IN RE THE EIGHTEENTH AMENDMENT TO THE CONSTITUTION

010-SLLR-SLLR-2002-3-IN-RE-THE-EIGHTEENTH-AMENDMENT-TO-THE-CONSTITUTION.pdf


sc
In Re the Eighteenth Amendment to the Constitution
71
IN RE THE EIGHTEENTH AMENDMENT TO THECONSTITUTION
SUPREME COURTS. N. SILVA, CJ„
WADUGODAPITIYA, J„
BANDARANAYAKE, J.,
ISMAIL, J„
EDUSSURIYA, J„
YAPA, J. AND
J. A. N. DE SILVA, J.
SD NOS. 12, 14, 22-24, 29 AND 36 OF 2002OCTOBER 03, 2002.
Constitution – 18th Amendment to the Constitution – Amendments to Articlesrelating to the Constitutional Council – Inconsistency with Article 3 read with Article4 of the Constitution – Alienation of legislative and judicial power of the People- Infringement of fundamental rights – Article 12 (1) – Articles 84 (2) and 83(a) of the Constitution – Special majority and approval of the People at aReferendum.
A Bill titled the “Eighteenth Amendment to the Constitution" was placed on theOrder Paper of Parliament for 18th September, 2002. Seven petitions werepresented invoking the jurisdiction of the Supreme Court in terms of Article 121
for a determination in terms of Article 123 of the Constitution, in respect ofthe Bill.
The Bill provides, inter alia, for the following :
A provision conferring power on the Council to make rules – Clause 2.
A provision enabling the payment of emoluments to the members of theCouncil – Clause 3.
A provision conferring total immunity from judicial review of the decisionsof.-the Council – Clause 4.
72
Sri Lanka Law Reports
[2002] 3 Sri LR.
A provision providing immunity from suit against the Council, its membersand offcers – Clause 5.
A provision for punishment for interference with the Council – Clause 5.
Held :
Article 3 of the Constitution mandates that in Sri Lanka sovereignty is inthe People and is inalienable. Sovereignty includes powers of government,fundamental rights and franchise.
The manner in which the sovereignty of the People is exercised is setout in Article 4. The legislative power of the People is exercised byParliament (Article 4 (a)), Articles 4 (d) and (e) refer to fundamental rightsand franchise which are also components 'of sovereignty).
Articles 3 and 4 must be read together and hence no organ of governmentshall alienate the sovereignty of the People in the exercise of its powerentrusted to it. The Constitution does not attribute any unfettered discretionor authority to any organ or body established under the Constitution. Thatwould be inconsistent with the Rule of Law.
Under Clause 2 (proposed Article 41 FF) of the Bill which empowers theCouncil to make rules of procedure and guidelines to be followed by it,the Council is required before gazetting the rules (whereupon they wouldcome into effect) to communicate such rules to Parliament. No approvalof Parliament is required as in the case of rules made by the SupremeCourt under Article 136 of the Constitution. Hence, Clause 2 alienates thelegislative power of the People in violation of Article 4 (a); in the circumstancesClause 2 requires to be passed by the special majority and approved bythe People at a Referendum in terms of Article 84 (2) by virtue of Article83. The above inconsistency with the Constitution will cease if Clause2 is amended requiring the rules to be placed before Parliament forapproval or the power of the Council is restricted to the formulation ofguidelines only.
By Clause 4 it is sought to amend Article 41 H of the Constitution removingthe only form of judicial control which that Article reserved against decisionsof the Council namely, fundamental rights jurisdiction under Article 126.
sc
In Re the Eighteenth Amendment to the Constitution
73
This is an alienation of judicial power of the People in respect of anexecutive body such as the Constitutional Council. Such provision isviolative of Article 3. It is also violative of Article 3 in that the creatingof a different class of persons who are immuned from judicial review isviolative of Article 12 (1). Consequently, it is an alienation of the sovereigntyof the People. Therefore, Clause 4 requires to be passed by the specialmajority under Article 84 (2) and approved by the People at a Referendumby virtue of Article 83 of the Constitution.
Clause 5 provides for two new Article namely, 41 j and 41k The immunityfrom suit sought to be conferred by the proposed Article 41 j on the Council,its members and officers is an alienation of the judicial power of the People.It also constitutes such alienation as it violates Article 12 (1) which guaranteesa fundamental right which is a component of sovereignty.
