The basic legal argument against the proposal to present the draft Constitution is as follows;
The proposal is based on a false premise as it denies the process of the making of the Constitution whereas it must provide everyone and every group of people the right of participation as it is a Constitution of the people and not of a Government.
The existing Constitution which is fundamentally flawed is a major factor and has caused all the crises in the country. The major flaw is that it has situated the head of state above the law – above the jurisdiction of the courts. Once anyone is placed above the law, it is not possible to operate a legal system based on the principle of equality before the law.
This makes it impossible to operate the principle of the supremacy of the law and instead the system creates the supremacy of man, which the Chinese characterised as the “rule of man”. Under those conditions, the law ceases to be the organising principle and foundation of the social organisation of the society.
Under these circumstances, judicial power, its role and independence is drastically undermined. Public institutions cannot perform their legally required function, and the administration of justice with a legal framework becomes impossible and law enforcement suffers a drastic setback. Such a situation in law is called “a state of disorder”.
The present state of Sri Lanka is one of disorder and that is the root cause of all major problems in Sri Lanka. The only justifiable reason for the nation to have a new Constitution is to get over the state of disorder and chaos it is in and to return to an orderly society based on the supremacy of the law and the rule of law.
In order to achieve this original Constitutional cause and thereby remedy such disorder, the cause which is the 1978 Constitution must be abolished and all persons, including the head of state, must be brought under the law, as an equal of the rest of the citizens. Anything short of that will not remove the state of disorder and the consequent crises faced by the society.
There is justifiable reason to believe that the proposed draft of the Constitution will not abolish the 1978 Constitution and will instead place the head of state as a person who is above all. There is reason to believe that in fact the situation that prevails under the 1978 Constitution will be further re-enforced under the proposed law.
The present state of the country transgresses the liberty of the people and the enjoyment of their rights. Any and every kind of repression is allowed under the existing Constitutional order.
A primary goal of a new Constitution is the end of this and to recognise liberty as a fundamental principle and to expand the enjoyment of human rights by all. For this to happen, there has to be a proper process for making a Constitution.
The proper process recognized in modern times, practiced in many countries, including India, South Africa, Kenya, Nepal and Thailand, is the creation of a Constitutional Assembly and to provide an opportunity for all persons to participate. If Sri Lanka makes a farce of the Constitution, it has no chance of overcoming the present crisis. It will also further lose confidence in the nation and the confidence reposed in it by the international community.
