Internal Contradictions in the Present Constitution demand Flexible Adjustments towards a living-workable constitution

D. Laksiri Mendis, in Island, 26 November 2018, where the chosen title is “Is the dissolution of parliament legal and legitimate?”

After much consideration, I decided to write this article on the above subject as I have had long years of experience in Constitutional Law, Legislative Drafting and Statutory Interpretation in many parts of the world. At present, I conduct lectures on Legislative Drafting and Statutory Interpretation at the Sri Lanka Law College and draft legislation for various international organizations and statutory boards in Sri Lanka and abroad on a regular basis.

BACKGROUND

 

1. Since attaining Independence in 1948, Sri Lanka had three Constitutions, namely, Soulbury Constitution 1946, First Republican Constitution 1972 and Second Republican Constitution 1978. All three Constitutions differed very much from one another.

 

2. Soulbury Constitution adopted the Westminster model of Government and His Majesty King George VI of Great Britain was retained as Head of State. Late Sir Ivor Jennings, who drafted the Soulbury Constitution for Ceylon, incorporated section 29(2) from the Irish Constitution to protect minorities. In the Privy Council Lord Pearce held in Queen vs Liyanage (1965) that the Criminal Law (Special Provisions) Act 1962 ultra vires the Constitution, as the Soulbury Constitution has recognized the doctrine of separation of powers. This case is cited in many Commonwealth countries for constitutional interpretation.

3. The First Republican Constitution 1972 transformed Sri Lanka from a Monarchy to a Republic. Her Majesty the Queen was no longer the Head of State. Instead, under 1972 Constitution, we had a non-executive President. It made several changes to our constitutional order by providing a chapter on Fundamental Rights and Directive Principles of State Policy. It also gave foremost place to Buddhism. Under this Constitution, the Public Services ceased to be independent from the executive arm of the government.

4. The Second Republican Constitution 1978 transformed Sri Lanka into a Executive Presidency very different from the Westminster model. It has been called a “Presidential Parliamentary System of Government”. Professor A. J. Wilson called it the “Gaulist Constitution”. It provided extensive powers to the President, so much so that the First President of Sri Lanka, late J. R. Jayewardene said he could do anything except make a man a woman or vice versa. However, the 17th Amendment reduced the powers of the President by requiring the President to act on the advice or on the recommendations of the Constitutional Council. This legislative technique made 17th Amendment operative with a two-thirds majority in Parliament without a Referendum.

5. The 19th Amendment did not change the Presidential System to a Parliamentary System of Government as intended, but repealed some of the provisions of the 18th Amendment and added the Right to Information as a Fundamental Right. It expanded the provisions of the 17th Amendment but did not regulate the use of executive powers of the President in relation to the Legislature. In this context, it is useful to analyze whether the dissolution of Parliament is legal and legitimate by reference to the constitutional provisions of the 1978 Constitution as amended by the 19th Amendment.

NATURE OF CONSTITUTIONAL LAW

6. Constitutional law is a mixture of law and politics. The Constitution cannot be interpreted and applied without taking into account constitutional conventions, practices and politics which have contributed to the making of all Constitutions. In 1979, I published a book titled 1978 Constitution and the Law, in Sinhala in which I emphasized the importance of constitutional conventions and rules relating to the interpretation of constitutional provisions. At that time, I saw the demise of the 1972 Constitution and the birth of the 1978 Constitution from a vantage position, as I served as Senior Assistant Legal Draftsman and Lecturer in Constitutional Law at the Sri Lanka Law College.

7. The 1978 Constitution has a constitutional conundrum as expounded by late Dr. N. M. Perera. He said that if the President and Prime Minister belonged to two different political parties, it can lead to a “piquant situation” or “deadlock”. This defect has not been remedied by the 19th Amendment although it was intended to do so by transforming Sri Lanka into a Westminster model of Government in some form or the other. The poet, T. S. Elliot said that “between the policy and the law, falls a shadow”. In the 19th Amendment, there is a shadow of uncertainty in relation to the provisions pertaining to the dissolution of Parliament by the President. It is intended therefore to unravel the “shadow” of uncertainty by reference to the provisions of the 19th Amendment from a Legislative Drafter’s perspective.

RULES RELATING TO THE INTERPRETATION OF THE CONSTITUTION

8. Before dealing with the legality and legitimacy of the dissolution of Parliament under the 19th Amendment, it is useful to understand the rules relating to the interpretation of the Constitution.

9. Rules relating to the interpretation of the Constitution can be described as Lex Specialis. These rules are classified as the Literal Rule, Mischief Rule (today referred to as Purposive Rule) and Golden Rule (today referred to as the Dynamic Rule or Judicial Activism).

