DBSJeyaraj.com on Facebook

Courts Have Jurisdiction To Rule Constitutional Assembly Illegal and Steering Committee Null and Void – Ex-Justice Minister Wijeyadasa Rajapakshe

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this page


Wijeyadasa Rajapakshe

LFollowing are excerpts of a statement issued by former Justice and Buddha Sasana Minister Wijeyadasa Rajapakshe PC regarding the much talked about Interim Report of the Steering Committee presented to parliament for debate)

Since the Soulbury Constitution hadn’t provided the authority and a procedure to adopt a new constitution by repealing the existing one, the Government elected in 1970 had no option except to establish a Constitutional Assembly operating outside the Parliament. Since there were no such barriers in the constitution of 1972, J. R. Jayewardene entrusted the task of drafting a new constitution to one of his allies Prof. Alfred Jayaratnam Wilson, a political science expert and the son-in-law of late TULF Leader S. J. V. Chelvanayagam. The draft he prepared was received with the assent of the cabinet of ministers and then presented to the National State Assembly in terms of Article 51 of the 1972 constitution. Similarly Article No. 82 of the 1978 Constitution has conferred the powers and authority on the Parliament enabling it to promulgate a new constitution by replacing it.

What should be noted here is that under no circumstances, power has been conferred by the 1978 constitution on the Parliament to establish a Constitutional Assembly in Parliament. If the Parliament is not competent to draft a new constitution in an ordinary manner, the only procedure to be adopted in terms of the constitution is to seek assistance of a parliamentary select committee which could consist of members who are skillful and competent in making appropriate recommendations.

Accordingly the purported Constitutional Assembly is null and void per se as well as ab initio. Similarly the the Steering Committee appointed for the said purpose was also null and void per se as well as ab initio. The Judiciary has ample jurisdiction to declare that the Constitutional Assembly is null and void

It is an accepted and time-honoured convention in democracies all over the world, that no court should entertain or hear cases against an act committed or omitted by the parliament, since it is an organ of the Government which should function and operate independently of the other organs. There are already set precedents on this issue by both the courts as well as the parliament. This privilege of parliament is extended to its sub organs too, such as select committees, standing committees, special committees and the committee of whole parliament. The purported constitutional assembly which is unconstitutional in law is neither covered by the purview of the constitution nor by the standing orders of the parliament.

Since the constitution has already provided a crystal clear and unambiguous procedure for adopting a new constitution, the constitutional assembly which is unconstitutional per se, court has ample jurisdiction to declare the illegality of it. Similarly the steering committee appointed by the purported constitutional assembly itself is null and void and no avail of law. Accordingly the so-called Interim Report submitted by the purported steering committee dated 21st September 2017 has no validity and authority and automatically becomes ineffective.

Responsibility of Parliamentarians

In democratic forms of States, people elect their representatives with the prime objective and aspirations that their elected representatives are competent and skillful in making laws to ensure the national security and public well-being and they incur a substantial amount of money for the maintenance of the parliament and its members. In punishing offenders in criminal cases court impose punishment on them presuming that all such accused have committed offences knowing that they were prohibited by law. Similarly people also presume that their elected representatives are making laws with a comprehensive understanding of them and their consequences.

When Mrs. Sirimavo Bandaranaike and Mr. J. R. Jayewardene wanted to enact new constitutions in 1970 and 1977 respectively, they didn’t seek advice of any overseas experts or spent public funds in millions for expertise advice. If the members of the legislature aren’t competent and have the capacity to make the laws necessitated for the country, what is the use of maintaining such a Parliament? The whole parliament must be ashamed of spending public funds for seeking advice of so-called foreign experts for making the laws for the country.

New Constitution – for whose need?

Whose need is to have a new constitution devolving the powers enabling the conversion of this country to a federal state with the right of self-determination for Tamils in North and East and also by removing the foremost place and protection given to Buddhism? Political leaders in the Government say that the devolution of power is needed not for the politicians, but for the people. The only criterion that they put forward to justify their argument is that the incumbent President Mr. Maithripala Sirisena, received a vast amount of votes from minority ethnicities.

It is appropriate to analyze the said situation. While the population of the country is 20,359,000, the number of registered voters for the 2015 elections was 14,268,000. According to the statistics, seven out of every ten citizens are eligible to be voters. The Tamil population, forming the majority, in north and east amounts to 1,597,000. In that manner, seven out of ten means 1,117,000. The total population in both North and East when compared to the total population in the Island is only 7.84%.

