4 October, 2022

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SC On 22A – Part II: Enhancing The Constitution’s Rigidity

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

Every written constitution lays down the procedure for amending it or making a new constitution. It is the general rule that such a procedure is more rigorous than the procedure followed in making ordinary law. In most countries, ordinary laws are passed by a simple majority of the legislature/s, while constitutional changes need a special majority, usually a two-thirds majority. In Sri Lanka, the Independence Constitution, as well as the 1972 Constitution, prescribed a two-thirds majority. 

Under the 1978 Constitution, while a two-thirds majority is a general rule for amendments, changes that affect certain ‘entrenched’ provisions of the Constitution listed in Article 83 require the approval of the People at a referendum as well. Article 3, one of the entrenched provisions, 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 sets out the manner in which legislative power, executive power, judicial power, fundamental rights and the franchise are exercised. Article 4(b), which is relevant to this discussion, is in the following form: ‘ 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’. Interestingly, in both the Draft Constitution contained in the report of the Select Committee on Constitutional Reform and the 1978 Constitution Bill, Article 4 was included in the list of provisions to be entrenched. However, it was deleted from the list at the committee stage, thus signifying a conscious decision to leave the power to change the manner of the exercise of sovereignty to Parliament.

It is generally accepted that a Constitution should neither be too flexible, which is too easy to amend, nor too rigid, which is very difficult to amend. A Constitution that is too flexible is open to political manipulation, and minorities—ethnic, political, and otherwise—become vulnerable. A Constitution that is too rigid is unable to respond to changing public opinion and can lead to frustration, strengthening the case for extra-constitutional action. A Constitution can also be made more or too flexible/rigid by judicial interpretation. Judges dealing with constitutional issues, therefore, have an onerous task before them.

17A and 19A: SC allows flexibility

From the day the 1978 Constitution was adopted, the reduction of Presidential power and making the Presidency a ceremonial position have been matters of intense debate. 

The Seventeenth Amendment Bill of 2001 sought to restrict the powers of the President by making appointments to certain important positions subject to the approval of a Constitutional Council and requiring the President to appoint members of Commissions that are expected to be independent only on the recommendation of the Council. The Supreme Court, in a welcome determination, stated that although there is a restriction in the exercise of the discretion hitherto vested in the President, that restriction per se would not be an erosion of the executive power of the President.

In its determination on the Nineteenth Amendment Bill of 2015, the Court (Sripavan CJ, Dep J and EkanayakeJ) took another step forward. 

The core of the determination is that an essential requirement for the avoidance of a referendum is that the President continues to be the head of the executive, and the ultimate ‘act or decision’ of his executive functions must be retained by him. The use of the word ‘or’ in the phrase ‘act or decision’ used by the Court needs to be emphasised. Thus, it suffices if the final act is that of the President, even if the decision is not his. The Supreme Court stated that Article 42, which states that the Cabinet of Ministers is charged with the direction and control of the government of the Republic and is collectively responsible and answerable to Parliament, conclusively establishes that the President is not the sole repository of executive power under the Constitution. This has been emphasised by a seven-member Bench in Re the Nineteenth Amendment to the Constitution 2002 as well. Executive power should not be identified with the President and personalised and should be identified at all times as the power of the People, the Court held in that case.

Reference was also made to Justice Wanasundera’s dicta in the Thirteenth Amendment case that the Cabinet of Ministers, of which the President is a component, is an integral part of the mechanism of government and the distribution of the executive power and any attempt to bypass it and exercise Executive powers without the valve and conduit of the Cabinet would be contrary to the fundamental mechanism and design of the Constitution.

It is of much significance that the Court did not find that provisions requiring the President to appoint Ministers and Deputy Ministers on the advice of the Prime Minister required a referendum. This is in line with the essence of the determination. The President continues to be the appointing authority and, as such, is not removed from the appointing process. The act of appointing Ministers continues to be that of the President, although the decision is that of the Prime Minister. On the other hand, the clauses that provided that the Prime Minister shall determine the subjects and functions assigned to Ministers and may at any time change such assignment would require a referendum as the President would not be involved. The Court thus relaxed the rigidity of the amending procedure, although to a limited extent.

SC on 21A and 22A: Steps backwards

The Samagi Jana Balavegaya’s Twentieth Amendment Bill sought to completely do away with the Executive Presidency. A three-member Bench (Jayasuriya CJ, Janak De Silva J and Obeysekere J) disagreed with the decision on 19A, stating that it is difficult to reconcile the statement that the President is not the sole repository of executive power with the unambiguous statement in Article 4(b) that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President elected by the People. 