10. The Honourable Supreme Court of Sri Lanka has adopted all three rules to interpret all three Constitutions of Sri Lanka since the attainment Independence. In relation to judicial review of legislation vis-à-vis the Constitution, especially in regard to fundamental rights, Purposive and Dynamic Rules have been adopted in Sri Lanka and elsewhere.

11. The Literal Rule provides certainty to law. In the USA, it is referred to as “textualism”. If the constitutional provisions do not have any ambiguity, the words alone reflect the intention of the Parliament or the Constitution.

12. Late Justices Amerasinghe and Mark Fernando have used the Literal Rule to interpret various provisions of the Constitution for sake of certainty of the law. In Somawathie vs Weerasinghe (1990) and Faiz vs Attorney General (1995), the Literal Rule was applied.

13. In Faiz vs Attorney General (1995), Justice Mark Fernando said “Jurisdiction cannot be expanded by twisting, stretching or perverting the constitutional provisions”. Likewise, Justice Antonio Scalia who was a Judge of the Supreme Court of the USA said in his famous book On Reading Law (2012) – “The descent into social rancor over judicial decisions is largely traceable to non-textual means of interpretation.” He further said “Non-textual interpretation which makes “Statesmen” of Judges, promotes the shifting of the political blame from the political organs of the Government to the Judiciary”. It is humbly submitted that these words of Justice Scalia are of value to the Courts in Sri Lanka and elsewhere.

14. However, Justices Ahron Barak, Bagawati, Bandaranayake and Siripavan have used the Dynamic or Purposive Rule in relation to the interpretation of fundamental rights, as such rights need to be adapted and dovetailed into changing social needs and demands. Chief Justice Ahron Barak of Israel has called the Purposive Rule as the ultimate legal principle in statutory and constitutional interpretation. In Sriyani Silva vs Iddamalgoda (2008) and Noble Resources International Pte Ltd vs Ranjith Siyabalapitiya (2016), Justice Bandaranayake and the Chief Justice Siripavan have adopted the Purposive or Dynamic Rule of Interpretation.

15. In the UK and other Commonwealth countries, the Purposive Rule has been introduced by way of legislation or judicial activism. For example, in Australia, sections 15A and 15B of the Interpretation Act adopted the Purposive Rule in an elaborate manner. Likewise many Commonwealth countries have amended their Interpretation Acts to adopt the Purposive Rule of Interpretation.

16. In the UK, Pepper vs Hart (1993) is a landmark decision which adopted the Purposive Rule by way of judicial activism. It empowered the Courts to consult extrinsic material such as the Hansard to ascertain the intention of the Parliament. Hence, the Purposive Rule has gained some dominance in statutory and constitutional interpretation.

17. In Sri Lanka, the Supreme Court has recently rejected the draft clause 200 of the Inland Revenue Bill 2017, which introduced the Purposive Rule to interpret the ambiguous provisions of the Inland Revenue Bill 2017. The Supreme Court held that this provision is inconsistent with the sovereignty of the people, but gave no reasons.

18. Hence, it is doubtful whether the Purposive Rule can be used liberally in Sri Lanka to interpret the constitutional provisions relating to the dissolution of Parliament, when there are two provisions colliding with each other in relation to dissolution of Parliament.

INTERPRETATION OF ARTICLE 33(2) AND ARTICLE 70(1)

19. The main articles relating to dissolution of parliament are contained in 33(2) and article 70(1) of the 1978 Constitution

20. These two articles appear to collide against each other and therefore it seems difficult to harmonize these two articles on a rational basis.

21. Article 33(2) states that the President can dissolve Parliament without any restrictions. Article 70(1) states that the President cannot dissolve Parliament until four and a half years since the first meeting of the Parliament.

22. It seems to me that Article 70(1) is an “absurd” provision for the following reasons: –

Firstly, if parliament has a two thirds-majority, it can force a dissolution of Parliament by the President.

Secondly, the President can refuse the request at his own peril.

Thirdly, this Article 70(1) does not balance well with the Latimer House Principles, since the Parliament can impeach the President with a simple or two-thirds majority subject to certain conditions. Likewise President should be allowed to dissolve Parliament subject to certain conditions. Hence, Article 70(1), as it stands, is an “absurdity” which can be disregarded on the basis of the Dynamic Rule of Interpretation.

23. In Re the Nineteenth Amendment to the Constitution, [2002] 3 SLR, pages 85-112, a seven-member Bench held that article 70(1) requires a two-thirds majority and a Referendum to make this amendment valid and effectual. However, in the 19th Amendment in 2015, a Bench of three Judges allowed the same provision to be valid without a referendum, so long as article 33 is amended to grant the President similar powers. It seems to me therefore that article 70(1) has been approved by the Supreme Court in a manner inconsistent with the Doctrine of Stare Decisis as outlined in Bandahamy vs Senanayake, 62 NLR 313. (Also see: Dr. Kanag-Isvaran, PC – The Tissue of Justice and Judicial Attitudes in K.C. Kamalasabayson, PC – Memorial Orations 2008-2012).

