IN RE THE NINETEENTH AMENDMENT TO THE CONSTITUTION

011-SLLR-SLLR-2002-3-IN-RE-THE-NINETEENTH-AMENDMENT-TO-THE-CONSTITUTION.pdf


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IN RE THE NINETEENTH 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. 11, 13, 15; 16-21; 25-28; 30-35 AND 37-40 OF 20021ST AND 3RD OCTOBER 2002
Constitution – 19th Amendment to the Constitution – Petitions under Articles 121
/123 of the Constitution – Amendments to Articles 43 (1), 49 and 70 – Legislativepower of Parliament – Articles 3, 4, 75, 83 (a), 84 (2) and 99 (13) (a) of theConstitution – Sovereignty of the people – Separation of powers – Erosion ofexecutive power of the people exercised by the President – Rule of Law.
A Bill titled “the Nineteenth Amendment to the Constitution” was placed on theOrder Paper of Parliament for 19. 09. 2002. The above-numbered 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 deals broadly with four matters ;
The central provisions are contained in Clauses 4 and 5 for amendingArticle 70 of the Constitution relating to dissolution of Parliament. Theamendments drastically remove the President’s discretion in the matter,especially where the President is not a member of the Governing Partyin Parliament. The erosion of the President’s power is even more severeafter the lapse of one year referred to in Article 70 (1).
An amendment to Article 43 (3) of the Constitution relating to thePresident’s discretion to appoint a Prime Minister, in view of the
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provisions of Clause 5 which, inter alia, makes it mandatory to appointa Prime Minister nominated by a resolution of Parliament – Clauses2 and 3 (1).
An amendment to Article 49 of the Constitution relating to the dissolutionof the Cabinet of Ministers and the appointment of new Ministers bythe President in view of the proposed new Article 70A (1) (b) whichcompels the President to dissolve Parliament upon a resolution of noconfidence or to appoint a new Prime Minister as may be named inthe resolution. – Clause 3 (2).
A new provision which permits members of Parliament to vote on anyamendment contained in the Bill according to their conscience and yetbe immuned from disciplinary action by the Party or by the Group towhich such member belongs, as provided by Article 99 (13) (a) of theConstitution – Clause 6.
Held:
Clauses 4, 5, 2 and 3 of the Bill have to be examined –
In the light of Article 3 of the Constitution which provides – “In theRepublic of Sri Lanka sovereignty, is in the people and is inalienable.Sovereighty includes powers of government, fundamental rights and thefranchise”.
In the light of Article 4 which is linked to Article 3 and which sets out,inter alia, the manner in which sovereignty of the people should beexercised by the legislative, executive and judicial organs of theGovernment; and
In the light of the balance of power that has been struck in theConstitution and in the context of the separation of powers as containedparticularly in Article 4.
The organs of Government referred to in Article 4 must exercise their poweronly in trust for the people.
The transfer of a power which is attributed by the Constitution to one organof Government to another or the relinquishment or removal of such power
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would be an alienation of soverlignty inconsistent with Article 3 read withArticle 4 of the Constitution.
Disssolution of Parliament is a component of executive power of the Peopleto be exercised by the President for the People. It cannot be alienatedin the sense of being transferred, relinquished or removed from where itlies in terms of Article 70 (1) of the Constitution. The final say even insituations referred to in Article 70 (a) to (c) remains with the President.Therefore, the amendments contained in Clauses 4 and 5 of the Billconstitute an alienation of executive power inconsistent with Article 3 readwith Article 4 of the Constitution and require to be passed by the specialmajority required under Article 84 (2) and approved by the People at aReferendum by virtue of the provisions of Article 83.
Clauses 2 and 3 (1) of the Bill relate to the dissolution of Parliament andthe amendments provided by Clauses 4 and 5 which, inter alia, requirethe President to dissolve Parliament and appoint a Prime Minister nominatedby Parliament. Hence, those Clauses attract the determination stated abovebased on inconsistency with Article 4 (b) and require the approval of thePeople at a Referendum.
Clause 3 (2) which would require the President to dissolve Parliament ona resolution of no confidence (vide Article 70 A (1) (&)) results in thedissolution of Parliament itself upon such resolution. Hence, it is analienation of the legislative power of the people inconsistent with Article3 read with Article 4 (a). As such Clause 3 (2) requires to be passedby the special majority specified in Article 84 (2) and approved by the peopleat a Referendum by virtue of Article 83.
Clause 6 has the effect of partly suspending Article 99 (13) (c) of theConstitution. It also has implications on franchise defined in Article 4 (c)and judicial power under Article 4 (c). That Clause cannot be validly enactedby Parliament in view of the specific bar contained in Article 75 of theConstitution.
If Clauses 4 and 5 of the Bill are removed and replaced with a clearamendment to proviso (a) or Article 70 (1) whereby the period of the yearreferred to therein is extended to a period not exceeding three years thatwould not amount to an alienation of executive power of the President.The inconsistency with Article 3 read with Article 4 (b) would thereby cease.
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The substituted clause may be passed by the special majority under Article84 (2) and does not require the approval of the People at a Referendum.
Visuvalingam v. Liyanage (1983) 1 Sri LR 236.
Premachandra v. Jayewickrema (1994) 2 Sri LR 90.
Gupta and Others v. Union of India (1982) AIR (SC) 197.
PETITIONS challenging the “Nineteenth Amendment to the Constitution” underArticle 121 (1) for a determination under Article 123 of the Constitution.
