by Wakeley Paul; published April 9, 2004
SINISTER STRATAGEMS AND ODD ENTANGLEMENTS
PART II
In view of what passed for legal in 1972, everyone seems to assume that this idea of a Constituent Assembly is some magic mantra which enables parliament to do what it cannot legally do otherwise This is a myth and a fallacy which needs to be banished with the fables and superstitions of a bygone era.
Let me begin with what happened in 1972 to highlight the fallacy and expose the myth. The coalition of the SLFP and the leftist parties had decided that they wanted to change the Soulbury Constitution which barred them, under Section 29[2], from passing any legislation which favored one community or religion over another, or discriminated against any community or religion. They were bent on spreading the word that Buddhism suffered, but survived strangulation at the hands of the British and the time for the resurrection of their faith had finally arrived. They further emphasized the need to revive the the rightful role of the Sinhalese in what they regarded as an exclusively Sinhalese country. In order to attain these goals, they dismissed such concepts as equal opportunities for all as a British aberration which had no place in a Sinhala Nation dominated by Sinhala people. Such alien concepts had to be extinguished and replaced with a bright new battle slogan which proclaimed in effect, ‘Sri Lanka is for the Sinhalese Buddhists and to hell with the rest.’
To overcome the obstacle posed by Section 29[2] of the Soulbury Constitution, which ensured equal rights for all, the SLFP contested the election on a platform that vowed to create a Constituent Assembly with powers to abolish the existing Soulbury Constitution and replace it with their own. The coalition of parties won that election by a 2/3 majority.
They then Assembled as a Constituent Assembly outside Parliament with a view to abolishing the Soulbury Constitution and replacing it with one of their own. All parties were invited to participate to make their representations and the Federal Party shamefully participated in this illegal Sinhala adventure designed to deny Tamils, Muslims and others of their rights to be treated as equals for good. The battle to establish Sinhala Buddhist supremacy against all comers was on. Gone for ever was that ringing assurance given by D.S. Senanayake, on the eve of Independence: ‘Do you want to be governed by London, or do you want as Ceylonese, to help govern Ceylon….I give the minority communities the sincere assurance that no harm need you fear at our hands in a free Lanka.’
At this stage, Mr C Sunderalingam, a former Minister in the first Senanayake cabinet and now a Member of Parliament for Vavuniya, filed a writ of prohibition in the Supreme Court, requesting the Court to prohibit the Constituent Assembly from passing a new Constitution. The legal argument was both simple and straight forward.
The sole institution that was vested with power to make laws under the Soulbury Constitution was Parliament. The Constituent Assembly was not recognized by that Constitution as a body that had any legislative powers whatsoever. Therefore, not only did they have no power to make simple laws; they had no power to abolish the existing Constitution; and they certainly had no power to draft and substitute a new one in its place.
The Sinhalese-dominated court neatly side stepped the issue by asserting that they had no power to stop MPs from gathering together under any name they wished to, adding that the Supreme Court could not act till they did something illegal, which they had not yet done. They brushed the issue away, but not for good.
After the Constituent Assembly had accomplished its goal and came up with a new Constitution, not by repealing the Soulbury Constitution, but by Article 12 Schedule I, effectively abrogating it, Mrs Bandaranaike took it to the Dalada Maligawa to give this new Constitution Religious sanctity in place of legal validation, which it could not and did not ever receive. Why neither Mr Sunderalingam nor the Federal Party with its heavy bevy of lawyers did not pursue the legal challenge will remain an unanswered mystery for the future to guess at for all time. The Supreme Court had merely found a temporary expedient for avoiding the Constitutional issue. Now they had no excuse to run away from it, as the Constituent Assembly, whose legal authority was being challenged, had now acted. The failure to challenge this blatant disregard of the law and the existing Constitution, resulted in the Constitution becoming recognized by default. The illegality got an illegal blessing as a result of inexcusable inaction by the representative of the Tamils. The Federal Party can never be forgiven for this omission.
The present President has made it abundantly clear that all she seeks to do is amend the Constitution in two respects [i] Abolish the Executive Presidency [ii] Abolish the system of proportional representation. All the other undesirable features of the non secular unitary Constitution granting an elevated place to Buddhism and ignoring equal opportunities for all, will remain on the statute book. This is so despite her ponderously solemn assurance to the nation that ‘The government shall also never entertain racial and religious discrimination.’ Will she to that end reinstate S 29[2] of the Soulbury Constitution to ensure that this solemn assurance has legal guarantees and sanctions to back it up, or are we compelled to respond with that telling American phrase ‘Put your money where your mouth is, lady.’
