16 May, 2022

Blog

Bill Violating Fundamental Rights Needs Referendum; 2/3 Majority Not Enough – Supreme Court

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

Article 3 of our Constitution states: ‘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.’ Article 4, which goes into more detail, describes powers of government as legislative, executive, and judicial. Article 4(d) requires all organs of government to respect, secure, and advance the fundamental rights declared and recognized by the Constitution. They shall not be abridged, restricted, or denied save in the manner and to the extent provided by the Constitution.

Article 3 is entrenched in that a Bill for the amendment or for the repeal or replacement of or which is inconsistent with it would become law only if it is passed by a two-thirds majority in Parliament and is approved by the People at a referendum. An ordinary Bill, not for the amendment of the Constitution, but which is inconsistent with Article 3, would also have to be passed by a two-thirds majority and be approved at a referendum. Article 4 is not entrenched, but the Supreme Court has held that Articles 3 and 4 must be read together. The fundamental rights relating to freedom of thought, conscience, and religion (Article 10) and freedom from torture (Article 11) are also entrenched.

In the first edition of the book “Fundamental Rights in Sri Lanka” (Navrang, New Delhi 1996) the writer argued that an ordinary Bill that violates any fundamental right necessarily offends Article 4(d) and consequently impinges upon sovereignty guaranteed by Article 3, and therefore, needs both a two-thirds majority and approval at a referendum.

In its determination on the Eighteenth Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12(1) (equality and equal protection of the law) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

The Twentieth Amendment to the Constitution Bill sought to restore the immunity of the President in respect to fundamental rights applications that had been taken away by the Nineteenth Amendment. The Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.” The restoration of immunity would need the approval of the People at a referendum, the Court held.

However, a counter-argument was possible that both cases were constitutional amendments and that the exercise of judicial power was involved and, therefore, Article 3 was, in any case, infringed and approval at a referendum necessitated.

In his article titled “Port City Bill Determination: SC’s Dicta On Fundamental Rights & Devolution Need Revisitation”, published in Colombo Telegraph on 15 June 2021, the writer pointed out that the Supreme Court only determined that certain provisions of the Port City Bill violated fundamental rights and thus required a two-thirds majority but did not go further to say that the offending clauses also needed the approval of the People at a referendum.

The writer further stated: “Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament. … However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People, by using such majority.” It was submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated, and a referendum is necessary.

This week’s Supreme Court’s determination on the Special Goods and Service Tax Bill clears the issue beyond doubt. Justices Vijith Malalgoda, Murdu Fernando and Yasantha Kodagoda held that Clauses 2, 3, and 4 of the Bill were inconsistent with Article 12 (1) (equality and equal protection of the law) and also with Articles 3 and 4 (d), thus requiring a two-thirds majority in Parliament and approval a referendum.

The learned Judges explained: “As recognized by Article 4(d), fundamental rights form a component of the sovereignty of the people. It is to be noted that fundamental rights is a critical component of sovereignty, as it is fundamental rights that enable People to (a) reap the full benefits of being born human, (b) enables the exercise of liberty, (c) provides for protection of life and freedom from harm, (d) provides for the exercise of sovereignty, (e) facilitates human development, (e) ensures equality including parity of status among human beings and non-discrimination, and (g) creates a conducive environment for peaceful coexistence among the different communities of the People of Sri Lanka. Thus, a Bill that is violative of fundamental rights, would amount to an infringement of the sovereignty of the people, and therefore infringes Article 3 read with Article 4 of the Constitution.”

Following the Supreme Court’s determination, any Bill that is inconsistent with any fundamental right would need approval by the People at a referendum in addition to a two-thirds majority in Parliament. The determination is thus a landmark in Sri Lanka’s fundamental rights jurisprudence.

Print Friendly, PDF & Email

Latest comments

  • 8
    0

    Where do we go from here? Another spanner in the works? It’s all a comedy of errors, everywhere you turn. If the said bill violates the constitution what next
    Would the authorities heed to the supreme court judgement? If not, what next
    I give up

  • 6
    1

    Looks like Sir Fail is getting screwed from all sides. Now that Putin has decided to go to war, this will most probably seal the fate of Rajapaksas prosperity and splendor. 1) oil prices will shoot up. 2) tourism will crash, and Ukrainians are those least expected. 3) $ will go up.4) breakdown in global logistics 5) loans and credit facilities will dry up and many more.

  • 3
    0

    Could the decision by the court be another political coup by the “Kaputa Family” to block giving the project to the American company? The Family may want to give this as well to the Chinese. In the past, the government has used the courts to block projects that they really did not want to offer but to save face they offered the project in public to foreign companies to maintain a relationship with those countries.

    • 0
      0

      Buddhist, never thought in these lines. You may be right.

  • 9
    0

    This writer needs to get off his legal high horse and stop uttering gibberish that has no relevance to what is happening in Paradise. He talks of referenda and motions, jurisprudence and bills; yet the minister of prisons can invade prisons, pistol whip inmates and still remain scot-free. Convicted murderers of children can be pardoned by executive authority with no consultation from the sentencing judges; convicted drug lords who killed an opposite number and many others in a gunfight can be released from prison and given a position as head of a govt department; brothers can be brought straight into parliament despite being foreign nationals; they can then undermine cabinet or tender protocols and sign deals with companies in his country; the prez can declare that his word is law (publicly) and still remain prez…friends can be allowed to raze pristine forest for export crop production…why don’t you address those issues than mumble legal gibberish that has no relevance to people on the street?

