DHARSHAN WEERASEKERA

The resolution to turn Parliament into a ‘Constitutional Assembly’ is scheduled to be taken up for debate on the 9^th of March.  If the Joint Opposition presumes to represent the Sinhala Buddhists (and if it doesn’t there’s really no need for its existence) it should oppose the said resolution.

I am informed that the Joint Opposition has 50 members. That is not enough to prevent the Government from pushing the resolution through with a 2/3 majority using the UNP votes, the minorities, plus Sirisena’s SLFP’ers.  But that’s not the point.  The Joint Opposition has to stall the Constitution-making process and give the Sinhala Buddhists time to mobilize and prepare for the referendum.

If the above is not done, the consequences are too horrific to imagine, given the type of Constitution that will be foisted on this country.   In this article I shall briefly explain what I think is the reason for turning Parliament into a ‘Constitutional Assembly,’ the type of Constitution that will be brought in, and what is going to happen afterwards.

THE NEED FOR A ‘CONSTITUTIONAL ASSEMBLY’

I take it that most Sinhala Buddhists are now in agreement that the troika running Sri Lanka—which is to say the U.S., U.K. and India—have figured out a way to rig a referendum on the Constitution if and when it comes to that stage.  So, the Government has to only get the draft through Parliament (before the Sinhala Buddhists mobilize).

In my opinion, the reason for a ‘Constitutional Assembly’ is to legitimize the ‘National Government.’ If the ‘National Government’ is illegal, then the draft Constitution is also illegal, because the only way it would get 2/3 approval in Parliament is if the bulk of those votes came from MP’s holding portfolios in the ‘National Government.’

There is a possibility that, if the draft is brought to Parliament under the normal procedure for amending or replacing the Constitution, a legal challenge to the legitimacy of the ‘National Government’ will be made, and from the Government’s point of view that has to be prevented at all costs:  hence the need for a ‘Constitutional Assembly.’

I shall first explain why I think the ‘National Government’ is illegal, and then explain the ramifications to the Constitution-making process.

Article 3 of the Constitution says, ‘Sovereignty is in the People and is inalienable,’ and goes on to say that said Sovereignty includes the franchise.  Article 4(e) explains how the franchise is to be exercised, and says inter alia:  ‘The franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament.’

To the best of my knowledge, in the Parliamentary elections held last August, a political party called the United Peoples Freedom Alliance (UPFA) won 95 seats in Parliament.  Again to the best of my knowledge, this UPFA issued an election manifesto prior to the election.

It is not in dispute that an election manifesto is the official program of action of any political party, and, for any given election, the principal means by which voters who vote for a party know what they are voting for.  To put it another way, the manifesto is the contract between the candidates representing a Party and the voters.

Through the manifesto, the candidates offer to do certain things if elected, and the voters, by electing the candidates in question, are signifying that they accept the offer.  (Thus, if I’m not mistaken, the two essential requirements of a valid contract, offer and acceptance, are met, and the candidates, once elected, have an obligation to follow the program of action they said they would follow.)

To my knowledge, nowhere in the UPFA’s manifesto did it say that if after the election the UPFA did not win enough seats gain a majority in Parliament, its members will join the rivals whom they campaigned against, and form a Government.  True, as per the relevant Supreme Court ruling, they can switch to the other side, but in that case they must leave the UPFA fold.  The point is that they cannot remain in the UPFA and form a government with their rivals.

But the above, as far as I understand it, is exactly what has happened under the present set-up:  a group of MP’s elected under the UPFA banner, and thus bound to the UPFA’s program of action, have joined their rivals in the UNP and are carrying on a government.  If the act of voting is to mean anything, we must suppose that a voter must have the assurance that if he votes for candidate ‘X’ and ‘X’ says he will do such and such, that once elected he will in fact do what he said and not something else.

As I explained earlier, Article 3 of the Constitution says that Sovereignty is inalienable, and the franchise is an integral part of Sovereignty.  Therefore, the MP’s who won under the UPFA but who have joined the UNP and are carrying on a government with the latter have abrogated the franchise of the voters who voted for them in the August elections.  In short, the ‘National Government’ violates the Constitution, which is to say it is illegal.

