by Wakeley Paul; originally published October 28, 2003
IT SHOULD BE CHALLENGED NOW
WHY THE 1972 & 1978 CONSTITUTIONS ARE NULL AND VOID
A SIMPLIFIED EXPLANATION FOR EVERYONE
We are all aware that the UF government [per Dr Colvin.R.de Silva] created the ‘Constituent Assembly’ because of the limitations placed on the legislative powers of Parliament under the Soulbury Constitution.
The Parliament was granted conditional, not absolute legislative powers under Section 29 of the Soulbury Constitution, which read “Subject to the provisions of this Order Parliament shall have power to make laws for THE PEACE, ORDER & GOOD GOVERNMENT OF THE ISLAND.”
Sections 29[2],[3] & [4] set out the provisions, that the broad law making powers granted to Parliament, were subject to. Those subsections either restricted or controlled parliament’s lawmaking powers.
29[2], read with [3], said in essence that any law violating the rights of any community or religion to be equal to the rights of other communities or religion is void.
Section 29[2] No such Law shall
[a] Prohibit or restrict the free exercise of religion; or
[b]make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or
[c] confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or
[d] alter the constitution of any religious body except with the consent of the governing authority of that body.
29[3] Any Law made in contravention of subsection [2], shall to the extent of such contravention, be void.
The object and aim of the UF government was to have a new constitution absent these provisions. They wanted to have a Constitution that abrogated the concept of equal rights for all; and replaced it with one that placed the Sinhala Buddhists on a pedestal The provisions of 29[2 & 3]would have flown in their faces. In order to override the strictures of this clause, they contested the election purporting to be members of an entity called a “Constituent Assembly,” so as not to be bound by the legislative restrictions and limitations placed on Parliament. The election pledge of that “Constituent Assembly” was to enact a new constitution.
The Constituent Assembly was ostensibly swept into power on the strength of that pledge. They therefore argued, they were authorized by the electorate to enact a new Constitution, which they proceeded to do. “This is a democracy,” they shouted, and exulted over the fact that democracy had prevailed.
What they failed to ask themselves was, from where did the “Constituent Assembly” derive its legal right to perform legislative functions? They and the Federal Party assumed that because the people gave them an electoral mandate to do what they did, their action was legal. The electoral mandate made their act democratic, not legal or constitutional. That distinction eluded their politically-focused minds.
They deluded themselves into believing that a democratic mandate allowed them the right to determine who had the legal authority to execute that mandate. A democratic mandate to do or not to do something does not give them the right to determine who has the legal authority to execute that mandate. Can a huge majority of the population go to the Railway Union and ask them to to enact a new Constitution for the nation of Sri Lanka? Obviously not.
One has to look to the source of power to determine who is vested with the power to legislate for the nation. The Constitution in existence at the time was the Soulbury Constitution. That document vested Parliament and Parliament alone with that authority. It did not, however, prohibit Parliament from delegating all or part of that authority to any other body. That other body can only obtain the authority to legislate from Parliament, not the people.
Democracy like everything else is given effect by laws, rules and regulations. It is not a simple expression of a popular vote. It is a popular vote given effect to by following legally specified procedures.
The question then is, where did the Constituent Assembly derive its legislative powers from? If it came by implication from Parliament, whose members met as a ‘Constituent Assembly,’ to draft and enact this new constitution, then that Assembly could not do what Parliament could not do. Parliament cannot expressly or by implication grant powers to another entity or institution that it does not have to give. Therefore, if Parliament was their source of legislative power the CA was as bound by the limits placed on Parliament by 29[2] as Parliament was. They could not abolish 29[2] anymore than Parliament could.
To summarize, they could not create a new Constitution [assuming for the moment that they had the power to do so] which did not incorporate the provisions of Section 29[2]in it. This was an entrenched clause that could not be set aside even by a 100% majority of the members of Parliament. The Privy Council in Bribery Commissioner v Ranasinghe [1964] 2 All E R 785 had this to say of 29[2] “They represent the solemn balance of rights between the citizens of Ceylon, the fundamental condition on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution.”
Anyone exercising rights vested in them by Parliament was governed by this limitation. Anybody deriving their power from Parliament could not abolish Section 29[2] or exclude it from any new Constitution that they may have had the right to pass.
If the CA did not derive its powers from Parliament, who did they derive it from? Who created it and with what legal authority to vest them with legislative power?
