by Dr. Nihal Jayawickrama
The public debate on the Eighteenth Amendment to the Constitution was an exercise in shadow boxing. A Government that claims to be democratic chose to keep the amending Bill a secret until it had been passed by Parliament.
One wonders whether those members of the Opposition who so enthusiastically crossed the floor to provide the Government with the required two-third majority had actually read the contents of the amending Bill before they did so.
If they had been shown it, the question can legitimately be asked why a Government that had sought and obtained two popular mandates in quick succession earlier this year, decided to hide the amending Bill from the electorate. The answer appears to be that the electorate, and public opinion, no longer matter – at least, not for the next six years. The voters have served their purpose and those whom they installed in office and invested with power now find that while power is delightful, absolute power could be absolutely delightful.
The law-making process
The law-making process, as prescribed by the Constitution, requires every Bill to be published in the Gazette at least seven days before it is placed on the Order Paper of Parliament. Thereupon, any citizen has the right to petition the Supreme Court for the purpose of arguing that the Bill or any provision in it is
(a) inconsistent with a fundamental right or any other provision of the Constitution;
(b) requires to be passed by a special majority;
or (c) requires to be approved by the people at a referendum.
The Supreme Court is required to make its determination within three weeks of the filing of the petition, and it is only thereafter that Parliament can proceed to debate the Bill. The Government, however, did not follow this procedure in respect of the Bill for the Eighteenth Amendment. Thereby, it deprived every citizen of his or her constitutional right to challenge the proposed legislation in court
What the Government did in respect of this Bill was to certify that it was "urgent in the national interest". A Bill so certified is not required to be published in the Gazette. Nor can its provisions be challenged in court by any citizen. Instead, the Bill is referred by the President to the Chief Justice, and the Supreme Court is required to make its constitutional determination on the Bill within 24 hours, and to communicate that determination only to the President and the Speaker. The Court is required to hear only the Attorney-General, but on this occasion the ingenuity of a few human rights activist-lawyers resulted in their being able to secure a brief audience before the Court.
Duty of the Court
It must have required incredible effort on the part of the Bench of Five Judges of the Supreme Court to examine a Bill, and thereafter make a determination on the constitutional validity of some 93 paragraphs of that Bill, all within the space of 24 hours. In fact, when the amending Act was subsequently published in "The Island", it occupied one full page and a half of small print. The Judges carried a further heavy burden because their determination would be final and conclusive for all purposes and for all time.
Some 32 years ago, Justice T. S. Fernando, sitting as President of the Constitutional Court, declined to make a determination on the Sri Lanka Press Council Bill even within the 14 days stipulated by the 1972 Constitution. Seven petitions had been filed by citizens and a political party leader, and several senior counsel appeared in support of these petitions. On Day 21, confronted by angry noises from the National State Assembly, he explained why he intended to permit each counsel to make his submissions in full:
"It is the duty of us all, whether we be judges or not, to uphold the Constitution. To uphold the Constitution we as judges must first understand the meaning of the relevant provisions of the Constitution. For that understanding we have to rely on our own judgment assisted, if need be, by the opinions of learned counsel. Any other course of action involves, in our opinion, an abdication of our functions."
The People’s Sovereignty
The fundamental question before the Court in respect of the Bill for the Eighteenth Amendment was whether any provision of that Bill required the approval of the people at a referendum. To answer that question, the Court needed to interpret the relevant provisions of the Constitution. For example, what is the meaning to be attributed to the phrase "an amendment which is inconsistent" with the concept that "sovereignty is in the people and is inalienable"?
Since "sovereignty" includes "the powers of government, fundamental rights and the franchise", the Court would logically have had to ask whether it would be consistent with the peoples’ sovereignty to deny a citizen the right (which he or she enjoyed until last week) to institute proceedings in a court or tribunal against a president, upon completion of his term of office, in respect of something done by him in his official or private capacity, by enabling that president to repeatedly seek re-election every six years, and thereby perhaps even outlive that citizen?
Moreover, is it consistent with the peoples’ sovereignty to deny accountability in governance by vesting the power of appointment of scores of senior judges, public servants and police officers in a president whose actions (unlike that of a prime minister under earlier constitutions) cannot be questioned in any forum?
How does it enhance the peoples’ franchise if a person who seeks election to the office of president has to contend with an incumbent who has already served two or more terms in that office, and who is allowed to choose the date of that election, appoint the elections commission that would conduct the election, exercise absolute control over all the other institutions of government and its personnel including the police, and who also enjoys immunity in respect of all his official and private acts?
There is nothing in the determination of the Supreme Court to indicate that any of these issues had been considered or addressed.
Purpose of the urgent procedure
The special procedure to be followed when the Cabinet of Ministers considered a Bill to be "urgent in the national interest" had its origin in the 1972 Constitution. It was introduced into that Constitution following the decision of the Constituent Assembly to remove the jurisdiction of courts to review the constitutionality of laws, and to provide instead for the review of proposed legislation by a specially created Constitutional Court. To enable a Bill to be reviewed, it was necessary to make it available to the public through publication in the Gazette.
Thereafter, it was necessary to allow time for the public to study the Bill and decide whether or not to challenge its constitutional validity. Finally, it was necessary to provide for submissions to be made to the Court and for a determination to be made by that Court.
A question that immediately arose was in respect of revenue legislation, especially following the presentation of the annual budget. The experience of the demonetization exercise of 1970 was fresh in everyone’s mind. Under the 1946 Constitution then in force, it had been possible for Parliament to enact the demonetization law in one sitting, Had there been a delay, many people would have begun disposing of their Rs.100 notes, thereby creating chaos in the currency markets.
It was to provide for such extraordinary situations that a special procedure was introduced to enable a Bill to be examined by the Court without making it public, and then presenting it to the National State Assembly at the earliest possible opportunity. Indeed, in justifying its inclusion in the 1972 Constitution, Dr Colvin R de Silva had this to say:
"There comes once in a way, as in the case of the demonetization law, the need for a government in the national interest urgently to pass a law in the shortest possible time before people can make preparations against that law"
Inappropriate use of special procedure
There was nothing in the Bill for the Eighteenth Amendment that could not have been deferred for 21 days. The next presidential election is not due for at least another six years. If the Executive had been strong enough to wage a successful war against the LTTE, had it suddenly become so weak that it could not contend with the pressures of peace?
Therefore, to have utilized that extraordinary procedure, which was intended principally for revenue legislation, in order to provide cover and secrecy for extremely vital, far-reaching and controversial amendments to the Constitution was a gross abuse of the law-making process. Were today’s law-makers unaware of the origin of the constitutional provision they were invoking, or did they cynically disregard it?
Did the Supreme Court also overlook its constitutional duty under Article 105 to "protect, vindicate and enforce the rights of the people" (including the right to challenge proposed legislation) by failing to question the validity of a reference made to it through the inappropriate use of a special procedure?