When President Maithripala Sirisena vacates office in January next year, the President of the Republic will revert to be the ceremonial Head of State, an office that was held with great dignity and distinction for 15 years by the late William Gopallawa. This is because under our Constitution, as amended in 2015, only a Member of Parliament may hold office as a Minister or Deputy Minister. In a transitional provision, the 19th Amendment allowed Maithripala Sirisena, for as long as he holds the office of President, to assign to himself the subjects and functions of Defence, Mahaweli Development and Environment. Of course, he also assigned to himself, without any constitutional authority whatsoever, and with such tragic consequences, the subject of Law and Order as well.
A constitutional Head of State
The ceremonial (or constitutional) Head of State is not a mere figurehead. He or she is a non-partisan, non-political, individual who symbolizes the unity of the State. For over 24 years since Independence, the President (and previously the Governor-General) was also the Commander-in Chief of the Armed Forces and Head of the Executive. However, the governance of the country, as in India, Canada, Australia and the United Kingdom (to name only a few functioning democracies) was the responsibility of the Cabinet of Ministers, chosen from among the Members of Parliament and collectively responsible and accountable to Parliament. The strength and efficacy of that form of governance was demonstrated by the remarkable speed and efficiency with which the January 1962 military and police Coup was foiled, and the April 1971 Insurgency was dealt with and normalcy restored throughout the country. In contrast, the Presidency vested with full executive powers failed the people of this country in 1983, in 1989, and again in 2004 when the tsunami struck this Island.
Objectives of the 20th Amendment
It was obviously in that context, and in anticipation of the impending change in the constitutional role of the President, that the JVP presented the Bill for the 20th Amendment. That Bill had two principal objectives. One was to make certain consequential amendments following the enactment of the 19th Amendment. In the tumultuous circumstances in which the Bill for the 19th Amendment was debated and passed at a late-night session in April 2015, especially at the committee stage, several errors were made. For example, while requiring that the President should always act on advice (of the Prime Minister or the Constitutional Council) before exercising his power of appointment, whether of Ministers, other important officers of state or independent commissions, the 19th Amendment had omitted two categories of public officers, namely, ambassadors and ministry secretaries. The Bill for the 20th Amendment sought to rectify that omission.
The other principal objective was to provide for the President to be elected by Parliament. Almost all the executive powers of that office are now required to be exercised on advice. The office of omnipotent President created by President Jayewardene in 1978 no longer exists. Therefore, it does not appear to make sense that a national countrywide divisive election, similar to a general election, at great financial cost and with attendant violence, should be conducted to choose the future incumbent of that office. In India and elsewhere, the constitutional Head of State (i.e. a President who exercises most of his or her powers on advice) is usually elected either by an electoral college or by the legislature. Under the 1972 Constitution, the President was nominated by the Prime Minister.
The 19th Amendment determination
To any student of constitutional law it would have been evident that the Bill for the 20th Amendment was within the power of Parliament to enact with a two-third majority of all its members. In April 2015, a three-member Bench of the Supreme Court headed by Chief Justice Sripavan had unanimously held that Parliament could, without the approval of the people at a referendum: (i) reduce the term of office of the President elected by the People from six years to five years; (ii) prohibit a President from seeking election by the People for a third term; (iii) remove the legal immunity enjoyed by the President; (iv) repeal the absolute power which the President enjoyed of appointing the Chief Justice and Judges of the Supreme Court and of the Court of Appeal; the Attorney General, the Auditor General, the Inspector-General of Police, the Ombudsman and the Secretary-General of Parliament, and require him to do so only upon the recommendation of the Constitutional Council; (v) repeal the absolute power which the President enjoyed of appointing the independent commissions such as the Election Commission, the Public Service Commission, the National Police Commission, the Human Rights Commission, and the Bribery Commission, and require him to do so only upon the recommendation of the Constitutional Council; (vi) repeal the absolute power which the President enjoyed of dissolving Parliament at any time, and enable him to do so only at the request of Parliament by a resolution passed by two-thirds of its members, except during the final six months of its term; (vii) repeal the absolute power which the President enjoyed of appointing Ministers and Deputy Ministers, and require him to do so only on the advice of the Prime Minister; (viii) repeal the absolute power which the President enjoyed of removing a Minister or Deputy Minister, and require him to do so only on the advice of the Prime Minister; and (ix) to repeal the absolute power which the President enjoyed of removing the Prime Minister from office.
Rectification of an omission
Apparently inadvertently, the draftsman of the Bill for the 19th Amendment overlooked the fact that the Constitution also empowered the President to appoint two other categories of public officials, namely, heads of diplomatic missions and secretaries of ministries. The Bill for the 20th Amendment sought to rectify that omission by requiring the President to act on the advice of the Cabinet of Ministers when appointing these officials. In October last year, a three-judge Bench of the Supreme Court determined that such an amendment could be made only if the Bill was passed, not only with a two-third majority in Parliament, but also with the approval of the people at a referendum.
It is submitted that that Determination was not only flawed in law but was also made per incuriam. No reference whatsoever was made by the Court to the Determination of the three-judge Bench headed by Chief Justice Sripavan on the Bill for the 19th Amendment in which the identical issue had already been decided.
That Determination was not distinguished on any ground, nor held to be wrong. If Parliament, with the approval of the Supreme Court, was able by a two-third majority of its members to require the President to act on advice when appointing Ministers, Judges, high state officials and independent commissions, why is approval by the people at a referendum required if he has to act on advice when appointing the remaining two categories of public officials who were obviously inadvertently omitted in the Bill for the 19th Amendment? If the President could have been required, by a two-third majority in Parliament, to act on the advice of the Prime Minister when appointing a Minister, why is approval by the people at a referendum necessary to require him to act on the advice of the Cabinet of Ministers when appointing a Secretary to a Ministry? As a student of constitutional law, I find that inexplicable.
Election of the President by Parliament
The Bill for the 20th Amendment also sought to provide for the President to be elected by a majority vote in Parliament instead of at a nationwide election. For that purpose, it sought to amend Article 4 of the Constitution by deleting the words within brackets below, and by inserting the words in italics:
The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President (elected by the People) and the Cabinet of Ministers as provided for in the Constitution.
The franchise shall be exercisable at the election of (the President of the Republic and) the Members of Parliament and at every Referendum by every citizen . . .
The Court held that these amendments to Article 4 were required to be passed not only by a two-third majority in Parliament, but also with the approval of the people at a referendum. It is submitted that this determination is also flawed in law because an amendment of Article 4 does not require approval at a referendum.
The Constitution states quite explicitly in Article 83 that certain provisions may be amended only if a Bill for that purpose is passed by a two-third majority in Parliament and then approved by the people at a referendum. These entrenched provisions relate to the name of the state (Art.1), the unitary character of the state (Art.2), the sovereignty of the people (Art.3), the national flag (Art.6), the national anthem (Art.7), the national day (Art.8), the foremost place of Buddhism (Art.9), the right to freedom of thought, conscience and religion (Art.10), and the right to freedom from torture (Art.11).
Also requiring approval at a referendum is a Bill that seeks to extend the life of Parliament (Art.62.2). In respect of the office of President, a referendum is required only if Parliament seeks to extend his term of office (Art.30.2). Article 4 is therefore not an entrenched provision of the Constitution. In fact, in the Draft Constitution that was presented in Parliament in 1978, Article 4 was included in Article 83, and had it remained there, any amendment of that Article would have required the approval of the people at a referendum. However, at the committee stage, Justice Minister Devanayagam moved to delete Article 4 from Article 83, and it was accordingly deleted.
(To be continued next week)