Shehara Athukorala
Once the Nineteenth Amendment Bill was placed on the Order Paper of Parliament on 24th March 2015, it became susceptible to pre-enactment challenge within the terms of Article 121(1) of the constitution, read with Articles 120(a) and Article 123. The Supreme Court enjoys sole and exclusive jurisdiction in determining the constitutionality of Bills. In relation to Bills described in the long title as being for an amendment to the constitution, the constitutional review jurisdiction of the Supreme Court may be invoked by the President by a written reference addressed to the Chief Justice, or by any citizen by a petition in writing addressed to the Court. Such reference or petition must be filed within one week of the Bill being placed on the Order Paper of Parliament, and a copy of the reference or petition must at the same time be delivered to the Speaker, so that parliamentary proceedings can be stayed until the Court provides its determination. In relation to this category of constitutional amendment Bills, the only question which the Court is empowered to determine is whether the Bill as a whole or any of its provisions require to be passed not only by the usual two-thirds legislative majority in Parliament but also by a referendum. A referendum would be needed if the Court decides that the provisions of the Bill impinge on any entrenched provision of the constitution specified in Article 83. The Court is also empowered to specify in its determination the nature of the amendments that would make the Bill consistent with the constitution, or in other words, to avoid a referendum.
A number of petitions were presented in relation to the Nineteenth Amendment Bill, and a bench comprising Chief Justice K. Sripavan, Justice Chandra Ekanayake, and Justice Priyasath Dep PC heard oral submissions from the Attorney General, petitioners, and intervenient counsel on 1st, 2nd and 6th April 2015.[1] The Speaker announced the findings of the Court in Parliament on 9th April 2016 and a copy of the determination is reproduced in Hansard.[2]
The observations of the Court with regard to what was proposed in the Nineteenth Amendment Bill was politically significant inasmuch as the government would have to comply with the determination unless it was ready to override it by an appeal to the people. As with every previous amendment to the 1978 Constitution, however, the government was intent on avoiding a referendum on this occasion also, and during the judicial proceedings as well as subsequently in Parliament, the government made major amendments to its original proposals, thereby significantly diluting especially the extent of the changes to the executive presidency. A noteworthy feature of the judicial proceedings was that the Attorney General had to inform Court, on behalf of the government, of a series of amendments to be further made to the text of the Bill before Court. These amendments had been agreed in Cabinet previously in response to criticisms of the gazetted Bill. The Court therefore had to make its determination on whether or not the Bill required a referendum not only on the basis of the published Bill but also the memorandum presented by the Attorney General containing the list of changes that the government intended moving at committee stage in Parliament.[3]
At the beginning of the determination, the Court itself enumerated a list of sixteen matters as being the principal changes contemplated by the Nineteenth Amendment, including the introduction of a right to information, a reduction of the term of office of the President from six to five years, the introduction of a two-term limit on the number of terms a person can hold office as President, the imposition of additional duties on the President and changes to presidential immunity making the President’s actions subject to the fundamental rights jurisdiction of the Supreme Court, the reintroduction of the Constitutional Council, the reduction of the term of Parliament from six to five years and amendments relating to the prorogation of Parliament, amendments relating to election laws,[4] changes made to Chapter VIII on Executive and the Cabinet of Ministers,[5] changes to the jurisdiction of the Supreme Court relating to disciplinary actions against Members of Parliament, the removal of the provisions relating to urgent Bills, provisions on the independent commissions, and special provisions applicable to the incumbent President. However, the substantive determination only deals with some of these matters (discussed below), and it must be assumed that the Court found all other proposed changes susceptible to amendment through a two-thirds majority and without a referendum.
