22nd Amendment and the determination of the Supreme Court.
The Island 13th 14th &15th of September. Three-part article.
Dr Jayampathy Wickramaratne,
President’s Counsel
Part I: Removal of the PM
The Twenty-Second Amendment to the Constitution Bill (22A) was showcased by the Wickremesinghe-Rajapaksa Government as a restoration of the Nineteenth Amendment to the Constitution (19A) of 2015. Most 19A provisions were removed by the Twentieth Amendment to the Constitution. Many, including the writer, have pointed out that not all the provisions of 19A are sought to be introduced by 22A. The 22A Bill was challenged in the Supreme Court, mostly by Sinhala nationalist groups, who consider the Presidential form of government to be one assurance of majoritarian dominance.
The abolition of the ‘Executive Presidency’ was one of the significant demands of the Aragalaya, while going back to 19A was called for as an immediate measure. Over the last year or so, support for the abolition of the Executive Presidency has seen a marked increase. A survey conducted by the Centre for Policy Alternatives (CPA) in April 2022 revealed that 74% of the respondents wished for the complete abolition of the Executive Presidency, compared to 50.3% in October-November 2021. It is of interest that the figure among the Sinhalese, who wish for abolition (74.2%) was higher than the national percentage, clearly indicating that Sinhala nationalism is on the retreat.
The Supreme Court (Jayasuriya CJ, Aluwihare J and Obeysekere J) has determined that several key provisions of 22A require the approval of the people, at a referendum, in addition to a two-thirds majority, in Parliament. They are as follows: the President should not have the power to dismiss the Prime Minister; Ministers shall be appointed by the President on the advice of the Prime Minister; and that if the President does not make appointments to the independent Commissions, as recommended by the Constitutional Council, within 14 days, the appointments would be deemed to have been made. These three provisions were part of the Constitution, under 19A. The Supreme Court, in 2015, did not consider that they would require approval, by the people, at a referendum. There is thus a clear shift in the thinking of the current Supreme Court. The government has said that a referendum will be avoided by amending the Bill at the committee stage in Parliament. Thus, the President would only be required to consult the Prime Minister in appointing Ministers. The President can dismiss a Prime Minister even when the latter has a clear majority in Parliament. Premier Dinesh Gunawardena, beware!
Appointment and removal of PM
To the writer, the decision of the Supreme Court in the matter of appointing Ministers did not come as a surprise, given the reasoning of the Court (Jayasuriya CJ, Janak De Silva J and Obeysekere J) in its determination of the Samagi Jana Balavegaya’s Twenty-first Amendment to the Constitution Bill (21A), holding that the abolition of the Executive Presidency required people’s approval, at a referendum. The writer disagrees with that determination, which will be the subject of a forthcoming paper. But the determination in the 22A case that the President’s power to dismiss a Prime Minister, who commands the confidence of Parliament, is an essential part of executive power, did come as a surprise.
The Nineteenth Amendment took away the power of the President under previous Article 47(a) to remove the Prime Minister. The removal of the Prime Minister thus became a power of Parliament. New Article 48(2) provided that if Parliament rejects the statement of government policy, or the Appropriation Bill, or passes a vote of no-confidence in the government, the Cabinet of Ministers shall stand dissolved. The President could then appoint a new Prime Minister.
The 20A Bill sought to empower the President to remove the Prime Minister. The proposed provision was challenged. A five-member Bench of the Supreme Court, however, held that in view of the fact that the President, who holds the People’s executive power in trust for the People, is the Head of the Cabinet of Ministers and the appointing authority of the Prime Minister, empowering the President to remove the Prime Minister and appoint a new Prime Minister who, in his opinion, commands the confidence of Parliament, does not infringe the sovereignty of the People. The Court did not explicitly state that such a power of removal is an essential part of executive power but seems to have gone on the basis that the appointing authority also has the power of removal.