Counsel for petitioners :
SDNo.11/2002-Batty Weerakoone
SDNo.13/2002-Sarath Weragoda (in person)
SDNo.15/2002-D. P. Mendis, PC with Nadeera Gunawardena and
Keerthi Segara
SD No.16/2002-S.S. Sahabandu, PC with Keerthi Segara, Situge
and S. D. Yogendra
SD No.17/2002-A.A. De Silva, PC with A. W. Yusuf, Prasanna
Obeysekera and Chaminda WeerakkodySDNo.18/2002-R. I. Obeysekera, PC with A. W. Yusuf,
P. Liyanaarachhci, Chaminda Weerakkody and PiyalRanatunga
SD No.19/2002-B.Jayamanna with Swinitha Gunaratne
SD No.20/2002-L.V. P. Wettasinghe with Swinitha Gunaratne
SD No.21/2002-M.A. Sumanthiran with V. Corea and Renuka
Senanayake
SDNo.25/2002-Anil Obeysekera, PC with Palitha de Silva and Bandula
Wellala
SDNo.26/2002-E.P.Wickremasekera (in person)
SDNo.27/2002-A.A.deSilva, PC with Piyatissa Abeykoon and
Kanishka WitharanaSDNo.28/2002-Manohara de Silva
SDNo.30/2002-Wijedasa Rajapakse, PC with Kapila Liyanagamage
and Ranjith Meegaswatta
SDNo.31/2002-Neville Jayawardene with P. D. R. S. Panditharatne
SDNo.32/2002-H.L.deSilva, PC with Nigel Hatch
SDNo.33/2002-R.K.W.Goonesekera with Gaston Jayakody
SD No.34/2002-Dr.Jayampathy Wickremaratne with Gaston Jayakody
SD No.35/2002-Dr.Jayampathy Wickremaratne with Gaston Jayakody
SD No.37/2002-A.R. I. Athurupana with R. Edirimanne
SD No.38/2002-A.W. Yusuf with Piyal Ranatunga
SD No.39/2002-A.A. de Silva, PC with P. Abeykoon and
Kanishka Witharana
SDNo.40/2002-Petitioner absent and unrepresented
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Counsel for the State :
K. C. Kamalasabayson, PC Attorney-General with S. Marsoof, PC AdditionalSolicitor-General, Uditha Egalahewa, State Counsel and Harsha Fernando, StateCounsel.
Intervenient :
Shibly Aziz, PC with L. C. Seneviratne, PC, Daya Pelpola, S. G. Mohideen,Ronald Perera, Chandimal Mendis and Rohana Deshapriya.
Cur. adv. vuit.
October 01 and 03, 2002
A Bill bearing the title “19th Amendment to the Constitution”, 01was placed on the Order Paper of Parliament for 19. 09. 2002.Twenty-four petitions, numbered as above have been presentedinvoking the jurisdiction of this court in terms of Article 121 (1) fora determination in terms of Article 123 of the Constitution, in respectof 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 petitioners or Counsel representing them, the Intervenientpetitioner and the Attorney-General were heard before this Bench at u>the sittings held on 01. 10. 2002 and 03. 10. 2002.
The proposed 19th Amendment to the Constitution as containedin the Bill deals with broadly four matters :
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the appointment of the Prime Minister, an amendment toArticle 43 (1) of the Constitution, as contained in clause 2;
the dissolution of the Cabinet of Ministers, an amendmentto Article 49 as contained in clause 2;
the dissolution of Parliament, an amendment to Article 70as contained in clauses 4 and 5
the conferment of an immunity from disciplinary action thatmay be taken against Members of Parliament by recognizedpolitical parties or independent groups in respect of speaking,voting, or abstaining from voting on any amendment to theConstitution contained in the Bill, as set out in clause 6 ofthe Bill.
Since the Bill taken as a whole hinges on the provisions containedin clauses 4 and 5 with regard to the dissolution of Parliament wewould consider this matter first.
DISSOLUTION OF PARLIAMENT
The provisions presently in the Constitution regarding dissolutionof Parliament are contained in Article 70 (1). The main paragraph inArticle 70 (1) reads as follows :
‘The President may, from time to time, by Proclamation
Summon, Prorogue and Dissolve Parliament.”
The broad power thus attributed in the President is subject tocertain limitations and clarifications as are specified in provisos (a)to (d) of the sub article. The contents of these provisos may besummarized as follows :
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where a General Election has been held consequent upon
a dissolution of Parliament by the President, the President 40shall not thereafter dissolve Parliament until the expirationof one year from the date of such election unless Parliamentby resolution requests the President to do so.
the President shall not dissolve Parliament on the rejectionof the statement of government policy at the commencementof the first session of Parliament after a General Election.
restriction on the power of dissolution where a motion forthe impeachment of the President has been entertained bythe Speaker.
where the President has not dissolved Parliament upon the 50rejection of the Appropriation Bill, Parliament shall be dissolved
if the next Appropriation Bill is rejected.
It is seen that provisos (a), (b) and (c) are specifc restrictions onthe power of dissolution, whereas proviso (cf) is mandatory and requiresdissolution.
THE CONTENTS OF THE BILL WITH REGARD TO THEDISSOLUTION OF PARLIAMENT
The amendments in the Bill in this regard are contained in clauses4 and 5. Clause 4 repeals proviso (a) of Article 70 (1), referred toabove and substitutes a new proviso with two sub paragraphs. As 60noted, proviso (a) is a restriction on the powers of the President todissolve Parliament within one year after a General Election, that hadbeen held consequent upon a dissolution of Parliament by the President.The effect of the amendment is two-fold : 1
(1)the proviso will apply irrespective of the circumstance thatcaused the General Election. That is, whether it resulted from
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a dissolution by the President or by the expiration of theterm of Parliament being 6 years, as contained in Article 62(2).
the residuary power which in terms of the present proviso 70
lies in the President not to dissolve, even where theParliament by resolution requests the same, is removed andit becomes mandatory on the President to dissolve within4 days of the resolution being communicated by the Speaker,However, the period of 1 year from the General Electionduring which the proviso will apply, remains.
