Postponing elections: Are there limits to popular sovereignty?

As long as a two-thirds majority in Parliament passes a constitutional amendment or a new constitution and a majority of the People approves the same, are there no limitations to what can be done?

By Dr. Jayampathy Wickramaratne, President’s Counsel

United National Party Secretary Range Bandara’s statement at a media briefing at UNP Headquarters that the terms of the current President and current Parliament should be extended by two years ‘to save the Nation’ has drawn the ire of the people at large, with even the UNP’s ally (for the moment?), the Sri Lanka Podujana Peramuna distancing itself from the proposal. The essence of the people’s response is that the present Parliament has lost its legitimacy, and President Wickremesinghe has been elected not by the People directly but by that very Parliament for the remainder of the term of President Gotabaya Rajapaksa, who was forced to resign. 

An amendment of the Constitution ordinarily requires a two-thirds majority in Parliament. Article 83 provides that a Bill for the amendment or the repeal or replacement of or which is inconsistent with any of the provisions of Articles 1 (The State), 2 (Unitary State), 3 (Sovereignty of the People), 6 (National Flag), 7 (National Anthem), 8 (National Day), 9 (Buddhism), 10 (Freedom of thought, conscience and religion), 11 (Freedom from torture) and Article 83 itself and also a Bill which seeks to extend the term of office of the President or the duration of Parliament to over six years, would become law only if it is passed by a two-thirds majority in Parliament and is approved by the People at a referendum.

It has been argued that since the proposal is to extend the terms of the current President and Parliament to seven years, it can only be passed with a two-thirds majority in Parliament and approval at a referendum. It follows from the argument that a referendum would not be needed if the terms are to be extended to six years only.

Going against the spirit of the Constitution

The writer takes a different view, namely that the terms of an existing Parliament and a President-in-office cannot be extended even with the approval of the People at a referendum as they were elected for a specific term. Such an extension would go against the spirit of the Constitution. As the Lawyers Collective pointed out last week, a two-thirds majority of Parliament and a 50%-plus-One majority of the People cannot just pass ANY amendment. 

A seven-member bench of the Supreme Court considered the Fourth Amendment to the Constitution Bill to extend the life of the first Parliament by six years. (Re Fourth Amendment to the Constitution Bill, 1982 (1978–1983) I DSCPB 155.)The Court only stated that as the Cabinet of Ministers had certified that the Bill was intended to be passed by a two-thirds majority and placed before the People at a referendum, it had no jurisdiction in terms of proviso (b) of Article 120. Interestingly, three of the seven judges did not agree with this view, but the reasons for their disagreement were not stated. The names of the dissenting judges, too, were not disclosed, giving rise to various versions in rumour-prone Hulftsdorp. 

The Bill was approved by a two-thirds majority in Parliament and at the referendum that followed. The 1982 referendum is the worst blot in Sri Lanka’s election history. Election laws were violated with impunity, and there were many reports that opposition supporters were forced to vote ‘yes’ and show the ballot paper to UNP polling agents. Opposition leaders such as Hector Kobbekaduwa and Pieter Keuneman found out at the polling booth that their votes had already been cast! 

At that time, the UNP enjoyed a five-sixths majority in Parliament, obtained through a first-past-the-post electoral system. What followed from the Court’s determination is that the UNP could have postponed Parliamentary elections repeatedly with its super majority as long as 50%-Plus-One of the People approved the same at a referendum. 

The Nineteenth Amendment to the Constitution Bill, 2004, a Private Member’s Bill, sought to amend Article 9. The proposed provision read: ‘The official Religion of the Republic is Buddhism. Other forms of religions and worship may be practised in peace and harmony with Buddha Sasana.’ The Supreme Court (Weerasuriya, Thilakawardena and Raja Fernando JJ) held that the clause would curtail the freedom guaranteed to other religions under Articles 10 and 14(1)(e) and would require to be approved at a referendum. (2004–2006) VIII DSCPB 58.

Tilakawardane J, while agreeing with the conclusions of the Court, took an interesting position with regard to constitutional amendments. The learned Judge stated that although Article 75 does not contain any limitations on the power of Parliament regarding constitutional amendments, that power should not be exercised so as to damage or destroy the critical elements of the basic structure of the Constitution. That could only be done with the repeal and replacement of the whole of the Constitution and not through the ‘tinkering’ or amendment of specific Articles of the Constitution. 

She further stated: ‘An amendment of the two basic features of the Constitution, such as (a) the democratic character of the Constitution and (b) the separation of powers, must perforce be examined in the light of the features in each individual case, in the place of the particular feature in the scheme of the Constitution, it’s objects and purposes and it’s denial on the integrity of the Constitution as the fundamental instrument of the country’s governance.’

Critical elements of the basic structure should not be ‘tinkered’ with

Tilakawardane J’s view that certain critical elements of the basic structure should not be ‘tinkered’ with and the identification of the democratic character of the Constitution and separation of powers as two of such features raises a pertinent question: As long as a two-thirds majority in Parliament passes a constitutional amendment or a new constitution and a majority of the People approves the same, are there no limitations to what can be done? For example, can Sri Lanka be converted to a one-party state if a two-thirds majority in Parliament and a 50%-plus-One majority of the People agree? Similarly, can the freedom from torture not be made available to persons arrested on suspicion of working towards a separate state?

In international law, certain basic norms (jus cogens) are accepted as peremptory norms from which no derogation is permitted. Examples include prohibitions against slavery and torture, genocide, the use of armed force and piracy on the high seas and racial non-discrimination. Similarly, are there basic norms from which a democracy such as Sri Lanka cannot derogate? Can a tyrannous majority adopt any constitution? Would the Supreme Court have the power to examine a Bill for the amendment of the Constitution or a new Constitution, certified by the Cabinet of Ministers as one that requires the People’s approval at a referendum, if certain basic democratic norms are alleged to be violated? Such questions may seem academic at first blush, but given experiences from elsewhere, should they be brushed aside? 

When freedom from torture is recognised as a peremptory norm that binds the international community, can the People of Sri Lanka restrict its application within the country, invoking their sovereignty? Put differently, are there no limits to the internal dimension of sovereignty?

Is the amending process also governed by the principle of ‘constitutional morality’

The Lawyers Collective also raised the pertinent question of whether the amending process is also governed by the principle of ‘constitutional morality’, a concept which has recently gained wide acceptance in India. Simply put, constitutional morality demands that the spirit of the Constitution be respected and should not be undermined even at the behest of the majority. It is thus a counterpoise to popular or social morality that can sometimes be undemocratic and violative of rights.

In Navtej Singh Johar v. Union of India, the Indian Supreme Court observed as follows: “The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.”

The Court explained that it is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State. “The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.” (AIR 2018 SC 4321).

The writer submits that peremptory norms that limit the internal dimension of sovereignty are found in the Preamble to our Constitution, which refers to ‘immutable republican principles of representative democracy’ that assure to ‘all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka’. These, then, are the critical elements of the basic features of our constitutional edifice that defy change.