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by Dr.Lakshman Marasinghe,

I have read with increasing interest the present debate on the necessity for a constituent assembly. Additionally, there has been a number of observations made by various Readers to the Daily News, the Sunday Observer, Sunday Leader and the Sunday Times.

I am confident that there may have been very useful contributions found in other media too. With this distance, perched at the other end of the globe - Canada - news media from Sri Lanka reaches here only after several moons.

Therefore, I sincerely hope that this writing has not now become an irrelevant corrigendum. Particularly at this juncture, when I sense that the issue of establishing a constituent assembly is much more in the fore front of political thinking than before, I believe this debate still has a relevance to be continued.

The earliest constituent assembly on record was the one held by the Israelites in 1037 B.C. when the people of Israel decided to transfer Executive Power from a theocracy which had held such power from the time of the Exodus in the thirteenth century BC, to a King with the anointing of Saul as the First King of Israel. This constituent assembly ended with the establishment of a constitution - The Covenant of Mount Sinai.

Under this Covenant the people of Israel established norms which protected their fundamental rights. The new Executive - King Saul- covenanted to be the King of Israel so long as he protected the rights of the people over whom he exercised his Executive Power through his Rule. It was clearly mandated that if he were to breach that mandate he ceased to be the King of Israel, and the people were free to anoint his successor. This too through a similar process - the constituent assembly.

The validity for the establishment of a constituent assembly was founded upon the wishes of the people who under the Covenant of Mount Sinai were the Sovereigns. This is similar to Article 3 of Sri Lanka's 1978 constitution where: " [I]n the Republic of Sri Lanka sovereignty is in the people and is inalienable."

In the available literature, the terms "constituent Assembly" and "constituent conventions" were often used loosely and interchangeably. These terms were sometimes used even to denote unelected constitutional commissions appointed by the state.

However, the correct use of the two terms may be restricted to instances where the people, by using their popular vote elects and establishes an assembly mandated to draft a new constitution. Using the terms "Assembly" and "Convention" interchangeably, there are two principal methods available for establishing a constituent assembly. First, by direct-elections. Two, by indirect-elections.

Directly-Elected Constituent Assemblies: By this method delegates are elected by the population at large with the primary purpose of drafting a new constitution.

One of the more recent examples of this process was seen in Namibia where a constituent assembly met from November 1989 to February 1990 to draft a new constitution to effect the transfer of Executive Power from the Government of South Africa to the newly established independent Republic of Namibia.

Another example of a national assembly elected for the primary purpose of drafting a new constitution was that of the Newfoundland National Convention which functioned from September 1946 to January 1948. That Convention drafted a constitution which transferred Executive Power to the Dominion of Canada, from itself, the Government of Newfoundland, which then was a Sovereign Dominion of the British Commonwealth of Nations.

As a result of that transfer of Executive Power, Newfoundland became a province of the Dominion of Canada. By those means Newfoundland together with Labrador became a part of the Canadian Confederation and ceased, thereby, to be an independent and sovereign State. An example from a non Commonwealth country is that of Nicaragua.

Following the overthrow of the Dictatorial regime of Samoza, in 1979, an election for a National Assembly was held in 1984, mandated to draft a constitution for vesting of Executive Power in the people of Nicaragua. An assembly elected by the whole of the people of Nicaragua was mandated to perform that task.

The Assembly met for the first time in January 1986, and on 18th November 1987 the Assembly approved the draft constitution transferring executive power to the people of Nicaragua. This draft constitution was promulgated on the 9 th January 1987, which has remained to this day as the basic law of that country.

Executive Power which had vested in one person - Samoza - now became vested in the whole of the people of Nicaragua. In each of these instances and as it would be seen with the instances to follow, the de-vesting and vesting of Executive Power from one body to another has been at the centre of the constitution making process in these Assemblies.

These are only a few of the available examples under this heading. Both space and time prevent me from citing and discussing others that fall into this category.

Indirectly- elected Constituent Assemblies: These assemblies were established by electors who primarily elect members to a parliament for the governance of a country. Additionally, those electors provide a mandate to the members of the parliament thus elected, to draft a new constitution.