The new Prime Minister and his government are further deluded by the common misapprehension that a ‘Constituent Assembly’ can by some miracle of divine intervention, do what the parliament cannot do. Here is The Prime Minister’s simple minded assertion to that effect:
‘The Freedom Alliance made a strong request from the people for a mandate to form a Constituent Assembly for this purpose, as the present Constitution effectively prevents any constitutional amendments.’
What eludes them is the fact that under the present unitary Constitution, Parliament is the sole and exclusive legislative body in the country. The Constituent Assembly is no substitute for Parliament. Parliament could give the Constituent Assembly limited legislative powers by a process called ‘Devolution of power,’ but in order for Parliament to authorize anyone else to Amend the Constitution, it has to have a 2/3 majority. That cannot be circumvented. In short, Parliament must not only have a 2/3 majority to amend the Constitution, it must have a 2/3 majority to authorize any one else to do so. This therefore becomes a pointless exercise in futility. What Parliament cannot do, it cannot authorize someone else to do.
Unlike in 1972, UPFA cannot impose an illegal venture on Parliament without a Constitutional challenge from the President’s main rival, the UNP. This does not have to be in the form of extended Constitutional litigation. The right of the Constituent Assembly to amend the Constitution should be capable of being legally quashed by the by the quick expedient of a writ of ‘certiorari,’ which is a simple plea to the court to declare an action by anybody as both illegal and void.
A simple majority in Parliament can create a phenomenon called a ‘Constituent Assembly.’ In order to vest that body with legislative powers equal to those exercised by Parliament will require a Constitutional Amendment [ See Advisory opinion on the XIII Amendment]. The Unitary Constitution makes Parliament not only the supreme, but the only and sole national legislative body in the nation. Can the President get the 2/3 majority to vest the Constituent Assembly with legislative powers of this magnitude? That is the burning question on the hot stove of this legislature which is bristling with shifting and shaky loyalties and affiliations.
The greatest beneficiaries of the system of proportional representation are the smaller parties, in this instance, the SLMC with 5,, UPF with 1, JHU with 8 and EDPD with 1. The CWC, another small party, fought the election under the UNP ticket.
The SLMC has already announced that it intends to oppose this amendment on proportional representation.
Neither the UNP or TNA will support this bid to amend the Constitution, each for their own distinct reasons. The UNP will oppose it with a view to succeeding to the Presidency and with a view to regaining power. The TNA will oppose any Constitution with all its attendant evil clauses on principle, apart from their permanent opposition to any Sinhalese government under a Unitary Constitution, also as a matter of principle.
The SLMC, CWC & UPF will gain nothing and lose everything by supporting any change and should, in their own interest, abstain from voting in favor of the Amendment proposed. However, one cannot know how hard the Indian embassy with its insidious desire to intervene in Sri Lankan affairs, will twist the tails of their two Indian Tamil groups to support the government. The JHU, who will have everything to lose by the abolition of proportional representation, may well vote with the government to abolish the Executive Presidency. It is impossible for a Tamil in America to decipher their thoughts on any subject, but these are the shifting uncertainties that plague this parliament.
By any reckoning. let us assume the JHU supports the President on the Constitutional change, that gives her 115 votes. Assume the 4 Indian Tamils and the Muslims do too – that gives her 124 votes, yet 26 short of a 2/3 majority to vest the Constituent Assembly with legislative power. This time, unlike in 1972, she cannot get away with an illegal ploy as her mother did in that year. Now the ever vigilant UNP is there with its horns extended waiting to butt in with a legal objection. There is no dearth of legal talent to take up the cudgels on their behalf The TNA with its well-established policy of not recognizing the jurisdiction of the courts outside EELAM will leave the Sinhalese parties to fight this legal dual. It is my submission, that if the Supreme Court is true to the Constitution, the UNP must win. If political winds are allowed to sway their judicial integrity, it is anybody¹s guess as to who will win.
There is one last nagging question on our minds. Can the UPFA & the JHU push through discriminatory legislation favoring the Sinhala Buddhists at will? I think not, as that would amount to committing political suicide. It would alienate not only the local minorities and regional majorities, it will arouse the wrath of the Western Democracies, upon whose good will the much needed cash for survival, revival and rehabilitation, the country is heavily dependent.