by C.A.Chandraprema Courtesy The Island

* No provision relating to president entrenched under Article 83
*Referendum required not by Constitution but by SC interpretation

June 3, 2017, 6:51 pm
The constitution making process has been hamstrung by the insistence of the SLFP faction in the government that any constitutional reform would have to done without a referendum. According to the book ‘Yuga Peraliya’ written about the campaign to defeat the Rajapaksas by JHU activist Asoka Abegunawardene, this proviso was deliberately introduced into Maithripala Sirisena’s manifesto so that it could be used later to prevent the abolition of the executive presidency. That was the extent of the duplicity that was practiced on the people of this country by the people who claimed to be ushering in ‘good governance’. The two key constitutional pledges given by the yahapalana camp was the abolition of the executive presidency and electoral reform. Neither of these have materialized yet. It is said that the draft of a constitution is being prepared, but what legitimacy will a new constitution have if it neither abolishes the executive presidential system nor changes the electoral system?

It would appear that what stands in the way of abolishing the executive presidency without a referendum is not the letter of the constitution but the interpretation thereof. The original draft of the 19th Amendment did try to invest the prime minister with significant powers which would effectively have transferred executive power to the premier and the cabinet but the Supreme Court determined that a referendum would be necessary if certain provisions in the constitution were to be changed in the manner proposed. The Articles in the constitution that would need to be amended to do away with the executive presidency would be 4, 30, 31, 32, 39, 40, 43, 44, 45, 46 and 94 and so on. None of these Articles are among the entrenched provisions in the constitution which cannot be changed without a two thirds majority in parliament as well as a referendum in terms of Article 83.

It may be pointed out that Article 83(b) does mention article 30(2) among the entrenched provisions and this needs an explanation. Article 30(2) is as follows:

“30(2) The President of the Republic shall be elected by the People, and shall hold office for a term of five years.”

What Article 83(b) says about Article 30(2) is as follows:

“83(b) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph (2) of Article 30 or of, paragraph (2) of Article 62 which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80.”

Thus we see that the constitution itself indicates very clearly that the part of Article 30(2) that is entrenched is only the part that relates to the six year term of office of the President. What Article 83(b) means in relation to Article 30(2) is that the President’s term of office cannot be extended beyond six years without a two thirds majority in parliament as well as a referendum. The entrenched part is only that which restricts the presidential term of office to a maximum of six years. Furthermore, it should be noted that the entrenchment under Article 83(b) will apply to Article 30(2) only if the term of office was going to be extended beyond six years. If the term of office of the President was to be were to be reduced, the entrenchment under Article 83(b) will not apply to Article 30(2).

The trickiest part

This is why it was possible to reduce the term of office of the president from six to five years through the 19th Amendment with just a two thirds majority in parliament, without a referendum. Thus it is clear that the whole of Article 30(2) was not entrenched. It follows logically therefore, that the part of Article 30(2) which says that ‘The President of the Republic shall be elected by the People’ is also not entrenched and can be changed with just a two thirds majority in parliament, without a referendum. The trickiest part in abolishing the executive presidency without a referendum would be Article 4, not because it is an entrenched Article but because certain changes to it has been deemed by the Supreme Court in the past to impinge on Article 3 which is an entrenched Article. The Sections of Article 4 that would need to be amended to abolish the Executive Presidency would be 4(b) and 4(e) which are as follows:

“4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :-

(b) the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;

(e) the 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 being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.”

Of this, what would need to be amended would be firstly 4(b) which says that ‘the executive power of the People including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People’ and secondly article 4(e) which says that ‘the franchise shall be exercisable at the election of the President of the Republic’. (Article 30(2) will also have to be changed accordingly.) Speaking of Article 4 of the constitution, Chief Justice S. Sharvananda observed in his 1987 determination on the constitutionality of the 13th Amendment that:

“The Constitution expressly specifies the Articles which are entrenched, Article 4 is not one of those Articles. The legislative history of the 1978 Constitution shows that Article 4 was deliberately omitted from the list of entrenched articles. The report of the Parliamentary Select Committee on the revision of the Constitution published on 22.6.1978 discloses that the Committee recommended the entrenchment of Articles 1-4, 9, 10, 11, 30(2), 62(2) and 83 (para.9 of the Report). The Bill for the repeal and replacement of the 1972 Constitution (published in the Gazette of 14.7.78) included Article 4 in the category of entrenched Articles. However, when the Bill was passed, Parliament omitted Article 4 from the list of entrenched provisions. That omission must be presumed to have been deliberate, especially as Article 6, 7 and 8 were added to the list.”