Clause 56 seeks to add a new provision as Article 70A immediatelyafter Article 70. The new Article will have four sub articles, theprovisions of which can be grouped as follows :
Article 70A (1) (a) which deals with a situation “where the eomajority of the Members of Parliament belong to a recognizedpolitical party or parties or an independent group or groups
of which the President is not a member”. In such event afterthe expiration of one year from the General Election thePresident shall not dissolve Parliament unless upon a requestby Parliament supported by a resolution passed by not lessthan two-thirds of the whole number of members, includingthose not present.
Articles 70A (1) (b) and 70A (2) are linked. Paragraph (b)provides that where the Parliament passes a resolution that 90the Government no longer enjoys the confidence of theParliament, the President shall dissolve Parliament. However,as stated in paragraph (2), if such a resolution identifies aMember of Parliament who enjoys the confidence ofParliament and the resolution is passed by not less than one-half of the whole number of members (including those notpresent) the President shall not dissolve Parliament but shallappoint such person as Prime Minister.
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Articles 70A (3) and (4) are consequential provisions thecontents of which need not be referred to for the purpose 100of this determination.
Considering the somewhat diffused picture that comes to mindwhen the amendment is read into the existing provision, we wouldsummarize the situation that will emerge as follows :
the main provision in Article 70 (1) referred to above, whichbroadly attributes the power of dissolution of Parliament tothe President, remains :
the substituted proviso (a) which applies in relation to thefirst year after the General Election remains. The discretionthat now lies with the President not to dissolve even if the noParliament requests such dissolution is removed and suchdissolution, is mandatory on the part of the President.
There is a bifurcation in the provisions that will apply inrespect of the period after the lapse of 1 year from the dateof the General Election. These provisions are :
Where the majority of the Members of Parliamentbelong to a recognized political party or independentgroup or groups of which the President is not amember, the power of dissolution is totally removedfrom the President and can be exercised by the 120President only upon a resolution passed by not lessthan two-thirds of the whole number of members(including those not present) request such dissolution.
If the President is a member of the majority party orgroup in Parliament, the power of dissolution will remainas it presently stands, subject to the provisions inArticles 70A (1) (b) and (2) referred to above.
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THE GROUNDS OF CHALLENGE
The petitioners challenge the provisions contained in clauses 4 and5 on the basis that they constitute an erosion of the executive powerof the President, which is inconsistent with Article 3 read with Article4 (b) of the Constitution and urge that the inconsistency is aggravatedby the criterion upon which the power of the President in this regardis reduced to nothing, viz the absence of membership in a particularpolitical party or a group.
ANALYSIS OF THE GROUND OF CHALLENGE AS TO CLAUSES4 AND 5
The Court has to consider whether the said clauses require to bepassed by the special majority provided in Article 84 (2) and approved
by the People at a Referendum by virtue of the provisions of Article83. The petitioners contend as noted above that these provisionsrequire to be approved at a Referendum in terms of Article 83 (a),as they are inconsistent with Article 3 read with Article 4 (b) of theConstitution. Since extensive references were made to Articles 3 and4 of the Constitution, we reproduce the respective Article in full.
“In the Republic of Sri Lanka sovereignty is in the Peopleand is inalienable. Sovereignty includes the powers ofgovernment, fundamental rights and the franchise.”
The sovereignty of the People shall be exercised and enjoyedin the following manner :
the legislative power of the People shall be exercisedby Parliament, consisting of elected representatives ofthe People and by the People at a Referendum ;
the executive power of the People, including the defenceof Sri Lanka, shall be exercised by the President ofthe Republic elected by the People;
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the judicial power of the People shall be exercised byParliament through courts, tribunals and institutions createdand established, or recognized, by the Constitution, or createdand established by law, except in regard to matters relatingto 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;
(cfl 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
the franchise shall be exercisable at the election of thePresident of the Republic and of the Members of Parliament,and at every Referendum by every citizen who has attainedthe age of eighteen years, and who, being qualified to bean elector as hereinafter provided, has his name entered inthe register of electors.”.
These Articles relate to the sovereignty of the People and theexercise of that sovereignty. Mr. H. L. de Silva, PC, submitted andcorrectly so, that the two Constitutions of Sri Lanka of 1972 and 1978are unique in proclaiming that sovereignty is in the People andspecifically elaborating the content of such sovereignty, whilst in mostConstitutions the term “sovereignty” is used only as descriptive of thepower of the State, similar to Article I, which states that – “Sri Lanka(Ceylon) is a Free, Sovereign, Independent, and Democratic SocialistRepublic and shall be known as the Democratic Socialist Republicof Sri Lanka”. This submission was further developed by Mr. BattyWeerakone from the perspective of political theory and he submittedthat in terms of Articles 3 and 4, sovereignty is transmuted from a“grim reality” to something that is “tangible” or “palpable”, without beingelusive or visionary.
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It was the common submission of counsel for the petitioners thatsovereignty conceptualized in Article 3 is given a practical dimension iwin Article 4. Although Mr. Shibly Aziz, PC, counsel for the intervenientpetitioner sought in a brief argument to delink the two Articles, theAttorney-General submitted that they are linked together and shouldbe read together. Indeed, the Attorney-General’s submission has beenthe constant trend of decisions of this Court that date back to theyear 1980. Whilst the previous decisions relate to alleged instancesof the erosion of judicial power, fundamental rights / franchise ordevolution of power to subordinate (or as alleged, coordinate bodies),we are presently confronted with an alleged erosion which involvesthe Legislative organ of Government and the Executive organ of 200Government. Hence, it is necessary to examine the concept of thesovereignty of the People and the working thereof, as set out in Articles3 and 4 from a slightly different perspective.