    • 6
      0

      What a small mind you have, Mr. Pethiyagoda! How can fundamental rights have no relevance to people on the street? This decision prevents the Government from using its 2/3 majority to violate the fundamental rights of the people. We should all applaud the Supreme Court for this courageous decision.

  • 5
    0

    Dear Sensitive srilankens,
    If you would interview 100 coming from varied social layers, you would get the outcome by yourself. Not even 1% would be aware of their basic rights. They constantly interpret it as the SRILANKEN main stream media ask them to do so.
    it is high time to get together and fight for our rights, our basic rights. Average folks locked up to this naturally unique island, would not know what their fundemental rights are. So not even 10% of the averge which is the bottom line voters in the country would not get it.
    Media could do the job educating the people in a regular manner, but SRILANKEN media giants are funded by Rajapakshes loot also during the previous govt. Those interviews and discussions being made with powerful ruling poltiicians are just scripts and keeping them as proctagonists in a script. THE HOODWINKING CULTURE IS PART AND PARCEL OF RAJAPAKSHE POLITICS. So called politically matured man of the brutal family, non other than Mahinda Rajapakshe knows it very well, that our people are stupidier than appeared tob e.
    Sirasa TV reveals some, but not enough to make a palpable change in the average mindset. If for example, SIRASA TV would not have been there, people s situation would be similar to stasi era of Germany in 40ties.

  • 3
    4

    Mr Jayampathy W
    Drafters of laws which eventually likely to get rejected by Supreme Court are plainly illiterate of Constitution law or bootlickers of powers that be who try their damndest to deceive people.
    In 2015 your good self too tried a similar subterfuge in your attempt to transfer some presidential powers to the Prime Minister while drafting 19A, if I recollect correctly.
    Sir, would you mind enlightening the readers further over that past situation.

    Soma

    • 4
      0

      Dear Soma.
      … your attempt to transfer some presidential powers to the Prime Minister while drafting 19A….
      At least in such a case that was people friendly and not by subterfuge. See what has happened with more powers to Prez by 20A. Now a Monkey with a razor.

      • 0
        1

        MyView
        You didn’t get my view point.
        Introducing clauses which eventually get rejected by SC is either ignorance or subterfuge.
        The author JW himself is guilty of such an attempt in 2015.
        Whether the end objective is good or bad is beside the point.

        Soma

        • 2
          0

          soman

          “You didn’t get my view point”

          What is the point if there is one?

        • 3
          0

          Dear Soma,
          You now say : .. eventually get rejected by SC is either ignorance or subterfuge…
          But first you said :… your good self too tried a SIMILAR SUBTERFUGE ….
          A strong word of accusation which now you say is either that or ignorance. Yes that is possible.
          But the Courts ruling on some draft law, is a decision on an interpretation for the time being, of anothers submission, as Courts have subsequently held otherwise in some cases. That is why the Law evolves and definitions change over time.
          On your interpretation, the Legal Draughtsman who has been overruled in this particular case of the Special Goods and Service Tax Bill, should be similarly accused of ignorance or subterfuge, along with the Minister of Finance.

    • 3
      0

      soman

      “Drafters of laws which eventually likely to get rejected by Supreme Court are plainly illiterate of Constitution law or bootlickers of powers that be who try their damndest to deceive people.”

      In a democracy people do not need a all powerful president. Powers will/should be vested in people not in one stupid fascist the president. Parliament (not in Sri Lanka) represents people where issues can be broadly discussed and come to consensus (not majoritarian decision making).

      Now look at the state of the state.
      Asgiri who welcome Fascistic rule to this island is hiding somewhere.
      All powerful President and his brothers are on begging pilgrimage.
      Scatter brain Ministers running around like headless chickens.
      A few weeks ago another Jewel in the racist crown Udaya Ganapathi-pillai was smarting off to Hindia. Now he is proud to announce he hoping to borrow $500 Millions to buy petrol.

      Where are your other constitutional experts, Wimal, Dhinesh, Champika, HLD M, …. Island, Daily News, …. Gevindu, …… Karaka Council who were silent when JR illegally enacted the 1978 constitution, and subsequently by others ?

      Do you know as to why the single handed president has become most ineffective and behave like clown?
      May be the clown wants to maintain a circus than a parliament.
      By the way are you looking forward to becoming his sidekick?

      Learn and Grow up.

  • 1
    0

    I would not be unkind to call the writer as a “constitutional humbug” as some chose to call in my discussions with them on writer’s pronouncements. The writer describes in detail and with reference to past cases to point out that in the event the provision in a draft bill violates the fundamental rights it follows that the very provisions violate the sovereignty of the people and therefore the requirement of their passage not only with a two thirds majority but a referendum as well. But in all other instances, a blank check is given by the people at an election for their representatives to play havoc with the country’s governance and economy resulting in kleptocracy. This is how the inalienable sovereignty of the people are alienated to plunder the country. The writer should not claim to suffer from political amnesia as not to remember when the “Bond-Scam” took place when he too was in the Cabinet as a Minister. He had all the opportunity as the minister of constitutional affairs to institute mechanisms for people to exercise their inalienable sovereign rights to check on the madness of every government that plunders the state wealth and good governance.

  • 2
    0

    Why are some readers shooting the messenger and not reading the message? The writer highlights a welcome decision of the Supreme Court. Instead of appreciating the decision of the Court and thanking the writer for telling us about it, some readers attack him.

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 5 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.