SOME SERIOUS CONSTITUTIONAL ISSUES

THE 20TH AMENDMENT BILL –

By Dr Nihal Jayawickrama-October 4, 2020

The author of the 1978 Constitution has never been officially disclosed. It was included in the report of a select committee of the National State Assembly appointed to consider amendments to the first republican constitution of 1972 without it ever having been considered by that committee. It was passed in the NSA with the requisite two-third majority and became law in September 1978. For the first time in our constitutional history, 12 of its Articles were declared to be unamendable except with a two-third majority in the Parliament that it established, followed by approval of the people at a referendum.

The first of these Articles changed the name of the Island from the “Republic of Sri Lanka” to “the Democratic Socialist Republic of Sri Lanka”, following the example of Chairman Kim Il-Sung who renamed his country as the Democratic Peoples’ Republic of Korea. Article 3 states that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. A Bill which is inconsistent with this Article becomes law only when it is passed with a requisite majority and then approved by the People at a referendum. Article 4, which is not among the twelve, explains how sovereignty shall be exercised and enjoyed.

 

The powers of government

The President of the Republic is described in Article 30 as “the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces”. The description of his title is identical to that in both the 1946 and 1972 Constitutions. In the exercise his powers and functions (except when appointing the Prime Minister), he is required to act on the advice of the Prime Minister and the Constitutional Council. Therefore, he is in every respect, a constitutional Head of State. Under the Constitution, the powers of government are vested in the Prime Minister who is the Member of Parliament who enjoys the confidence of Parliament, and in the Cabinet of Ministers who are all Members of Parliament chosen by the Prime Minister. The Prime Minister may be removed from office only through a vote of no-confidence passed in Parliament, and it is only the Prime Minister who may determine whether or not to remove a Minister from his or her office. The Cabinet of Ministers are collectively responsible and answerable to Parliament. The 20th Amendment Bill seeks to transfer all the powers of the Prime Minister to the President and empowers him even to remove the Prime Minister and the Cabinet of Ministers. It also seeks to abolish the Constitutional Council. Article 3 states quite emphatically that the powers of government, as set out in the Constitution, are “inalienable”.

 

The judicial power of the People

The Constitution has vested judicial power exclusively in the judiciary. The 20th Amendment Bill seeks to vest the President with the power to appoint not only the Judges of the two appellate courts, but also the members of the Judicial Service Commission which is responsible for the appointment of judges of original courts. Today, he may exercise these powers only with the approval of the Constitutional Council. In effect, therefore, the person who has absolute control of the executive, as well as the legislative programme in Parliament, will also be the person who will have absolute discretion is choosing and appointing the judiciary which is the institution vested with the power to determine whether the actions of the executive and the legislature are in accordance with the constitution and the law. Will this not infringe the judicial power of the People which is identified in Article 4 of the Constitution as being an element of the sovereignty of the People protected by Article 3?

The judicial power of the people includes the right of access to the judiciary. The Constitution now enables a citizen to invoke the jurisdiction of the Supreme Court to determine whether any provision in a Bill placed on the Order Paper of Parliament is inconsistent with the Constitution. The 20th Amendment Bill seeks to limit, if not deny, that right by permitting the Cabinet to certify that a Bill in “urgent in the national interest”. In such event the Bill will be forwarded by the President to the Supreme Court for a special determination on constitutionality to be made within 24 hours. That determination will be forwarded only to the President and the Speaker, and the Bill may be immediately passed by Parliament. The denial of access to the judiciary is surely an interference with the judicial power of the People protected by Article 3.

 

The fundamental rights of the People

The fundamental rights of the People are protected by Article 3. These are set out in Chapter III of the Constitution; in Article 126 which provides a remedy for the infringement of any fundamental right; and in Article 35 which provides a remedy for the infringement of a fundamental right by any act done or omitted to be done by the President in his official capacity. The 20th Amendment Bill seeks to abolish the fundamental right to a remedy in respect of the official acts of the President now provided in Article 35 and is clearly an infringement of Article 3.

 

The franchise

The integrity of the franchise is protected by the establishment of an independent Election Commission appointed by the President on the recommendation of the Constitutional Council. The 20th Amendment Bill seeks to empower the President not only to appoint the Commission, but also to remove any member of that Commission, thereby seriously compromising the independence of the body established by the Constitution to ensure the integrity of the electoral process. The franchise is an integral element of the sovereignty of the People protected by Article 3.

The C-in-C and Minister of Defence

There appears to be a misunderstanding of the President’s role as Commander-in-Chief. Under the 1946 Constitution, the Queen was the Head of State, Head of the Executive and the Commander-in-Chief of the Armed Forces, and these powers were exercised on her behalf by a succession of Governors-General who acted on the advice of the Prime Minister. When the 1972 Constitution replaced the Queen with a President as Head of State, Head of the Executive, and Commander-in-Chief of the Armed Forces, those high-sounding titles did not bring with them any special powers. The Commander-in-Chief is not a uniformed officer. In parliamentary democracies, the principle of civilian control of the military is established through the designation of the Head of State as Commander-in-Chief as well. It is the President who declares war and peace, subject to the provision of resources by Parliament. It is the President who invokes the Public Security Ordinance and declares a state of emergency, subject to the approval of Parliament. These powers are vested in the Head of State, and not in the Minister of Defence.

 

Provincial Councils

The Government appears to have overlooked the fact that the abolition of the Constitutional Council, which is seeks through the 20th Amendment Bill, also impacts on the chapter in the Constitution dealing with Provincial Councils. Section 41 of the Bill seeks to amend Article 154R, an Article in Chapter XVIIA (Provincial Councils) of the Constitution. The purpose of the amendment is to enable the President to appoint three members of the Finance Commission without seeking the recommendation of the Constitutional Council, since the Bill seeks to abolish that Council. However, Article 154G of the Constitution states that no Bill for the amendment or repeal of any provision in Chapter XVIIA shall become law “unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon”. That was not done because the Provincial Councils stand dissolved, and the new Provincial Councils have not yet been elected.

The Provincial Councils Elections Act imposes a duty on the Election Commission, within one week of the dissolution of a Provincial Council, to publish a notice of its intention to hold an election to such Council. That has not been done. Therefore, when the 20th Amendment Bill was placed on the Order Paper of Parliament two weeks ago, it was done in violation of Article 154G of the Constitution. It is a repetition of the notorious 2012 Divineguma Bill episode where the Supreme Court held that Parliament could not proceed with such a Bill even if it was only in one province that a new Provincial Council had not yet been elected. Moreover, the failure to consult the elected Provincial Councils also impinges on the franchise, an element of the sovereignty of the people protected by Article 3 of the Constitution.

 

An intractable problem?

Ordinarily, the solution would be to withdraw the 20thth Amendment Bill from the Order Paper, delete section 41, and place the Bill back on the Order Paper. However, adopting that course will not resolve the problem. For as long as Article 154R remains in the Constitution in its present form, the Constitutional Council will also need to remain in place since it is on the advice of the Constitutional Council that the President may make appointments to the Finance Commission. But the 20th Amendment Bill seeks to abolish the Constitutional Council. Therein lies an almost intractable problem.