Sovereignty, which ordinarily means power or more specificallypower of the State as proclaimed in Article 1 is given another dimensionin Article 3 from the point of the People, to include –
the powers of Government;
the fundamental rights; and
the franchise.
Fundamental rights and the franchise are exercised and enjoyed 210directly by the people and the organs of government are required torecognize, respect, secure and advance these rights.
The powers of government are separated as in most Constitutions,but unique to our Constitution is the elaboration in Articles 4 (a), (b)and (c) which specifies that each organ of government shall exercisethe power of the People attributed to that organ. To make this pointclearer, it should be noted that subparagraphs (a), (b) and (c) notonly state that the legislative power is exercised by Parliament;executive power is exercised by the President and judicial power by
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Parliament through Courts, but also specifically state in each subparagraph that the legislative power “of the People” shall be exercisedby Parliament; the executive power “of the People” shall be exercisedby the President and the judicial power “of the People” shall beexercised by Parliament through the Courts. This specific referenceto the power of the People in each sub paragraph which relatesto the three organs of government demonstrates that the powerremains and continues to be reposed in the People who are sovereign,and its exercise by the particular organ of government being itscustodian for the time being, is for the People.
Therefore, the statement in Article 3 that sovereignty is in thePeople and is “inalienable”, being an essential element which pertainsto the sovereignty of the People should necessarily be read into eachof the sub paragraphs in Article 4. The relevant sub paragraphs wouldthen read as follows :
the legislative power of the People is inalienable and shallbe exercised by Parliament;
the executive power of the People is inalienable and shallbe exercised by the President; and
The judicial power of the People is inalienable and shall beexercised by Parliament through Courts.
The meaning of the word “alienate”, as a legal term, is to transferanything from one who has it for the time being to another, or torelinquish or remove anything from where it already lies. Inalienabilityof sovereignty, in relation to each organ of government means thatpower vested by the Constitution in one organ of government shallnot be transferred to another organ of government, or relinquishedor removed from that organ of government to which it is attributedby the Constitution. Therefore, shorn of all flourishes of ConstitutionalLaw and of political theory, on a plain interpretation of the relevant
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Articles of the Constitution, it could be stated that any power that is 250attributed by the Constitution to one organ of government cannotbe transferred to another organ of government or relinquished orremoved from that organ of government; and any such transfer,relinquishment or removal would be an “alienation” of sovereigntywhich is inconsistent with Article 3 read together with Article 4 of theConstitution. It necessarily follows that the balance that has beenstruck between the three organs of government in relation to the powerthat is attributed to each such organ, has to be preserved if theConstitution itself is to be sustained.
This balance of power between the three organs of government, »»as in the case of other Constitutions based on a separation of poweris sustained by certain checks whereby power is attributed to oneorgan of government in relation to another. The dissolution of Parliamentand impeachment of the President are some of these powers whichconstitute the checks incorporated in our Constitution. Interestingly,these powers are found in chapters that contain provisions relatingto the particular organ of government subject to the check. Thus,provision for impeachment of the President is found in Article 38 (2)containted in Chapter VII titled “The Executive, President of theRepublic”. Similarly, the dissolution of Parliament is found in Article zto70 (1), which is contained in Chapter XI titled, “The Legislature,Procedure and Powers.”.
Mr. H. L. de Silva, PC, submitted forcefully that they are “weapons”placed in the hands of each organ of government. Such a descriptionmay be proper in the context of a general study of Constitutional Law,but would be totally inappropriate to our Constitutional setting, wheresovereignty as pointed out above, continues to be reposed in thePeople and organs of government are only custodians for the timebeing, that exercise the power for the People. Sovereignty is thusa continuing reality reposed in the People.
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Therefore, executive power should not be identified with the Presi-dent and personalised and should be identified at all times as thepower of the People. Similarly, legislative, power should not be iden-tified with the Prime Minister or any party or group in Parliament andthereby be given a partisan form and character. It should be seenat all times as the power of the People. Viewed from this perspectiveit would be a misnomer to describe such powers in the Constitutionas “weapons” in the hands of the particular organ of government.These checks have not been included in the Constitution to resolveconflicts that may arise between the custodians of power or, for oneto tame and vanquish the other. Such use of the power whichconstitutes a check, would be plainly an abuse of power totallyantithetic to the fine balance that has been struck by the Constitution.
The power that constitutes a check, attributed to one organ ofgovernment in relation to another, has to be seen at all times andexercised, where necessary, in trust for the People. This is not a novelconcept. The basic premise of Public Law is that power is held intrust. From the perspective of Administrative Law in England, the “trust”that is implicit in the conferment of power has been stated as follows :
“Statutory power conferred for public purposes is conferredas it were upon trust, not absolutely – that is to say, it can validlybe used only in the right and proper way which Parliament whenconferring it is presumed to have intended.” (Administrative Law8th ed. 2000 – H. W. R. Wade and C. F. Forsyth, p. 356).
It has been firmly stated in several judgments of this Court thatthe ‘rule of law' is the basis of our Constitution (Visuvalingam v.Liyanage,(1) Premachandra v. Jayawickrema.(2>
A. V. Dicey in “Law of the Constitution” postulates that ‘rule oflaw’ which forms a fundamental principle of the Constitution has threemeanings, one of which is described as follows :
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“It means, in the first place, the absolute supremacy or pre- 310dominance of regular law as opposed to the influence of arbitrarypower, and excludes the existence of arbitrariness of prerogative,or even of wide discretionary authority on the part of the government.Englishmen are ruled by the law, and by the law alone . .
The Attorney-General has appropriately cited the dictum ofBhagawati, J. (later, Chief Justice of India) in the case of Gupta andOthers v. Union of India® – where he observed :
“If there is one principle which runs through the entire fabricof the Constitution, it is the principle of the Rule of Law and underthe Constitution, it is the judiciary which is entrusted with the task 320of keeping every organ of the State within the limits of the lawand thereby making the Rule of Law meaningful and effective.”
