11 December, 2018

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Is The 19th Amendment Unconstitutional?

By Amrit Muttukumaru

Amrit Muttukumaru

This brief note will focus exclusively on the constitutional propriety of the 19th Amendment to the 1978 Constitution. It will not dwell on its pros and cons.

The people of Sri Lanka went to the polls on 8 January 2015 on the explicit understanding (i) they were going to elect a powerful ‘Executive President’ under the 1978 Constitution (ii) the ‘Executive Presidency’ was to be subsequently abolished (iii) its abolition and the concomitant new dispensation was to be presented to the ‘People’ for their approval.

Its mere weakening was never on the radar.

HE Maithripala Sirisena who was elected on this basis had no mandate to allow the weakening of the ‘Executive Presidency’ through the 19th Amendment without the prior approval of the people at a referendum.

Its approval at a referendum is compulsory since as per Article 3 (untouched by 19th Amendment) which is ‘entrenched’ in the Constitution:

“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. “

The key takeaways are:

1) Article 3 is ‘entrenched’ in the Constitution

2) “sovereignty is in the People and is inalienable”

3) “Sovereignty includes the powers of government, fundamental rights and the franchise. “

Another facet to the premise that a referendum is needed is:

Article 4 (b) (Post 19th Amendment):

“the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People ;”

The 19th Amendment has undeniably weakened “the executive power of the People” which “shall be exercised by the President of the Republic elected by the People;”

The key words are: “President of the Republic elected by the People”. This must be viewed in the context of:

“the franchise” of the “People” being “inalienable” ( Article 3 ‘Entrenched’ in the Constitution)

Nevertheless, with all due respect to the constitutional expert Dr. Nihal Jayawickrama it is difficult to subscribe to his assertion in his learned article The Illusory Executive Presidencyin the ‘Colombo Telegraph’ of 19 March that the 19th Amendment has diluted the powers of the Executive President under the 1978 constitution to such an extent that the holder is now virtually reduced to what existed under the 1972 Constitution where the President was largely a ‘Ceremonial’ Head of State.

Conclusion

It is the view of this writer who has no pretence for any expertise in constitutional affairs that the 19th Amendment is inimical to the sovereignty and franchise of the people which is inalienable and hence compulsorily DEMANDS the approval of the people at a referendum. This is in addition to not less than two-thirds of the total membership of Parliament approving the same.

Under the circumstances, is not the 19th Amendment unconstitutional? The learned views of constitutional experts such as Drs. Nihal Jayawickrama, Lakshman Marasinghe and others will be appreciated.

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Latest comments

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    No Sri lanka should have democratic political parties and not the ones who right family oligarchies, familyownership or dynasties. Before a PResident is selected intended candidates should discuss how their would develop the country or proceed (Because, I think, now the country is developed and only thing we need is polishing it make it better and not to fill with machines and smoke any more). So debates among in front of PArty card holders would selelct the proper candidate and finally would go infront of the Voters. Af theat 19 th should be abolished. There is no need of PM. but , the president should be accountable to the country. He should be be prosecuted if he had done anything deterimental to the country. I am not taling about country;s soverignity or the security or the betterment for which he should be able to take any decisions .

  • 1
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    there is nothing unconstitusional in the 19th amendment
    the problem is in its interpretation like for instance the national govt question

  • 0
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    Any amendments to the constitution must be for the benefit/security of the citizens. Any amendments made for the gains of individuals will lead to chaos in the long term – example Zimbabwe

  • 0
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    Come on muthukumaru. 6.2 million people voted to abolish the executive presidency. 19 A was passed by 215 to 0 with 9 abstentions. Have you woken up like Rip Van Winkle ?

    • 1
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      PETER PERERA

      1) If “6.2 million people voted to abolish the executive presidency” why was it not done by adhering to DUE PROCESS which in addition to the approval of not less than two-thirds of the total membership of Parliament requires a referendum?

      2) The 19th Amendment does not “abolish the executive presidency” – it merely weakens it. There was NO MANDATE given by the people to weaken it. It is my contention unless proven otherwise by constitutional experts (which I am not) that even its weakening through the 19th Amendment in addition to the approval of not less than two-thirds of the total membership of Parliament requires a referendum.

      3) It needs to be emphasized that even after the abolition of the executive presidency after due process, the concomitant new dispensation must also be presented to the ‘People’ for their approval at a referendum.

      4) Constitutions are serious business. It cannot be the playthings of self-serving politicians.

      I am sure you are familiar with the ethics and morality in the ancient Indian epic Ramayana and hence will appreciate the need to adhere to DUE PROCESS.