The provisions of the proposed Article 41k for penalizing interference withthe Council will preclude any representations being made by the majoritycommunity for whom there is no special representation in the Council suchas is available to the minority communities. Hence, it is violative of Article12 (1) which guarantees a fundamental right which is a component ofsovereignty of the People. In the circumstances, the proposed Article 41 krequires to be passed by the special majority under Article 84 (2) andapproved by the People at a Referendum by virtue of Article 83 of theConstitution.
PETITIONS challenging the “Eighteenth Amendment to the Constitution" in
terms of Article 121 (1) for a determination under Article 123 of the Constitution.
Counsel for petitioners :
SD 12/2000 – Dr. Jayampathy Wickramaratne, PC with Gaston Jayakody.
SD 14/2000 – Manohara de Silva.
SD 22/2000 – J. C. Weliamuna with Lilanthi de Silva, Chrlsmal Warnasooriyaand Sanath Jayawardane.
SD 23/2000 –
M. A. Sumanthiran with Viran Corea and Renuka Senanayake.
74
Sri Lanka Law Reports
[2002] 3 Sri L.R.
SD 24/2000 – Manohara de Silva with W. D. Weeraratne.
SD 29/2000 – Wijayadasa Rajapakse, PC with Kapila Liyanagamage and RanjithMeegaswatte.
SD 36/2000 – Dr. Jayampathy Wickramaratne, PC with Gaston Jayakody andPubudini Wickramaratne.
Counsel for the State :
K. C. Kamalasabayson, PC, Attorney-General with S. Marsoof, PC, AdditionalSolicitor-General, Uditha Egalahewa, State Counsel and Harsha Fernando, StateCounsel.
Cur. adv. vult.
October 03, 2002
A Bill bearing the title “18th Amendment to the Constitution” was placedon the Order Paper of Parliament for 18th September, 2002. Sevenpetitions, numbered as above have been presented invoking thejurisdiction of this Court in terms of Article 121 (1) for a determinationin terms of Article 123 of the Constitution in respect of the Bill.
Upon receipt of the petitions the Court issued notice on the Attorney-General as required by Article 134 (1) of the Constitution.
The Counsel representing the petitioners and the Attorney-Generalwere heard before this Bench at the sittings held on 03. 10. 2002.
The petitioners contended that Clauses 2, 4 and 5 of the Bill areinconsistent with Article 3 read with Article 4 of the Constitution andthat if they require to become law, they must be passed by a
01
10
sc
In Re the Eighteenth Amendment to the Constitution
75
two-thirds (2/3) majority in Parliament and thereafter be approved bythe People at a Referendum, in terms of Article 83 of the Constitution.
Since extensive references were made to Clause 4 of the Bill, wewould consider this first.
CLAUSE 4
Clause 4 of the Bill seeks to amend Article 41 (H) of the Constitutionand is in the following terms :
Article 41 (H) of the Constitution is hereby amended by thesubstitution for the words and figures “subject to the provisions ofparagraphs (1), (2), (4) and (5) of Article 126, no Court shall” ofthe words “No Court, including the Supreme Court acting underArticle 136 shall”.
Counsel for the petitioners argued that by the amendment of Article41 (H) of the Constitution, the power of the Supreme Court to exerciseits jurisdiction over any "decision, recommendation and approval ofthe Constitutional Council”, set up by Article 41 (A) of the Constitution,is taken away.
The Constitution, inter alia, provides for the amendment or repealof the provisions of the Constitution. Provision is made in regard tosuch amendments or repeals in Articles 82 and 83 of the Constitution.
Article 83 of the Constitution refers to the approval of certain Billsat a Referendum. This Article reads as follows :
“Notwithstanding anything to the contrary in the provisions ofArticle 82 –
20
30
76
Sri Lanka Law Reports
[2002] 3 Sri L.R.
a Bill for the amendment or for the repeal and replacementof or which is inconsistent with any of the provisions ofArticles 1, 2, 3, 6, 7, 8, 9, 10 and 11, or of this Article,and
a Bill for the amendment or for the repeal and replacementof or which is inconsistent with the provisions of paragraph(2) of Article 30 or of paragraph (2) of Article 62 whichwould extend the term of office of the President or theduration of Parliament, as the case may be, to over 6 years,
shall become law if the number of votes cast in favour thereofamount to not less than two-thirds of the whole number ofMembers (including those not present), is approved by thePeople at a Referendum and a certificate is endorsed thereonby the President in accordnace with Article 80.”.