This is similar to the constituent assembly that was established in Sri Lanka as a sequel to the 1970 elections. That assembly was mandated to transfer Executive Power exercised by a foreign sovereign through a local Governor-General, to a local legislature exercising Executive Power and presided over by a President exercising no executive power.

This was a sequel to the General elections of 1970 in Sri Lanka. That Assembly performed their mandate by drafting the first Republican Constitution of Sri Lanka of 1972 by shifting and reshaping the Executive Power thus exercised by the State. And a similar mandate appears to have been sought from the people, at the last General Elections of April 2nd this year which had just been completed.

There are poignant examples of this category from the sub-continent. As a result of all India - elections held in July 1946, an all-India constituent assembly was established which was mandated to draft a new constitution for all-India for the transfer of Executive Power from the British Crown to a Sovereign and independent India.

A significant Muslim minority fearing that they might be suppressed by an overwhelmingly large Hindu majority, decided to boycott the new Assembly. Britain at this point decided to partition India into two States - India and Pakistan.

Once that decision was taken the elected members of the assembly formed into two Assemblies for the two newly independent countries. This was in 1947. The Indian Assembly at their first meeting after gaining Independence voted itself the Supreme Legislative authority and functioned as an interim parliament. Meeting alternatively as a constituent assembly and as an interim parliament (as Sri Lanka did in 1970-72) the Indian Constituent Assembly enacted a constitution three years later on 26th January 1950.

After the boycott of the original all-India Assembly, Pakistan's constituent assembly met for the first time on the 16th August 1947. Due to, much turmoil within and outside the assembly the draft constitution was eventually enacted in March 1956.

Unlike the Indian Constitution which had lasted 54 years, the Pakistan constitution of 1956 was abrogated in October the same year. Both the Indian constitution of 1950 and the Pakistan constitution of 1956 transferred Executive Power from the British Houses of Parliament to the Executive authorities of both India and of Pakistan.

The Philadelphia Peoples' Convention of May 25th 1787 brought out a new constitution of June 1788 which remains today the constitution of the United States of America. That constitution was made necessary because it was found that the Articles of Confederation ratified in 1781 were unworkable.

Again it must be pointed out that the 1788 constitution was structured so as to locate the Executive power in the people. A similar process was adopted in Australia where between 1897-98 a constituent assembly was elected to draft a new constitution so as to transfer Executive power from the British parliament, which was to be shared by the various legislatures of the States and of Canberra within a single federated entity, called the Commonwealth of Australia.

Canada did not require the luxury of Constituent Assemblies because the two central fundamental laws of Canada were those that were passed by the UK Houses of Parliament for Canada. One was passed in 1867 when Canada was still a Crown Colony and the other was passed in 1982 at the request of Canada. Both Acts of the UK Parliament shifted and reshaped the Executive Powers of the Dominion of Canada.

Summarising what had been mentioned before, it might be observed that through out this web of constituent assemblies, there were two golden strands that may be seen. First, when constituting a constituent assembly it is the people that should constitute it by means of a popular vote. Second, the primary purpose of the constitution making process must be to shift and shape the existing Executive Power structure of the State.

Having said all these, it might be necessary to observe that under Article 3 of the Sri Lankan constitution people hold the sovereign power of the state and it is they who have the power to constitute a constituent assembly.

The manifesto of the Freedom Alliance, a copy of which I have here with me, had asked for a mandate from the people "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."

This is in line with both Articles 3 and 4 of the 1978 constitution. Furthermore, the manifesto reads that the " proposed Constitution will strengthen democracy by abolishing the executive Presidency and replacing it with a Cabinet and a Parliamentary form of Government ..... ."

This calls for transforming the present Executive Power structure by moving the Executive Power structure from a Presidency to a Parliament. This is in line with the aforementioned instances that I had previously enumerated commencing from 1035 BC to 1972 AD, where constituent assemblies have been used for shifting and reshaping the existing Executive Power structures of States. Such is the formidable task which a constituent assembly must perform when mandated by the people to do so. (The writer is Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada. He is also visiting Professor of Law, University of Colombo.)

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