24 June, 2024

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Postponing Elections: Are There Limits To Popular Sovereignty?

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

United National Party Secretary Range Bandara’s statement at a media briefing at UNP Headquarters that the terms of the current President and current Parliament should be extended by two years ‘to save the Nation’ has drawn the ire of the people at large, with even the UNP’s ally (for the moment?), the Sri Lanka Podujana Peramuna distancing itself from the proposal. The essence of the people’s response is that the present Parliament has lost its legitimacy, and President Wickremesinghe has been elected not by the People directly but by that very Parliament for the remainder of the term of President Gotabhaya Rajapaksa, who was forced to resign.

An amendment of the Constitution ordinarily requires a two-thirds majority in Parliament. Article 83 provides that a Bill for the amendment or the repeal or replacement of or which is inconsistent with any of the provisions of Articles 1 (The State), 2 (Unitary State), 3 (Sovereignty of the People), 6 (National Flag), 7 (National Anthem), 8 (National Day), 9 (Buddhism), 10 (Freedom of thought, conscience and religion), 11 (Freedom from torture) and Article 83 itself and also a Bill which seeks to extend the term of office of the President or the duration of Parliament to over six years, would become law only if it is passed by a two-thirds majority in Parliament and is approved by the People at a referendum.

It has been argued that since the proposal is to extend the terms of the current President and Parliament to seven years, it can only be passed with a two-thirds majority in Parliament and approval at a referendum. It follows from the argument that a referendum would not be needed if the terms are to be extended to six years only.

The writer takes a different view, namely that the terms of an existing Parliament and a President-in-office cannot be extended even with the approval of the People at a referendum as they were elected for a specific term. Such an extension would go against the spirit of the Constitution. As the Lawyers Collective pointed out last week, a two-thirds majority of Parliament and a 50%-plus-One majority of the People cannot just pass ANY amendment.

A seven-member bench of the Supreme Court considered the Fourth Amendment to the Constitution Bill to extend the life of the first Parliament by six years. (Re Fourth Amendment to the Constitution Bill, 1982 (1978–1983) I DSCPB 155. )The Court only stated that as the Cabinet of Ministers had certified that the Bill was intended to be passed by a two-thirds majority and placed before the People at a referendum, it had no jurisdiction in terms of proviso (b) of Article 120. Interestingly, three of the seven judges did not agree with this view, but the reasons for their disagreement were not stated. The names of the dissenting judges, too, were not disclosed, giving rise to various versions in rumour-prone Hulftsdorp.

The Bill was approved by a two-thirds majority in Parliament and at the referendum that followed. The 1982 referendum is the worst blot in Sri Lanka’s election history. Election laws were violated with impunity, and there were many reports that opposition supporters were forced to vote ‘yes’ and show the ballot paper to UNP polling agents. Opposition leaders such as Hector Kobbekaduwa and Pieter Keuneman found out at the polling booth that their votes had already been cast!

At that time, the UNP enjoyed a five-sixths majority in Parliament, obtained through a first-past-the-post electoral system. What followed from the Court’s determination is that the UNP could have postponed Parliamentary elections repeatedly with its super majority as long as 50%-Plus-One of the People approved the same at a referendum.

The Nineteenth Amendment to the Constitution Bill, 2004, a Private Member’s Bill, sought to amend Article 9. The proposed provision read: ‘The official Religion of the Republic is Buddhism. Other forms of religions and worship may be practised in peace and harmony with Buddha Sasana.’ The Supreme Court (Weerasuriya, Thilakawardena and Raja Fernando JJ) held that the clause would curtail the freedom guaranteed to other religions under Articles 10 and 14(1)(e) and would require to be approved at a referendum. (2004–2006) VIII DSCPB 58.

