By Basil Fernando –
The constitutional wisdom of a people is the last resort that the people have when they are faced with constitutional peril. It is an almost unanimous opinion in Sri Lanka that the country is faced with constitutional peril due to the 1978 Constitution.
The first attempt to deal with this problem was in 2001, when the 17th Amendment to the Constitution was almost unanimously agreed upon by almost all the members of the parliament.
This amendment also had the backing of the people. Although it was not a complete solution to the constitutional peril forced by the 1978 Constitution, it was a partial relief through the limitation of the powers of the Executive President. The office of the Executive President has wrapped itself around all the vital institutions of Sri Lanka like a python. The 17th Amendment was meant to give some relief out of that grift.
However, it was an inadequate approach. It was the inadequacy of that approach which led to its demise when the 18th Amendment to the Constitution was adopted and the absolute power of the Executive President reasserted itself with even greater strength.
What is important for the purpose of the present argument is that there was an overwhelming understanding that the 1978 Constitution has placed the system of governance in the country in peril and therefore there was a need to be rid of it.
Now that the grip of the Executive President has extended to making an attempt to destroy the independence of the judiciary as a whole, the peril the country is faced with is more obvious today than ever. At such times, there is reason to look again as to whether there are constitutional means to overcome this problem.
It appears that there are two approaches, both of which are constitutionally sound. What is required is, on the one hand, the wisdom and foresight to look into the problem and to gather the courage to muster sufficient consensus on reform.
The first approach
The first approach is that of reinterpreting Article 35 (1) of the Constitution. This article has been interpreted and understood to mean that the President of Sri Lanka has absolute immunity. However, it is possible to examine what absolute immunity means and what the limits of such “absolute immunity” are.
The Executive President is a creature of the constitution. Therefore, he derives his power from the constitution itself. From this, it can be very safely concluded that the limit to presidential power is that he or she cannot violate the constitution.
What this means in terms of Article 35 (1) is that if the President violates the constitution, then he can be brought before a court, which can examine the constitutionality of any matter. The limit put by Article 35 (1), which states that no suit lies against the Executive President in any court on any matter, would not apply to the case of the Executive President violating the constitution itself.
To interpret it in any other way would lead to absurdity. If it said that the Executive President can violate the Constitution, then the Constitution itself will have hardly any significance at all. The ultimate limit to violations within a state is the constitution itself.
Thus, it would mean that, if it could be shown a violation done by the President amounts to a violation of the constitution, then the President can be brought before a court on that issue.
Before any law is passed, the bill is sent before the Supreme Court for examination as to whether the bill conforms to the constitution. This is clearly an indication that the legislative power of the parliament is limited to the extent that it cannot violate the constitution. As much as the legislature cannot violate the constitution, the Executive also cannot assume the power to violate the constitution.
Examining where the President is violating the constitution is a matter about actual circumstances and facts, and this has to be looked into in deciding as to whether the President has violated the constitution.
A hypothetical situation
A hypothetical situation can be taken as an example. There is now as suggestion that when the impeachment of a Chief Justice is pending, the Executive President may appoint an Acting Chief Justice. However, there is no provision in the constitution for that matter and, therefore, if the Executive President happens to take such a position, it could give rise to an occasion where the President violates the Constitution and, therefore, not enjoy the immunity under Article 35 (1) of the Constitution.
The relevant article in the Constitution is Article 109. It provides for the President to appoint an Acting Chief Justice when the incumbent Chief Justice leaves the island or he or she is indisposed, which would refer to a situation of illness and incapacity of the person to perform his or her duties.
The attempt by some is to creep in to for “any other reason” as enabling clause to appoint an Acting Chief Justice when there is an impeachment against the incumbent Chief Justice. However, this would be a total absurdity, as the impeachment process is put as an absolute limitation on the power of the president for the removal of an incumbent superior court judge, including the Chief Justice.
