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.