by Wakeley Paul; published April 20, 2004
To Ponna Wignaraja & Shiva Pasupati [former Attorney General],
I am glad to note that Nihal Jayawickrema, part architect of the 1972 Constituent Assembly, of all people, recognizes what I have been trumpeting for some time, to wit, the illegality of the concept of the Constituent Assembly. His effort to justify what they did in 1972 is understandable, considering his role in that illegal venture. The unvarnished fact is that their indulgence in this tactic in 1972 was illegal, as is the present effort to circumvent the prevailing Constitutional restraints on change.
Jayawickrema adds two very important grounds for amending the Constitution to the two raised by the government and the more fundamental one raised by me. They are the chapter on the judicial review of legislation and the independent commissions.
This is why the challenge to the legality of the entire 1978 Constitution, as previously argued by me, should be the proper approach, a maneuver which does not require a 2/3 majority. If that challenge is upheld, the entire election under the Presidential system would be invalidated, unless for practical reasons, the decision is made to have only prospective effect.
In that case, this whole diversionary hullabaloo regarding the need to ‘Amend the Constitution’ will give way to the more dire need to pursue the peace talks at all costs. The Soulbury Constitution would be resurrected, Section 29 protecting minorities revitalized and a requirement for a 2/3 majority to devolve irreversible powers to the Northeast without reservations will be obviated.
I know this is expecting too much of the UNP at this stage, but if they are genuine about their desire to fulfill peace and grant us the much-needed Federal Constitution, impossible under the present Constitution, this is the route they should adopt.
As I argued previously, Federalism is a surrendered alternative to the more desirable separation, but the world has been structured to believe that a Federal Constitution is the more acceptable of these two alternatives. That being the case, so be it.
It is a shame to throw away this chance to revert to the Soulbury Constitution and move forward from there. Sadly, that alternative seems destined to remain a pipe dream, as the Sinhala extremists will resent and resist it and the UNP in turn will be too timid to try it.
Yours,
Wakeley
From: Wakeley Paul
Attorney at Law, New Jersey, USA
Barrister at Law, Middle Temple London
Former Crown Counsel, Ceylon
B.A. [Cantab] Law, University of Cambridge
L.L.M. [Stanford Law School, California]