Constituent Assembly illegal - Don

[TamilNet, Monday, 19 April 2004, 01:20 GMT]
"There is no legal basis for establishing a constituent assembly. In fact, Article 76(1) of the Constitution states that parliament shall not abdicate or alienate its legislative power, and shall not set up any authority with any legislative power. It is, therefore, expressly prohibited to set up a constituent assembly for the purpose of making law," said Professor emeritus Nihal Jayawickrama in an interview with Sunday Leader, a popular Colombo weekly.

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"If a government founded on a southern mandate chooses to violate the constitution, what is there to prevent the TNA, which secured a decisive and unequivocal mandate from the north and east, to also violate the constitution and establish its own constituent assembly, based on northern and eastern votes, and adopt its own constitution for that region?" Dr.Jayawickrama questioned.

He added that the "Article 82 of the Constitution provides that it may be amended, or repealed and replaced, by parliament if not less than two-third of its members vote in favour. The amendment of a few provisions (articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30(2) and 62(2)) also require approval at a referendum."

He warned that it [convening a constituent assembly] is an intentional violation of the constitution for which the President, if she participates in the exercise, is liable to be impeached under Article 38 of the Constitution.

Explaining that a constituent assembly is a body which is fully representative of the country and its people, Dr.Jayawickrama said that the assembly is convened only when it becomes necessary for a country to make a new beginning, to establish a new legal order.

Agreeing that there are many provisions in our constitution which need to be reviewed and revised, he advocated that time for doing so would be after a final settlement is reached with the LTTE and hostilities end.

Asked if the defence of "necessity" can be used to support a constituent assembly, Dr.Jayawickrama said, " Constitutional experts have described it as a 'transient phenomenon' of dubious origin...A lawfully established government cannot deliberately plan to act in violation of the constitution in the expectation of being able to invoke the defence of 'necessity' to protect it from the consequences of its unlawful conduct."

He also said a referendum following the proceedings in the constituent assembly will make no difference to the illegality of the constituent assembly.

Dr. Jayawickrama was Professor of Law at the Universities of Hong Kong and Saskatchewan, where he taught comparative constitutional law. He was permanent secretary to the Ministry of Justice when the constituent assembly was convened in 1970, and was involved in the processes that led to the drafting and adoption of the 1972 constitution.

 

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