Neville Ladduwahetty, in the Island, 14 September 2018,
The JVP has presented to Parliament the 20th Amendment to the Constitution under provisions of a Private Member’s Bill. The primary objective of the 20th Amendment is to abolish the Office of an Executive President being elected by the People as stated in Article 4(b) of the 1978 Constitution. It is reported that several petitions have already being filed in the Supreme Court.
The ongoing debate is whether the 20th Amendment would require ONLY a 2/3 majority in Parliament for the amendment to become law, or whether it would require a 2/3 majority in Parliament as well as approval by the People at a referendum for it to become law. Another angle to the debate is whether some provisions in the 20th Amendment would require a 2/3 approval by Parliament as well as an approval by the People at a referendum, while other provisions would require ONLY a 2/3 approval by Parliament. The pertinent question in such an eventuality is whether the Constitution permits provisions in a Bill to be subjected to different standards, or whether the entire amendment should be subjected to one standard as in Article 120 wherein the ONLY determination for the Court is whether a Referendum is needed or not. .
Article 120 (a) states: “In the case of a Bill described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a referendum by virtue of the provisions of Article 83”.
The fact that the ONLY question that needs to be determined by the Supreme Court is whether a Bill to amend any provision in the Constitution requires approval by the People at a referendum was made crystal clear by Ranasinghe. J, during the petition filed against the 13th Amendment to the Constitution. Having stated that “The provisions of Clauses 154 G (2) (b) and (3) (b) of the Bill to amend the Constitution of Sri Lanka…require approval by the People at a Referendum by virtue of the provisions of Article 83” he went on to state:
“There is just one other matter to be referred to. Article 123 (2) of the Constitution provides that, where this Court ‘determines that a Bill or any provision thereof is inconsistent with the Constitution’, this Court ‘may’ also ‘specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent’. I have considered whether such a statement should be made. In view, however, of the fact that the Reference requires the Court only to state whether a Referendum is required, the fact that it was also submitted at the hearing that the only jurisdiction the Court exercises in these proceedings is to determine, in terms of Proviso (a) of Article 120 of the Constitution, whether the Bill referred to requires the approval by the people at a Referendum…”
Having stated that in the case of an amendment to the Constitution, the ONLY determination for the Court is to determine whether a referendum is needed or not, Ranasinghe. J goes on to identify the particular provisions that require a referendum. Whether such incursions into constitution making amount to judicial transgressions into the domain of the Legislature as called for under separation of powers or not, the fact remains that the provisions of Article 120 have been violated. The hope is that petitions against the 20th Amendment would be addressed by the Court in strict conformance of the provisions of Article 120 and not compromised by provisions of Article 123.
ABOLISHING the EXECUTIVE PRESIDENCY
Perhaps, the expectation of the JVP when they presented the 20th Amendment was that Court would rule that a referendum would not be needed. Such assurances would obviously be based on expert legal opinion. Such opinions rely on the fact that Article 4 is not listed in Article 83 as an entrenched Article requiring a special majority of 2/3 approval of Parliament and an approval by the People at a referendum. This is a simplistic and mechanical approach which ignores the very foundations of the separation of powers on which the Constitution is based.
When the sovereign People of Sri Lanka accepted the 1978 Constitution they accepted the principle of separation of Legislative, Executive and Judicial powers. This concept is embodied in Article 3 that state: “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 starts by stating: “The sovereignty of the People shall be exercised and enjoyed in the following manner”: And 4 (a) states: “the legislative powers of the People shall be exercised by Parliament…” and 4(b) states: “the executive power of the People …shall be exercised by the President of the Republic elected by the People”.
These clear and distinct provisions illustrate that the sovereignty of the People were to be exercised by separate and distinct organs of government namely, the Legislature and the Executive, both elected by the People. What the 20th Amendment hopes to achieve is to eliminate one of the distinct and separate organs of government elected by them to exercise their executive powers. What this amounts to is an assault on the sovereignty of the People and this has nothing to do with whether Article 4 is included in the list of Article 83 as an entrenched Article.
