Sri Lanka Constituent Assembly 1971

Somasunderam Nadesan Q.C.

Comments on the 1971 Sri Lanka Constituent Assembly
& Draft Basic Resolutions

1971

"At the time that new Sri Lanka Constitution was being drafted in 1971, Nadesan wrote a book titled 'Some Comments on the Constituent Assembly and the Draft Basic Resolutions' (Colombo: Nadaraja Ltd., 1971. 129pp.) as a contribution to the debate. In it he dealt lucidly with the basic issues relating to fundamental rights, the legislature, the administration of justice, and the language question. We reproduce below an extract from one chapter which is entitled "A Story", in which Nadesan uses to good effect the device of an imaginary debate to make his point. It illustrates how the free exchange of conflicting ideas, together with a spirit of tolerance, may help to arrive at a consensus. It also reflects Nadesan's own clarity of thinking, and the impish sense of humour which was one of the endearing characteristics of this great Sri Lankan." (from the Sri Lanka Civil Rights Movement Publication, The Value of Dissent, ISBN-955-9277-01-4)

A Story

An imaginary illustrative story may throw some light on the mysteries of Constitution making. An independent small island inhabited by five or six thousand people decided to frame a Constitution for their country.

They all met together and constituted themselves as a Constituent Assembly for the purpose of adopting, enacting and establishing a Constitution for their land. They first agreed on what their fundamental rights were. Then they decided that these fundamental rights should be included in the Constitution and be adequately safeguarded.

They next addressed their minds to the question as to whether they should vest all their powers' legislative, executive and judicial in one organ of state power or in more than one.

One of the members of this Constituent Assembly was a young graduate of a foreign university. He had taken the trouble to read up all the constitutions of the world and had made copious notes to be able to be of assistance on this momentous occasion. This young graduate spoke of the needs of society and the fundamental social changes taking place, and how the Assembly should devise a suitable machinery for the establishment of a socialist society to end the exploitation of man by man, and wound up by saying that the sovereignty of the people could only be truly reflected by a sovereign Parliament, a Parliament with supreme powers, and therefore it was necessary in the Constitution to provide for all legislative, executive and judicial power to be vested in a Parliament called the National Assembly. The young graduate also suggested that this National Assembly should consist of 21 persons elected by all citizens over the age of 18 years.

There was a long discussion on this proposal. Among the members of the Assembly was a shrewd sturdy farmer who had, under the earlier dictatorial regime, been arbitrarily arrested and kept in jail for over two years without trial, until he was set free by the revolution which overthrew the previous regime. This farmer was one of those who had insisted that there should be included among the fundamental rights a right which ensured freedom from arbitrary arrest and imprisonment.

He now raised a pertinent question as a result of his unfortunate experience in the past. He asked, "If the National Assembly either unanimously or by a majority vote, in the exercise of its executive power, orders one of its servants to arbitrarily arrest me and imprison me without trial' what is my remedy and to whom can I go for relief? I have to go to the judges. Who are the judges? They are this very same National Assembly of 21 persons in whom all judicial power is vested. If I appeal to them to exercise their judicial power in my favour, will they ever hold that the exercise by the National Assembly of its executive power in ordering my arrest was unlawful, and order my release? It appears to me to be impossible, and I certainly don't propose to run the risk of repeating my past experience."

The discussion of this aspect went on for some time. A teacher who was the live wire of a newly formed political association said, "A similar problem will arise if the National Assembly, in the exercise of its legislative power, enacted a law making it an offence for a person to be a member of a political association of a kind which the majority of members of the National Assembly do not like. If anyone of us who is member of such an association is arrested and prosecuted by the Police before the National Assembly in the exercise of its judicial power, will the Assembly ever say that the law enacted by it in the exercise of its legislative power is invalid, as it is repugnant to a fundamental right which we all cherish, and on which we have already agreed' namely the right to freedom of association?"

At this a worker in a factory interjected, "At this rate the National Assembly in its legislative capacity can pass a law banning all trade unions and then where will the worker he?"

To all this criticism the young graduate's answer was, "After all, the members of the National Assembly will not do such unreasonable things. If they do, the people will throw them out at the next elections. So the Sovereign People will always have the last say."

Then the farmer said, "That may be so. If the National Assembly misbehaves its members can no doubt be thrown out at the next elections, but in the meantime I will have been in jail. I may still be in jail when the next elections are held and may not even have the pleasure of campaigning against the people who put me there."

The teacher then said, "My friend is talking about the next elections, but suppose the National Assembly passes a law extending its period, we may not have elections, at any rate not in the lifetime of some of us."

The discussions went on and on. All speakers professed to have the interest of the common man at heart. In the course of the discussions one young man inquired as to how one can make out whether the sitting of the National Assembly was for the purpose of exercising judicial power or legislative power, and the young graduate replied that this was a simple matter. When the National Assembly sits to exercise judicial power the members could wear red robes. Someone else suggested black, and some others blue, and this discussion would have delayed proceedings further had not the Chairman ruled out of order this discussion about robes. As difficult questions had been raised the Constituent Assembly then adjourned for a few days to enable members to fully consider these problems.

On resumption, the young graduate said that he had found a way of meeting the difficulties raised by some members at the earlier meeting of the Constituent. The solution that he suggested was that the National Assembly of ~ l persons should exercise its executive powers through a Council of Ministers consisting of five members of the National Assembly, the chief of whom would be called the Prime Minister, and that this Council of Ministers would be responsible to the National Assembly for all its actions. As for the judicial power of the National Assembly, it would exercise this indirectly through judges to be appointed by the Council of Ministers. The National Assembly however would have the right to remove any of the judges at any time for any reason.