Tilakawardane J, while agreeing with the conclusions of the Court, took an interesting position with regard to constitutional amendments. The learned Judge stated that although Article 75 does not contain any limitations on the power of Parliament regarding constitutional amendments, that power should not be exercised so as to damage or destroy the critical elements of the basic structure of the Constitution. That could only be done with the repeal and replacement of the whole of the Constitution and not through the ‘tinkering’ or amendment of specific Articles of the Constitution. She further stated: ‘An amendment of the two basic features of the Constitution, such as (a) the democratic character of the Constitution and (b) the separation of powers, must perforce be examined in the light of the features in each individual case, in the place of the particular feature in the scheme of the Constitution, it’s objects and purposes and it’s denial on the integrity of the Constitution as the fundamental instrument of the country’s governance.’

Tilakawardane J’s view that certain critical elements of the basic structure should not be ‘tinkered’ with and the identification of the democratic character of the Constitution and separation of powers as two of such features raises a pertinent question: As long as a two-thirds majority in Parliament passes a constitutional amendment or a new constitution and a majority of the People approves the same, are there no limitations to what can be done? For example, can Sri Lanka be converted to a one-party state if a two-thirds majority in Parliament and a 50%-plus-One majority of the People agree? Similarly, can the freedom from torture not be made available to persons arrested on suspicion of working towards a separate state?

In international law, certain basic norms (jus cogens) are accepted as peremptory norms from which no derogation is permitted. Examples include prohibitions against slavery and torture, genocide, the use of armed force and piracy on the high seas and racial non-discrimination. Similarly, are there basic norms from which a democracy such as Sri Lanka cannot derogate? Can a tyrannous majority adopt any constitution? Would the Supreme Court have the power to examine a Bill for the amendment of the Constitution or a new Constitution, certified by the Cabinet of Ministers as one that requires the People’s approval at a referendum, if certain basic democratic norms are alleged to be violated? Such questions may seem academic at first blush, but given experiences from elsewhere, should they be brushed aside?

When freedom from torture is recognised as a peremptory norm that binds the international community, can the People of Sri Lanka restrict its application within the country, invoking their sovereignty? Put differently, are there no limits to the internal dimension of sovereignty?

The Lawyers Collective also raised the pertinent question of whether the amending process is also governed by the principle of ‘constitutional morality’, a concept which has recently gained wide acceptance in India. Simply put, constitutional morality demands that the spirit of the Constitution be respected and should not be undermined even at the behest of the majority. It is thus a counterpoise to popular or social morality that can sometimes be undemocratic and violative of rights.

In Navtej Singh Johar v. Union of India, the Indian Supreme Court observed as follows: “The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.”

The Court explained that it is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State. “The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.” (AIR 2018 SC 4321).

The writer submits that peremptory norms that limit the internal dimension of sovereignty are found in the Preamble to our Constitution, which refers to ‘immutable republican principles of representative democracy’ that assure to ‘all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka’. These, then, are the critical elements of the basic features of our constitutional edifice that defy change.

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Latest comments

  • 15
    6

    Anything can happen in this country, as the Chief Justice, most of the Supreme Court judges, and the Attorney General are biased and do not act independently. It’s time for foreign judges to sit on our Supreme Court bench.

    • 10
      7

      Dear Readers,
      .
      The postponement of the elections was arbitrarily planted by JVP propaganda, which constantly spread “falsehoods about the 1989 JVP killings” to create “false public perception”.

      People are also regularly misled by major TV channels and social media platforms. Journalists and their knowledge is highly questionalble.
      .
      Though fallen at night, they voluntarily fall again upon daylight. That is the nature our SINHALA people. They are brainwashed by “Fake-Sinhala-Buddhism” which is not based on the true teachings of “Real Buddhism”: People are easily manipulated and easy prey for any fraudsters.
      :
      This country is full of stupid people rather than people with wisdom. Even with advanced university degrees, a significant portion of this population is blind and deaf.

      By the end of 2014, the whole world branded Rajapaksa as giant robbers. The Panama Papers and other world agencies exposed the extent of their money laundering incidents. However, they again seized control and violated the Sri Lankan judiciary.
      The entire Western world stood against them, keeping Belarus, Swaziland and China as their close allies.
      Very foolishly, our people voted for them again in November 2019.It was like cutting their neck by their own.
      There are plenty of graduates among the SLPP supporters who voted again for felons.

