Neville Ladduwahetty,in The Island, 29 August 2018, where the title runs “Interpreting the 19th Amendment”
The hot topic in town is whether former twice elected Presidents Chandrika Kumaratunga and Mahinda Rajapaksa are qualified to seek reelection under provisions of the 19th Amendment. Dr. Nihal Jayawickrama in a legally well analyzed article titled “Disqualifying Twice Elected Presidents – A Failed Endeavour” (Sunday Island, August 19, 2018) argues that since Parliament did not provide in the 19th Amendment, a disqualification that would apply retrospectively former twice elected Presidents are not disqualified from seeking reelection.
The disqualification referred to above is in Article 4(2) of the 19th Amendment. This Article states: “No person who has been twice elected to the Office of President by the People, shall be qualified thereafter to be elected to such office by the People”. Although the 19th Amendment was challenged in the Supreme Court and certain issues were addressed, other issues remain unconstitutional despite them being enacted into law.
In addition to the issue of Parliament failing to provide for disqualification to apply retrospectively, as raised by Dr. Jayawickrama, what is of relevance is that the guiding principle should be that provisions of the 19th Amendment should be applied only to those issues specifically addressed by the amendment, and all other provisions should remain untouched and intact as in the original 1978 Constitution and related amendments. Under these circumstances, the clear distinction between pre- and post-19th Amendment makes the disqualification applicable only to future twice elected Presidents and not to former Presidents.
The current President was elected by the People on January 8, 2015 under provisions of the 1978 Constitution and related amendments while the 19th Amendment became law on 15th May 2015. Therefore until May 14, 2015 the President was required to act under provisions of the 1978 Constitution and related amendments, and thereafter based on the principle cited above, the present President should act and function under a combination of provisions of those specified in the 19th Amendment together with the remainder of the 1978 Constitution and related amendments.
SEPARATION of POWERS
A related question that would have a cogent bearing is the role of Franchise as an integral part of the sovereignty of the People. The people of Sri Lanka used their right of Franchise and elected a President to “exercise their executive powers”. These powers are specified in the 1978 Constitution. Under the circumstances of separation of powers, Parliament does not have Legislative Powers to amend the powers of the President by any degree specified in the 1978 Constitution, without seeking the views of the People through a referendum.
This limitation arises from Article 3 which 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”. Since separation of powers is the linchpin of the Constitution, one branch, e.g., the Legislature cannot tinker with another, e.g., the Executive and vice-versa, without seeking the approval of the People. In the absence of this safeguard, there is a strong possibility that a Legislature could seriously undermine the authority of the Executive, thus impacting on the sovereignty of the People. The 19th Amendment is an example of such an attempt.
This aspect was highlighted during the course of hearing the petition filed against the 19th Amendment. The Supreme Court in its determination stated: “…the Court in the Nineteenth Amendment determination came to the conclusion that the transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provides the form and manner of exercise of the sovereignty of the people the ultimate act or decision of this executive function must be retained by the President. So long as the President remains the head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and to others to whom such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President. The President must be in a position to monitor or to give directions to others who derive authority from the President in relation to the exercise of his Executive power. Failure to do so would lead to a prejudicial impact on the sovereignty of the People”.
The main thrust raised during the Court hearing was the attempt by the Legislature to seriously derogate the powers of the President and transfer powers to the Prime Minister and the Cabinet without a referendum. This attempt was squashed by the Court on the basis that the attempt amounted to a “transfer, relinquishment or removal of power” of the President and stated that such attempts required the approval of the People at a referendum. Although the Bill was partially amended to be in keeping with the judgment and passed with a 2/3 majority, the fact is that the powers of the President were “delegated” to other organs of the government bringing into question the constitutionality of the 19th Amendment.
For instance, Article 43 (1) of the 19th Amendment states: “The President in consultation with the Prime Minister…determine(s) the number of Ministers of the Cabinet of Ministers…”. Notwithstanding this, Article 46 (4) permits Parliament to determine by resolution the number of Cabinet Ministers etc. in the event a National Government is formed. Question: Is this provision not an intervention on the “supreme or sovereign” Executive powers of the President?
Another issue is the “transfer” of the President’s powers relating to appointments etc. to The Constitutional Council. The creation of such a Council amounts to a violation of the Constitution based on the Court’s determination that “…as long as the President remains the head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field”.
THE CONSTITUTIONAL COUNCIL
Article 54 of the 1978 Constitution states: “The President shall appoint all public officers required by the Constitution or other written law to be appointed by the President, as well as the Attorney-General and the Heads of the Army, the Navy, the Air Force and the Police Force”.
Article 55 (1) states:”Subject to the provisions of the Constitution, the appointment, transfer, dismissal and disciplinary control of public officers is hereby vested in the Cabinet of Ministers and all public officers shall hold office at pleasure”.
Article 55 (2) states: “The Cabinet of Ministers shall not delegate the powers of appointment, transfer, dismissal and disciplinary control in respect of heads of Department”.
Despite all of the above, the Chapter VIIA of the 19th Amendment relates to the Constitutional Council.
Article 41B (1) states: “No person shall be appointed by the President as the Chairman or a member of any of the Commissions specified in the Schedule to this Article, except on a recommendation of the Council”.
This Article reflects a total delegation of powers of the President and the Cabinet as far as appointments are concerned. Whether it is good or bad to derogate powers of the President and the Cabinet of Ministers are concerned is not the issue. The issue is that such delegations to the Constitutional Council are not lawful in the absence of a referendum.
Another issue relates to Article 107 (1) of the 1978 Constitution. This Article states: “The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and Court of Appeal shall be appointed by the president of the Republic by warrant under his hand”.
In complete contrast to the above, Article 41c (1) of the 19th Amendment states: “No person shall be appointed by the President to any of the Officers specified in the schedule of this Article unless such appointment has been approved by the Council upon a recommendation made to the Council by the president”. (‘Council’ referred to being the Constitutional Council).
As for the eligibility of former twice elected Presidents, Dr. Jayawickrama has cogently argued that in the absence of any retrospective provisions in the 19th Amendment the disqualification in Article 31 (2) does not apply to former Presidents. Furthermore, this argument is strengthened by the principle that amendments apply only to those specified provisions in the 19th Amendment while all other non-specified provisions should be as per the 1978 Constitution and related amendments. Considering the multiplicity of opinions expressed on this matter it is imperative that the issue is resolved by reference to the Supreme Court
The examples cited above clearly demonstrate that the powers of the President have been either usurped by Parliament, or delegated to newly created organs of government such as The Constitutional Council, thus undermining the powers of the President as the Head of the Executive. This is in clear violation of the determination by the Supreme Court which had stated that: “… as long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field…”. The Court cites an opinion by Wanasundara, J. that states: “If the Executive power of the People can be renounced in this manner, serious questions regarding the proper administration of the country could arise. At the bare minimum, legislation permitting such a renunciation must have the approval of the People at a Referendum”.
The essence of the premise on which the 19th Amendment was based was to curtail the powers of the President under the 1978 Constitution and revise/repeal related amendments and transfer Executive powers to other organs of the government without holding a referendum. The fact that the transfer or removal of such powers of the President impacts on Article 4 and therefore on Article 3 that addresses the sovereignty of the People without a referendum despite warnings by the Supreme Court that such “transfers and removals” amount to a violation of the Constitution in the absence of a referendum, is the primary cause for the multiple problems with the 19th Amendment. Since these issues cannot be resolved piecemeal, it is best that the 19th Amendment is repealed and a fresh approach explored that would reflect the future direction of the country in a way that best serves the interests of the People rather than the fancies of the politicians.