“In our view, Article 4 sets out the agencies or instruments for the exercise of the sovereignty of the People, referred to in the entrenched Article 3. It is always open to change the agency or instrument by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the People. Article 4(a) prescribes that the legislative power of the People shall be exercised by Parliament, consisting of the elected representatives of the People and by the People at a Referendum”. Article 4(a) can be amended to provide for another legislative body consisting of elected representatives, so long as such amendment does not affect Articles 2 and 3.”

“Similarly, an amendment to Article 4(b) can be enacted by providing for the exercise of the executive power of the People by a President and a Vice President elected by the People. However, to the extent that a principle contained in Article 4 is contained or is a necessary corollary or concomitant of Article 3, a constitutional amendment inconsistent with such principle will require a Referendum in terms of Article 83, not because Article 4 is entrenched, but because it may impinge on Article 3. In our view, Article 4 is not independently entrenched but can be amended by a two third majority, since it is only, complementary to Article 3, provided such amendment does not impinge on Article 3. So long as the sovereignty of the People is preserved as required by article 3, the precise manner of the exercise of the sovereignty and the institutions for such exercise are not. Fundamental Article 4 does not define or demarcate the sovereignty of the People. It merely provides one form and manner of exercise of that sovereignty. A change in the institution for the exercise of legislative or executive power incidental to that sovereignty cannot ipso facto impinge on that sovereignty”.

Articles 3 and 4 were discussed in the determination given by Chief Justice K.Sripavan in 2015 with regard to the 19th Amendment where he stated that “It has to be borne in mind that the sovereign people have chosen not to entrench Article 4, therefore it is clear that not all violations of article 4 will result in the violation of Article 3.”

Article 4(b) goes as follows:

“4(b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People”.

The original 19th Amendment Bill did seek to amend article 4(b) as follows so that the President would have to exercise executive power in the manner prescribed by the constitution:

“4(b) the executive power of the People, including the defence of Sri Lanka, shall be exercised, in the manner hereinafter provided, by the President of the Republic elected by the People;”

The part that was added to article 4(b) was ‘in the manner hereinafter provided’. Chief Justice Sripavan’s determination on the 19th Amendment did not say anything about the proposed amendment to Article 4(b). It was with regard to the amendments suggested to Articles 42, 43 and 44 that the Supreme Court decided that a referendum was necessary in addition to a two thirds majority in parliament. The amendments proposed in the original 19th Amendment Bill to Articles 42, 43 and 44 and highlighted by the Supreme Court went as follows:

“42(3) The Prime Minister shall be the head of the Cabinet of Ministers.”

“43.(1) The Prime Minister shall determine the number of Ministers of the Cabinet of Ministers, and the Ministries and the assignment of subjects and functions to such Ministers.”

“43(3) The Prime Minister may at anytime change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.”

“44(2) The Prime Minister shall determine the subjects and functions which are to be assigned to Ministers appointed under paragraph (1), and the Ministries, if any, which are to be in charge of, such Ministers.”

“44(3) The Prime Minister may at anytime change any assignment made under paragraph (2) of this Article.”

“44(5) At the request of the Prime Minister, any Minister of the Cabinet of Ministers may, with the concurrence of the Prime Minister, by Notification published in the Gazette, delegate to any Minister who is not a member of the Cabinet of Ministers, any power or duty pertaining to any subject or function assigned to him or her, 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 to him or her under this paragraph 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 of Ministers.”

