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| Sunday, 13 June 2004 |
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Constitutional reform : Navarangahala route - a dangerous precedent Dr. Reeza Hameed is a Sri Lankan Attorney at Law now practising in the UK. These comments are in response to the Constituent Assembly procedure advocated by Law Professor Lakshman Marasinghe also a resident abroad - in Canada. Prof. Marasinghe invoked Kelsen's theory and the law of necessity when advocating the Constituent Assembly procedure if the people gave a mandate to the United People's Freedom Alliance as it called for in its Manifesto. Dr. Hameed takes up this diametrically opposite view, which we present to our readers in the public interest. by Dr Reeza Hameed The government has claimed that it has a mandate from the people to implement its manifesto promise to "convene a constituent assembly consisting of the members of parliament to formulate and promulgate a new constitution, that will derive its form and validity from the expression of the political will of the people" and that the "proposed constitution will strengthen democracy by abolishing the executive Presidency and replacing it with a Cabinet and a Parliamentary form of Government". The doctrine of necessity and Kelsen's theory of pure law have been pressed into service to support the introduction of a constitution outside the framework of the 1978 Constitution. The 1978 constitution should not be replaced or amended otherwise than in accordance with its own provisions. Neither the doctrine of necessity nor Kelsen's theory provides the juridical basis to legitimise changes to the 1978 Constitution by extra-constitutional methods. These doctrines have virtually become a favourite device of military backed rulers to justify their actions whenever they toppled elected governments and imposed martial law. They do not provide an acceptable basis for constitutional change in a democratic country. Case of Pakistan The dangers inherent in adopting either of these theories to legitimise changes to the basic structure of a legal system would be evident to any student of Pakistan's constitutional history. The judiciary there has lent its authority and support to the military whenever the latter grabbed power from popularly elected governments under some pretext of expediency or need. It has been done with such regularity that critics have charged that the judiciary is part of a "military-judiciary complex". Limits to the Doctrine of Necessity The doctrine of necessity cannot be used to scrap a constitution or to repeal a part. In those instances it has been invoked successfully the doctrine of necessity has been used only to uphold the rule of law rather and not to abrogate the existing constitution. Most of all there is no justification to apply the doctrine to deviate from a constitution such as ours that is founded on the will of the people. Kelsen The argument based on Kelsen that a new constitution may be enacted by a constituent assembly without recourse to the procedure prescribed by the 1978 Constitution is of doubtful validity. Although in some instances Kelsen's theory was used to legitimise an otherwise illegitimate regime it was discredited even by the Pakistani Supreme Court in Asma Jilani. In that case - and in the later case of Bhegum Nusrat Bhutto - the Supreme Court said that it was not possible to apply Kelsen's doctrine to recognise a government that was otherwise unlawful. General Yahya Khan was termed a usurper and all actions taken by him except those in the welfare of the people were declared illegal. Justice Yaqub Ali lamented that because of the decision in Dosso "a perfectly good country was made into a laughing stock. A country which came into being with a written Constitution providing for a parliamentary form of Government ... was soon converted into an autocracy and eventually degenerated into military dictatorship". The argument that the principle of efficacy requires only a minimum support to give the new basic norm its validity and that it is not necessary "to find efficacy on any extraneous factor such as consent" can no longer be run as a result of the Fiji case of Chandrakant Prasad where the Court of Appeal refused to find that there had been a successful revolution because the usurper had failed to suppress public opposition and convincing evidence of real acquiescence was absent. The Court insisted that the burden of proving that the existing constitution had been superseded lay on the usurper and put him to a very high standard of proof. In the event the Court declared that the purported abrogation of the 1997 Constitution of Fiji was not justified and that it remained in place. Constitution is supreme The Constitution is the basic norm in our legal system and it is the supreme law of the land. This was recognised in the case of Walkers & Sons & Co (U.K.) Ltd v Gunatilake where the Supreme Court said: "The constitution is a manifestation of the sovereign will of the people. The same principle was at the foundation of the 1972 constitution and the 1978 Constitution derived its legal validity from the fact that it was enacted within the legal framework of the 1972 constitution." It has been suggested sometimes that the setting up of a constituent assembly would accord with Article 3 of the constitution because the people who hold sovereign power have the power to constitute a constituent assembly. This argument is an oxymoron because what is being proposed is to introduce a constitution other than by a process demanded by them under the Constitution. The Sri Lankan Constitution vested the sovereignty of the people in three organs and defined their respective powers as well as the limits of those powers. The people set restraints on their own power to interfere with their delegates and did not give themselves the power to initiate or enact legislation except through their elected representatives. Even in those instances when their consent is required, as when a law has to be approved in a referendum, their delegates must formulate that legislation and at least two thirds of them must approve it before their consent is sought. The people have set limits on the ability of their delegates to approve changes to the constitutional scheme by anything other than a special majority. This must be to ensure that measures enacted by them met with the approval of a sufficient number among them so as to reflect the opinion of a broad cross section of the population.The people in whom the sovereignty is vested do not belong to any one party, and neither Parliament nor a body outside representing only a bare majority can claim to exercise the power of the people to change the constitution. The argument that it is impossible for a single party to attain a two thirds majority under the prevailing electoral system and therefore it should be possible for the government to change the constitution even with a bare majority is one of convenience. It has not been suggested that the want of a two thirds majority has rendered the government powerless to maintain law and order or to carry on with the business of governing the country. There is no reason why the majority required for change should all come from the same side of the House. A government might find it convenient to have at its disposal a majority that would rubber stamp its proposals but the desirability of having a system that would produce such majorities is open to debate. Constitutional change must be underpinned by a process that maximises consensus and secures the consent of the majority and the minority elements within the country. It should be preceded by a well informed debate. The process is as important as the outcome. Any attempt to follow the Navarangahala route to impose a constitution outside the framework of the 1978 Constitution would create a dangerous precedent. It would be a recipe for chaos. |
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