Is Federalism Unconstitutional?

 by Wakeley Paul


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 hurdle ?

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 [1] HM government had no responsibility for the government of Ceylon and [2] 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[1] 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 [2], [3] & [4]."

Under 29 [4] 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[2]. 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[2]. 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[4] . 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[1] to grant us a Federal Constitution. Section 29 [1] 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[1] 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 to continue.

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Posted September 3, 2003