By Nihal Jayawickrama –

When Maithripala Sirisena vacates office in January next year, the President of the Republic will revert to be the ceremonial Head of State, an office that was held with great dignity and distinction for 15 years by the late William Gopallawa. This is because under our Constitution, as amended in 2015, only a Member of Parliament may hold office as a Minister or Deputy Minister.  In a transitional provision, the 19^th Amendment allowed Maithripala Sirisena, for as long as he holds the office of President, to assign to himself the subjects and functions of Defence, Mahaweli Development and Environment.  Of course, he also assigned to himself, without any constitutional authority whatsoever, and with such tragic consequences, the subject of Law and Order as well. 

A constitutional Head of State

The ceremonial (or constitutional) Head of State is not a mere figurehead.  He or she is a non-partisan, non-political, individual who symbolizes the unity of the State.  For over 24 years since Independence, the President (and previously the Governor-General) was also the Commander-in Chief of the Armed Forces and Head of the Executive.  However, the governance of the country, as in India, Canada, Australia and the United Kingdom (to name only a few functioning democracies) was the responsibility of the Cabinet of Ministers, chosen from among the Members of Parliament and collectively responsible and accountable to Parliament. The strength and efficacy of that form of governance was demonstrated by the remarkable speed and efficiency with which the January 1962 military and police Coup was foiled, and the April 1971 Insurgency was dealt with and normalcy restored throughout the country.  In contrast, the Presidency vested with full executive powers failed the people of this country in 1983, in 1989, and again in 2004 when the tsunami struck this Island.

Objectives of the 20^th Amendment

It was obviously in that context, and in anticipation of the impending change in the constitutional role of the President, that the JVP presented the Bill for the 20^th Amendment. That Bill had two principal objectives. One was to make certain consequential amendments following the enactment of the 19^th Amendment. In the tumultuous circumstances in which the Bill for the 19^th Amendment was debated and passed at a late-night session in April 2015, especially at the committee stage, several errors were made.  For example, while requiring that the President should always act on advice (of the Prime Minister or the Constitutional Council) before exercising his power of appointment, whether of Ministers, other important officers of state or independent commissions, the 19^th Amendment had omitted two categories of public officers, namely, ambassadors and ministry secretaries. The Bill for the 20^th Amendment sought to rectify that omission.  

The other principal objective was to provide for the President to be elected by Parliament. Almost all the executive powers of that office are now required to be exercised on advice.  The office of omnipotent President created by President Jayewardene in 1978 no longer exists. Therefore, it does not appear to make sense that a national countrywide divisive election, similar to a general election, at great financial cost and with attendant violence, should be conducted to choose the future incumbent of that office.  In India and elsewhere, the constitutional Head of State (i.e. a President who exercises most of his or her powers on advice) is usually elected either by an electoral college or by the legislature. Under the 1972 Constitution, the President was nominated by the Prime Minister.

The 19^th Amendment Determination

To any student of constitutional law it would have been evident that the Bill for the 20^th Amendment was within the power of Parliament to enact with a two-third majority of all its members.  In April 2015, a three-member Bench of the Supreme Court headed by Chief Justice Sripavan had unanimously held that Parliament could, without the approval of the people at a referendum: (i) reduce the term of office of the President elected by the People from six years to five years; (ii) prohibit a President from seeking election by the People for a third term; (iii) remove the legal immunity enjoyed by the President; (iv) repeal the absolute power which the President enjoyed of appointing the Chief Justice and Judges of the Supreme Court and of the Court of Appeal; the Attorney General, the Auditor General, the Inspector-General of Police, the Ombudsman and the Secretary-General of Parliament, and require him to do so only upon the recommendation of the Constitutional Council; (v) repeal the absolute power which the President enjoyed of appointing the independent commissions such as the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, and the Bribery Commission, and require him to do so only upon the recommendation of the Constitutional Council; (vi) repeal the absolute power which the President enjoyed of dissolving Parliament at any time, and enable him to do so only at the request of Parliament by a resolution passed by two-thirds of its members, except during the final six months of its term; (vii) repeal the absolute power which the President enjoyed of appointing Ministers and Deputy Ministers, and require him to do so only on the advice of the Prime Minister; (viii) repeal the absolute power which the President enjoyed of removing a Minister or Deputy Minister, and require him to do so only on the advice of the Prime Minister; and (ix) to repeal the absolute power which the President enjoyed of removing the Prime Minister from office.