      • 9
        5

        Once bitten twice shy 🤭 is no valid to srilankens.. no matter they are ready to repeat the same mistake.
        .
        Knowing that Gota was just nothing but was made hero by local biased media mafia networks along with social media and head shaved bastards.
        .
        Outcome was the nation ended up becoming a default state.
        ..
        .Now again AKD is put in a place which I think does nt fit him at all
        He is though a BSc degree holder, has never been able to work succefully with others in and out of country.
        .
        Million dollar question would be how he would rule our nation 😏?.
        .

      • 2
        2

        Leelagemalli,

        While agreeing with all your comments, I think it’s Ranil’s sidekick Ranga Bandara who started this rumour…if it’s a rumour. I am sure it’s Ranil who orchestrated this move of Ranga Bandara, who has no voter base.

    • 3
      0

      Hello Buddhist1,
      The Author asks “For example, can Sri Lanka be converted to a one-party state if a two-thirds majority in Parliament and a 50%-plus-One majority of the People agree?”
      It has happened before in other Countries even without a coup.
      For example “On 14 July 1933 Germany became a one-party state with the passage of the Law Against the Formation of Parties, decreeing the Nazi Party to be the sole legal party in Germany” – https://en.wikipedia.org/wiki/Nazi_Germany
      The UK’s Judiciary is very vocal in defense of its independence from Government and the need for its Judges have these Key Values – Independence, Impartiality and Integrity https://www.judiciary.uk/about-the-judiciary/our-justice-system/three-is/
      Getting external advice or review is probably Constitutionally acceptable, however having Foreign Judges is questionable.
      Best regards

      • 5
        3

        Hello LS,
        I think a combination of less than a dozen parties is more productive than the current situation of dozens of parties (50 or more) in the country. I have carefully observed that JVP opposes/opposed any good agreements and bills brought by any successive government, except the communal basic agreements introduced by the MEDAMULANA uncultured bastards, even if the content is progressive for common good.
        ***** If the concerned would be interested in, that is the nature of JVP led groups in the past to present.*****

        However, if the NPP would in case be the people’s choice, Sri Lankan society is made up of divergent views on national issues, so other parties will inevitably want to work with them for common national goals. In order to move forward, the radical NPP must come to terms with other sentiments. Otherwise, it will not work in the long run.
        .
        If the NPP feels that many other parties are not open as Lalkantha and JVP bloodsucker Nalin Hewage or the like (JVP Seniors/hardliners) spread through their ever-increasing “fierce rhetoric”, it will be an open invitation for more bloodshed.

        Although the people of this country are enjoying their hegemonic glory, they do not seem to be learning from the past.

        The people are more self-proclaimed shenanigans, comparable to some Zionists dominated in illegal state Israel. Basta !

      • 1
        1

        LankaScot,

        Aren’t the judges required to base their judgements strictly on the laws of the land and not on their whims and fancies? If so, who cares if the Judge is a foreigner or local? In my opinion, the so-called racially minded and the so-called desha premise who think only they are true Sri Lankans while ignoring the fact that every citizen of the country truly loves Sri Lanka. As for the judiciary as it stands today we all know very well that they are biased and are slaves of the politicians.

        • 1
          0

          Hello Buddhist1,
          Yes but how do you manage to bring Foreign Judges up to speed on the Sri Lankan Law. They are not all linguists like Leonard Woolf and would have to know Sinhala and Tamil to operate in a non discriminate way. Translators are possible, but can easily mis-translate.
          Best regards

