Friday Sep 20, 2024
Friday Sep 20, 2024
Tuesday, 27 November 2018 00:00 - - {{hitsCtrl.values.hits}}
By Morris Perera
One cannot but agree more with the title ‘Avoiding repugnancy, the need of the hour to protect sovereignty’ given by Samantha Ratwatte to his article compiled with extensive reference to a Supreme Court ruling in 2002 on a draft bill to amend the constitution included in the Order Paper of Parliament on 19 September 2002.
Coincidently, this amendment too was titled, ‘19th Amendment to the Constitution’. Due to various legal considerations and other reasons, it was not taken up by Parliament and was never approved.
Ratwatte, being a President’s Counsel, seems to be a competent person to analyse and give his own interpretations on certain provisions of the Constitution, whereas, I, being an ordinary layman can only give my opinion as I perceive and understand certain underlying principles enshrined in the supreme law of the country, the Constitution and also by reading comments or observations made by knowledgeable persons, reported in the media.
Ratwatte quotes the SC ruling in 2002 thus:
“1. The dissolution of Parliament is part of the exercise of Executive power vested in the President. (Page 104)
2. Such power cannot be alienated, in that, it cannot be removed from the President and be vested in the Parliament.
3. The restriction of that power can be done up to a maximum of half the period of Parliament and if a restriction is placed beyond half, it would amount to alienation and therefore, such a restriction would violate the inalienable sovereign Executive power of the people set out in Articles 3 read with 4(b). (Page 106).”
He goes on to state that, ‘This judgment binds the Supreme Court and any interpretation of the Constitution has to be done necessarily in line with this Judgment.’
He may be right in his assertion but as a layman, I cannot understand the correlation of this argument. Suppose, the courts arrive at a decision on certain assumptions or presentation of facts but which are later proved to be inconsistent, are the subsequent Court hearings bound to follow the earlier decision?
My argument may sound very simplistic and may not even be correct in the case of the Supreme Court rulings but hasn’t the Supreme Court deviated from earlier rulings in considering similar issues with different circumstances, particularly in revision applications? The learned Judges serving on the panel of the Supreme Court are eminent jurists who have proved their competence with experience and scholarship and I feel they can independently rule on questions of law without being bound by previous decisions but they certainly are guided by earlier rulings.
The sovereignty of the people (sovereignty, is in the people and is inalienable. Sovereignty includes powers of government, fundamental rights and the franchise) according to the Constitution and is exercised through the organs, the Executive by the elected President, the legislative power by Parliament and Judicial through the courts.
The Executive power derived from the sovereignty of the people cannot therefore be exercised in an arbitrary manner by the person holding the presidency and such power is bequeathed on trust and is subject to oversight by Parliament as enshrined in the Constitution in article 33 (A) which says, “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.”
It follows therefore that though the President is assigned the Executive authority to dissolve Parliament under Article 33 (2) (c) of the present 19th Amendment, it is subject to the sovereignty of the people whose wish will be a paramount consideration.
Such authority is also restricted by article 70 (1), “The President may by Proclamation, summon, prorogue and dissolve Parliament: Provided that the President shall not dissolve Parliament until the expiration of a period of not less than four years and six months from the date appointed for its first meeting, unless Parliament requests the President to do so by a resolution passed by not less than two-thirds of the whole number of Members (including those not present), voting in its favour.”
Though Ratwatte cites only the sections of the SC report SLR – 2002 Vol.3, Page No. 85 in support of his contention, it is also useful to look at other comments carried in this report.
“To sum up the analysis of the balance of power and the checks contained in the Constitution to sustain such balance, we would state that the power of dissolution of Parliament and the process of impeachment being some of the checks put in place, should be exercised, where necessary, in trust for the people only to preserve the sovereignty of the people, and to make it meaningful, effective and beneficial to the people. Any exercise of such power (constituting a check), that may stem from partisan objectives would be a violation of the rule of law and has to be kept within its limits in the manner stated.”