Proposed Changes to the Executive Presidency
The thrust of most petitions in relation to the powers and functions of the executive presidency was that the proposed changes would alter the basic structure of the constitution by reducing the scope and finality of the President’s executive discretion and authority. In one submission, it was argued that changing the manner in which executive power was to be exercised, as set out in Article 4, would be a violation of the sovereignty of the people declared and entrenched by Article 3.[6] The Supreme Court however disagreed that any or every change to Article 4 would amount to a violation of Article 3, given that the constitution had not entrenched Article 4 in the same manner as Article 3. More substantively, the essence of the Court’s reasoning in this regard can be summarised as follows: that while under the framework of the 1978 Constitution, the President must remain the supreme executive authority (and any alienation of executive power that removed such final authority from the President would be unconstitutional), this neither meant that the President enjoyed any personal power divorced from the sovereignty of the people, nor did it mean that the President was the sole and unfettered repository of executive powers, because under the constitution not only are a number of other institutions recognised as exercising certain executive powers, but also because the exercise of the President’s powers are subject to checks and balances.[7] The Court elaborated on these points in the following way.
It observed that the President’s responsibility to Parliament for the exercise of executive power is established in Article 42,[8] and that Article 4(b) must be read in the light of Article 42. It is apparent to the Court from these provisions that the constitution did not intend the President to function as an unfettered repository of executive power unconstrained by the other organs of government. Similarly, Article 43 provided for a Cabinet of Ministers, of which the President was both a member and head, charged collectively with the direction and control of the government, and collectively responsible and answerable to Parliament. This again establishes that the President is not the sole repository of executive power, and that the responsibility of the executive to Parliament was reinforced by the provision that the President must appoint as Prime Minister the Member of Parliament who is most likely to command the confidence of Parliament. Thus, the constitution recognises that executive power is exercised by the President and the Cabinet of Ministers, and both are responsible to Parliament in the exercise of such powers. In addition to this institutional arrangement whereby executive powers is exercised together by the President and the Cabinet, the Court also noted that certain powers relating to the public service are vested in the Public Service Commission and Cabinet of Ministers and not concentrated on the President (Article 54 and 55).
The Court observed that sovereignty is in the people and they have made the President the head of the executive. Article 30 of the constitution entrusts the President with the exercise of executive power, and these powers must be either exercised by the President, or by someone to whom such power is delegated by the President. The transfer, relinquishment, or removal of a power conferred on one organ of government to another organ would be inconsistent with Article 3 read with Article 4, and in relation to executive functions, the authority and responsibility for ultimate acts or decision must be retained and exercised by the President. As long as the President is the head of the executive, the exercise of his powers remain supreme and others to whom such power is given must derive from the President, or exercise the President’s executive power, as a delegate of the President. The President must be in a position to monitor and give directions to others with such delegated authority in relation to the exercise of his powers. The Court then considered the constitutionality of Clause 11 of the Nineteenth Amendment Bill in the light of these observations. Clause 11 sought to repeal and replace Chapter VIII of the constitution on ‘The Executive: The Cabinet of Ministers’ with a range of far-reaching changes to reduce the President’s executive powers and simultaneously strengthen the Cabinet of Ministers and the Prime Minister in particular. The Court identified the following propositions in Clause 11 as being potentially inconsistent with the entrenched provisions:
- Proposed Article 42(3): That the Prime Minister shall be the head of the Cabinet of Ministers
- Proposed Article 43(1): That the Prime Minister shall determine the number of Ministers to the Cabinet, and the Ministries, assignment of subject and functions to such Ministers
- Proposed Article 43(3): That the Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament
- Proposed Article 44(2): That the Prime Minister shall determine the subjects and functions which are to be assigned to Ministers appointed under paragraph (1) of this Article, and the Ministries, if any, which are to be in charge of, such Ministers
- Proposed Article 44(3): That the Prime Minister may at any time change any assignment made under paragraph (2)
- Proposed Article 44(5): That at the request of the Prime Minister, any Minister of the Cabinet may by Notification published in the Gazette, delegate to any Minister who is not a member of the Cabinet, any power or duty pertaining to any subject or function assigned to such Cabinet Minister, or any power or duty conferred or imposed on him or her by any written law, and it shall be lawful for such other Minister to exercise and perform any power or duty delegated notwithstanding anything to the contrary in the written law by which that power or duty is conferred or imposed on such Minister of the Cabinet.