        • 0
          0

          One must consider they (Judges) are also Humans!!?? Also susceptible to, Therefore Human Feelings although they may tend to disassociate with processes that undermine due process, they cannot but condone under extreme conditions of Duress!! Such as threat to their immediate family, siblings, even if they spare the Judges themselves, due to harsh repercussion, if the rightly or wrongly harm them!!?? What was the thinking of these MUNDANE voters!!??? Knowing Despicable’ White Van Culture, Killings and Untold Harm to Victims alluded to none other than the then Defence Secretary (2004 to 2015), they elected him, who was a TOTAL AND ABSOLUTE misfit for the Job description, though admittedly, AGREE he was PERFORMER PAR EXCELLENCE as Defence Secretary – either personally or collectively – eliminated TERRORISM’ LA LTTE, instead supplanted his own version Post 2009!!!???
          WHOM DO YOU HOLD RESPONSIBLE FOR MENACE VOTERS KAVADI DANCE!!?? Only if Devinuwara Deviyo knows, contribution by Medamulana, accounted for this calamity, hopefully, there may be salvation and reduce the burden of suffering of the Masses
          Please remember that’s how WE ARRIVED AT THIS POINT, accompaniment of STARVATION and FIRST TIME BANKRUPTCY – 75 YEARS, SELF-GOVERNANCE!!??

  • 8
    0

    Range Bandara , one time police man didn’t do this to make his wife Fist Lady
    of the Democratic Socialist Republic . It was Ranil’s child he delivered . People
    in this country is being taken for a joke because they enjoy it profoundly . Is it
    not a joke , those who hid under the beds are now coming out to save the nation ?
    And people gather to see them on a stage raised above their heads ? I think
    people are being readied to absorb shocks that are in the making . Even after you
    received your ballot paper in your hands , it is possible you won’t go to polls .
    And even if you managed to vote , it is still possible your vote is not counted .
    Rest assured , at the end , you will have a man to feed you , even if it is not your
    man because you already have gone on record , ” give me something and I will
    settle down . “

    • 7
      4

      whywhy

      “Range Bandara , one time police man didn’t do this to make his wife Fist Lady
      of the Democratic Socialist Republic .”

      Once he was a policeman.
      What was he doing between 1987 and 1991?

      • 0
        0

        N V ,

        He was possibly in charge of Hammer and Nails supplied
        by Premadasa .

  • 5
    6

    ” Are There Limits To Popular Sovereignty?”
    Well, according to to the author’s expert analysis, there are. Is “system change” also included?

    • 5
      6

      old codger

      What is sovereignty and what does it entail?

      • 2
        2

        Native,
        “What is sovereignty and what does it entail?”
        If we all had sovereignty, we could negotiate with moneylenders to not pay back our loans for 20 years.

  • 7
    5

    “It’s time for foreign judges to sit on our Supreme Court bench.”
    Our Leaders are capable of even buying foreign judges by selling not their lands but sri Lanka. Already they have sold part of the country.

    • 9
      12

      Ranil is selling national assets to India while the Tamil Diaspora is spending large amounts of money to lobby Western governments and the UN to sanction Sri Lanka. These sanctions will only increase nationalism (in the South).

      • 3
        1

        This comment was removed by a moderator because it didn’t abide by our Comment policy. The key to maintaining the website as an inviting space is to focus on intelligent discussion of topics.

        For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

      • 0
        0

        Lester, one one asset that was leased or sold to a foreign company, was taken out of Sri Lanka. They are investments, the titles they own do not allow them to carve out the land or the asset and carry it over to another country.

  • 2
    0

    ‘It’s time for foreign judges to sit on our Supreme Court bench.’
    .
    That’s a very dangerous idea. A President could promise the nation foreign judges and get hold of people like these who will do his bidding. He wont have to buy them, they’re just waiting to be bought.
    is https://www.reuters.com/investigates/special-report/usa-judges-misconduct/

  • 3
    1

    “ Very foolishly, our people voted for them again in November 2019”
    I will not called these voters foolish as they (majority SInhala Buddhists) were led to believe that they are under the threat of ‘ISIS’ . They fell for arranged 2019 Easter attacks. GR the great warrior /Saviour was the beneficiary. Who knows what is waiting for the country prior to the next Presidential election

    • 0
      0

      Naman ,

      “They fell for arranged 2019 Easter attacks . ” No , that is not the case .
      6.9 million had been , all along , believing in Clean Racism . Easter
      attack happened or not , GR was already favourite because of his
      involvement in the civil war . Aragalaya is the best example . The
      Rajapakshas were running helter – skelter and still in place planning
      ” a tomorrow ” for their off springs . And the politics of the country is
      readily accommodating them As Inevitable To Their Politics . If it is
      not Public Foolishness , What is it ?