When interpreting the relevant sections of the Constitution, the Supreme Court as is customary will obviously take into consideration the intent and purpose of the people exercised through the Legislature and attendant circumstances that prompted the enactment of the 19th Amendment.
It is pertinent to quote the pledge of the common candidate in his manifesto presented to the people in the 2015 presidential election, which asserted, “Abolishing the Executive Presidential system with unlimited powers: The President needs the assistance of Parliament to change the post of Executive President. That is because it is Parliament which has the power to amend the Constitution. For that the President should take the initiative to reach an accord among the main political parties. It is to fulfil this task that I decided to come forward as the common candidate of all the people at this presidential election. I can obtain the support of the Members of Parliament of the Sri Lanka Freedom Party that has the majority in Parliament. The new constitutional structure would be essentially an Executive allied with the Parliament through the Cabinet instead of the present autocratic Executive Presidential system. Under it the President would be equal with all other citizens before the law. I guarantee that in the proposed Constitutional Amendment I will not touch any Constitutional Article that could be changed only with the approval at a referendum. I also confirm that I will not undertake any amendment that is detrimental to the stability, security and sovereignty of the country. My amendments will be only those that facilitate the stability, security and sovereignty of the country.”
It is important to recall that at the time the 19th Amendment was presented in Parliament, President Sirisena was personally present for more than five hours to persuade and cajole MPs, particularly from the SLFP, to vote for the 19th Amendment.
Ratwatte in his article lays emphasis on the fact that “there was no referendum on the present 19th Amendment. As there was no referendum, no one in their proper senses can argue that Article 3 has to be ignored when interpreting other Articles of the Constitution.”
It is clear from the manifesto of the common candidate in 2015, that he was anxious to prune some of the Executive powers if not to abolish the Executive Presidency in toto, and when the presently operative 19th Amendment was referred to the Supreme Court, the decision was clear.
If I may quote the report in Wikipedia, “When the 19th Constitutional Amendment Draft Bill was presented to Parliament by Prime Minister Ranil Wickremesinghe on 24 March 2015, 19 petitions were filed with regard to the new amendment. Five of them were filed for the amendment while 14 petitions were filed against it. On 9 April 2015 the petitions were considered and the amendment was reviewed by a panel of Supreme Court Judges led by Chief Justice K. Sri Pavan and Justices Chandra Ekanayake and Priyasad Depp, determined that it was consistent with the Constitution. While presenting his submissions, the Attorney General told the court that the 19th Amendment could be passed with a two-thirds majority in Parliament without calling for a referendum. The three-Judge bench ruled that the Proposed Bill complied with the provisions of Article 82(1) of the Constitution but required to be passed by a special majority of the Parliament as specified in Article 82 (5) of the Constitution and certain sections required to be approved by the people of the country at a general referendum The Sri Lankan Government had to change the bill several times in a bid to get the backing of parliamentary opposition parties and amended the relevant clauses and removed the sections that need a referendum before presenting it to Parliament.” (Acknowledgement – Wikipedia)
It is preposterous to even hint that the Supreme Court consisting of Chief Justice K. Sri Pavan and Justices Chandra Ekanayake and Priyasad Depp had not referred back to the ruling in 2002, when the 19th Amendment was taken up for perusal to determine whether it is in conformity with constitutional provisions in April 2015 and they have given judgement taking all relevant facts into consideration.
Therefore, it is futile for commentators to engage in semantics or to go through the ‘small print’ to interpret the provisions of the 19th Amendment and justify the proposed dissolution of Parliament proclaimed by Gazette of 9 November since it is not in line with the sovereignty and the wish of the people and also the intention of the Legislature which approved the 19th Amendment with 224 members saying ‘aye’ including the desire and commitment of President Maithripala Sirisena to get it approved to preclude autocratic rule establishing itself again, in our beloved nation.
Let us await the final determination of the Supreme Court on 7 December. Let us hope the present impasse and uncertainty affecting all our lives will be resolved forever.
