Written by Harindrini Corea
29 Oct, 2018 | 11:20 am
On the 26th of October 2018, with the appointment of former President Mahinda Rajapaksa as Prime Minister by President Maithripala Sirisena, the country was plummeted into a constitutional frenzy with several arguments presented in support and opposition of such appointment.
In this context, amidst the variety of opinion on the constitutional validity of such appointment, the focus of this article is not on the substance of these arguments but rather on the validity of any potential new legal order that has been established through recent events. The basis for this reasoning is rooted in the analysis of the legal process, the ‘pure theory of law’, by Hans Kelsen, an Austrian jurist, legal philosopher and political philosopher.
The Basic Norm that provides validity to the Constitution
Kelsen describes the formal structure of law as a hierarchical system of norms, which are “ought” propositions, founded in the Grundnorm or the basic norm. This basic norm is extra-legal as it does not derive validity from other legal norms and it is said to be presupposed in judicial thinking rather than created by a real act of will and is selected based on the principle of efficacy.
In this context, in countries with written constitutions, the basic norm, which acts as the apex of the legal system and provides validity to the constitution and all laws of the land, is the presupposition that the Constitution is valid. When we look at the first constitution created in a country, we understand that the presupposition of the validity of that Constitution and the efficacious nature of the legal order based on such Constitution; in that people conduct themselves in conformity with it, is the basic norm that provided legitimacy to that Constitution. Furthermore, whilst within this system there may be several constitutional norms which are also conflicting ones, the basic norm will act to resolve any contradiction between such norms.
Revolution and change in the basic norm
Where there is a revolution and a new form of government is introduced, then a new basic norm that empowers the revolutionary government with legal authority is presupposed and there is a new legal order that is set in place. Where such a coup succeeds and the old order ceases to exist in favour of a new order; where people act in conformity with the new order, then the test of efficacy has been satisfied as well which confirms the change in the basic norm.
Whilst the above refers to revolutions in toto, there may also be potential for a change in the basic norm with an efficacious new order imposed, as a result of revolutionary processes that do not occur according to established procedure.
In the case of Uganda v. Commissioner of Prisons, Ex parte Matovu (1966) 1 EA 514 Sir Udo Udoma C.J. said the following;
“we hold, that the series of events, which took place in Uganda from February 22 to April, 1966, when the 1962 Constitution was abolished in the National Assembly and the 1966 Constitution adopted in its place as a result of which the then Prime Minister was installed as Executive President with power to appoint a Vice-President could only appropriately be described in law as a revolution. These changes had occurred not in accordance with the principle of legitimacy. But deliberately contrary to it. There were no pretentions on the part of the Prime Minister to follow the procedure prescribed in the 1962 Constitution in particular for the removal of the President and the Vice-President from office. Power was seized by force from both the President and the Vice- President on the grounds mentioned in the early part of this judgment.”
“…our deliberate and considered view is that the 1966 Constitution is a legally valid constitution and the supreme law of Uganda; and that the 1962 constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda, having been deprived of its de facto and de jure validity.”
Sri Lanka’s First Republican Constitution and change in the basic norm
To create a new constitution, the Parliament elected at the 1970 General Election, under the Soulbury Constitution was transformed into a Constituent Assembly and met away from Parliament House on the basis that electoral victory provided them with a mandate to adopt a republican constitution. The creation of the First Republican Constitution of Sri Lanka was thus through a legal revolution that resulted in change of the basic norm so that there was an assumption of the validity of the ‘new’ Constitution and acceptance by the people of this Constitution.
It is interesting to note the observations of L J M Cooray on the legality of the Constituent Assembly and the 1972 constitution. In Constitutional Government in Sri Lanka (Colombo: Lake House Investments, 1984) at p.246 he says, “Was the Constituent Assembly legal? The answer is clear from what has been said. The question of the legality of the Constituent Assembly does not arise. One might just as well ask: Was the American War of Independence legal? Was the Glorious Revolution of 1688 legal? The Constituent Assembly of Sri Lanka was part of a revolution, which aimed at overthrowing the existing constitution.” “The ultimate question is, – is the new Constitution legal? And this is initially a political [question]. In course of time it becomes legal if it is accepted by (i) the people, (ii) the courts and (iii) the administration.”
At p.247 of the same academic work, L J M Cooray says that “[t]here are two methods of constitutional reform the legal method and the extra-legal method. Extra-legal constitutions arise consequent to a revolution or a revolutionary process. The establishment of a Constituent Assembly without reference to the existing legal order was a revolutionary act. The deliberations of such a Constituent Assembly were part of a revolutionary process and it is irrelevant to ask whether it was legal. A Constituent Assembly may adopt a Constitution. The validity of such a Constitution or indeed any Constitution does not depend on law but is based on an “ultimate legal principle” or a “fundamental postulate of a legal system”. 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”.
Questions in the present context
On the basis that the change in the office of Prime Minister was carried out by revolutionary processes that are contrary to existing procedures under the Constitution; Sri Lanka currently exists within the twilight zone and the people of this country have a decision to make.
With the appointment of a new Prime Minister and the initiation of the creation of a new Cabinet of Ministers, then a new basic norm that empowers the President of Sri Lanka to act in such a way, upon failure of the coalition and loss of confidence in the previous Prime Minister, is presupposed leading to the introduction of a new legal order.
However, where there has been such a coup, the legitimacy of the presupposition that the President could appoint a new Prime Minister, prorogue Parliament, appoint a new Cabinet, call for general elections or take any other steps, upon failure of the coalition government, is based upon how effective the new legal order will be and this depends on the compliance of citizens of the country with this new legal order.
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