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| Friday, 25 June 2004 |
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The Legacy of Colvin (Continued from June 18) Extracts from the oration by Dr. Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada. Delivered on May 25, at the N.M. Perera Centre, 160, Cotta Road, Colombo 8 Third, a constitution must embody the collective wishes of the people. There must be a sure means by which these wishes of the people may be ascertained and gauged. The means that must necessarily be adopted to establish a constituent assembly, would have involved a rigorous electoral process. That electoral process would have performed an educative process among the masses through discussions, dialogues and debates. When people casts their votes in the electoral process, leading to the selection of delegates for the constituent assembly, the people would have had their first glimpse at the issues which had necessitated the drafting of a new constitution. Elections to constituent assemblies are similar to any other election where issues are fully aired to educate the people of the political dimensions of the issues. Fourth, when constitutions are drafted through constituent assemblies, people may participate at three levels. First, when an election is held to choose the delegates. Second, when the delegates, as the people's representatives, at the constituent assembly, adopt the constitution. And finally, if and when the constitution is presented to the people in a referendum for approval. This process not only produces the constitution as a document, but it also, as will be shown below, legitimises the constitution and provides it with its legality. For this reason constituent assemblies are unsuitable for making amendments to an existing constitution. The method is used principally for drafting a totally new constitution. Legitimising constitutions Dr. de Silva made the point that laws and legal systems are in the ultimate analysis founded on people power. And without such a power supporting them, both the laws and the legal systems remain humble and abject. This view of Dr. de Silva falls into line with the truism that in the ultimate analysis law cannot be founded on law. Law must be ultimately founded on some other articulate major premise other than a legal source. This may be a usurper such as an unconstitutional body (Supreme Military Council - after a Military take-over) or a person (such as a dictator) or a constitutional body (People who may vote a government into power) or a person (A crowned monarch or a person wielding Executive power). Professor Hans Kelsen, the founder of the "pure theory of law", to which Dr. de Silva alludes wrote: "If, further, we ask as to the validity of the constitution, on which repose all the laws ... which they have sanctioned, we come probably to a still older constitution and finally to an historically older one, set up by some single usurper or some kind of a corporate body. In either way the system becomes valid and legitimated only when it becomes effective. When the legal system becomes efficacious then the system as a whole becomes valid. Efficacy is a fact which is brought about by people accepting the basic-norm or the constitution. It is for this reason that a constitution when drafted should be presented to the people for acceptance. And if and when they do accept the new constitution, that acceptance shall annul the previous constitution while at the same time legitimating the new constitution. (Concluded) |
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