By Wakeley Paul
IS FEDERALISM UNCONSTITUTIONAL?
WHAT CAN WE DO TO MAKE IT CONSTITUTIONAL?
WE CAN CHALLENGE THE 1977 CONSTITUTION AS AN UNCONSTITUTIONAL CREATION
In 1977, the J.R Jayawardena Sri Lankan Constitution was labeled a
"Unitary Constitution." Did that make any concession to
Federalism Unconstitutional? The answer to that is 'Yes.' The
question is why.
Federalism implies regional powers being vested in a regional
government, which powers cannot be usurped by the Central Parliament.
What is surrendered is surrendered forever and is never subject to
reversal or recall.
Devolution of Powers as expounded in the XIII Amendment to the
Constitution meant the opposite of that. What the Parliament conceded to
the provincial governments could be modified or revoked at any time by
Parliament. That is what made the XIII Amendment to the
Constitution both legal and Constitutional. Chief Justice Sharawananda,
in the best of the opinions on that Amendment, said that, under an
Unitary Constitution, the Sole Legislative power is vested in
Parliament. Parliament could delegate, but not relinquish or
surrender for all time, its powers to any other body. To do so would be
to violate the concept of the Supremacy of Parliament, which is an
integral ingredient of a Unitary Constitution.
How then can the present government overcome this seeming insurmountable
The answer lies in the fact that we need to overcome a simple trap into
which we have all fallen. The trap that the Sinhalese and Tamils and the
International community have all fallen into, is that the 1977
Constitution is Constitutional. It is obligatory on every one of
us to be aware that this is not so. It is incumbent on us to confront
the government; and let the international world know that the 1977
Constitution is not worth the frame it is encased in. It is flatly and
plainly illegal and should be disregarded by the present government, the
International community and ourselves.
Ever since 1972 Sinhalese governments have piled one unconstitutional
constitution on top of another and assumed that the end product was
legal. How did this come about?
The Ceylon Independence Act of 1947 granted to Ceylon Independence on
February 4 1948. By this Act  HM government had no
responsibility for the government of Ceylon and  The Parliament
of Ceylon should have full powers to make laws having extra territorial
operation. We were, however, governed by the Soulbury Constitution which
was contained, not in an Act of Parliament, but in THE CEYLON
[CONSTITUTION] ORDER IN COUNCIL 1946. The Queens Orders in Council and
Acts of Parliament are both legal under the British Constitution for
certain purposes; and both these were perfectly legal.
This Order in Council did not give us full and complete Independence.
The Order was subject to conditions. In short , we got, not absolute,
but conditional independence. What in effect that means is that
Parliament can only pass laws that it is permitted to pass. Anything it
is prevented from doing by the conditions imposed on it restricts the
scope of its legislative powers. Parliament does not control the
conditions, the conditions control it. As stated by the Privy Council in
Bribery Commissioner v Ranasinghe 1964 2 All England Reports 785 "a
legislature has no power to ignore conditions of law making that
are imposed by the instrument which itself regulates the power to make
laws." In simple English this means when there are restrictions
placed on its law-making power, those restrictions cannot be
ignored. In other words, any laws which override or exceed the
restrictions placed on them are unconstitutional. How then you might
ask, based on this, is the 1977 constitution unconstitutional? It
begins with Mrs Bandaranaike's 1972 Constitution creating what one might
be called "THE SINHALA BUDDHIST STATE."
Under Section 29 of the Order in Council, the Ceylon Parliament could
"make laws for the peace, order and good government of the
island." Such powers were however "subject to the provisions
of Sections 29 ,  & ."
Under 29  the Parliament could by a 2/3 majority, proof of which had
to be sent by the hand of the Speaker of the House to England for Royal
Assent, amend or repeal any of the provisions of this order. It did not
provide for repealing the whole Order in Council in toto.
Such an abolition of the Order in Council granting us Parliamentary
powers was restricted to those who granted us these powers - to wit The
Queen in Council or the British Parliament with Royal Assent
Any old Babu, including our Parliament, could not repeal all [as opposed
to some] of its provisions by wiping the whole thing out. It could
not abolish what it did not create. Only the creator, like God, could do
that. That apart, even an amendment or repeal of some of its provisions,
required Royal Assent. An abolition of the Order in Council would, at
the very lowest, require the same.