When analyzing the results of the presidential elections, held in January 2015, it is evident that out of the total 6.2 million votes received by President Maithripala Sirisena about 2.5 million were of both Sri Lanka and Indian Tamils and Moors. When we subtract the said 2.5 million votes of both Sri Lankan and Indian Tamils and Muslims, the remaining 3.7 million votes came from the Sinhala majority. President Sirisena didn’t receive even 1% of votes from the SLFP vote base. It was a sole victory gained by the UNP’ers through their blood, tears and sweat. Not a rupee was spent by any of the SLFP’ers during that election.

Mr. Mahinda Rajapaksa received 5,768,000 votes in the said election. Many people argue that he didn’t receive any votes from the minority ethnicities. In that context if we have to hypothesize that the votes received both by Mahinda Rajapaksa and Maithreepala Sirisena amount to 9.4 million, obviously they came from the Sinhala voters. The present question that has arisen is whether a new constitution should be promulgated just to satisfy the said 2.5 million voters of the minority communities, ignoring 9.4 million votes of the Sinhalese. The next question is whether there is any country in the world which has devolved the powers to a greater extent for a minority community which amounts to 7.84% out of the total population?

The majority Buddhists, as well as non-Buddhists are of the opinion that the nature of Sri Lanka shall remain unitary (more appropriately ‘solitary’) as provided in 1972 and 1978 constitutions. Even when the British Empire captured this country, they had assured by Article 5 of the Kandyan Treaty in 1815 that they will protect Buddhism in Sri Lanka foremost. Even his Eminence Cardinal and some other Tamil and Muslim leaders also assented to the said idea. It is the heritage of the people in this country. But it doesn’t mean by inserting the said Article there could be any discrimination or injustice to the other religions.

It is the duty of the State as well as of the majority Buddhists to protect the rights of the other religious groups. Religious reconciliation is a duty collectively passed upon to all the devotees of every religion. There are reports that at least 20 attacks against Muslims are being carried out daily in London. In that context we are much better in maintaining religious harmony compared to UK and performed more credibility than those preachers of the west harping on equality and human rights of the people.

Can a person from the minority assume leadership?

Lakshman Kadiragamar was an exemplary leader who earned high respect from all the people irrespective of their ethnicity, religion or language. He was assassinated by LTTE rebels. At present we can’t see that kind of statesmen emerging within the minority communities.

It is not due to any deformity or deficiency of the constitution. There had been many persons from the minority communities who had held high ranking offices such as the Chief Justice, the Attorney-General, IGP, military commanders, etc. In the past we have observed the leadership given to the nation by late Lakshman Kadiragamar and late A.C.S. Hameed as national leaders, not as leaders of their communities. Today we can’t see such national leadership from minority communities because they are mostly promoting communal feelings and emotions than contributing towards the advancement of national policy.

What should be done?

When considering the political and social turmoil that had been created in the country, expectations are far remote to have a new constitution adopted. Although a positive environmental prevailed in the country in 2015, now that atmosphere has completely disappeared as a result of maladroit conduct on the part of the Government. Obtaining a 2/3 majority in the Parliament for the proposed constitution is only a figment of imagination.

Even if it is passed with a 2/3 majority in the Parliament it can’t become a law unless it is approved by the people at a referendum. It is certain that it is similar to pursuing a mirage. The vast majority of Sinhala and Muslim people also have expressed their opposition to the proposed constitution.

Considering the present environment of the country, the Government will have to take a prudent decision to discuss with party leaders and to agree on suitable amendments to the existing constitution with the aim of making it more meaningful and vibrant. The priorities of the needed amendments could be set in the following manner.

1. To change the proportional representative electoral system by introducing a more favorable system to the people.

2.To introduce the reforms into the judicial system to enhance its efficiency and thereby to minimize the laws delay. (I have already submitted an appropriate amendment to the system, but it is kept aside with the expectation that they could incorporate the same into the proposed new constitution).

3.To make necessary restructures to provincial councils and local Government institutions enabling them to be more efficient and functional. More administrative powers could be devolved in a symmetric way.

4.To establish a mechanism/reinforce the existing mechanism for accountability of the public sector.

Courtesy:Daily Mirror

Share on FacebookTweet about this on TwitterShare on LinkedInShare on Google+Print this page