      AMRIT MUTTUKUMARU

      • 0
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        To respond very briefly to Amrit:

        1. A Bill becomes law when it is certified by the Speaker as having been duly passed by Parliament. Thereafter, no court or tribunal can inquire into, pronounce upon, or in any manner call in question, the validity of such Act (Art.80).

        2. In respect of the office of President, the approval of the people at a referendum is required only if it is sought to extend his term (Art.83).

        3. 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”. This means that none of these rights and powers may be alienated to, for example, a dictator, a political party, the military, or a section of the population, etc.

        4. If the “executive powers of the people” can be exercised only by a “President elected by the people”, what about a “President elected by Parliament” under Article 40? Can he/she not exercise executive powers?

        5. The amendment of Article 4 does not require approval at a referendum. See Article 83; and the judgment of Sharvananda CJ in the 13th Amendment Determination.

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          Nihal J
          Apropos your point no 1, what is the situation if an Act is found to be ultra vires the constitution?Would not the Supreme Court then be in a position to pronounce on the validity of the Act.? Your response would be appreciated.

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            In reply to Percy:

            Under our present 1978 Constitution, the constitutionality of a BILL may be examined by the Supreme Court. However, once it is certified by the Speaker as having been duly passed, article 80 applies and no court may inquire into or pronounce upon the validity of that ACT thereafter. It was the same under the 1972 Constitution.

            However, under the 1946 Constitution any Act of Parliament could be challenged on the ground of unconstitutionality. The Supreme Court struck down the Criminal Law (Special Provisions) Act 1962 after the attempted coup of that year on the ground that the nomination by the Minister of Justice of 3 Judges to hear the coup case was an interference with the judicial power of the state. It is interesting that it was the Bench of the three Judges handpicked and nominated by the Minister who held that the Minister had no power to do so under the Constitution. Would that happen today ??? In 1964, the District Court of Colombo struck down the Official Language Act for being in violation of section 29 of the Constitution.

            In most democratic countries, a law can be challenged at any stage on the ground that it is in conflict with the Constitution.

            • 0
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              Thank you Nihal for the clarification.
              It seems from your clarification that all Bills are not required to be tested for constitutionality by the SC. Does it mean then that a bill which is unconstitutional can remain unchallenged if enacted, as the SC would not have the power to question its validity.

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                Replying to Percy’s question:

                Yes, that is correct. Once enacted, however glaring and obvious the unconstitutionality of it, the Act cannot be challenged.

                The pre-enactment review is also very weak. First, the Attorney General is required to examine every published Bill and inform the President if any provision is unconstitutional, whereupon the President refers that question to the Supreme Court. Second, a citizen who thinks that a provision in a Bill is unconstitutional may petition the Supreme Court.

                The weakness lies in the fact that: (a) the Attorney General, being the Government’s chief legal adviser would ordinarily have been consulted before the Bill was prepared: and (b) the citizen would have to be very public spirited and read every Bill published in the Government Gazette.

                The unconstitutionality of a provision in a law usually becomes apparent only when it is sought to be applied to an individual in a particular situation. For example, when Kodeeswaran was denied an increment on the ground that he had failed to qualify in the official language; and he challenged the Official Language Act on the ground that it discriminated against non-Sinhala speaking communities. Therefore, while the review of a Bill may be useful, it should be possible for a person affected to challenge the law when it is actually being applied to him/her.

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                  Thank you Nihal, much obliged for your assistance.BTW I wonder whether you recall the names of the 3 judges who were handpicked to hear the coup case. The Kodeswaran case was one of the late HLDe Silva’s early successes after leaving the crown?I recall Sena Wijewardene as a junior assisting in the case.

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                    Replying to Percy:

                    The three Supreme Court Judges handpicked by the Minister of Justice for the Trial-at-Bar in 1962 were Justice T.S. Fernando QC, (President) Justice L.B. de Silva and Justice P. Sri Skanda Rajah. Their judgment is widely regarded as having taken the Ceylon judiciary to its high water mark. Incidentally, the Criminal Law (Special Provisions) Act actually declared that the constitution and jurisdiction of the Court so nominated by the Minister “shall not be called in question in any Court whether by way of writ or otherwise”. The Court held that they had no jurisdiction because they had been assembled by an “outsider”.The State did not appeal the judgment, but proceeded to amend the law to enable the CJ to nominate the judges.

                    Sena Wijewardene was, indeed, one of the counsel for Kodeeswaran (perhaps the only Sinhalese). But I think the team was led in the DC by Mr. Ranganathan. HL de Silva may have led for the Crown.