Rectification of an omission

Apparently inadvertently, the draftsman of the Bill for the 19^th Amendment overlooked the fact that the Constitution also empowered the President to appoint two other categories of public officials, namely, heads of diplomatic missions and secretaries of ministries.  The Bill for the 20^th Amendment sought to rectify that omission by requiring the President to act on the advice of the Cabinet of Ministers when appointing these officials.  In October last year, a three-judge Bench of the Supreme Court determined that such an amendment could be made only if the Bill was passed, not only with a two-third majority in Parliament, but also with the approval of the people at a referendum.  

It is submitted that that Determination was not only flawed in law but was also made per incuriam.  No reference whatsoever was made by the Court to the Determination of the three-judge Bench headed by Chief Justice Sripavan on the Bill for the 19^th Amendment in which the identical issue had already been decided.  That Determination was not distinguished on any ground, nor held to be wrong.  If Parliament, with the approval of the Supreme Court, was able by a two-third majority of its members to require the President to act on advice when appointing Ministers, Judges, high state officials and independent commissions, why is approval by the people at a referendum required if he has to act on advice when appointing the remaining two categories of public officials who were obviously inadvertently omitted in the Bill for the 19^th Amendment?  If the President could have been required, by a two-third majority in Parliament, to act on the advice of the Prime Minister when appointing a Minister, why is approval by the people at a referendum necessary to require him to act on the advice of the Cabinet of Ministers when appointing a Secretary to a Ministry? As a student of constitutional law, I find that inexplicable.

Election of the President by Parliament

The Bill for the 20^th Amendment also sought to provide for the President to be elected by a majority vote in Parliament instead of at a nationwide election. For that purpose, it sought to amend Article 4 of the Constitution by deleting the words within brackets below, and by inserting the words in italics:

a) The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President (elected by the People) and the Cabinet of Ministers as provided for in the Constitution.

b) The franchise shall be exercisable at the election of (the President of the Republic and) the Members of Parliament and at every Referendum by every citizen . . .

The Court held that these amendments to Article 4 were required to be passed not only by a two-third majority in Parliament, but also with the approval of the people at a referendum.  It is submitted that this determination is also flawed in law because an amendment of Article 4 does not require approval at a referendum.

The Constitution states quite explicitly in Article 83 that certain provisions may be amended only if a Bill for that purpose is passed by a two-third majority in Parliament and then approved by the people at a referendum. These entrenched provisions relate to the name of the state (Art.1), the unitary character of the state (Art.2), the sovereignty of the people (Art.3), the national flag (Art.6), the national anthem (Art.7), the national day (Art.8), the foremost place of Buddhism (Art.9), the right to freedom of thought, conscience and religion (Art.10), and the right to freedom from torture (Art.11). Also requiring approval at a referendum is a Bill that seeks to extend the life of Parliament (Art.62.2). In respect of the office of President, a referendum is required only if Parliament seeks to extend his term of office (Art.30.2).  Article 4 is therefore not an entrenched provision of the Constitution.  In fact, in the Draft Constitution that was presented in Parliament in 1978, Article 4 was included in Article 83, and had it remained there, any amendment of that Article would have required the approval of the people at a referendum.  However, at the committee stage, Justice Minister Devanayagam moved to delete Article 4 from Article 83, and it was accordingly deleted. 

The Full-Bench Determination of 1987

In 1987, in the Determination of the Supreme Court on the Bill for the 13^th Amendment, Chief Justice Sharvananda (with Justices Percy Colin-Thome, E.A.D. Atukorale and H.D. Tambiah agreeing, and Justice Parinda Ranasinghe agreeing in a separate opinion) had this to say:

“It was submitted that Article 4 which sets out how the sovereignty of the People is to be exercised, has to be read with Article 3 as an integral part of Article 3, and as such is entrenched along with Article 3 by Article 83. The Constitution expressly specifies the Articles which are entrenched. Article 4 is not one of those Articles. The legislative history of the 1978 Constitution shows that Article 4 was deliberately omitted from the list of entrenched Articles. . . 