The appointment of an Acting Chief Justice would amount to the removal of the incumbent Chief Justice. If the Executive President can circumvent the absolute limit that can be imposed on his power relating to the removal of an incumbent Chief Justice by resorting to the appointment of an Acting Chief Justice, it would create a complete absurdity.
So long as the incumbent Chief Justice is not removed, he or she will remain the Chief Justice. If the Executive President appoints another person as Acting Chief Justice, then there will be two Chief Justices at the same time, unless appointment of an Acting Chief Justice is interpreted as the removal of the incumbent Chief Justice.
This is a vital constitutional issue which needs to be explored and utilized in the event of the Executive President appointment an Acting Chief Justice.
On such an occasion there would be a need to interpret the wording for “any other reason,” and such an interpretation could only be done by Supreme Court itself. Therefore, occasion would arise to canvas the matter before the Supreme Court, and there the whole issue of the nature of Article 35 (1) about what amounts to violation of the constitution by the Executive President.
Such an occasion may provide an opportunity to reinterpret Article 35(1) and remove the misconception about absolute impunity.
The second approach ( Indian Approach)
The second approach of a seeking a constitutional interpretation of the power of the Executive President is by adopting the approach of the Indian Supreme Court in establishing the basic structure doctrine in terms of the constitution. The judgment in the Keshavananda Barati case (Kesavanda Bharati vs State of Kerala And Anr on 24 April, 1973) is regarded as an epoch-making judgment, which interpreted the constitution of a republic and democracy within the basic framework of a basic structure of a state which is a republic and democracy.
Indira Gandhi wanted to make some constitutional changes in order to bring about some limits to the power of judicial review of the Indian judiciary. The court held that while a government has the power to amend the constitution through required majorities and procedures there is some basic elements in the constitution that cannot be amended at all. This they call the ‘basic structure doctrine’.
The Indian Supreme Court held that the following are the elements of the basic structure of the Indian Constitution:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
Comparison with the Sri Lankan Constitution
Sri Lanka is also a republic and the Constitution declares that the form of government is democratic. The character of the Sri Lankan Constitution is that it is also a secular Constitution. The Constitution also expressly recognises the separation of powers between the legislature, the executive and the judiciary. The only difference between the Indian Constitution and the Sri Lankan Constitution is about the federal nature of the Indian Constitution and the unitary nature of the Sri Lankan Constitution.
Therefore on the first four points the character of the Indian Constitution and the Sri Lankan Constitution is the same; i.e. both are based on based on the supremacy of the constitution; the republican and democratic form of government; the secular character of the constitution and the separation of powers between the legislature, the executive and the judiciary
This basic structure cannot be altered at all
The present attempt to undo the independence of the judiciary goes against the separation of powers between the legislature, the executive and the judiciary.
The executive president has no constitutional power to alter the basic structure of the Constitution. If he attempts to do so he cannot take cover under Article 35 (1) as it cannot by any stretch of the imagination be argued that the presidential immunity empowers the president to alter the basic structure of the Constitution itself.
The executive president is not the author of the Constitution. The Constitution does not derive power from the executive president. On the contrary, it is the executive president who derives power from the Constitution. He is therefore, subordinate to the Constitution.
A people who live under a democracy cannot safeguard their democracy if they lose their capacity to defend their own constitution. The local genius in the political sphere is the capacity to develop the constitutional ideas in order to defend their own freedoms.
What we have seen in recent decades is not the constitutional genius of the nation but the cunningness of rulers. The people have not been able to outwit such cunningness and therefore they have become victims of unscrupulous manipulators. Constitutionalism is a rational activity and the success of a democracy depends on the peoples’ ability to prevail upon rulers through their rational capacities.
Now, as democracy is faced with peril and as the people will have to suffer the consequences of that peril the time has come to rise to the occasion and demonstrate the peoples’ capacity to engage on the basis of constitutional reasoning to defend themselves. Whether we perish under those cunning schemes of the ruthless or whether the people will prevail through their constitutional genius will be put to the test in the days to come.