In the 22A case, the Attorney-General submitted that the removal of the Prime Minister should arise only where the Prime Minister ceases or fails to command the confidence of Parliament and that in such an instance, it is more appropriate for Parliament to move a motion of no-confidence against the Prime Minister. He submitted further that the President, acting on his own accord in removing the Prime Minister, where he is of the opinion that the Prime Minister no longer commands the confidence of Parliament, would amount to an arbitrary exercise of power. The Court’s response was that currently, that is under 20A, the President has the power to remove the Prime Minister. The circumstances in which the Prime Minister may be removed will not be limited to a situation where the Prime Minister no longer commands the confidence of Parliament. The Court took the view that taking away that right affects the balance of power that currently exists and amounts to a relinquishment and erosion of the executive powers of the President, impinging upon the sovereignty of the People.
It is respectfully submitted that the learned Judges were in error in both the 20A and 22A cases. Both 19A and 20A had a similar provision, relating to the appointment of the Prime Minister: ‘The President shall appoint as Prime Minister the Member of Parliament, who, in the President’s opinion, is most likely to command the confidence of Parliament.’ The word ‘most’, which makes all the difference, escaped the attention of the learned Judges in the 20A case, who assumed the wording to be ‘who in the President’s opinion, is likely to command the confidence of Parliament’. It is clear that the President has no discretion in the matter of appointing a Prime Minister. He must necessarily appoint ‘the Member of Parliament’ who, in his opinion, is most likely to command the confidence of Parliament. The Sinhala version of Article 42(4) is even more clear, using the phrase ‘vishvaasaya uparima vashayen athi’ (‘utmost confidence’).
Thus, there can be only one Member of Parliament, who fits the constitutional requirement. That Member has a right to be appointed as the Prime Minister. To use equal protection phraseology, the office of the Prime Minister is a single-person class, a class which consists of one person. It follows that a ‘new Prime Minister’ cannot be the Member of Parliament who commands the ‘utmost confidence’ of Parliament, that Member of Parliament having been removed. It is submitted that to empower an authority to remove the one person who is entitled to be in a single-person class is arbitrary.
Public Trust Doctrine
Our courts have, on countless occasions, reiterated the application of the public trust doctrine to the exercise of power. In Re Nineteenth Amendment to the Constitution 2002, a seven-member Bench of the Supreme Court reiterated that the doctrine applies to powers of check attributed to one organ of government in relation to another: ‘The power that constitutes a check, attributed to one organ of government in relation to another, has to be seen at all times and exercised, where necessary, in trust for the People. This is not a novel concept. The basic premise of Public Law is that power is held in trust.’
It thus follows that the power to dismiss a Prime Minister at will when Parliament is functioning properly and the Prime Minister commands the confidence of Parliament is an obvious violation of the doctrine. 22A sought to remedy this situation, as 19A did, by taking away the power of the President to remove the Prime Minister.
Part II: Removing PM not essential to executive power
(In Part I of this article, the writer argued that the determination of the Supreme Court in the case of the Nineteenth Amendment was preferable to that of the Twenty-second Amendment Bill (22A).)
Removal of the PM, not executive power
The writer submits that in 22A, the Court seriously erred by assuming that the power to dismiss a Prime Minister is an essential part of executive power. While the President is directly elected by the People, the Prime Minister is elected indirectly by the very same People. The People elect the Parliament, and the Member of Parliament who commands the utmost confidence of that elected Parliament has the right to be appointed Prime Minister. The President has solely to identify who that Member is. It is not an essential part of executive power.
The writer respectfully submits that it would be difficult to find a worse example of arbitrary action, in matters of public law in a functioning democracy, than the removal of a Prime Minister by a President at a time the former commands the confidence of Parliament. Regretfully, the Supreme Court has held that to take away such arbitrary power requires the approval of the People at a referendum.
That such removal can be challenged in the Supreme Court or that the ‘new’ Prime Minister can be defeated in Parliament is no answer. Why open the doors to manipulation in the meanwhile? When the Constitution is so clear as to who can hold the position of Prime Minister, why allow the President to dismiss a Prime Minister at all?