  • 2
    3

    All sorts of strange things are happening, and I’m not writing much because I’m confused.
    .
    I heard this yesterday. All of it.
    .
    https://www.youtube.com/watch?v=wrnqdiODPZg&lc=UgyDspGTe2W_oBp4pQN4AaABAg.A4C3ZPm9DIUA4DUgC9PfwC
    .
    Saroja Paulraj in Rome yesterday. Excellent. Entirely in Sinhala – 67 minutes, but are those the entire proceedings? Why no Tamil?
    .
    Many confusing things are happening!
    .
    The solution for all things: Get the Presidential Elections held!
    .
    Panini Edirisinhe (NIC 483111444V) of 51B, Golf Links Road, Bandarawela, Sri Lanka

    • 2
      2

      S M ,

      ” All sorts of strange things are happening ……………….”

      Believe me , S Paulraj is one Hypocrite in JVP led NPP . How many
      others ? I would name a few when spotted . You keep being taken
      for a ride by listening only to Public Speaking Talent . I wish you
      live longer and they rule for you to see their wonders . But
      unfortunately that may not happen as we all know that Crabs don’t
      walk straight .

      • 2
        0

        WW and all other rational thinkers,
        .
        All these screaming ping pings are behind the uncultured bastards (MaRa et al) and have done it above the law. MaRa, aka mafia king of the nation and JVPrs were all together whatever so called sinhala chaunists programs were up. JVPrs were complicit and even today they are complicit for any kind of communal violences of this country.
        .
        Today, they cannot escape responsibility by leaving others behind. They choose the easy agenda as always. I think if LTTE is accused, JVP has done even lot more damage to the nation. They did it by standing behind the false patriots (DA Rajapaksa s criminal sons) of the country.

        The country led by Rajapaksa is more responsible for the decline of this nation, while the Janata Vimukthi Peramuna was always behind it. Even today JVP does not have an agenda on how to resolve the long-standing ethnic issue between the central government and the North and East Provinces.

  • 2
    0

    No amount of legal mumbo-jumbo and “I submit this” “I submit that” will change how the utterly corrupt and greedy parasitic political scumbags ultimately operate. There is an urgent need to reverse the rot that has set in over the last few decades in Sri Lanka. If elections are postponed or some other gimmick is performed to prevent the people’s will from prevailing, then a popular revolution is quite legitimate and legally binding under international law. When or if all else fails, the people must rise as one, not split into factions and change the system from the grassroots level upwards using the mechanisms of a committed network that seems to be already in place.

  • 0
    4

    Andra Native Sakkiliya beast’s’ son. What rights do you have here to use Adivasin”s general name as your pseudo name as Native Vedda. Sakkiliyar you are beast’s son your ball may be big as Sakkiliyar used to lift heavy load of garbage into tractor.

    Whatever Fery tele Anura Kumara says at election they cannot exceed more than 300 or 250 thousand votes in Favour of them

    • 3
      0

      Adivasiya

      What is your point if there is one?

      You can say it either in Sinhala or Tamil or even in Esperanto.

      • 2
        0

        NV,
        As I understand it, Adivasiya must be a specialist in “Sakkiliya caste” and a person who might have been subjugated for long.

        Reading about India’s Bharatiya Janata Party crackers, or “Modi’s slaves”, I was compelled to read it because it brought me back to Rajapakse’s milk rice oriental dance broadcast across Sri Lanka.

        https://www.youtube.com/watch?v=QMfGY97YjRo

        SOUTH ASIA IS THE MOST MISERABLE REGION OF THE WORLD.
        Modi, MaRa or nowAKD have a lot in common (they target most vulnerable in a population)
        :
        There was nothing else in that comment, NV. These kind of South Asians are the real cancer as I see them.

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy. The key to maintaining the website as an inviting space is to focus on intelligent discussion of topics.

    For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2

    • 0
      0

      Adivasiya

      Give it a try again.
      Wish you a successful next try.

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