24. In the interpretation of the Constitution, most Judges and text writers have said that if there are two provisions of the Constitution which are inconsistent with one another, it is axiomatic to interpret the Constitution in the way it can work and not in a way the Constitution can become futile.

25. In the above context, the legal maxim – Ut res magis valeat quam pereat is applied. This legal maxim means it is better for the Constitution to have effect than cease to operate. In the USA, Chief Justice Marshall in McCulloch vs Maryland (1819) said that the Constitution must be interpreted in a way it can operate and not in a way it can perish. In Trinidad Cement Company Limited vs AG of Guyana (2008) The Caribbean Community (CARICOM) Secretariat as amicus curiae argued successfully that the CARICOM economic integration legislation is futile unless the corporate entities are granted locus standi to institute proceedings in the Caribbean Court of Justice (CCJ) by adopting this legal maxim – Ut res magis valeat quam pereat, as the promissory clause in the Treaty of Chaguaramus was ambiguous.

Relevance of the Doctrine of Constitutional Necessity

26. In this context, it is also relevant to consider whether the Doctrine of Constitutional Necessity can justify the dissolution of Parliament. In India, Pakistan, Nepal, Grenada, Fiji and many other Commonwealth countries, the Doctrine of Constitutional Necessity has been applied in dealing with a constitutional deadlock. In a book titled God Save the Honourable Supreme Court written by the distinguished Indian Lawyer, Fali S. Nariman cites the case of Krishna Kumar Singh vs State of Bihar 2017 (Bench of seven Judges), where constitutional necessity was applied in upholding certain Ordinances which were patently unconstitutional. (See also Qarase and Others vs Bainimarama and Others [2009] 3 LRC 614 – The Commonwealth Latimer House Principles: Practitioner’s Handbook).

27. In this context the application the Doctrine of Constitutional Necessity is justified since there has been a “deadlock” between the President and the Prime Minister for some time. This deadlock has arisen due to divergent policies relating to the sale of national assets, ratification of FTAs without adequate consultation with affected parties, involvement of the PM in the Bond Scam and pursuing a flawed legislative agenda and adopting neo-liberal economic policies unsuitable for Sri Lanka in the 21st century. In this situation, the President has made an attempt to resolve this deadlock by requesting Hon. Karu Jayasuriya, and later on, Hon. Sajith Premadasa to accept the post of Prime Minister. Both refused to accept the proposal.

28. Hence, the application of the Doctrine of Constitutional Necessity may be justified in order to resolve the present constitutional crisis by reference to the people. After all, sovereignty of the people as enshrined in Article 3 is the grund-norm of 1978 Constitution

Concluding remarks and submissions

29. It can be concluded that the Constitution of a country is a “living document” and therefore it must interpreted in a manner it can work and not in a manner it can perish. Hence, the legality and legitimacy of the dissolution of Parliament by the President is distinct from the appointment and removal of the Prime Minister which is not dealt in this article.

30. In dealing with the 18th Amendment to the Constitution, it was said that “The power of dissolution of Parliament and the process of impeachment should be exercised where necessary in trust for the people only to preserve the sovereignty of the people and to make it meaningful, effective and beneficial to people.” – See: Ex Cathedra Statements of Hon. Justice Saleem Marsoof, PC – Some Thoughts on the Sovereignty of the People and the Rule of Law in K.C. Kamalasabayson, PC – Memorial Orations 2008-2012.

31. The 19th Amendment to the Constitution did not resolve the constitutional problem envisaged by late Dr. N. M. Perera. Instead, the 19th Amendment has created many conceptual, contextual and syntactic ambiguities due to ad hoc Committee Stage amendments.

32. It is unfortunate that the Legislative Drafters have not transformed the Presidential System to a Parliamentary System of Government by using the legislative technique adopted by me in drafting the 17th Amendment to the 1978 Constitution. It reduced the powers of the President by requiring him to act on the advice and/or on the recommendations in the exercise of his prerogative or executive powers in relation to certain appointments.

33. In this context, it is recommended that the 19th Amendment should be repealed and replaced by a new 19th Amendment to the Constitution, as it has ceased to be the centerpiece for good governance.

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D. Laksiri Mendis has been an UN and a Commonwealth Legal Expert on Drafting Legislation and Treaties for several years. He served as First Parliamentary Counsel and Head of the Parliamentary Division in Sierra Leone (West Africa) and as Legal Draftsman and Legislative Expert in many Commonwealth countries. He also served as Sri Lanka’s Ambassador in Austria and Permanent Representative to the UN in Vienna……LLB (Cey), MPhil (Cantab)

(Email: mendis_law@yahoo.com).