It is not disputed that Article 83 makes no reference to proposedArticles 41 (F), 41 (H), 41 (J) and 41 (K), which respectively arementioned in Clauses 2, 4 and 5 of the Bill. However, the argumentsput forward by the petitioners were to the effect that although theaforementioned Articles are not referred to in Article 83, the provisionsin the proposed Articles are inconsistent with Article 3 read with Article4, which is specifically mentioned in Article 83 of the Constitution.
Article 3 of the Constitution, which is an entrenched provision,deals with the sovereignty of the People and reads as follows :
“In the Republic of Sri Lanka sovereignty is in the People andis inalienable. Sovereignty includes the powers of government,fundamental rights and the franchise.”
It was the unanimous contention of all the petitioners that Article4 is complementary to Article 3 of the Constitution. In fact, this Courthas ruled in a series of cases that Article 3 is linked up with Article
40
50
60
sc
In Re the Eighteenth Amendment to the Constitution
77
4 and that these two Articles must be read together (vide SD 5/80,1/82, 2/83, 1/84 and 7/87).
Article 4 of the Constitution deals with the exercise of sovereigntyand provides that –
“The Sovereignty of the People shall be exercised and enjoyed 70
in the following manner :
the legislative power of the People shall be exercised byParliament, consisting of elected representatives of the Peopleand by the People at a Referendum;
the executive power of the People, including the defence ofSri Lanka, shall be exercised by the President of the Republicelected by the People;
the judicial power of the People shall be exercised byParliament through courts, tribunals and institutions createdand established, or recognized, by the Constitution, or created 80and established by law, except in regard to matters relating
to the privileges, immunities and powers of Parliament andof its Members, wherein the judicial power of the People maybe exercised directly by Parliament according to Law;
(a) the fundamental rights which are by the Constitution declaredand recognized shall be respected, secured and advancedby all the organs of government, and shall not be abridged,restricted or denied, save in the manner and to the extenthereinafter provided; and
(e) the franchise shall be exercisable at the election of the soPresident of the Republic and of the Members of Parliamentand at every Referendum by every citizen who has attainedthe age of eighteen years, and who, being qualified to be
78
Sri Lanka Law Reports
[2002] 3 Sri L.R.
an elector as hereinafter provided, has his name entered inthe register of electors.”.
Thus, in terms of Articles 3 and 4 of the Constitution, fundamentalrights and franchise constitute the sovereignty of the People, and isinalienable. The Constitution does not attribute any unfettered discretionor authority to any organ or body established under the Constitution.Even the immunity given to the President under Article 35, has beenlimited in relation to Court proceedings specified in Article 35 (3).Moreover, the Supreme Court has entertained and decided the questionsin relation to Emergency Regulations made by the President [JosephPerera v. Attorney-General – (1992 – 1 Sri L.R. pg 199)] andPresidential Appointments (Silva v. Bandaranayake – (1997)1 SriL.R. pg 92).
By the envisaged 18th amendment, the Constitutional Council isclothed with unlimited and unfettered immunity on their decisions,recommendations and approvals. If such immunity is given to theConstitutional Council, it would in effect be elevated to a body thatis not subject to law, which is inconsistent with the Rule of Law. TheRule of Law, means briefly the exclusion of the existence of arbitrarinessand maintaining equality before the Law (A. V. Dicey – Law of theConstitution, pg. 120).
Hitherto, without exception, executive and administrative actionhave been subjected to the jurisdiction enshrined in Article 126 ofthe Constitution. The total immunity expected in terms of the proposedamendment to the Constitution would effectivley shut out the justiciabilityof actions of the Constitutional Council in the exercise of the fundamentalrights jurisdiction by the Supreme Court.
The Constitutional Council established under the 17th Amendment,is part of the Executive and is attributed executive power. Thus, theCouncil would come within the executive organ of Government inregard to Article 4 (d) of the Constitution, referred to above. It is,
100
110
120
sc
In Re the Eighteenth Amendment to the Constitution .
79
therefore, the duty of the Constitutional Council to respect, secure andadvance the fundamental rights which are declared and recognizedby the Constitution. The functions of the Constitutional Council wouldcome within the framework of executive action as provided for in termsof Article 17 of the Constitution. Article 17 enables every person toapply to the Supreme Court in respect of the infringement or imminent 130infringement of a fundamental right.