The Soulbury Constitution, which was the source of the grant of legislative power on the island at the time, did not recognize an animal called the CA as having any legislative powers whatsoever, leave alone powers to abolish the Soulbury Constitution and replace it with a new one.
Since the Constituent Assembly had not derived any legislative power from the only legal source, or any known legal source for that matter, it follows that it had no power to either abolish the old Constitution or enact a new one. Let me however take this a stage further.
Section 29[4] stated that any amendment of the Constitution required not only a 2/3 majority of Parliament, but that it had also to receive Royal Assent, to become law.
29[4] In the exercise of its powers under this section, Parliament may amend or repeal any provision of this order, or any other Order of Her Majesty in Council, in its application to the island.
Provided that no bill for the amendment or repeal of any of the provisions of this order shall be presented for the Royal Assent unless it’s endorsed on it a certificate in the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two thirds of the whole number of the Members of the House [including those not present].
The abolition of the Constitution has to come from the source of the grant of that Constitutional power to wit: The Queen in Council or Parliament with Royal Assent. In short, the abolition of the entire Constitution, like an Amendment to it, required ‘Royal Assent.’
Therefore, the new Constitution is Unconstitutional on four fundamental premises [a] The Constituent Assembly had no power to abolish S 29[2], [b] The Constituent Assembly did not even have the authorization to make law, period, [c] even if it did [which it did not], it did not obtain Royal Assent to abolish the Soulbury Constitution and, [d] It had no power to enact a new Constitution.
Its actions were void ab initio [from the beginning].
The Federal Party for some inexplicable reason seemed to assume that the actions of the Constituent Assembly were legal and did nothing to challenge their legal right to exist. The only prominent politician who saw through the UF ruse was the brilliant, but much maligned and ignored C Suntheralingam. He alone petitioned the Supreme Court seeking an Injunction to prevent this illegal body from enacting a Constitution. The Ceylon Supreme Court in characteristic fashion avoided the issue by saying the CA had not done anything yet for the court to rule on. Why this was not pursued after the CA enacted a Constitution deifies one’s understanding.
There are two very likely possibilities. The Privy Council was abolished by Act 44 of 1971. Mr S had lost faith in a judiciary which was appointed by the cabinet, thus violating the concept of the independence of the judiciary. So much for conjecture on that question.
The only valid Constitution in 1978 was the SOULBURY CONSTITUTION. The 1972 Constitution was a dead letter. It was null and void.
If J. R. Jeyawardene and his legal advisors had complied with the provisions of the Soulbury Constitution, they could have got the required Royal Assent to abolish the Soulbury Constitution and replace it with a new one.
They could not pile their Constitution atop a non existent Constitution and make theirs legal. In order for their Constitution to come into existence legally, they had to abolish the legal constitution in existence at that time. A failure to do so by proper legal and constitutional means leaves the previous Constitution intact. It is mind boggling but true that to this day, we are governed by the Soulbury Constitution. To make that a reality, we have to challenge the right of the present Constitution to exist. Since Parliament in the Soulbury Constitution is not precluded from delegating some of its powers to other [regional] bodies, we could possibly obtain regional legislative bodies with irrevocable powers without a 2/3 majority. That seems too dazzling to believe. Let us therefore concentrate on a step at a time
Moreover, the entrenched provisions of 29[2] would have had to have been incorporated into the new Constitution for the new Constitution to be valid. The new Sinhala Buddhist Constitution did not contain those protections and was void on that ground, too, only ‘to the extent of such contradiction.’ Remove those from the Sinhala Buddhist masterpiece of discrimination and we will be left with a meaningless hodge podge of incomprehensible nonsense. The whole document will fall and the Kelani Ganga will be the richer for it, god bless its waters.
I will deal with the concerns with delay and its disastrous effects; the attitude of the Ceylon Courts; the oath that binds them to honor an ineffective Constitution: the need for the present courts to recuse themselves from hearing this case; hopefully in a briefer summary, if my lucid powers of elucidation will permit it.
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WAKELEY PAUL
FORMER CROWN COUNSEL, CEYLON
BARRISTER AT LAW, MIDDLE TEMPLE, LONDON
ATTORNEY AT LAW, NEW JERSEY, USA
BA[LAW] CAMBRIDGE UNIVERSITY, ENGLAND
MA CAMBRIDGE
LLM STANFORD LAW SCHOOL, CALIFORNIA