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Sunday, March 3, 2024

SC determination : A gingerly cautious approach to the 20th Amendment Bill – Kishali Pinto jayawardene

With the Supreme Court’s Determination on the 20th Amendment Bill being made available in the public domain, some aspects of the ruling warrant immediate attention. The 20th Amendment Bill had been challenged by thirty eight petitioners alleging inconsistency of its clauses with the People’s sovereign legislative and judicial powers.

The Bill was argued to require approval not only by a two-thirds majority in Parliament but also by the People at a Referendum. A Divisional Bench headed by the Chief Justice with four other judges heard the arguments along with submissions by eleven intervenient petitioners largely in support of the Bill

Four clauses ruled as needing a Referendum

A more critically analytical appraisal must await the formal release of the Determination. But it may be opportune to look at the Court’s reasoning in regard to an aspect which has received close judicial attention and which consequently, is perhaps the most interesting thereto. This relates to Clause 5 of the 20th Amendment Bill which had, inter alia, sought restore presidential immunity to its original formulation in Article 35 of the 1978 Constitution. It did so in two ways.

First, by deleting the constitutional change brought to Article 35 by the 19th Amendment in allowing citizens to file citizens to file fundamental rights challenges to Presidential acts through citation of the Attorney General. Second, by restoring the full power of the Executive Presidency as contemplated in the 1978 Constitution, the 20th Amendment Bill also brought back the ability to cite the Attorney General in proceedings relating to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under Article 44(2).

The Court looked at the second change as beneficial. However, it ruled that the 20th Amendment Bill’s removal of an existing right to invoke a fundamental rights challenge under Article 126 against acts of the President in his official capacity citing the Attorney General, as offensive to the sovereign power of the People under the Constitution. This was a right to a remedy by citizens and was of the highest importance.

A right to remedy against Presidential acts violating the Constitution 

Therefore this right was not one that could be replaced, as the Attorney General argued, by an impeachment process initiated against the President for the intentional violation of the Constitution. The nature of these two processes was entirely different, as per the Court’s reasoning. Impeachment is a process whereby a President is removed from office only on well defined recognised grounds. This is quite distinct from the fundamental rights jurisdiction which provides the People with a prompt remedy to address individual injuries that they may face at the hands of the executive.

‘Immunity from suit will most certainly leave the ordinary citizen and future generations without an adequate remedy regardless of the substantiality of their claims’ the Court said. The Bench was moreover unimpressed by the argument of the Attorney General, (which as we may recall, was echoed also in the public arena by Government spokespersons), that subjecting the President to fundamental rights challenges would make the holder of the Office less efficacious.

The Constitution, which is founded on the Rule of Law, does not tolerate non-justiciability, the Bench observed. There is no rational or logical nexus between the non-justiciability of the President’s acts and the efficient performance of his duties, the judges said. Further, the old Article 35 had not been subjected to scrutiny by Court by way of constitutional review previously.

‘Making history’ forty years after 1978

Post 1978 pronouncements by the Court making narrow inroads into Presidential immunity had been in the context of Article 35 already being part of the Constitution. It is therefore ‘historic’ that, more than forty years later, the compatibility of these constitutional provisions against the sovereign power of the People is being assessed, the Bench noted. It concluded that Clause 5 must be amended to allow fundamental rights challenges to presidential acts.

Other clauses held by the Court to require a Referendum along with a two-thirds majority in Parliament included the 20th Amendment Bill repealing the President’s duty to create conditions for the holding of free and fair elections as requested by the Elections Commission and the empowering of the President to dissolve Parliament within one year as opposed to the current constitutional stipulation of four years.

These clauses were opined to be satisfied by proposed committee stage amendments submitted to Court by the Attorney General. These included making the presidential power of dissolution of the House exercisable within two and a half years. Consequently the requirement for approval by the People at a Referendum along with a two-thirds majority in Parliament may be negated. The Attorney General had argued that certain duties of the President brought in by the 19th Amendment but sought to be repealed by the 20th Amendment Bill were anyway set out elsewhere in the Constitution.

Constitutional duties of the President during elections

This included repeal and replacement of Article 33 (1) which made it, inter alia, a duty of the President to ensure that the Constitution is respected and upheld and to promote national reconciliation and integration. The Court observed that it is desirable to list the duties of the President under a single heading ‘rather than leaving it for the people to figure them out by going through the entire Constitution.’ However, as was remarked, it is not for the Court to address issues in the context of ‘desirability’ but in the context of ‘inconsistency with provisions of the Constitution.’

Even so, the Presidential duty to ensure the creation of proper conditions for the conducting of elections on the advice of the Elections Commission is not reflected elsewhere in the Constitution. Thus, the Bench ruled that removing that duty would offend Article 3 read with Article 4 of the Constitution needing approval by the People at a Referendum along with the special majority. The committee stage amendments proposed by the Attorney General was however opined to address any constitutional inconsistency with Article 83.

Meanwhile Clause 22 of the 20th Amendment Bill also attracted unfavourable judicial scrutiny in that it had proposed to abolish Article 104GG of the Constitution which had penalised the failure of public officers to obey directives and guidelines of the Elections Commission during the period of elections. This clause too was determined to ‘prejudically affect the franchise’ and thus needed amendment so as not to require the stamp of approval at a Referendum along with the special majority in Parliament.

Closing of the court drama over the 20th Amendment Bill

The Court meanwhile was not inclined to accept the argument that certain clauses of the 20th Amendment Bill offended ‘the basic structure’ of the Constitution and as such, those clauses could not be approved even by the People at a Referendum. It was observed that like arguments resting on ‘the basic structure’ of the Constitution had previously been rejected by Sri Lanka’s apex court.

The judges took into account the specific argument of the Attorney General that the amendments effected by ‘most of the clauses’ in the 20 Amendment would result in the re-introduction of provisions that were in operation prior to the 19th Amendment. These came in only through the 2/3 majority in Parliament. Therefore, to revert to that position should need no Referendum.

And so the court scene is now over, setting the stage for the political drama that would now indisputably follow.

(Sunday Times)



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