The Court adopted two tests to determine whether a violation of Article 4 leads to a violation of Article 3 as well. According to the delegation test, any change in the executive power delegated to the President by the People that brings in another person or institution must be with the approval of the People. The alienation test is that any transfer, relinquishment or removal of a power attributed to one organ of Government to another requires the approval of the People. Applying the delegation test, the Court held that the proposed amendment to Article 4(d) that executive power shall henceforth be exercised by the President and the Cabinet of Ministers required approval at a referendum. Applying the delegation test, the Court found that the proposed provision that the President shall act on the advice of the Prime Minister also requires such approval.

The Court also held that the proposal that the President would be elected by Parliament and not by the People violated Article 4(e), according to which the franchise shall be exercised at the election of the President as well.

For the above and several other reasons, the Court concluded that the abolition of the Executive Presidency would require approval at a referendum.

However, the Court did not deal with two constitutional provisions that deal directly with the President and the manner of his election. Article 30 (The President of the Republic) originally read as follows: “(1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People, and shall hold office for a term of six years.” By the Nineteenth Amendment, the President’s term of office was reduced to five years.

That the President should be not only the head of the state and head of the executive but also the head of the government is what makes the form of government in Sri Lanka “presidential”. Under the 1972 Constitution, the President was the head of the state and head of the executive but not the head of government. Also, he was required to act on the advice of the Prime Minister. Thus, it is Article 30(1) that made the difference when Sri Lanka adopted the 1978 Constitution.

However, Article 30(1) is not entrenched. It is not in the list of provisions in Article 83 that triggers off a referendum. It is not only Article 30(1) that was left out of the list of entrenched provisions. The provision contained in Article 30(2) that “[t]he President of the Republic shall be elected by the People” was also left out of the list of entrenched provisions. What is most important is that only the second part of Article 30(2), that “[the President] shall hold office for a term of six years”, was entrenched to the extent that an extension of the term of the President to over six years would require a referendum. These omissions must be considered to be deliberate. This is fortified by the fact that Article 4 is not an entrenched provision. 

In dealing with 22A, the Supreme Court followed its reasoning in the determination on 21A. Accordingly, it was held that to provide that the President should act on the advice of the Prime Minister in appointing Ministers and Deputy Ministers and removing them required approval at a referendum. The Court also determined that the proposed provision that if the President does not make appointments to the independent Commissions as recommended by the Constitutional Council within fourteen days, the appointments would be deemed to have been made also required similar approval. As discussed in Part I of this article, the Court held that the President must necessarily have the power to dismiss the Prime Minister.

The writer respectfully submits that the Court committed a serious error in determining in the 21A case that approval at a referendum is needed to provide that the President shall be elected by Parliament and that s/he should ordinarily act on the advice of the Prime Minister. The determination flies in the face of the non-entrenchment of Article 30 (1) and the provision in Article 30(2) that the President shall be elected by the People. While deciding not to entrench Article 4, the framers did not entrench Article 30(1) and the election of the President by the People. It is reasonable for one to expect the Court to have dealt with Article 30 and its non-entrenchment to the extent discussed above. The error was carried on to the determination on 22A.

The writer clearly prefers the Supreme Court’s determination on 19A and hopes that the Court would review its determinations in the 21A and 22A cases and also discuss the implications of the non-entrenchment of Article 30 in an appropriate case. 

Constitutional Rigidity

A necessary consequence of the 21A and 22A determinations is enhancing the rigidity of our Constitution. The 19A determination allowed some flexibility in amending the Constitution with a two-thirds majority. It is easy for one to say that any amendment can be referred to the sovereign People, but the fact is that there has been an aversion to submitting amendments to a referendum. A referendum is costly in financial terms; it could also be costly in political terms for whatever the ruling party is.

During the recent Aragalaya, the need to bypass the procedure laid down in the Constitution was raised by several groups. Some even suggested invoking the controversial ‘doctrine of necessity’ used in Pakistan and elsewhere to legitimise military dictatorships. Most in the legal community, however, explained that it is in the interests of constitutionalism to follow the procedure laid down in the Constitution. 

We must remember how dicta of the Privy Council in Bribery Commissioner v Ranasinghe and Ibralebbe v The Queen led to a belief that section 29 (2) of the Independence Constitution was unalterable. This, in turn, led to the 1972 Constitution being enacted, bypassing the procedure laid down in the Independence Constitution. The Constitution that emerged was one imposed by the ruling coalition. While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution. 

Restrictive judicial interpretations that make a Constitution too flexible or too rigid must both be avoided. Delivering the Justice S. Sriskandarajah Memorial Oration in 2015, Professor N. Selvakkumaran emphasised the need to strike an acceptable balance between the rigidity of constitutional structures and the flexibility of constitutional interpretation. He considers this to be of vital importance if a Constitution were to endure real and functional democracy upholding the rule of law and fundamental rights and liberties of the people. In this respect, the judiciary plays a pivotal role in sustaining and promoting democratic governance in the country.

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22A: Supreme Court Makes Serious Errors

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