Why the original

19A draft failed

In relation to these proposed changes, Chief Justice Sripavan observed in his determination on the 19th Amendment, that “if the Prime Minister seeks to exercise the powers referred to above, then the Prime Minister would be exercising such powers which are reposed by the people to be exercised by the Executive, namely the President and not the Prime Minister. In reality the executive power would be exercised by the Prime Minister from below and does not in fact constitute a power coming from the above from the President.” And further that; “permitting the Prime Minister to exercise executive power in relation to the six paragraphs referred to above had to be struck down as being in excess of authority and violative of Article 3.”

This reference to the powers sought to be exercised by the Prime Minister being in violation of Article 3 of the constitution obviously refers to the fact that the according to the existing Article 4(b) as well as the amendment thereto proposed in the original 19th Amendment Bill that was examined by the Supreme Court, the President is elected by the people and for the power exercised by an elected President to be given to the Prime Minister would violate  Article 3 which states that the sovereignty of the people includes the franchise. Article 3 goes as follows:

” 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.”

It will be noticed that the original 19th Amendment Bill did not seek to change the provision in Article 4(b) which says that the President will be elected by the people. If the President is not elected by the people, then the changes sought in the 19th Amendment draft Bill through clauses 42(3), 43 and 44 would not violate article 3. For the people to cease directly electing the President, Article 4(b) and Article 30(2) of the constitution will have to be amended. As pointed out earlier, Article 4 is not an entrenched provision of the constitution and it should be possible to amend 4(b) with a two thirds majority in parliament without a referendum. Furthermore as we pointed out earlier, the part of article 30(2) which says that the President is elected by the people is not entrenched either.

It will be interesting to study in retrospect whether the original 19th Amendment Bill failed to get clearance from the Supreme Court because it did not seek to change constitutional provisions like Article 4(b) and 30(2) so that the President would no longer be elected by the people. Entrenched Article 3 only states that “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.” As justice Sharvananda said in his determination on the 13th Amendment, Article 4 sets out the ‘agencies or instruments’ for the exercise of the sovereignty of the People. And ‘It is always open to change the agency or instrument by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the people.’ The sovereignty of the people cannot possibly be prejudiced if executive power is transferred to the cabinet of ministers appointed from among the elected representatives in parliament.

It should be noted that from the inception of the 1978 Constitution, Article 42 stated that “The President shall be responsible to Parliament for the due 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.” After the 19th Amendment, this very same provision was brought in again as Article 33A of the Constitution without changing a word or a comma from the old Article 42. That was part of the yahapalana sleight of hand to show that it was they who made the President responsible to parliament! In any event the fact is that from the inception of the 1978 Constitution to this day, the President who is elected by the people was required by the Constitution to be responsible to Parliament. Hence any Amendment that seeks to rearrange Article 4 in such a manner that a Parliamentary executive would be given the main role in running the government cannot possibly be construed as violating Article 3 especially if the President ceases to be elected directly by the people.

At this point, the question will arise whether any change in the arrangement whereby the President of the Republic is elected directly by the people will impinge on the franchise which is a part of entrenched Article 3. That however cannot happen because according to Article 3, the franchise is only one component of the sovereignty of the people the other two being ‘the powers of the government’ and ‘fundamental rights’. The constitutional provision that governs the exact manner in which the sovereignty of the people is exercised is Article 4 which is not entrenched and can be amended with just a two thirds majority in Parliament, without a referendum.

There is no entrenched provision in the present constitution which says that the President has to be elected directly by the people. All the provisions that refer to an elected President including Article 30(2) can be changed with a two thirds majority in Parliament. Former Chief Justice S. Sharvananda stated very clearly in his determination on the constitutionality of the 13th Amendment that Article 4 had been deliberately kept out of the list of entrenched provisions. If so the intention of the framers of the constitution was to leave it open for Article 4 to be amended with a two thirds majority without a referendum. However if any amendment made to Article 4 is always deemed to violate Article 3, that would be tantamount to entrenching an Article which was never meant to be entrenched and the intentions of the framers of the constitution would be defeated.