would be after a final settlement is reached with the LTTE and hostilities end. It will then become necessary to restructure the state and the institutions of governance to ensure that all regions and all ethnic groups are represented in both the legislature and government.
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Constitutional reform must follow the peace process. Any precipitate, anticipatory, unilateral action now will not only make it difficult to reach that hitherto elusive final settlement, but may even lead to a cessation of the peace process.
Q: How can the constitution be amended or repealed?
A: Article 82 of the Constitution provides that it may be amended, or repealed and replaced, by parliament if not less than two-third of its members vote in favour. The amendment of a few provisions (articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30(2) and 62(2)) also require approval at a referendum. The two-third majority is a standard requirement, common to most national constitutions. This is because a constitution reflects a national consensus, not the policy of a particular party. Even as recently as 2001, parliament was able to secure a two-third majority to amend the constitution to establish the Constitutional Council and the independent Police and Elections Commissions. An essential pre-requisite, therefore, is consensus.
Q: Is a constituent assembly necessary or appropriate for amending or replacing the present Constitution?
A: No. The constitution can only be amended or replaced by parliament with the specified majority. To attempt to do so in the face of Article 76(1), by a simple majority, at a meeting held away from the parliamentary chamber, by describing the MPs as members of a constituent assembly, is to attempt to do indirectly what they are prohibited from doing directly. It is unlawful and is an intentional violation of the constitution for which the President, if she participates in the exercise, is liable to be impeached under Article 38 of the Constitution.
Q: Will the defence of “necessity” be available to validate the adoption of a new constitution through a constituent assembly?
A: The so-called defence of ‘necessity’ is derived from ancient English criminal law where it was invoked, I believe, when a shipwrecked man killed and ate his friend in order to keep himself alive. It has been applied by judges in Pakistan, Uganda, and Nigeria to ‘validate’ governmental acts performed after a military overthrow of the lawfully established government, and thereby wriggle themselves into the new administration and ensure their own survival. It is the acceptance of ‘inevitability’ after the lawful power-holders have been either killed or forcibly removed from office. Constitutional experts have described it as a ‘transient phenomenon’ of dubious origin. It follows the commission of a criminal act. A lawfully established government cannot deliberately plan to act in violation of the constitution in the expectation of being able to invoke the defence of ‘necessity’ to protect it from the consequences of its unlawful conduct.
A common example of the doctrine of necessity is that of the mountaineer who cuts the rope holding a companion and thus saves his own life. Had he planned it all before, it would have been murder. Here, the President is planning to destroy the constitution that binds this nation together in order to give herself a fresh lease of political life. Where the act is premeditated, there can be no question of ‘necessity.’
Q: Will it make a difference if all the political parties agree to participate in the constituent assembly?
A: If all the MPs from all the political parties represented in parliament are willing to undertake constitutional reform now, they need not set up a constituent assembly. They can do so in parliament. But if they respond to the government’s invitation and attend the inaugural meeting of the proposed constituent assembly, they will thereby endorse the ‘process,’ and will not be able to complain if they find that the final outcome is unacceptable to them. That was the sad reality which the Federal Party faced in 1972, with tragic consequences leading to the Vaddukodai Declaration and the birth of the LTTE. The question, therefore, is not one of constitutional reform, but of the ‘process’ that has been proposed.
Q: Will it make a difference if the proceedings in the constituent assembly are followed by a referendum?
A: No. Under the constitution, a referendum may be held only for three purposes. The first is to seek the approval of the people for a bill to amend or repeal Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30(2) or 62(2), which has been passed by parliament by a two-third majority. The second is to seek the approval of the people to enact a bill (not being a bill for the repeal or amendment of any provision of the constitution) which has been rejected by parliament. The third is to seek the opinion of the people on any matter of national importance. In the first two cases, the bill becomes law if approved by the people. In the third case, the decision of the people is nonbinding and has no legal effect. Therefore, any reference to the people of a ‘bill’ passed by a constituent assembly will be outside the law and will have no legal effect.
Q: Why was a constituent assembly established in 1970, and how was it possible for that body to draft and enact the 1972 Constitution?
A: All the members elected at the May 1970 general election, including those from all the opposition political parties, agreed to constitute themselves into a constituent assembly for the purpose of establishing the Republic of Sri Lanka. At that time, Ceylon was a monarchy, and the Queen of England was also the Queen of Ceylon. They could have severed the link to the Crown with a two-third majority in parliament (which the United Front government alone enjoyed). But they did not wish to achieve republican status by acting under legislative powers granted to them by Britain in the 1946 Constitution. Since they proposed to make a break in the legal order, and transfer sovereignty from the British Crown to the people of Sri Lanka, they chose to do so by engaging in a ‘legal revolution.’