Article 4 sets out the agencies or instruments for the exercise of the sovereignty of the People, referred to in the entrenched Article 3. It is always open to change the agency or instrument by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the People.  Article 4(a) prescribes that “the legislative power of the People shall be exercised by Parliament consisting of the elected representatives of the People and by the People at a Referendum.” Article 4(a) can be amended to provide for another legislative body consisting of elected representatives, so long as such amendment does not affect Articles 2 and 3. Similarly, an amendment to Article 4(b) can be enacted by providing for the exercise of the executive power of the people by a President and a vice-President elected by the People.

. . .In our view, Article 4 is not independently entrenched but can be amended by a two-third majority, since it is only complementary to Article 3, provided such amendment does not impinge on Article 3.  So long as the sovereignty of the People is preserved as required by Article 3, the precise manner of the exercise of the sovereignty and the institutions for such exercise are not fundamental. Article 4 does not define or demarcate the sovereignty of the People. It merely provides one form and manner of exercise of that sovereignty. A change in the institution for the exercise of legislative or executive power incidental to that sovereignty cannot ipso facto impinge on that sovereignty.”

That was the authoritative Determination of five Judges of the Supreme Court.  Justice Wanasundera dissented.  In his view, 

“This Court has in fact ruled in a series of cases that Article 4 had to be read with Article 3. . . I think it is too late in the day to argue that this is not so.”.

While Justice Wanasundera’s view appears to have received the concurrence of three other Judges, (Justices O.S.M. Seneviratne, L.H. de Alwis and H.A.G. de Silva), it was the majority determination of the five Judges that prevailed.  In our legal system, the doctrine of precedent means that, in the matter of the interpretation of a law, the majority view is binding.  However, in respect of the Bill for the 20^th Amendment, the Court cited the minority opinion of Justice Wanasundera and chose to follow it.  It did not explain why it chose to ignore, or why it considered it was not bound by, the authoritative 1987 Determination of five Judges of the Supreme Court.  In fact, the Court made no reference to the majority view at all.

The Supreme Court in its determination also cited an opinion expressed by Chief Justice Sarath Silva in 2002 when examining the constitutionality of a Bill presented by the short-lived UNP Government that sought to restrict the power of President Kumaratunge to dissolve Parliament.  Heading a seven-member bench, Chief Justice Silva had held that the provisions of Article 4 were inflexible.  He made no reference to the previous 1987 Determination of five Judges on the same issue.  It was as if that Determination did not exist. It was as if the issue had been raised for the first time in the Supreme Court.  In that respect, Chief Justice Silva’s statement of the law may also be said to have been made per incuriam.  Incidentally, notwithstanding Chief Justice Silva’s definition of the scope of Article 4, the 19^th Amendment did in fact introduce a provision to the same effect, restricting the President’s power to dissolve Parliament.

Misapplication of Article 3

It is Article 30(2) of the Constitution that prescribes the manner of election of the President. It states that “The President of the Republic shall be elected by the People and shall hold office for a term of five years”. The 19^th Amendment had reduced the term of office of the President from six to five years. The Bill for the 20^th Amendment sought to substitute the word “Parliament” for the word “the People”. A consequential amendment that the Bill sought was to delete the words “the President of the Republic” in Article 4(e), so that it would read: “the franchise shall be exercisable at the election of the Members of Parliament and at every Referendum.” 

In its determination, the Court observed that:

“If the election of the President of the Republic by the People (Presidential Election) is abolished, the franchise of the people that would be exercised by the People at the said election would be removed. Therefore, removal of the franchise of the people that would be exercised by the People at an election to elect the President of the Republic would violate article 4(e) of the Constitution.”