If, as the Supreme Court has determined, the power to remove a Prime Minister is an essential part of executive power, the appointment of the Prime Minister must also be an essential part of such power. It necessarily follows then that the power of appointment and removal of the Prime Minister cannot be given to Parliament! A constitutional amendment that provides that the caretaker government during the election would continue until Parliament meets for the first time, that both the Speaker and the Prime Minister would be elected by Parliament at its first meeting and that any change in the position of the Prime Minister would be a matter for Parliament only would need a referendum. After all, it is Parliament that can best determine which Member commands its confidence. If the Prime Minister is the Member who commands the utmost confidence of Parliament, would it be an alienation of executive power to transfer the power of appointment from the President to Parliament? From what the Court has determined, it would be so. Sounds illogical, doesn’t it?
Power to dismiss PM opens the door for manipulation
The turmoil created by the removal of a Prime Minister can also give rise to manipulation of the kind the country witnessed during the fifty-two-day period of constitutional crisis in 2018. Following the purported removal of Prime Minister Ranil Wickremesinghe, who commanded the confidence of Parliament, Mahinda Rajapaksa was appointed as the ‘new’ Prime Minister. A few Members of Parliament were enticed to cross over, but when it was clear that the ‘new’ Prime Minister was unable to secure a majority, President Maithripala Sirisena purported to dissolve Parliament. Upon several fundamental rights applications being filed, the Supreme Court granted leave to proceed and issued an interim order staying the operation of the dissolution. Parliament then met, and the ‘new’ Prime Minister and his ‘government’ were defeated on the floor of the House on several occasions. Upon an application being made by 122 out of 225 Members of Parliament for writs of quo warranto against the ‘new’ Prime Minister and ‘Ministers’, the Court of Appeal issued interim orders restraining them from functioning. The manipulations continued, and, in the meantime, the Supreme Court struck down the purported dissolution. It was only after the Supreme Court granted special leave to appeal against the order of the Court of Appeal but refused to stay the operation of the interim order that the ‘new’ Prime Minister ‘resigned’. However, President Sirisena refused to re-appoint Ranil Wickremesinghe as Prime Minister, indicating that he would instead be willing to appoint Sajith Premadasa, who steadfastly declined. Finally, Sirisena had to eat humble pie and appoint Wickremesinghe. It is in the backdrop of such ugly episodes in our history that the power to dismiss a Prime Minister must be considered.
Constitutional Amendments: Flexibility and Rigidity
Every written constitution lays down the procedure for amending it or making a new constitution. It is the general rule that such a procedure is more rigorous than the procedure followed in making ordinary law. In most countries, ordinary laws are passed by a simple majority of the legislature/s, while constitutional changes need a special majority, usually a two-thirds majority. In Sri Lanka, the Independence Constitution, as well as the 1972 Constitution, prescribed a two-thirds majority.
Under the 1978 Constitution, while a two-thirds majority is a general rule for amendments, changes that affect certain ‘entrenched’ provisions of the Constitution listed in Article 83 require the approval of the People at a referendum as well. Article 3, one of the entrenched provisions, states: ‘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 sets out the manner in which legislative power, executive power, judicial power, fundamental rights and the franchise are exercised. Article 4(b), which is relevant to this discussion, is in the following form: ‘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’. Interestingly, in both the Draft Constitution contained in the report of the Select Committee on Constitutional Reform and the 1978 Constitution Bill, Article 4 was included in the list of provisions to be entrenched. However, it was deleted from the list at the committee stage, thus signifying a conscious decision to leave the power to change the manner of the exercise of sovereignty to Parliament.
It is generally accepted that a Constitution should neither be too flexible, which is too easy to amend, nor too rigid, which is very difficult to amend. A Constitution that is too flexible is open to political manipulation, and minorities—ethnic, political, and otherwise—become vulnerable. A Constitution that is too rigid is unable to respond to changing public opinion and can lead to frustration, strengthening the case for extra-constitutional action. A Constitution can also be made more or too flexible/rigid by judicial interpretation. Judges dealing with constitutional issues, therefore, have an onerous task before them.
17A and 19A: SC allows flexibility
From the day the 1978 Constitution was adopted, the reduction of Presidential power and making the Presidency a ceremonial position have been matters of intense debate.