The effect of the amendment in Clause 4 is to introduce a differentclass of people whose actions are not subject to judicial review. Thereis no justification for such immunity to be granted, which is contraryto Article 12 (1) of the Constitution and the basic principles of Ruleof Law.
The concept of judicial review of administrative action, being apredominant feature of Constitutional jurisprudence, prevents totalimmunity being given to anybody, created under the Constitution assuch restriction of judicial scrutiny, would impair the very foundation noof the Constitution and the Rule of Law. The total immunity contemplatedby the amendment, taking away the judicial review of the actionsof the Constitutional Council out of the fundamental rights jurisdiction,in effect would alienate the judicial power from the people incontravention of Articles 3 and 4 of the Constitution. It is to be notedthat Article 3 of the Constitution specifically refers to the following :
the sovereignty is in the people and that it is inalienable,and
the sovereignty includes the powers of Government,
fundamental rights and the franchise.iso
For the aforementioned reasons we determine that Clause 4 ofthe Bill is inconsistent with Articles 3 and 4 of the Constitution. Wealso state that the Bill in its present form is therefore required tobe passed by the special majority in terms of the provision of paragraph(2) of Article 84 and approved by the people at a Referendum byvirtue of the provisions of Article 83.
80
Sri Lanka Law Reports
[2002] 3 Sri L.R.
CLAUSE 2
Clause 2 of the Bill is to amend Article 41 (F) of the Constitutionand to insert a new Article, namely, Article 41 (FF) which would dealwith the rule making powers of the Constitutional Council. This new i6oArticle is in the following terms :
“(1) The Council may, from time to time, make rules setting outthe procedure and guidelines to be followed by it, in theperformance and discharge of the duties and functionsassigned to it under the Constitution, or by any other Law.
Every rule made under paragraph (1) of this Article, shallbe published in the Gazette and shall come into operationon the date of such publication.
The Council shall, before the publication of any rule formulated
in terms of this Article in the Gazette, communicate such »*>rule to Parliament.”.
The petitioners submitted that that these Rules would be for thepurpose of setting out the procedure and guidelines to be followedby the Constitutional Council itself, it was also pointed out that noprovision has been made in the amendment that these Rules mustbe approved by Parliament. The amendment merely requires theConstitutional Council to communicate such Rules to Parliament.
The Constitutional Council, as pointed out earlier is established bythe 17th amendment. The proposed amendment enables the Councilto exercise legislative power which according to Article 4 (a) of the ieoConstitution, is reposed in the People and is exercised by Parliament.
In terms of Article 76 (1) of the Constitution, Parliament cannotabdicate or alienate its legislative power.
The Rule making power of the Constitutional Council is derivedfrom the Constitution. The amendment shows that this power is notsubjected to any kind of control. However, the other organs, which
SCIn Re the Eghteenth Amendment to the Constitution81
are created by the Constitution, and thus have the power to makeRules, are quite correctly subjected to the accepted norms ofParliamentary control. For instance, the Rules of the Supreme Court
made under Article 136 of the Constitution, should as soon as convenientafter their publication in the Gazette, be brought before Parliamentfor approval. The proposed amendment thus undermines theParliamentary control over the Rule making powers of an institutionestablished by the Constitution, which in turn is an abdication as wellas an alienation that affects the sovereignty of the People, which isinconsistent with Articles 3 and 4 of the Constitution. Hence, thisClause requires approval by the People at a Referendum in additionto a two-thirds majority votes (including those not present) in termsof Article 83 of the Constitution.
We are of the opinion that if Clause 2 is amended by incorporatingthe requirement for the Rules prepared by Constitutional Council tobe placed before the Parliament in order to obtain approval or thepower of the Council is restricted to the formulation of guidelinesonly, the inconsistency with Articles 3 and 4 of the Constitution wouldcease and the approval by the People at a Referendum in termsof Article 83 of the Constitution would not be necessary.
CLAUSE 5
Clause 5 of the Bill consists of 2 Articles, namely 41 J and 41K (1) and (2), which are proposed to be inserted immediately afterArticle 41 H of the Constitution. While 41 J refers to immunity fromsuit, 41 K (1) and (2) deal with the interference with the Council. Thesetwo Articles are in the following terms :
"41 J No suit or proceeding shall lie against the Council, theChairman, a Member, the Secretary or an officer of theCouncil in respect of anything done or omitted to bedone by the Council, the Chairman, a Member, theSecretary or any officer of the Council in the performanceor discharge of any duty or function conferred or assignedin terms of the Constitution or by any other Law.