To sum up the analysis of the balance of power and the checkscontained in the Constitution to sustain such balance, we would statethat the power of dissolution of Parliament and the process ofimpeachment being some of the checks put in place, should beexercised, where necessary, in trust for the People only to preservethe sovereignty of the People, and to make it meaningful, effectiveand beneficial to the People. Any exercise of such power (constitutinga check), that may stem from partisan objectives would be a violation 330of the rule of law and has to be kept within its limits in the mannerstated by Bhagawati, J. There should be no bar to such a processto uphold the Constitution.
Our conclusion on the matters considered above can be statedas follows : 1
(1)The powers of government are included in the sovereigntyof the People as proclaimed in Article 3 of the Constitution.
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These powers of government continue to be reposed in thePeople and they are separated and attributed to the three 340organs of government; the Executive, the Legislature and theJudiciary, being the custodians who exercise such powers
in trust for the People.
The powers attributed to the respective organs of governmentinclude powers that operate as checks in relation to otherorgans that have been put in place to maintain and sustainthe balance of power that has been struck in the Constitution,which power should be exercised only in trust for the People.
The exercise of the sovereignty of the People can only beperceived in the context of the separation of powers as 350contained in Article 4 and other connected provisions of theConstitution, by the respective organs of government.
The transfer of a power which is attributed by the Constitutionto one organ of government to another; or the relinquishmentor removal of such power, would be an alienation ofsovereignty inconsistent with Article 3 read with Article 4 ofthe Constitution.
CONCLUSIONS APPLIED TO THE PROVISIONS OF THE BILL
Conclusions arrived at in the foregoing analysis have now to beapplied to the provisions of the Bill, the constitutionality of which 360should be examined in the light of the ground of challenge.
It is clear that according to the framework of our Constitution,the power of dissolution of Parliament is attributed to the President,as a check to sustain and preserve the balance of power that is struckby the Constitution. This power attributed to the President in broadterms in Article 70 (1) is subject in its exercise to specifically definedsituations as set out in provisos (a) to (c) referred to above. Even
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in these situations, the final say in the matter of dissolution remainswith the President. The only instance in which dissolution is mandatory,is contained in proviso (d), in terms of which, if the AppropriationBill (the Budget) has been rejected by Parliament and the Presidenthas not dissolved Parliament, when the next Appropriation Bill is alsorejected, the President shall dissolve Parliament. This is a situationof a total breakdown of the government machinery, there being nomoney voted by Parliament for the government to function. In suchan event dissolution is essential and the Constitution removes thediscretion lying in the President by requiring a dissolution. As theConstitution now stands this is the only instance where Parliamentcould enforce a dissolution by the President and that too throughthe oblique means of rejecting the Appropriation Bill twice. Thisdemonstrates the manner in which the Constitution has carefullydelineated the power of dissolution of Parliament. The People inwhom sovereignty is reposed have entrusted the organs of government,being the custodians of the exercise of the power, as delineated inthe Constitution. It is in this context that we arrived at the conclusionthat any transfer, relinquishment or removal of a power attributed toan organ of government would be inconsistent with Article 3 read withArticle 4 of the Constitution. The amendments contained in clauses4 and 5 of the Bill vest the Parliament with the power, to finallydecide on the matter of dissolution by passing resolutions to that effectin the manner provided in the respective sub clauses set out above.The residuary discretion that is now attributed to the President (exceptin Article 70 (1) (oO — Appropriation Bill being rejected for the secondtime) – is removed and it becomes mandatory on the part of thePresident to dissolve Parliament within four days of the receipt ofthe communication of the Speaker notifying such resolution.
The provision which attracted most of the submissions of thepetitioners who opposed the Bill, is the proposed Article 70A (1) (a)referred to above, which totally removes the power of the Presidentto dissolve Parliament, if the majority of the members of Parliamentbelong to a political party or independent group of which the President
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is not a member. In such event the President shall not dissolveParliament unless upon a resolution passed by Parliament by a two-thirdsmajority. Significantly, there were no submissions in support of thisprovision. Article 4 (b) of the Constitution provides that the executivepower of the People shall be exercised by the President of theRepublic, elected by People. Thus, upon election the incumbentbecomes the “President of the Republic”, who in terms of Article 30(1) is “the Head of the State, the Head of the Executive and of the 410Government, and the Commander-in-Chief of the Armed Forces." Thepower attributed to such an office cannot possibly be different, dependenton the absence of membership of a political party or group. TheConstitution conceives of a President, who is the “Head of the State”,and who would stand above party politics. This provision moves inthe opposite direction. There may be practical considerations that ledto this provision being conceived, of which we cannot be unmindful.However, the Constitution is the “Supreme Law” of Sri Lanka andshould not be seen only from the perspective of such considerationsthat arise in the moment, but as a body of law, which we could uphold 420according to the oath that we have taken. It is unnecessary to dwellon this matter any further since the Attorney-General in his writtensubmission tendered after the hearing in Court was concluded,suggested an amendment to this provision deleting the portions thatinclude references to the absence of membership in a political partyor group and the requirement for the resolution to be passed by atwo-thirds majority.
We would now consider the amendment suggested by the Attorney-General according to which the proposed Article 70A (1) (a) is replacedwith a provision stating that after the lapse of one year from a General 430Election, the President shall not dissolve Parliament unless upon aresolution passed by not less than one-half of the whole number ofmembers of Parliament, including those not present. It has to be notedthat this amendment does not address the inconsistency with Articles3 and 4, dealt with in the preceding sections of this determination.