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                      It will be interesting to learn from constitutional experts who hold the view that the 19th Amendment has diluted the powers of the Executive President under the 1978 constitution to such an extent that the holder is now virtually reduced to what existed under the 1972 Constitution where the President was largely a ‘ceremonial’ head of state, whether the President under the 1972 Constitution could have re-allocated subjects in the manner President Sirisena has just done (Post 19th Amendment) by removing key subjects such as the CBSL and SEC held in a ministry under no less a person than the Prime Minister himself?

                      Amrit Muttukumaru

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                      Thank you for the most interesting information. Those 3 judges were indeed of the highest caliber and stood tall indeed.

  • 0
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    The 13th Amendment is illegal and unconstitutional, people of Sri Lanka have never demanded it, and it’s a threat to the nation security. Indian threats and bullying made the 13th Amendment sneaked into the constitution. So the executive president can/must get rid of the 13th Amendment without the support of the parliament and a referendum.

  • 0
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    Mrs B , JR never had a referendum to change the constitution. If JR gave himself wide powers in 78 without a referendum, why can’t these be abolished also without a referendum. Where were you in 78. Did you protest ?

  • 0
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    It had been determined by the Supreme Court with some persons having challenged 19A. The Supreme Court Determination had disallowed some Clauses and they had been deleted. This Act has therefore been determined by the Supreme Court as constitutional. End of matter.

  • 0
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    Amrit. The point you make about the 19th amendment requiring approval at a referendum, however valid, poses another question. The entrenched clause which confers sovereignty to the people was part of the 1978 Constitution, which however was not endorsed/approved at a referendum. My question is: if the 1978 Constitution was not approved at a referendum why should an amendment to it require approval at a referendum? Please would you elaborate. Thanks

    • 0
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      1) Percy, you make a very valid point on the legality of the 1978 Constitution itself which has also troubled me for some time. I am no ‘expert’ on such matters and am surprised that constitutional experts have not raised this fundamental issue all these years. Could it be that the 1972 Constitution did not require a referendum for its abolition and only needed a two-thirds majority of the total membership of Parliament?

      2) Although JRJ to the best of my knowledge in the run-up to the 1977 general election did promise an ‘executive presidency’, don’t you think irrespective of legality there was a MORAL OBLIGATION to have the CONSENT of the PEOPLE through a referendum for the 1978 Constitution? On the other hand, when legality itself is being flouted with impunity who gives a damn for moral issues in the Sri Lanka of today?

      3) The bottom line is that in my ‘humble’ view for the reasons mentioned in my above brief article, the 19th Amendment COMPULSORILY needs the consent of the ‘People’ at a referendum irrespective of questions that can be raised on the validity of the 1978 Constitution.

      4) Percy, at the end of the day why should one perceived ‘wrong’ (1978 Constitution) dictate another perceived ‘wrong’ (19th Amendment)?

      5) Thank you for keeping this debate going in the public interest on a vital subject.

      6) It will be instructive to have the views of constitutional experts on these issues.

      Amrit Muttukumaru

  • 0
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    Thanks Amrit
    When the 1972 Constitution was prepared the Govt did have a two thirds majority. The govt without going back to the people for a referendum to endorse the new constitution of 1972 sought to endow validity through a Constituent Assembly. It can be argued that a representative Constuent Assembly reflects the will of the people albeit not as strongly as by a referendum. The bigger issue however is the need or otherwise of entrenched clauses and the tenure provided by 2/3 majority. They tend to ignore the changes to the will of the people in future years. It is precisely to stultify that, thatJR brought in his 1978 Constitution reinforced by the PR system which he thought will make his 1978 Constitution unchangeable in the future.While there is a need to safeguard basic human rights, and the right to freedom and justice through entrenched clauses, there are other provisions in the constitution that do not necessarily require the protection of either entrenched clauses or 2/3 majority. I am no expert on these matters, and my views are purely that of a layman. Perhaps as you mentioned earlier experts like Nihal Jayawickreme and ProfLakshman Marasinghe could help.

  • 0
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    Sri lanka Republic constitutional has , almost lost its grater democratization 2015 January 8th immediately after MS being as President.
    What has happen same day that UNP having 42 members in Parliament which was minority party leader of Ranil W… been appoint as Prime-Minster of Republic by President Sirisena ?

    1 According to MS of President own admission is that fully followed by 1978 Constitutional clauses?

    2 How is that suited to sovereignty of majority of democracy advocated by UNP+ SLFP ‘good governances”?

    3 What is right that MS having miracles of democracy by misusing People’s mandate by President?

    4 The Presidential election in 2015 , it poses new problem in a reform of democracy, rather than it has gone to destroy basic norms of our Republic Constitution of 1978 .
    But the question of name of the democracy is incomparably more important than the question of UNP -SLFP parties attitude of the republic constitution of the our state and government of Sri lanka?

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