As a matter of historical interest, the former Chief Justice, Sharvananda, C.J. in his determination during the hearing of the 13th Amendment stated: The Bill for the repeal and replacement of the 1972 Constitution included Article 4in the category of entrenched Articles. However when the Bill was passed, Parliament omitted Article 4 from the list of entrenched provisions”. This statement is incorrect because a reference to the Hansard of the day reveals that it was included with the rest in Article 83. What we see today is a sleight of hand by those responsible for the edited version.
Be that as it may, the issue at hand is that what is being attempted by the 20th Amendment is that it impacts on the sovereignty of the People because their expectation was that an Executive directly elected by them would be responsible for exercising their executive powers while their elected representatives in Parliament would exercise their Legislative powers. What is being attempted by the 20th Amendment is to transfer such powers to an individual to be elected by Parliament thereby impinging on the sovereignty of the People to elect their President.
Continuing, the former C.J. stated: “Similarly, an amendment to Article 4 (b) can be enacted by providing for the exercise of the executive powers of the People by a President and a Vice President elected by the People. However, to the extent that a principle contained in Article 4 is contained or is a necessary corollary or concomitant of Article 3, a constitutional amendment inconsistent with such principle will require a Referendum in terms of Article 83, not because Article 4 is entrenched, but because it may impinge on Article 3. In our view, Article 4 is not independently entrenched but can be amended by a two third majority, since it is complementary to Article 3, provided such amendment does not impinge on Article 3”.
The fact that Article 4 is complementary to Article 3 was recognized by Court during the 19th Amendment to the Constitution when it stated: “…the Court in the Nineteenth Amendment Determination came to the conclusion that the transfer, relinquishment or removal of power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4…Though Article 4 provides the form and manner of exercise of the sovereignty of the people the ultimate act of decision of his executive functions must be retained by the President”.
The 20th Amendment is an attempt for a President to exercise executive powers of the People together with “…the Cabinet of Ministers as provided for in the Constitution” as per Article 4 (i) in the amendment. This provision impacts on the sovereignty of the People because as stated in the determination relating to the 19th Amendment “So long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field…”. The attempt by the amendment for the President to share executive powers with the Cabinet of Ministers would be to dilute the exclusive executive powers the People expected the President to exercise on their behalf. Such an amendment has to require the approval of the People at a referendum.
The 20th Amendment also attempts for Parliament to elect the President as per Article 30 (ii) of the amendment instead of by the People as in Article 30 (2) of the 19th Amendment. This amendment too impacts on the sovereignty of the People because it denies the opportunity for the People to elect a President of their choice. This would be a serious dilution of the sovereignty of the People for which the consent of the People would be required through a referendum.
These two amendments alone would require the approval by the People at a referendum because they both impact on the sovereignty of the People and the Courts have ruled (cited above) that whenever such instances occur it is imperative that a referendum is held. There may be other amendments in the 20th Amendment Bill that may not meet the threshold to require a referendum. This means that they could be passed by a 2/3 majority. However, Article 120 very specifically does not make such distinctions. What it states instead is “whether such Bill requires approval by the people at a Referendum”, meaning that if only certain amendments require a referendum the entire Bill should be subjected to a referendum.
This principle was violated by Ranasinghe. J. when he identified which provisions required a referendum, and which did not. A similar approach was adopted during the determinations relating to the 19th Amendment. Such practices amount to the Judiciary participating in constitution making; a task the Judiciary is not expected to undertake under separation of powers. Instead it is the responsibility of the Attorney General’s Dept. to advise the government which provisions in a Bill require a referendum and which do not. Expecting the Judiciary to fulfill such a function is a dereliction of duty. The expectation of the People is that the Courts would abide strictly by the provisions of the Constitution, particularly in respect of compliance with Article 120, and not drift into fields assigned to ordinary Bills that come under provisions of Article 123.
The material presented above addresses the constitutional aspects of the 20th Amendment. However, the political implications of abolishing the Executive Presidency would inevitably lead to political instability because both Legislative and Executive aspects of the sovereignty of the People would be addressed by elected Members of Parliament. Since electoral practices both current and what is proposed are not likely to return stable majority governments, it would be foolhardy to abolish the Executive branch which by its very nature of being elected by the People has the potential to be stable.
Neville Ladduwahetty, September 13, 2018.