We have stated clearly, on the basis of a comprehensive process
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of reasoning, that the dissolution of Parliament is a component of theexecutive power of the People, attributed to the President, to beexercised in trust for the People and that it cannot be alienated in
the sense of being transferred, relinquished or removed from whereit lies in terms of Article 70 (1) of the Constitution. Therefore, theamendments contained in clauses 4 and 5 of the Bill, even as furtheramended, as suggested by the Attorney-General, constitute in our viewsuch an alienation of executive power, inconsistent with Article 3 readwith Article 4 of the Constitution and require to be passed by thespecial majority required under Article 84 (2) and approved by thePeople at a Referendum, by virtue of the provisions of Article 83.
Article 123 (2) (c), empowers this Court when making a determinationin the manner set out above, to specify the nature of the amendmentsthat would make the provisions in question cease to be inconsistentwith the Constitution. Whilst the hearing was in progress, the Court,from time to time, posed questions to learned Counsel to evoke aresponse on possible amendments. When questioned about an increaseof the period of one year from a General Election during which thePresident shall not dissolve Parliament unless upon a resolution tothat effect passed by Parliament. Mr. H. L. de Silva, PC, firmlysubmitted that even the slightest increase of that period would bean erosion of the executive power and be inconsistent with Article3 read with Article 4 (b). Questions were posed on the basis of similarprovisions in other Constitutions, being mindful at all times of thediversity in the particular structure of such Constitutions. Morespecifically, attention of Counsel was drawn to the 1996 Constitutionof the Republic of South Africa, which has a fixed term for the durationof the National Assembly without a broad power of dissolution, ascontained in Article 70 (1) of our Constitution but includes a provisionfor dissolution after three years if there is a resolution to that effect,supported by a majority of the Members of the Assembly. This is oneof the more recent Constitutions, put in place after an extensiveprocess of consultation and which contributed to the trasformation ofa conflict ridden country to a unified Nation. However, we noted that
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Counsel were slow to respond to these questions. We are mindfulof the position that they have to be guided by instructions receivedfrom the persons whom they represent. The lines of division weremanifestly sharp and the arguments were addressed from polarizedperspectives. It is our view that an amendment of the Constitutioncannot be looked at in this manner. Dr. Wickremaratne in a submission,replete with facts and instances, cited previous amendments to theConstitution that were alleged to have been done with partisan objectives.These related to a period where the political party in power had atwo-thirds majority in Parliament. He may be correct in the sharp «ocriticisms made of such instances. However, partisanship of one sidecannot be pitted against partisanship of the other. In the process ofenacting law, especially in amending or reforming the Constitution,sharp edges of the divide should be blunted and we have to seekcommon ground, bearing uppermost in mind the interests of the Peoplewho are sovereign.
It is obvious that the proposed amendment has been conceiveddue to certain difficulties that are envisaged. Although, those whoframed the Constitution are presumed to have looked to the future,it may be that they did not fully visualize the stress on the machinery 490of State that would build up, when there is a divergence in policiesbetween the President who exercises executive power on a mandateof the People, and the majority in the Parliament exercising legislativepower also on a mandate of the People. Article 70 (1) (a) is intendedto provide for such a situation in terms of which during the first yearafter a General Election held pursuant to a dissolution of Parliamentby the President, Parliament could be dissolved only if there is aresoultion requesting such dissolution. Thus, in effect during this periodthe matter of deciding on the dissolution of Parliament becomes aresponsibility shared by the President with Parliament. There is no »»alienation of the power of dissolution attributed to the President. Anyextension of this period of one year may be seen as a reduction oras contended by Mr. H. L. de Silva an erosion of that power. However,we are of the view that on an examination of the relevant provisions
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in the different contexts in which they have to operate, that everyextension of such period would not amount to an alienation,relinquishment or removal of that power. That would depend on theperiod for which it is extended. If the period is too long, it may becontended that thereby the power of dissolution attributed to thePresident to operate as a check to sustain the balance of power, as 510noted above, is by a side wind, as it were, denuded of its efficacy.But, if we strike middle ground, the balance of power itself beingthe overall objective would be strengthened especially in a situationof a divergence of policy, noted above. We are of the view that ifClauses 4 and 5 of the Bill, dealt with in the preceding portion ofthis determination are removed and replaced with a clear amendmentto proviso (a) of Article 70 (1), whereby the period of one year referredto therein is extended to a period to be specified not exceeding threeyears (being one half of the period- of Parliament as stated in Article62 (2)) that would not amount to an alienation, relinquishment or 520removal of the executive power attributed to the President. Theinconsistency with Article 3 read with Article 4 (b) would thereby cease.The substituted clause should be passed by the special majorityprovided in Article 84 (2) and not require approval by the People ata Referendum.
We would now move to the other clauses of the Bill that will bedealt with in the light of the conclusions stated above.
CLAUSES 2 AND 3 (1) OF THE BILL
These provisions relate to the dissolution of Parliament and theamendments contained in Clauses 4 and 5. They attract the 530determination stated above, based on the incomsistency with Article3 read with Article 4 (b) and require the approval by the People ata Referendum. This inconsistency would cease, if these provisionsare removed and replaced with an amendment to proviso (a) of Article70 (1), as stated above.
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CLAUSE 3 (2) OF THE BILL
This provision contains an amendment to Article 49 (2) of theConstitution which sets out certain situations in which, “the Cabinetof Ministers shall stand dissolved”. The sub-article now specifies threesuch situations, viz. where the Parliament :540
rejects the Statement of Government Policy, or
rejects the Appropriation Bill, or
passes a vote of no confidence in the Government.