In relation all these aspects, the Court noted that in the absence of any delegated authority from the President, if the Prime Minister were to exercise the powers referred to in Clause 11, then the Prime Minister would be directly exercising powers that are reposed by the people only on the President. Within the framework of the 1978 Constitution, the President cannot handover his executive power and permit it to be exercised by another body or person without his express permission or delegated authority. This would violate Article 3. Consequently, the Court concluded that such a change could not be made without the approval of the people at a referendum, or in other words, if the government wished to proceed without a referendum, then these aspects of Clause 11 must be struck down from the Nineteenth Amendment Bill. One of the most noteworthy aspects of this part of the determination was that the Court did not find the various other aspects of Clause 11, which introduced a requirement that the President has to act on the advice of the Prime Minister, as being an unconstitutional alienation of executive power by the President. These requirements of acting on advice quite substantially curtails the President’s discretion in appointing and dismissing Ministers in particular, but presumably in the Court’s view this does not affect the President’s ultimate authority.
The Right to Information
Counsel for one of the petitioners argued that Clause 2 of the Bill,[9] which sought to introduce a new right to information as Article 14A of the chapter on fundamental rights, would enable even foreigners to become beneficiaries of the right to information by virtue of the definition of a citizen given in Clause 2. However, the Court noted that the definition given to a ‘citizen’ is identical to the definition given in Article 121(1) of the constitution. The Attorney General also informed Court of the proposed the amendments the government undertook to bring at committee-stage. These amendments constricted the new right to information by restricting the application of the right from any information held by public authorities to covering only ‘information that is required for the exercise or protection of the citizens’ rights’ held by such authorities, and by adding contempt of court and parliamentary privilege as grounds of permissible limitations of the new right. In the Court’s view, Clause 2 was not inconsistent with any of the entrenched provisions of the constitution.
The Symbol of National Unity
Submissions were made with regard to Clause 5 of the Bill, in which proposed Article 33(1) provided that the President shall be the symbol of national unity. Counsel brought to the notice of Court that the origin of the national flag is based on a report of the National Flag Committee. The code for the use of the national flag, prepared by a Cabinet Subcommittee, states that when ‘each of us have to think more deeply of the National Flag and when we see our National Flag automatically our shoulders will strengthen, our hearts lift and our thoughts go to our motherland.’ The Court agreed that ‘the National Flag is the symbol of the unity of our People’ in that light determined that proposed Articled 33(1) in Clause 5 be deleted.
The Constitutional Council
Petitioners’ argument in respect of the proposal to re-establish the Constitutional Council pertained to both its compositions and functions. It was contended that the Constitutional Council with the proposed composition would impinge on the sovereignty of the people and that it would not be representative of the people. In terms of Clause 10, the Council would consist of the Prime Minister, the Speaker, the Leader of the Opposition, one person appointed by the President, five persons appointed by the President on the nomination of the Prime Minister and the Leader of the Opposition, and one person nominated by agreement of the majority of the Members of Parliament belonging to political parties other than to which the Prime Minister and the Leader of the Opposition belong. The President appoints the members who are not ex officio from among persons of eminence and integrity who have distinguished themselves in public or professional life, and are non-members of any political party. The Court noted that it had held In Re the Seventeenth Amendment to the Constitution[10] that the establishment of the Constitutional Council would not impinge on Article 3 or 4. Even though as the Court noted there is a restriction by the introduction of the Council in the exercise of the discretion vested in the President with regard to high appointments and the independent commissions, it held that such restrictions would not be an erosion of the executive power of the President in violation of Article 3 read with Article 4(b). Although the Court therefore found this proposed composition of the Constitutional Council to be constitutional, due to political hostility in Parliament to civil society members who would presumably be called upon to serve in the Council, the composition of the Council was changed at committee-stage of the Bill to reflect a political rather than a civil society majority. This potentially affects the depoliticising aims of the Nineteenth Amendment.[11]
The Court observed that the objective of the Constitutional Council is to impose safeguards in respect of the exercise of the President’s discretion and to ensure appointments to important offices in the executive, the judiciary, and the independent commissions are made correctly. It sets out a framework for which the President will exercise his duties pertaining to appointments. The President continues to be empowered to make the appointments of chairmen and members of the independent commissions. However, such appointments are to be made on the recommendation of the Council, which is to recommend fit and proper persons to such offices. Similarly, the President makes the appointments to key offices including the judges of superior courts, but in these cases, prior to the appointments his recommendations would have to be approved by the Council. It was also noted that the Constitutional Council would obtain the views of the Chief Justice, the Minister of Justice, the Attorney General, and the President of the Bar Association of Sri Lanka, in the discharge of its functions relating to the appointment of the judges of the Supreme Court and of the Court of Appeal. The Court stated that such a consultative process can ‘in no way be offensive to the exercise of the powers of appointment,’ but on the contrary would ‘enhance the quality of the appointments.’[12] For these reasons, provisions contained in Clause 10 were held not to violate any of the entrenched provisions. Again at committee-stage, however, political hostility to such a consultative process and especially the role of the Bar Association ensured that these provisions were removed from the Nineteenth Amendment.