The Court concluded thus:

“When we consider Articles 3 and 4 of the Constitution, we feel that the Sovereignty is: 

1. The legislative power of the People,
2. The executive power of the People,
3. The judicial power of the People and
4. The franchise of the People.

that would be exercised at Presidential Election, Parliamentary Election and Referendum. Therefore, it is correct to say that the franchise of the People that would be exercised at Presidential Election, Parliamentary Election and Referendum is part of Sovereignty and the executive power of the People which would be exercised by the President of the Republic is also part of Sovereignty. For the above reasons, we hold that if a Bill violates executive power of the People and franchise of the People that would be exercised at a Presidential Election, and a Parliamentary and a Referendum, it would violate the Sovereignty of the People and thereby would violate Article 3 of the Constitution.. . and therefore should be approved by the People at a Referendum.”

Interpreting Article 3

It is a matter for regret that while the Supreme Court had on innumerable occasions invoked Article 3, it had never attempted to ascertain its genesis.  It first appeared in the 1972 Constitution in the following form:

“Art. 3: In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable”.

In that autochthonous Constitution, which was adopted and enacted outside the existing constitutional and legal framework, Article 3 served to assert that sovereignty flowed, not from “The King’s Most Excellent Majesty in Council” who had provided the then existing Constitution in the form of an Order in Council, but from the People who, at the general election of 1970, had given a mandate to the members of parliament they elected “to function as a Constituent Assembly to draft, adopt and operate a new Constitution that will declare Ceylon to be a free, sovereign and independent Republic”.  It was in the exercise of that sovereignty that the elected representatives of the people proceeded to draft and enact a new Constitution outside the existing legal order.  That sovereignty of the people was declared to be inalienable in the sense that it could not be transferred, for example, to a foreign power, the military, or a political party, or indeed restored to the British Crown.  That was the intention of the Drafting Committee in which I served as a member.  That was the rationale for its inclusion for the first time in a constitution of our country.

In the 1978 Constitution, Article 3 was reproduced, but with the addition of an explanatory sentence:

“Art.3: 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 Constitution thus provided examples of the components or elements (or, in the words of Chief Justice Sharvananda, agencies or instruments) of the concept of sovereignty which are inalienable.  Sovereignty in all its aspects remains vested in the people of Sri Lanka, and, whether in its entirety or partially, may not be exercised or enjoyed by agencies or instruments beyond the control of the people of Sri Lanka.  Accordingly, the powers of government may not be usurped by the military; fundamental rights may not be abolished, and the franchise may not be restricted only to the members of a political party.  That, in my view, is the purpose and scope of Article 3.

A per incuriam Determination?

The exercise of sovereignty by a particular agency or instrument is, as Chief Justice Sharvananda held, always open to change by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the people.  Therefore, when the Bill for the 20^th Amendment sought to provide for the President to be elected by Parliament, instead of through a nation-wide election, the fact that Parliament is itself elected by the people at a general election in the exercise of their franchise was a very relevant factor which the Supreme Court appears to have failed to consider.  It meant that the people, through the Parliament which the people had elected, elects the President.  It is an indirect exercise of the franchise; not the denial, abolition or alienation of the franchise.  Indeed, if the Prime Minister and the Ministers who now exercise executive power are chosen from Parliament, it can hardly be unconstitutional for the ceremonial (or constitutional) President to be elected, not directly by the people, but indirectly through the Parliament elected by the people.  The failure of the Court to take note of the binding Determination of five Judges led by Chief Justice Sharvananda on the interpretation of Article 4, has resulted, in my submission, on rendering its Determination also per incuriam.

Conclusion

The Bill for the 20^th Amendment is not free of a few logistical flaws.  However, it seeks to fulfil a promise made to the country on numerous occasions since 1989 by a succession of presidential candidates, but which they failed to honour after they were elected to office.  If only for that reason, it deserves to be revised and re-introduced.  Perhaps a fuller Bench of the Supreme Court ought to be invited to conclusively determine whether the country should shortly be subjected to further debilitating divisions in choosing its ceremonial (or constitutional) President, or whether that task should be performed by the people through a Parliament elected by the people.