The 1972 Constitution repealing the entire Order in Council was never
submitted for "Royal Assent." Even if the words
"some of its provisions" encompassed "all of its
provisions," the Constitution did not have Royal Assent. By
this omission alone there was an unconstitutional violation of the Order
in Council. Parliament disregarded one of the limits placed on its
power to legislate. They then claim that it was not they, but the
'Constituent Assembly' that acted on its own without Royal Assent. To
which the simple answer is that the Constituent Assembly was not vested
with any legislative power by the
Order in Council that governed us.
The parliament realizing the restrictions placed on it, created an
entity called a 'Constituent Assembly' [not recognized by the Order in
Council] to [a] abolish the existing Order in Council [Constitution] by
which we were ruled and [b] to enact a new Constitution to replace the
existing one. Such an Assembly had no authority under the existing
constitution to do anything, leave alone abolish the existing Order in
Council [Constitution} or replace it with another. Royal Assent was
required for Parliament even to pass an amendment or repeal any of its
provisions. This thing called the Constituent Assembly which had no
power to even amend the order in Council [Constitution] in being,
certainly had no authority to do what it did. The resulting Constitution
was Unconstitutional from its very onset. It was created by an illegal
entity [The Constituent Assembly] created by an illegal act of the
Ceylon Parliament, [creating a Constituent Assembly to usurp the powers
vested in them by the Order in Council] to perform an Unconstitutional
Act [abolish the Order in Council Constitution] without Royal Assent.
The second illegality was that neither Parliament nor the Constituent
Assembly had the power to abolish or ignore the protective provisions
contained in Section 29. By the Order in Council, they had no
right to pass legislation which violated that provision, and any
legislation so passed was void. Any legislation which ignored
these protective provisions of other communities and religions was void.
Passing a Constitution without these protections was void. Passing them
through an unrecognized illegal entity made it void on two grounds.
First, they could not pass legislation that excluded these protections
and, second, they could not use an illegal agency to do so. The Sinhala
Buddhist Constitution placed the majority community on a pedestal and
excluded the protections to other communities in Section 29. No
Sinhalese lawyer; no Sinhalese Court, had the courage to say so.
Prime Minister J R Jayawardena merely replaced an Unconstitutional
Constitution with his own in 1978. He did not seek the permission of the
Queen in Council or the British Parliament to set aside the 1946 Order
in Council and replace it with his Constitution. There is no question
permission would have been granted by the British, since the original
British Order in Council was the only lawful Constitution that bound us
at the time. Jayawardena could then have got the lawful authority to
pass a constitution of his own, Instead he chose to abolish an
instrument that had no legal validity and replace it with his own. It
followed that his constitution had no legal basis to exist. Parliament
with its 5 / 6 majority was yet governed by Section 29 . Even
if repeal of its provisions included repeal of the whole Order in
Council, it required Royal Assent to do so. This, Parliament never got.
What the Sinhalese governments have done is plop one Unconstitutional
monster on top of another and conclude that the second is perfectly
legal. Two wrongs made a right... We made the same mistake. The fact is
that the very existence of every GOSL since 1972 is illegal and
the existence of even the present government is in jeopardy. It is time
they remedied these illegalities instead of extending this cord of their
illegality any further.
We must challenge Parliament and the GOSL to act to legitimize
themselves, for by that process we can obtain a Federal Constitution
without even a 2/3 majority. If the government were to assume that the
1946 Order in Council is the only legal Constitution yet in existence,
they could rely on Section 29 to grant us a Federal Constitution.
Section 29  does not preclude the Parliament from delegating powers
granted to it to Regional legislative bodies, if it is for the peace
order and good government of the island. [This is not like delegating
powers to a Constituent Assembly for the illegal purpose of ignoring and
setting aside the Order in Council that controlled them]. Such a
surrender of power does not even require a 2/3 majority as it does not
require an amendment to the Constitution to relinquish the powers it has
been bestowed with to regional bodies, if it is in the interest of peace
order and good government, [which no doubt it is]. They can do so
within the powers vested in them by the Order in Council in question.
They could then seek Royal Assent to terminate the requirement for Royal
Assent to pass any future legislation and request the abolition of
Section 29 of the original Order in Council. The PA and JVP and other
opposition parties could not possibly object to abolishing the need for
the Royal Assent for future legislation, unless their ignorance
precludes them from understanding what is going on.
We should not fear or hesitate to make it known to all and sundry that
all Sinhalese governments since 1972 have been operating on an illegal
foundation, which they themselves should be ashamed of. What other
so-called democracy operates on such a shaky foundation?
We should cease to acquiesce in this Sinhalese cover up. We only become
complacent victims of their subterfuge by accepting this in silence.
Those aware of the fraud being perpetrated on us must scoff at those
'aggressive Tamils' for remaining complacent and permitting this fraud