The Seventeenth Amendment Bill of 2001 sought to restrict the powers of the President by making appointments to certain important positions subject to the approval of a Constitutional Council and requiring the President to appoint members of Commissions that are expected to be independent only on the recommendation of the Council. The Supreme Court, in a welcome determination, stated that although there is a restriction in the exercise of the discretion hitherto vested in the President, that restriction per se would not be an erosion of the executive power of the President.
In its determination on the Nineteenth Amendment Bill of 2015, the Court (Sripavan CJ, Dep J and EkanayakeJ) took another step forward.
The core of the determination is that an essential requirement for the avoidance of a referendum is that the President continues to be the head of the executive, and the ultimate ‘act or decision’ of his executive functions must be retained by him. The use of the word ‘or’ in the phrase ‘act or decision’ used by the Court needs to be emphasised. Thus, it suffices if the final act is that of the President, even if the decision is not his. The Supreme Court stated that Article 42, which states that the Cabinet of Ministers is charged with the direction and control of the government of the Republic and is collectively responsible and answerable to Parliament, conclusively establishes that the President is not the sole repository of executive power under the Constitution. This has been emphasised by a seven-member Bench In Re the Nineteenth Amendment to the Constitution 2002 as well. Executive power should not be identified with the President and personalised and should be identified at all times as the power of the People, the Court held in that case.
Reference was also made to Justice Wanasundera’s dicta in the Thirteenth Amendment case that the Cabinet of Ministers, of which the President is a component, is an integral part of the mechanism of government and the distribution of the executive power and any attempt to bypass it and exercise Executive powers without the valve and conduit of the Cabinet would be contrary to the fundamental mechanism and design of the Constitution.
It is of much significance that the Court did not find that provisions requiring the President to appoint Ministers and Deputy Ministers on the advice of the Prime Minister required a referendum. This is in line with the essence of the determination. The President continues to be the appointing authority and, as such, is not removed from the appointing process. The act of appointing Ministers continues to be that of the President, although the decision is that of the Prime Minister. On the other hand, the clauses that provided that the Prime Minister shall determine the subjects and functions assigned to Ministers and may at any time change such assignment would require a referendum as the President would not be involved. The Court thus relaxed the rigidity of the amending procedure, although to a limited extent. (To be concluded)
Part III: Enhancing the Constitution’s Rigidity
In this, the final part of this article, the writer argues that while the Supreme Court’s determination on the Nineteenth Amendment Bill allowed some flexibility in reducing the powers of the President, its determination on the Twenty-first and Twenty-second Amendment Bills has further strengthened the Executive Presidency. In both its determinations on 21A and 22A, the Court did not consider the important fact that the provisions of Article 30, which made the form of government in Sri Lanka ‘presidential’, are not entrenched and, therefore, can be amended without a referendum.
SC on 21A and 22A: Steps backwards
The Samagi Jana Balavegaya’s Twentieth Amendment Bill sought to completely do away with the Executive Presidency. A three-member Bench (Jayasuriya CJ, Janak De Silva J and Obeysekere J) disagreed with the decision on 19A, stating that it is difficult to reconcile the statement that the President is not the sole repository of executive power with the unambiguous statement in Article 4(b) that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President elected by the People.
The Court adopted two tests to determine whether a violation of Article 4 leads to a violation of Article 3 as well. According to the delegation test, any change in the executive power delegated to the President by the People that brings in another person or institution must be with the approval of the People. The alienation test is that any transfer, relinquishment or removal of a power attributed to one organ of Government to another requires the approval of the People. Applying the delegation test, the Court held that the proposed amendment to Article 4(d) that executive power shall henceforth be exercised by the President and the Cabinet of Ministers required approval at a referendum. Applying the delegation test, the Court found that the proposed provision that the President shall act on the advice of the Prime Minister also requires such approval.
The Court also held that the proposal that the President would be elected by Parliament and not by the People violated Article 4(e), according to which the franchise shall be exercised at the election of the President as well.For the above and several other reasons, the Court concluded that the abolition of the Executive Presidency would require approval at a referendum.