I shall now turn to the ramifications of the above to the Constitution-making process.  The normal procedure for amending or repealing and replacing the Constitution is set out in Articles 82(1) – (6) and Article 83 of the Constitution.  Article 82(6) states:

‘No provision in any law shall, or shall be deemed to amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.’

(It should be noted that nowhere in the ‘preceding provisions’ of Article 82(6), which is to say Article 82(1) – (5) is there any mention of a ‘Constitutional Assembly’)

If either Article’s 82(1) or (2) are invoked, and a Bill to amend or repeal and replace the Constitution is placed on the Order Paper, then Article 121(1) is automatically triggered and members of the public can challenge the Bill before the Supreme Court, unless the Cabinet certifies in advance that the Bill needs a 2/3 majority in Parliament plus approval at a referendum.

Let’s suppose the Cabinet certifies that the draft Constitution requires a 2/3 majority plus a referendum.  What will happen?  Obviously, the draft will be brought to a vote in Parliament.  That’s when there’s potential for serious trouble.

If the ‘National Government’ is prima facie illegal, either the Joint Opposition or even a single MP can raise a point of order and raise an objection, and say that, on an issue as important as a new Constitution, if there is even a hint of suspicion that its approval may be illegal, that issue has to be first resolved before going for the vote.

The Government will not be able to ignore such a request, because the Government (in this case the President) is the only person with the legal capacity to invoke the Supreme Court’s jurisdiction to provide opinions on questions such as the above.  Article 129(1) of the Constitution says:

‘If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion its opinion thereon.’

If the Government refuses to seek the required opinion, that itself will look suspicious, and that in turn will stain the credibility of the new Constitution. In any event, the new Constitution is supposed to be the ‘consensus Constitution’ meaning it had the unstinted support of all the ethnic, religious and linguistic groups in the country.

It will be impossible to maintain the above charade if the suspicion persists that the franchise of the majority ethnic group in the country may have been abrogated at the very inception of the Constitution-making process, and the means were at hand to get a definitive legal opinion on the issue.  So, to repeat, it will be difficult for the Government to refuse to provide the opinion.

Obviously, the Court might say the ‘National Government’ is perfectly lawful.  But then again it might not, and that’s the problem.  If the Court rules that the ‘National Government’ is illegal, then the entire house of cards that the U.S. U.K and India have spent so much time, and money building collapses.  It is unreasonable to suppose they will let this happen, and no doubt have instructed their local puppets accordingly.

The only way to solve the above problem is to get the entire Parliament to endorse the Constitution-making process from the very start, which is to say, to turn Parliament into a ‘Constitutional Assembly.’  In law, a particular technical meaning is given to Acquiescence, to wit:  where a person or party acquiesces in a wrongful act, they are not entitled to contest the legality of that act later, because it is presumed they conceded such legality when they acquiesced in the act.

If the Joint Opposition joins the ‘Constitutional Assembly,’ they will be impliedly conceding the legality of the ‘National Government’ and will not be able to agitate that issue at a future time when the draft Constitution is tabled.

So, in my view, that is the game being played.  To digress a moment, as I read it, the Joint Opposition has as usual been taken for a ride by Sirisena.  He got his henchmen to endorse the ‘amendments’ that the Joint Opposition proposed to the original resolution, which blunted the Joint Opposition’s initial criticisms.  Now, the Government has agreed to all those amendments, which pulls the rug from under the Joint Opposition.

If members of the Joint Opposition oppose the resolution now, they will be accused of being spoil-sports, unprincipled obstructionists of much-needed Constitutional reforms, and so on.  In short, they are trapped.

How they get out of this trap is not my concern.  My point is that at least a faction within the Joint Opposition has to insist that the principal issue here is the possible abrogation of the franchise of a significant proportion of Sinhala Buddhists voters, and that any Constitution-making process predicated on such an abrogation is null and void ab initio, and the matter has to be looked into first before proceeding any further.

In my view, if the above is not done, and the new Constitution is allowed to sail through, it will be a betrayal of the Sinhala Buddhists far greater than the betrayal handed them by Sirisena’s men in August last year.  I shall deal with the type of Constitution that is to be brought in, and what I think will happen afterwards, in subsequent articles as time permits.

Dharshan Weerasekera is an Attorney-at-Law.  He is the author of two books:  The UN’s Relentless Pursuit of Sri Lanka (2013), and, The UN’s Subversion of International Law:  The Sri Lanka Story (2015)