The exercise was primarily symbolic. It had the support of all the political parties represented in parliament. And, it was not about amending or replacing a constitution as such. Moreover, the 1946 Constitution did not contain a provision similar to Article 76(1).
Q: What is the danger, if any, in resorting to a constituent assembly now?
A: The danger in resorting to a constituent assembly now is that it is sought to be established by one political group, the PA-JVP Alliance, which obtained a minority of 105 seats in the 225-member parliament, and a minority poll of 45.5% of the total national poll. Even if the PA-JVP Alliance receives the support of the JHU, the constituent assembly will still be one founded on a majority vote obtained entirely in the south. If a government founded on a southern mandate chooses to violate the constitution, what is there to prevent the TNA, which secured a decisive and unequivocal mandate from the north and east, to also violate the constitution and establish its own constituent assembly, based on northern and eastern votes, and adopt its own constitution for that region?
Indeed, the LTTE, in an official communiqué‚ issued on April 5, 2004, declared that for the first time since 1977, “the Tamil people have expressed their aspirations more resolutely and unambiguously”, and that by giving the TNA “a historic victory”, the Tamil people have sent a clear message to the “Sinhala nation and the international community at large” that “Tamil nationalism and the right for Tamil self-rule should be accepted as the basic aspirations of the Tamil people.” The communiqué‚ added that failing such acceptance, “the Tamil people will fight to establish Tamil sovereignty in their homeland on the principle of self-determination.”
The message is loud and clear, and only one provocative, ill-advised move from the south appears to be all that is necessary to ignite an already volatile situation.
There is also an international aspect to the problem that is now developing. Any attempt at establishing a constituent assembly solely on the basis of a southern mandate will be viewed as the exercise of the right of self-determination of the Sinhala people to the exclusion of the minority communities living in the north and east. The elected representatives of the north and east, and the LTTE in particular, will then be able to argue before the international community that the predominantly Sinhala government, by proceeding to adopt a new constitution through a process outside the law, in violation of the constitution, have left them no alternative but to exercise their own right of self-determination under international law by either seceding altogether or at least establishing their own constitution for an autonomous self-governing territory of their own creation. A constituent assembly now could push Sri Lanka to the brink of secession.
Q: What can parliament do to assert its authority?
A: The members of the opposition parties, who appear to constitute a majority in parliament, can exercise their undoubted authority through the parliamentary process, to unequivocally dissociate themselves from any move to establish a rival law-making authority. The constitution, which is the supreme law of this country, and from which they derive their authority, demands it.
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On the fence over constituent assembly
By Mandana Ismail Abeywickrema and Sehan Soyza
The formation of a constituent assembly to draft a new constitution, as pledged by the United People’s Freedom Alliance (UPFA) in its manifesto, is now in question with the main decision makers – the Tamil National Alliance (TNA), Ceylon Workers Congress (CWC) and the Jathika Hela Urumaya (JHU) – still on the fence whether they should support the move.
Despite the Freedom Alliance moving ahead with the preparatory work for the formation of a constituent assembly it must have at least a simple majority in the House and that it does not have unless the CWC, JHU and the TNA throws their lot in for the proposed unconstitutional manoeuvre aimed at ensuring a political future for Chandrika Kumaratunga.
The UPFA pledged to draft a new constitution claiming the present constitution enacted in 1978 and its inherent difficulty of securing the stipulated majorities in parliament have hindered meaningful constitutional reforms, whilst causing problems for good and effective governance. The resulting position is that the country bears the burden of a constitution that large majorities of the people want significantly changed. The UPFA has therefore proposed to enact a new constitution to remove present impediments while creating a significant national consensus in order to ensure political stability. That at least is the justification trotted out by the Alliance for the proposed move.
It was recently reported that the UPFA plans to change the present constitution in a three-phased manner.
Foreign Minister Lakshman Kadirgamar was reported to have said that the constituent assembly would first make the required changes in the constitution and pass it. The government would then go before the Supreme Court to gain legal approval and if approved, the government would hold a referendum to seek approval by the people. However, all these depend on the passing of the draft constitution by the constituent assembly.
Member of Parliament, TNA, Gajendrakumar Ponnambalam speaking to The Sunday Leader stated that the TNA would interpret any move to change the existing electoral system – prior to a final solution to the ethnic conflict – as a step to marginalise the Tamil people.
He categorically stated that the TNA would not support any move that could lead to diminishing the importance of the continuation of the peace process. Ponnambalam was referring to the United People’s Freedom Alliance’ (UPFA) attempts to set up a constituent assembly to draft a new constitution.