Political Broadcasts
Clause 26 of the Bill sought to empower the new Election Commission significantly in respect of political broadcasts during election periods, including to issue guidelines to public and private broadcasters, and crucially, to enforce those guidelines and directions through the appointment of a Competent Authority to takeover the management of such political broadcasts.[13] Two private broadcasting companies challenged these provisions, and their counsel argued that the Election Commission should not be vested with such broad power to takeover a private broadcasting and telecasting station on the basis of various subjective factors. The state taking over its own media institutions may be permitted, but if it is extended to private media institutions, it was submitted that balanced and multi-perspective news and views would be prejudiced. Moreover, the clause did not set out the qualifications and the post that a person holds in order to be appointed as a Competent Authority and this would severely affect the rights of the citizens and rights of media institutions who may well be supervised and managed by persons not eligible for such an appointment.
The Court agreed with these submissions, holding that the Election Commission has been vested with unlimited power. The eligibility of its members and in particular the Competent Authority would be of paramount consideration in the public interest. The Court noted that there was no mechanism where an aggrieved citizen could challenge an appointment of a Competent Authority, and took the view that the functions of the Competent Authority would directly affect the franchise of the people, and the process of selecting representatives of the people, which in turn would directly concern the exercise of sovereignty. Accordingly, the Court stated Clause 26 violates Article 3 and has to be approved by at a referendum.
Audit Service Commission
The Supreme Court noted that proposed Article 153C in Clause 40 of the Bill did not permit the rules framed by the proposed Audit Service Commission to be placed before Parliament. The failure to do so would undermine the parliamentary control over the rule-making powers of the Commission. The Court suggested that this paragraph be amended to enable the Commission to place its rules before the Parliament for approval.
Order
Except for the matters discussed above, the Court was of the opinion no other aspect of the Bill required consideration in relation to their effect on the entrenched provisions of the constitution. Accordingly, the Supreme Court concluded that the Nineteenth Amendment Bill complied with the provisions of Article 82(1) (procedural requirements). Except for proposed Articles 42(3), 43(1), 43(3), 44(2), 44(3), and 44(5) in Clause 11 and proposed Article 104B(5)(c) in Clause 26, which were held to require a referendum in terms of Article 83, the Court held that the rest of the Nineteenth Amendment Bill could be passed by a two-thirds majority in Parliament (Article 82(5).