The amendment removes situation (iii). Taken by itself, thisamendment would not make any sense whatever. It appears that thisamendment has to be read in the light of the proposed Article70A (1) (b) which states that, where Parliament passes a resolutiondeclaring that the Government no longer enjoys the confidence ofParliament the President shall, dissolve Parliament. The resultingposition is that where Parliament passes a motion of no confidence 550in the Government, instead of the Cabinet standing dissolved, aspresently provided, the Parliament itself which passed the motion willbe dissolved. As submitted by Dr. Wickremaratne, PC, the resultingposition is illogical and arbitrary. In the context of the framework ofthe Constitution dealt with above, the matter is more serious. Article43 (1) of the Constitution states as follows :
43 (1) ‘There shall be a Cabinet of Ministers charged with the
direction and control of the Government of the Republic, which shall
be collectively responsible and answerable to Parliament.”
This is a check put in place by the Constitution relevant to the seoexecutive organ of government, whereby it is made collectivelyresponsible and answerable to Parliament. The check is enforced, interalia, by the provision in Article 49 (2), which empowers the Parliamentto pass a vote of no confidence in the Government, resulting in thedissolution of the Cabinet of Ministers. We are of the view on the
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application of the reasons set out in the preceding sections of thisdetermination with regard to the exercise of the sovereignty of thePeople relevant to executive power, that this amendment would amountto an alienation, relinquishment or removal of the legislative powerof the People. The amendment as contained in Clause 3 (2) would 570then be inconsistent with Article 3 read with Article 4 (a) of theConstitution and require to be passed by the special majority providedin Article 84 (2) and approved by the People at a Referendum.
CLAUSE 6 OF THE BILL
In view of the nature of the submissions and the amendmentsuggested by the Attorney-General, we reproduce this clause in full :
“A Member of Parliament who speaks or votes or abstainsfrom voting on any amendment to the Constitution containedherein, according to his own belief or conscience or free will,shall not be expelled or suspended from membership or be 580subjected to any disciplinary action by the recognized politicalparty or the independent group as the case may be on whoserelevant nomination paper his name appeared at the timeof his becoming such Member of Parliament for having sospoken or voted or abstained from voting, and the provisionsof sub-paragraph (a) paragraph (13) of Article 99 shall notapply to such member and the seat of such Member inParliament shall not thereby become vacant.”
All Counsel and petitioners in person, made submissionsregarding this Clause. The grounds of objection can be summarized ssoas follows :
That the clause does not satisfy the requirements of Article82 (1) of the Constitution. This Article which states that anyamendment of the Constitution must be express, requires thata Bill for the amendment of any provision of the Constitution
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shall not be placed on the Order Paper of Parliament, “unlessthe provision to be repealed, altered or added andconsequential amendments, if any, are expressly specifiedin the Bill …” It was submitted that the provision of theConstitution sought to be amended is not expressly stated. 600
That the clause is outside the legislative power of Parliamentin view of Article 75 of the Constitution which empowersParliament to make laws but lays down a specific limitationto that power in the following terms :
“Provided that Parliament shall not make any law –
(a) suspending the operation of the Constitution or anypart thereof . .
It was submitted that this clause has the effect of suspending theoperation of Article 99 (13) (a), being a part of the Constitution.
That the clause erodes the franchise, which forms part of 610the sovereignty of the People. It was submitted that thePeople exercised the franchise at the election of the Members
of Parliament, by casting a vote for a recognized politicalparty or an independent group and preference votes werecast to particular candidates, on the premise that they wouldbe subject to disciplinary control by the party or group andin the event of expulsion, be replaced by another candidate.This submission was further developed in relation to Membersof Parliament elected on the “National List”, as provided inArticle 99A. It was further submitted that the franchise has 620a continuing effect, inter alia, through Article 99 (13) (b)(which provides for the candidate securing the next highestnumber of preferences to be declared, without a fresh recourseto the electorate) and that clause is thereby an erosion ofthe franchise, forming part of the sovereignty of the People
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and is inconsistent with Article 3 read with Article 4 (e) ofthe Constitution, as would require the approval by the Peopleat a Referendum.
That the clause denies to Members of Parliament equality
before the law and the equal protection of the law being the 630fundamental right to equality guaranteed by Article 12 (1)of the Constitution. It was submitted that this clause whichconfers an immunity from disciplinary action that may betaken by a political party or group, only in the instancespecified in the clause, is a denial of the right to equalitywhich is thereby an erosion of a fundamental right, formingpart of the sovereignty of the People inconsistent with Article3 read with Article 4 (d) of the Constitution as would requirethe approval by the People at a Referendum.
We would deal with grounds (1) and (2) which are connected in 640certain respects. Article 82 (1), referred to in ground (1), requiresthat any Bill for the amendment of any provision of the Constitutionshould expressly specify the provision of the Constitution if that issought to be ‘repealed, altered or added and the consequentialamendments, if any’. This manifests a cardinal rule that applies tothe interpretation of a Constitution, that there can be no impliedamendment of any provision of the Constitution. The Attorney-Generalsubmitted that in view of the reference to the particular provisionsof Article 99 (13) (a), the clause should be considered as an ‘addition’to that Article and be read as a ‘proviso’. In view of ground (2), esowhich goes to the root of the matter, we do not have to deal withthis aspect further.
Mr. R. K. W. Goonesekera who made submissions on this groundof challenge, submitted that provisos (a) and (b) to Article 75 containspecific limitations on the legislative power of Parliament. Proviso (a)cited above, contains a bar on the making of any law, which suspends
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the operation of the Constitution or any part thereof. That clause 6in effect suspends the operation of Article 99 (13) (a) in the situationspecifed in the clause which therefore cannot be validly included inthe Bill. It was further submitted that the Court should in such event,give effect to the provisions of Article 75 by declaring that the particularclause has not been validly included in the Bill. Since it is outsidethe legislative power of Parliament no further question arises as tocompliance with the requirement for the clause to be passed by thespecial majority or be approved by the People at a Referendum thatconstitutes stages of a process of making law.