However, the Court did not deal with two constitutional provisions that deal directly with the President and the manner of his election. Article 30 (The President of the Republic) originally read as follows: “(1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People, and shall hold office for a term of six years.” By the Nineteenth Amendment, the President’s term of office was reduced to five years.
That the President should be not only the head of the state and head of the executive but also the head of the government is what makes the form of government in Sri Lanka “presidential”. Under the 1972 Constitution, the President was the head of the state and head of the executive but not the head of government. Also, he was required to act on the advice of the Prime Minister. Thus, it is Article 30(1) that made the difference when Sri Lanka adopted the 1978 Constitution.
However, Article 30(1) is not entrenched. It is not in the list of provisions in Article 83 that triggers off a referendum. It is not only Article 30(1) that was left out of the list of entrenched provisions. The provision contained in Article 30(2) that “[t]he President of the Republic shall be elected by the People” was also left out of the list of entrenched provisions. What is most important is that only the second part of Article 30(2), that “[the President] shall hold office for a term of six years”, was entrenched to the extent that an extension of the term of the President to over six years would require a referendum. These omissions must be considered to be deliberate. This is fortified by the fact that Article 4 is not an entrenched provision.
In dealing with 22A, the Supreme Court followed its reasoning in the determination on 21A. Accordingly, it was held that to provide that the President should act on the advice of the Prime Minister in appointing Ministers and Deputy Ministers and removing them required approval at a referendum. The Court also determined that the proposed provision that if the President does not make appointments to the independent Commissions as recommended by the Constitutional Council within fourteen days, the appointments would be deemed to have been made also required similar approval. As discussed in Part I of this article, the Court held that the President must necessarily have the power to dismiss the Prime Minister.
The writer respectfully submits that the Court committed a serious error in determining in the 21A case that approval at a referendum is needed to provide that the President shall be elected by Parliament and that s/he should ordinarily act on the advice of the Prime Minister. The determination flies in the face of the non-entrenchment of Article 30 (1) and the provision in Article 30(2) that the President shall be elected by the People. While deciding not to entrench Article 4, the framers did not entrench Article 30(1) and the election of the President by the People. It is reasonable for one to expect the Court to have dealt with Article 30 and its non-entrenchment to the extent discussed above. The error was carried on to the determination on 22A.
The writer clearly prefers the Supreme Court’s determination on 19A and hopes that the Court would review its determinations in the 21A and 22A cases and also discuss the implications of the non-entrenchment of Article 30 in an appropriate case.
Constitutional Rigidity
A necessary consequence of the 21A and 22A determinations is enhancing the rigidity of our Constitution. The 19A determination allowed some flexibility in amending the Constitution with a two-thirds majority. It is easy for one to say that any amendment can be referred to the sovereign People, but the fact is that there has been an aversion to submitting amendments to a referendum. A referendum is costly in financial terms; it could also be costly in political terms for whatever the ruling party is.
During the recent Aragalaya, the need to bypass the procedure laid down in the Constitution was raised by several groups. Some even suggested invoking the controversial ‘doctrine of necessity’ used in Pakistan and elsewhere to legitimise military dictatorships. Most in the legal community, however, explained that it is in the interests of constitutionalism to follow the procedure laid down in the Constitution.
We must remember how dicta of the Privy Council in Bribery Commissioner v Ranasinghe and Ibralebbe v The Queen led to a belief that section 29 (2) of the Independence Constitution was unalterable. This, in turn, led to the 1972 Constitution being enacted, bypassing the procedure laid down in the Independence Constitution. The Constitution that emerged was one imposed by the ruling coalition. While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.
Restrictive judicial interpretations that make a Constitution too flexible or too rigid must both be avoided. Delivering the Justice S. Sriskandarajah Memorial Oration in 2015, Professor N. Selvakkumaran emphasised the need to strike an acceptable balance between the rigidity of constitutional structures and the flexibility of constitutional interpretation. He considers this to be of vital importance if a Constitution were to endure real and functional democracy upholding the rule of law and fundamental rights and liberties of the people. In this respect, the judiciary plays a pivotal role in sustaining and promoting democratic governance in the country.