But most of the members of the Constituent Assembly did not think that this arrangement would ensure an independent judiciary which would hold the scales evenly between the executive on the one hand and the subject on the other, and which would resist encroachments by the legislature on the fundamental rights of the people. They raised the question as to how a judge can be independent in such matters, when if he gives a decision adverse to the National Assembly, he may be removed from office by the Assembly. What is more, they argued, independent and competent persons may not be appointed as judges by the Council of Ministers, who may be tempted to appoint only pliable stooges.

When all these questions were raised the young graduate suggested that the problem could be solved by the insertion of a specific clause stating categorically 'that the judges are independent and subject only to the law". Such a provision, he said, was found in the constitutions of several progressive socialist countries of the world in which all power legislative, executive and judicial was vested in the National Assembly.

This suggestion provoked considerable mirth among some of those present. The leader of a group known as the Revolutionary Marxists disapproved of this frivolity, and said that he wished at the outset to dissociate himself from those who are always only too ready to sneer at the socialist camp. There was a serious problem here which must be approached in a constructive spirit. However it was true that the mere inclusion of such a clause in a constitution was by itself not a sufficient safeguard. In several of those countries, people had been convicted of political crimes and later were admitted to have been innocent. In one such country a Minister had been convicted of being a foreign agent.

Later the Prime Minister of that country was removed for gross abuse of office, and was found to have been suffering from paranoia. It was then discovered that the accused had been completely innocent, and that the now discredited Prime Minister had ordered the judges to find him guilty. The accused had since been fully rehabilitated. This was not of much practical benefit to him as he had been executed straight after the trial. However as a result there was a debate taking place in the progressive movement throughout the world, including within the country concerned, as to how to prevent the possibility of such departures from socialist legality in future. Therefore, although we must be ever ready to learn from the spectacular achievements of the progressive socialist countries in other spheres, in this particular matter a study of the provisions of their constitutions was of limited value.

In the end the young law graduate's suggestion that the legislative, executive and judicial powers be vested in one body of persons, namely the National Assembly, was rejected by the vast majority of members present. The Constituent Assembly considered that while the executive and legislative powers may be exercised by the same body of persons, or the legislative power by one body and the executive power by another body' there could be no question of the people's judicial power being entrusted either to the body that exercises executive power or to the body that exercises legislative power, as this would open the door to tyranny. The entire people of the island functioning as a Constituent Assembly then decided that they would vest their legislative power in a National Assembly consisting of 21 members, the executive power in either a President or in a Council of Ministers' and their Judicial power in the judges of the Supreme Court and other minor court judges.

The young graduate then raised another question which he said was of the greatest importance. He proposed that a clause be included in the Constitution saying that no judge shall have the power to inquire into or pronounce upon the validity of any law passed by the National Assembly. Such a provision was, he said, essential to safeguard the sovereignty of the people. After all, he argued with some force, the National Assembly consists of the elected representatives of the people. In legislating it therefore expresses the will of the people. If anybody else can nullify what the Assembly does, that is clearly a curtailment of the sovereignty of the people, which cannot be tolerated in a true democracy. What is more, he added, it is essential that there should be certainty about the validity of laws. Therefore we may set up some machinery whereby draft laws will be very carefully scrutinised before they are adopted, but once they have been passed by the Assembly, then that must be an end of the matter.

Then the trade union leader said that he was a simple working man who did not know the meaning of fine legal phrases. However one thing he did know and that was that if, after spending all this time deciding what their fundamental rights should be, and in what precise words they should be phrased, we are now going to decide that you cannot enforce them in the courts, then this whole Constituent Assembly business was a complete waste of time and he was sorry he had ever come to it. In fact he intended to walk out of the deliberations forthwith in sheer disgust and take all the workers with him.

At this there was general consternation. Several members pointed out to this trade unionist that he must accord to the young graduate that freedom of speech and respect for the beliefs of others which he himself had insisted must be secured in the new Constitution. The trade union leader then allowed himself to be prevailed upon to remain.

A student then spoke and said that just because we elect the members of the National Assembly that does not mean we authorise them to do anything they please. As our trade union comrade has pointed out a large part of the labours of this gathering has been devoted to laying down what the National Assembly may do, and what it may not, and we have all agreed that it may not pass laws which infringe certain rights, which we have defined.

If the National Assembly nevertheless passes such a law, it is not expressing the will of the people, but is contravening the will of the people and is going directly counter to the mandate which we gave it. Just as in legislating the members of the National Assembly act (or should act) as our servants, so, in considering whether their legislation is in accordance with the Constitution that we have framed, the judges are acting as our servants.

We, the people, decide to have judges, to ensure that the National Assembly which we created conforms to the principles that we have chosen to lay down, and how that is supposed to curtail our sovereignty I just cannot see. As for the question of certainty, - if some possible uncertainty as to the validity of good laws is the price that we have to pay for the right to challenge the validity of bad laws which take away our basic rights, then we, the people of this island, are prepared to pay that price.. Let us take a vote on it without more ado.

Another student, who was following a postgraduate course in political theory, spoke in support of his colleague, and said that the idea that true democracy means that an elected National Assembly must be the sole repository of power originated in the olden days when Parliament had to fight against a despotic king, who was a rival source of power. Now however this idea was being perverted and was being used to try to deny the power not of a monarch, but of the people themselves.

Under cover of this it is sought to say that the only role of the people is to exercise their vote once every so many years, and that electing a National Assembly must mean abdicating all the people's powers to that one body. He further said that the fiction that Parliament is the people, and that therefore when it acts it is always expressing the will of the people, and that if anyone interferes that is defeating the will of the people, was both fallacious and dangerous. He started to cite various authors on this subject, but the Chairman said that they had all got the point and stopped him.

The young graduate then withdrew his suggestion that the courts should have no power to question the validity of laws, and the Assembly took up the next item.