The submission in our view raises a very important question ofConstitutional Law and of the legislative power of Parliament. In termsof the Preamble, the Constitution has been adopted and enacted asthe Supreme Law of the Democratic Socialist Republic of Sri Lanka.All State authority flows from the Constitution, which establishes theorgans of government; declares their powers and duties; proclaimsthe sovereignty of the People, which is inalienable; declares andspecifies the fundamental rights and the franchise that form part ofthe sovereignty of the People. It necessarily follows that the Constitutionshould apply equally in all situations that come within the purviewof its provisions. It is in this context that a strict bar has been putin place in Article 75 on the suspension of the operation of theConstitution or any part thereof. We have to give effect to this provisionaccording to the solemn declaration made in terms of the FourthSchedule to the Constitution, to “uphold and defend the Constitution”.
There are two principal questions that arise in considering theobjection that has been raised. They are :
whether the provisions of clause 6 have the effect ofsuspending the operation of Article 99 (13) (a) as contendedby Counsel, and
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whether Article 99 (13) (a) could be considered as being apart of the Constitution, so as to attract the bar in Article75 (a).690
We would now examine the first question stated above –
The phrase, “suspending the operation”, would in its plain meaningencompass, a situation in which the clause contained in the Bill hasthe effect of keeping the relevant provision of the Constitution in aninoperative state for a time. The test would be to place clause 6 andArticle 99 (13) (a), side by side, and ascertain whether they couldapply equally to a given situation which comes within their purview.Article 99 (13) (a) recognizes the right of a political party or of anindependent group to expel a member, who is a Member of Parliament;the consequence of such expulsion being the loss of the seat of 700such Member of Parliament; the review of the validity of such expulsionby this Court; and the process by which the vacant seat is filled. Itis manifest that clause 6 strikes at the very root of the process setout in Article 99 (13) (a) in stating that a Member of Parliament “shallnot be expelled or suspended from membership or subject to anydisciplinary action by the recognized political party . . .” If clause 6is enacted in this form, being the later in point of time, it would havethe effect of overriding the provisions in Article 99 (13) (a) and keepthose provisions inoperative in respect of the instance specified in theclause. Hence, we are of the view that clause 6 has the effect of 710suspending the operation of Article 99 (13) (a). We have to state thatthe question would have been different, if clause 6 was sought tobe enacted as an amendment to Article 99 (13) (a) as contendedby the Attorney-General. In such event the clause would have to beof general application and not limited to a single instance. The groundsof objection (iii) and (iv) stated above would then have to be consideredin relation to such amendment.
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We now move to the second question stated above whether,Article 99 (13) (a) the operation of which is sought to be suspendedcould be considered as being a part of the Constitution so as toattract Article 75.
The Constitution is divided in Chapters, Articles, Sub-Articles,Schedules and so on. It is significant that Article 75 does not referto any of these divisions, but refers to a “part” of the Constitution.This is an indication that we have to look to the functional aspectof the provision that is being suspended and ascertain whether suchprovision is necessary for the working of the Constitution. To ascertainthis matter we have to examine the provisions from three perspectives,viz :
.the content of the provision;
the context in which the provision is included;
the implications of the provision.
As regards (i) we have in the preceding paragraph set out thecontent of Article 99 (13) (a) by separately identifying its componentelements.
As regards (ii) we note that Article 99 (13) (a) is found in theChapter titled "The Franchise and Elections” and significantly that theArticle itself deals with proportional representation, being a novelfeature in the present Constitution.
As regards (iii), we note that Article 99 (13) (a) has implicationson the exercise of the franchise as set out in relation to ground (iii)of the objections referred to above and the exercise of judicial power.The clause has the effect of distorting the former and removing thelatter. On the basis of the foregoing analysis, we have no difficultyin concluding that Article 99 (13) (a) is a part necessary for the workingof the Constitution.
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Accordingly, we hold that clause 6 of the Bill has the effect ofsuspending the operation of a part of the Constitution and cannot bevalidly enacted by Parliament.
Therefore, clause 6 has to be deleted from the Bill.750
After the hearing was concluded, the Attorney-General tendereda further written submission requesting us to consider the amendmentof clause 6 by the deletion of the words, “. . . and the provisionsof sub-paragraph (a) of paragraph 13 of Article 99 shall not applyto such member; and the seat of such Member in Parliament shallnot thereby become vacant.”.
It appears that this amendment has been suggested to overcomethe objection referred to above, based on the suspension of Article99 (13) (a). However, we note that the main portion of clause 6 yetremains in terms of which it is specifically provided that a member 7«>“shall not be expelled or suspended from membership or be subjectto any disciplinary action by the recognized political party . . .”. Solong as that portion remains the consequences that would otherwiseflow in terms of Article 99 (13) (a) would remain inoperative. Therefore,the proposed amendment seeks to achieve by indirect means whatcannot be done directly.
The objection referred to above would be applicable in its entiretyeven if the clause is amended as -suggested by the Attorney-General.
SUMMARY OF DETERMINATION
Clause 6 of the Bill has the effect of suspending the operation noof a part of the Constitution and cannot be validly enactedby Parliament in view of the specific bar contained in Article75 of the Constitution.
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Clauses 2, 3, 4 and 5 contain provisions inconsistent withArticle 3 read together with relevant provisions of Article 4and as such have to be passed by a special majority requiredunder the provisions of Article 84 (2) and approved by thePeople at a Referendum.
The inconsistency with Article 3 read with the relevantprovisions of Article 4 would cease if clauses 2, 3, 4 and5 are deleted and substituted with an appropriate amendmentto proviso (a) to Article 70 (1) of the Constitution by removingthe period of one year in the proviso and substituting thatwith a period not exceeding three years.
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.
Nineteenth Amendment to the Constitution unconstitutional and requiresto be passed by the special majority and approved by the peopleat a referendum subject to item 3 of the determination.
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