Can the 1978 Constitution of Sri Lanka be replaced without recourse to article 82 of the existing Constitution? In other words, can it be replaced extra-legally and extra constitutionally? Yes, it is possible in certain circumstances. Revolutionary constitutionalism is possible where it is connected with a political struggle. Have any countries adopted extra-legal Constitutions? Yes, there are plenty of examples.
First, what is a revolution? It is a successful attempt by a large group of people to change the political system of a country by force. The leaderless, spontaneous uprising–the Galle Face aragalaya (along with struggles all over the country) that surprised everyone, simply aims at that.
Who represents the sovereign popular will in Sri Lanka today? Is it the elected 225 MPs in Parliament or people in the street (Galle Face dissidents)? Three basic functions are common to all parliaments, namely lawmaking, representation and control of the executive. But the elected MPs do not represent the opinions and interests of the people as evidenced by the deliberations of the past few months. A majority of MPs represent the executive (the President and the cabinet) rather than the people. They do not represent the “Gota Go Home” universal call. Unfortunately, there is no right of recall in Sri Lanka and we are stuck with the corrupt and inept lot of 225 MPs.
Secondly, let us clarify what revolutionary constitutionalism is, and how it differs from non-revolutionary constitutionalism. The drafting of a new constitution by a self-appointed constituent assembly or convention works as a non-legal but politically expedient method of replacing constitutions in authoritarian regimes. We witness today the degeneration of the Sri Lankan polity into tyranny and anarchy through the concentration of power in the hands of a single person or family–a condition ripe for revolutionary constitution making.A Constitution can be replaced when it fails to work or when its design prevents competing political interests from accommodating to changing environments. According to this viewpoint, a Constitution is likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design.
What happens when constitutional paradigms change? Should a new constitution always be authorised or based on an existing Constitution? Revolutionary constitution-making is possible where a struggle (a revolutionary movement, headed by a charismatic leader or not)–where the leadership having engaged in a prolonged struggle against an authoritarian or tyrannical regime steadily wins the support of the people through its commitment. Ultimately, the uprising topples and replaces the government, then adopts the revolutionary principles in a new founding document. Extra-constitutional occasions are usually confined to emergency situations, such as revolutions, coup d’etat, and martial rule.
We do not have to go very far to discern extra constitutional means of introducing new Constitutions. Sri Lanka illustrates the extra constitutional approach to making a constitution. In 1972, deriving a people’s mandate, a Constituent Assembly comprising all MPs drafted and adopted a new constitution in accordance with its own procedures, rather than following those set out in the 1946 Constitution that it replaced. The First Republican Constitution of Sri Lanka was unconstitutional as per the existing 1946 Constitution. In adopting the new Republican Constitution, the Soulbury Constitution was not repealed in accordance with the provisions for repeal in section 29 (4). It was adopted and enacted by a body meeting outside the Parliament. But, in reviewing the position, however, the Sri Lankan Supreme Court upheld its legality with respect to the mode of adoption and composition of the assembly and declared the Constituent Assembly free to decide on the content of the new constitution. Evidently, the First Republican Constitution of 1972 did not owe its existence to a prior law. British sovereignty over Sri Lanka was not ended constitutionally.
Another instance of a new Constitution adopted and validated without prior legal authority is the Constitution of Bangladesh, 1972. East Pakistan was governed by the Constitution of Pakistan. However, East Pakistan (present Bangladesh) adopted the new Constitution extra legally by setting up a Constituent Assembly comprising a few representatives who had been elected to the National Assembly of Pakistan from the former East Pakistan and some of whom had been elected to the Provincial Assembly of East Pakistan. The constitution-making body of Bangladesh was not provided for in prior law.
Examples of constitution-making through irregular conventions established outside legal authorisation abound in Latin America. Irregular conventions have been typical during revolutions, independence processes, and regime transitions, because in these contexts the preexisting legal order was suspended or no longer considered to be legitimate.
The Latin American democracies used national conventions outside the legislature to replace their constitutions. They came into conflict with the legislature. An extra constitutional but legal constitution was adopted in Ecuador in 1997-1998. Extra constitutional but illegal constitutions were adopted in Colombia 1990-1991, Ecuador 2007-2008, Venezuela 1998-1999. The non-constitutionalist revolutions led by Lenin, Mao, Castro, and Ayatollah Khomeini brought about revolutionary Constitutions not sanctioned by the prevalent law.
Although extra-constitutionality seems a slippery slope, the principle of “necessity” which enabled the courts of a democracy, such as Canada or Cyprus to prevent a breakdown in the legal system can also be employed to legitimate a coup d’etat, as in Pakistan, Uganda, the Seychelles, Nigeria and Grenada. The Constitution of Russia in 1993 is a further example of extra-constitutional constitution making.Here are some examples from the U.S.. The State of Virginia called, and 12 states, staffed the 1787 constitutional convention outside the Articles of Confederation. And in 1861, seceding southern states called and staffed a constitutional convention in Montgomery, Alabama.
Both of these Constitutions were extra-constitutional. The right of revolution safeguarded in the Declaration of Independence is the American people’s ultimate extra-constitutional remedy.
Can we reach a popular consensus to resolve the existing impasse? The problem is resolved by those who believe that political/revolutionary constitutionalism in contrast to legal constitutionalism consults popular views directly. The entrenched Second Republican Constitution could be repealed and replaced either by the prescribed supermajority of the elected representatives or by the people as a whole in a direct expression of the popular will. The legitimacy of a Constitution thus established outside the pre-existing legal order is admirably summed up by M. J. A. Cooray. To quote: “In non-legal language, it may be said that the validity of a constitution is initially a political fact and legality is derived from acceptance of the Constitution by the people, the courts and the administration.” (Cooray: 1982. Judicial Role under the Constitutions of Ceylon/Sri Lanka, p. 220)
Are the pre-conditions for revolutionary constitutionalism ripe in Sri Lanka?
First necessary precondition of a revolutionary opportunity is the widespread and increasingly visible, loss of authority of the old regime. Second, there should be a genuine form of mass mobilisation, in which the raw, constituent power of the people is directly engaged. These pre-conditions are manifest in Sri Lanka today.
Extra-constitutional constitution-making should always be just a last resort. Compared to the present Parliament, a people’s assembly specially commissioned to write a Constitution is better able to reflect citizens’ preferences. Exceptional responses may be necessary to deal with the crisis in the present exceptional circumstances. There is nothing wrong in bringing to a successful conclusion the aragalaya—the mass uprising with the adoption of a revolutionary Constitution at the Galle Face Green rather than at Diyawanna Oya.
V. K. Nanayakkara, formerly of the Sri Lanka Administrative Service authored the book, In Search of a New Sri Lankan Constitution, a comparative analysis of the three post war Constitutions of Sri Lanka