[1] The determination, reproduced in Annex VI of this volume, states at p.1 that thirteen petitions were presented, whereas only twelve applications are mentioned in the determination, as follows: S.D.No.04/2015 (Dayasiri, Petitioner), S.D.No.05/2015 (Perera, Petitioner), S.D.No.06/2015 (Gammanpila, Petitioner), S.D.No.07/2015 (Weerasekera, Petitioner), S.D.No.08/2015 (Ven. Bengamuwe Nalaka Thero, Petitioner), S.D.No.09/2015 (Wanigasekera, Petitioner), S.D.No.10/2015 (Ven. Matara Ananda Sagara Thero, Petitioner), S.D.No.14/2015 (Chandrasiri, Petitioner), S.D.No.15/2015 (Warnasinghe, Petitioner), S.D.No.16/2015 (MTV Chanel (Pvt.) Ltd, Petitioner), S.D.No.17/2015 (MBC Networks (Pvt.) Ltd, Petitioner), and S.D.No.19/2015 (Jayakodi, Petitioner).
[2] Parliamentary Debates 234(3), 9th April 2015: Cols.261-284.
[3] See observations on these issues in the chapters by Niran Anketell and Aruni Jayakody and in the Editor’s Introduction to this volume.
[4] Relating to the time period within which an election shall be held if an election is determined to be void.
[5] With regard to matters concerning the executive, the Cabinet of Ministers, the appointment of Ministers and the ceiling on the number of Ministers.
[6] The Constitution of Sri Lanka (1978): Article 3: “In the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”
Article 4 states: “The Sovereignty of the People shall be exercised and enjoyed in the following manner:
(a) Legislative power of the People shall be exercised by parliament, consisting of elected representatives of the people and by the people at a Referendum;
(b) Executive power of the People, including the defence shall be exercised by the President of the Republic elected by the people;
(c) Judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions established or recognised by the Constitution or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members wherein the judicial power of the people may be exercised directly by parliament according to law;
(d) Fundamental rights declared and recognised in the Constitution shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied; and
(e) Franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament, and at every Referendum by every citizen who has attained the age of eighteen years and who is qualified to be an elector provided his name is entered in the register of electors.”
[7] Dicta in In Re Nineteenth Amendment to the Constitution Bill (2002) SCSD 11/02-40/02 per Silva CJ and In Re the Thirteen Thirteenth Amendment to the Constitution Bill (1987) 2 SLR 312 at 341 per Wanasundera J cited with approval.
[8] “The President shall be responsible to Parliament for the exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security”
[9]14A(1): Every citizen shall have the right of access to any information held by:- (a) the State a Ministry or any Government Department or any statutory body established or created by or under any law; (b) any Ministry of a Province or any Government Department or any statutory body established or created by a statute of the Provincial Council; (c ) any local authority; and (d) any other person, being information that is required for the exercise or protection of the citizens’ rights.
(2) No restrictions shall be placed on the right declared and recognized by this Article, other than such restrictions prescribed by law as are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for prevention of disorder or crime, for the protection of health or morals and of the reputation or the rights of others, privacy, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the of the judiciary.
(3) In this Article, “citizen” includes a body whether incorporated or unincorporated, if not less than three – fourths of the members of such body are citizens.
[10] S.C. Determination 6/2001.
[11] See chapter by Dinesha Samararatne in this volume.
[12] Silva v Bandaranayake (1997) 1 SLR 93 at 95 per Mark Fernando J cited with approval.
[13] 104 B (5)(c) – Where the Sri Lanka Broadcasting Corporation (SLBC), Sri Lanka Rupavahini Corporation (SRC) or Independent Television Network (ITN) or any other broadcasting or telecasting enterprise owned or controlled by the State or the enterprise of every private broadcasting or telecasting operator, contravenes any guidelines issued by the Commission under sub-paragraph (a), Commission may appoint a Competent Authority by name or by office, who shall, with effect from the date of such appointment, take over the management of such SLBC, SRC or ITN or other broadcasting or telecasting enterprise owned or controlled by the State or the enterprise of such private broadcasting or telecasting operator, insofar as such management relates to all political broadcasts or any other broadcast, which in the opinion of the Commission impinge on the election, until the conclusion of the election, and the SLBC, SRC or ITN or other broadcasting or telecasting enterprise owned or controlled by the State or the enterprise of such private broadcasting or telecasting operator, shall not, during such period, discharge any function relating to such management which is taken over by the Competent Authority.