President Chandrika Kumaratunga has prioritised the changing of the constitution and had vested the portfolio of constitutional reform under her. This follows the UPFA election manifesto, which sought a mandate to change the constitution in order to abolish the executive presidency and change the electoral system.
Ponnambalam stated that the new government’s priority should be to concentrate on taking the peace process forward, which was stalled as a result of the President taking over the three ministries in November, last year.
Ponnambalam also stated it was highly unlikely that the TNA would take any active role in the changing of the constitution through a constituent assembly. “The TNA is not interested in helping politicians to achieve their whims and fancies since a final solution to the ethnic conflict rested with changing the fundamental structure of the state. The constitution should be changed only after a final solution to the long standing ethnic conflict is found and such a solution is incorporated into it.”
Elaborating further he said “if a final solution is found, it would change the existing form of government and would change the unitary status of the country with a possible federal state, quasi federal state etc. being opted. It is in that context we must decide whether the executive presidency would fit in or not. It is pointless changing the constitution prior to such an agreement.”
He also stated, ” Although the present constitution had led to many difficulties being caused to the Tamil people. A new constitution should reflect the aspirations of the Tamil people. This could not be done unless a permanent solution is found to the ethnic conflict and a thorough investigation has been conducted to ascertain the aspirations of the Tamil people.”
Ponnambalam was not in favour of changing the present electoral system prior to the final solution. According to him the TNA had categorically stated that they were against a change as they felt the present system was the most democratic and fair electoral system for minorities.
Under the present system no mainstream party can easily obtain even a simple majority making it necessary for these parties to form governments with the support of the minority parties. As such the interest of the minorities are safeguarded to some extent and if the government tries to implement policies adversely affecting the minorities, the coalition parties would pull out and the government would fail.
The TNA would support the candidate for the post of speaker according to the principles laid out by the two main parties on conducting the peace process.
According to General Secretary and Colombo District Leader, Jathika Hela Urumaya (JHU), Ven. Uduwe Dhammaloka Thero, in case a constituent Assembly needs to be formed it should not be done as required by one party, but be conducted with the support of all the parties in the country. “It should also include civic groups and other intellectual people,” Ven. Dhammaloka Thero said.
The Thero also noted that they would not blindly support the formation of such an assembly, adding that their support would always lie with the party dedicated to bringing about justice to the nation. “If the constituent assembly proposed by the government is legal, we would support it,” the Thero asserted.
When asked whether the JHU would support the government’s proposed constituent assembly, if it is to be formed, Ven. Dhammaloka Thero said that the JHU is not in a position to answer such a question as the supreme sangha council is yet to study the subjected.
However, the two main areas that need to be included in any new constitution according to the JHU is reuniting the country and protecting the Buddha Sasana. The Thero also said that when bringing about unity into the country, the rights of the minorities should also be protected.
As for electoral reforms, Ven. Dhammaloka Thero said that the JHU needs to conduct a thorough study on the subject before supporting such reforms. He noted that the question of the present proportional representation (PR) system would create a dilemma in many minds. “It is because of the PR system that we managed to secure a large number of seats and we need to think before we support any electoral reform that would do away with the PR system,” Ven. Dhammaloka Thero said.
However, the Thero also noted that there are pros and cons in the present PR system and before making any decision the JHU would thoroughly study the matter. “So far we have not come to any conclusion on the matter,” he said.
As to which candidate they would support on the 22nd with regard to the appointment of the Speaker, Ven. Dhammaloka Thero said that the rift between the two main political parties has left the bhikkus in a quandary as the JHU is yet to decide on their next step.
The Thero pointed out that at this point, they would only have three options. “The three options are to either support the UPFA government under certain conditions or to abstain from voting or to appoint a candidate from the JHU for the post of speaker,” Ven. Dhammaloka Thero said.
When asked when the bhikkus would make a final decision on the matter, the Thero said that they would only decide sometime during next week at the very last minute.
Ceylon Workers’ Congress (CWC) spokesman, A. Yogarajan emphatically stated they would in no way support the abolition of the executive presidency.
“The people elect the president directly, thus every presidential candidate must cater to the minorities. This leads to the rights of the minorities being safeguarded to an extent,” he said.
Yogarajan criticised the alliance plans to set up a constituent assembly stating that the alliance received no mandate or authority from the people since it only received 45% of the vote of the country.
The CWC would only assist in curtailing presidential powers of immunity from judicial recourse and to change the present electoral system with a hybrid system that contains overall PR, he said.
The Sunday Leader, April 18, 2004
http://www.thesundayleader.lk/20040418/interviews-1.htm