41 (K)(1) Every person who, otherwise than in the course of suchpersons lawful duty, directly or indirectly by himself orby or with any other person, in any manner whatsoever
190
200
210
220
82
Sri Lanka Law Reports
[2002] 3 Sri LR.
influences or attempts to influence or interferes with anydecision or recommendation of the Council, shall beguilty of an offence and shall on conviction be liableto a fine not exceeding one hundred thousand rupeesor to imprisonment for a term not exceeding sevenyears, or to both such fine and imprisonment.
(2)A High Court established under Article 154 P of the
Constitution shall have jurisdiction to hear and determineany matter referred to in paragraph (1).”.
Learned counsel in petitions No. 14/2002 and 24/2002 contendedthat the proposed Article 41 (K) (1) would have implications, violativeof Article 12 (1) of the Constitution. His submission was that Article41 (3) of the Constitution provides for the mandatory appointment of3 persons from the minority communities to represent their interest,whereas the majority community as such is not represented in theConstitutional Council to safeguard their interest. Accordingly, anyrepresentation made in respect of the majority community, would entailthe consequences of prosecution. Whilst the minority communities 240could communicate with their representatives in the ConstitutionalCouncil, the majority community would be denied such opportunity inthe absence of any specific representation, which in turn would beviolative of Article 12 (1).
Article 3, referred to above, specifically mentions that sovereigntyincludes fundamental rights and which is “in the people and isinalienable”. Article 4 (d) which refers to the exercise of sovereigntyspecifies that the fundamental rights which are declared and recognizedby the Constitution must be “respected, secured and advanced” byall the organs of the Government. This Article further contemplates 250that the fundamental rights cannot be abridged, restricted or denied.
In such circumstances the proposed Article 41 (K) is inconsistentwith Article 3 read with Article 4 of the Constitution.
The Attorney-General conceded that there is much merit in thesesubmissions and suggested in his submissions tendered after thehearing was concluded, the following to be considered :
sc
In Re the Eighteenth Amendment to the Constitution
83
an appropriate definition to be included in the proposedArticle to exclude any representation that may be made tothe Council by any person or,
in the alternative :aw
The words “otherwise than in the course of such person’slawful duties directly or indirectly by himself or by or withany other persons in any manner whatsoever influence orattempt to influence or” be deleted from the proposed Articleto ensure protection to persons making representation to theCouncil.
Since the suggestions were not made at the time of the hearingof these applications, which would have given an opportunity forthe petitioners also to consider the views expressed by the Attorney-General, it would not be possible for this Court to consider them.
270
We, therefore, determine that the proposed Article 41 (K) isinconsistent with Articles 3 and 4 of the Constitution. The proposedArticle therefore is required to be passed by the special majorityin terms of paragraph 2 of Article 84 and approved by the peopleat a Referendum by virtue of the provisions of Article 83.
The proposed Article 41J referred to above, which grants animmunity to the Constitutional Council, the Chairman, a Member,the Secretary or an officer, from judicial proceedings in respectof anything done or omitted to be done, attracts both objectionsdealt with, in the preceding paragraphs of this detemination. They 280are :
that it would alienate the judicial power from the people;
that it creates a special class of people in violation of Article12 (1) of the Constitution, who would not be subjected tojudicial review.
84
Sri Lanka Law Reports
[2002] 3 Sri L.R.
For the reasons stated above we determine that there is merit onboth grounds of objections and the proposed Article 41J is thereforeinconsistent with Article 3 read with Article 4 of the Constitution.
For the reasons stated above, the Bill, in its present form, requiresapproval by People at a Referendum in addition to a two-thirds majorityvote (including those not present) in terms of Article 83 of theConstitution.
We shall place on record our deep appreciation of the assistancegiven by the Attorney-General and all the other learned Counsel whomade submissions in this matter.
SARATH N. SILVA, CJ.
S.W. B. WADUGODAPITIYA, J.
DR. SHIRANI A. BANDARANAYAKE, J.
A. ISMAIL, J‘.
P. EDUSSURIYA, J.
S. YAPA, J.
J. A. N. DE SILVA, J.
Clauses 2, 4 and 5 of the Eighteenth Amendment to the Constitutionunconstitutional and require to be passed by the special majority andapproved by the People at a Referendum – subject to the suggestionof Court in respect of Clause 2.
290