29 June 2024 12:25 am Views - 2927
President Ranil Wickremesinghe
When the 19th Amendment to the Constitution was passed in 2015 subsequent to the election of President Sirisena, Article 30 and Article 62 of the Constitution were amended respectively by reducing the term of the President and Parliament to 5 years from 6 years
The Sri Lankan experience of constitutional governance, in particular after 1972, is a mockery. The Constitution has been perceived by the rulers as a tool of
In the past few weeks, it made the headlines that a loophole in the Constitution would lead to an extension of the term of office of the incumbent President and his Parliament. The purported loophole in the Constitution is found in Article 83(2) of the Constitution.
According to the original version of the Constitution, the term of the Executive President was 6 years and the duration of Parliament was also 6 years as provided for by Article 30(2) and Article 62(2) of the 1978 Constitution.
According to Article 83(2) of the Constitution, a Bill for the amendment or for repeal and replacement of or which is inconsistent with the provisions of paragraph 2 of Article 30 or paragraph 2 of Article 62 which would extend the term of office of the President or the duration of Parliament to over six years shall become law upon the two-third majority in Parliament voting for same and the people approving the same at a referendum.
When the 19th Amendment to the Constitution was passed in 2015 subsequent to the election of President Sirisena, Article 30 and Article 62 of the Constitution were amended respectively by reducing the term of the President and Parliament to 5 years from 6 years.
However, the 19th Amendment failed to make any amendments to Article 83(2) of the Constitution where it is provided that any Bill to extend the term of President or Parliament to over six years requires the approval by People at a referendum.
In the said circumstances, the proposition is that a Bill can be passed in Parliament with two-thirds majority to extend the term of President up to six years. Is this possible in the context of the scheme and the values enshrined in our Constitution?
The 1978 Constitution brought in a hybrid constitutional model, which is commonly referred to as a ‘Mixed Presidential System’.
While the 1946 Soulbury Constitution made Ceylon a dominion with independent powers of governance, it was the 1972 Constitution which made Sri Lanka a Republic. Although, the 1972 Constitution is adored as an autochthonous Constitution, it is a replicate of the raw principles of Sovereignty of Parliament. It is ironic that the Sovereignty of Parliament is the founding principle of the British Constitution, being the founding principle of the first autochthonous Constitution of this Republic as well.
The 1972 Constitution made the National State Assembly the ‘Supreme Instrument of State Power’ and almost all the powers of governance were concentrated in the National State Assembly. A strongly centralised Cabinet form of governance was introduced by the 1972 Constitution.
Alternative political and economic project
The political and economic failures of the United Front government from 1972 to 1977, paved the way for experimenting with an alternative political and economic project. UNP came into power in 1977 with a pledge for a structural change in the economy and the political arrangements. The 1978 Constitution, while introducing the Executive Presidency, retained the features of the Sovereignty of Parliament by continuing to rely on the familiar Cabinet form of governance. Even under the 1978 Constitution, the members of the Cabinet are appointed from Parliament and they enjoy the dual role of being members of the Executive and Legislature.
The 1978 Constitution following the path of the 1972 Constitution expressly provided that the sovereignty is vested in the People and it is in alienable.
According to Article 3 of the 1978 Constitution Sovereignty includes the Powers of Government, Fundamental Rights and Franchise. The 1978 Constitution provided that, the provisions of the Constitution except the provisions which are entrenched by the Constitution could be amended with a 2/3 majority. The applicable provisions are contained in Chapter XII of the Constitution.
For the first time in the constitutional history of this country, Article 83 of the 1978 Constitution provided that:
‘(a) a Bill for the amendment or for the repeal and replacement or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9 and 11 or of Article 83; and,
(b) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph 2 of Article 30 or of paragraph 2 of Article 62 which would extend the term of office of the President or the duration of Parliament as the case may be to over 6 years,’
shall become law if the number of votes cast in favour thereof amount to not less than 2/3 of the whole number of members (including those not present) and the same is approved by the people at a referendum.
Thus, the new feature of a referendum was introduced by the 1978 Constitution. Referendum is an arrangement whereby legislative power is directly shared with the People. Although the rudimental intention of the representative democracy is that legislative power will be exercised by the elected representatives of the People, referendum is a feature whereby people are directly invited to participate in the legislative process. It is an exception to the generally recognised legislative process.
When Article 83 of Constitution was drafted and promulgated by the original architects of the 1978 Constitution, the term of office of the President and the term of office of the Parliament was provided as 6 years.
Until the 19th Amendment was introduced in 2015, the term of office of Parliament and President remained unchanged for 6 years. President Maithripala Sirisena, who was elected on the 8th of January 2015, contested for an election where he was elected for 6 years.
Original draft
According to a national newspaper, a legal luminary who was actively involved in drafting the 19th Amendment has divulged that the original draft of the 19th Amendment did not propose the reduction of the tenure of the President and Parliament from 6 years to 5 years as such amendment would require a referendum.
The said revelation tempts us to inquire into the reason for the 19th Amendment to curtail the term of office of the President and Parliament to 5 years.
It is all about political expediency.
When the term of the President and Parliament was reduced to 5 years by the 19th Amendment, President Sirisena who assumed office in January, 2015 should conclude his term by January, 2020. The Parliamentary Election after the 19th amendment was held in August, 2015, and thus the term of Parliament remains until August, 2020.
The 19th Amendment also amended Article 70 of the Constitution whereby the President was prevented from dissolving Parliament on his own prior to the expiration of 4 and ½ years from the first sitting of Parliament.
Thus, the overall strategy of the 19th Amendment (in respect of the term of Parliament and President) was to prevent President Sirisena from dissolving Parliament during his term of office without having 2/3 approval of Parliament for same.
In 2018 October, when President Sirisena ousted Prime Minister Ranil Wickremesinghe and appointed Mahinda Rajapaksa as the Prime Minister and subsequently President Sirisena dissolved Parliament, the Supreme Court declared that the President does not have the power to dissolve Parliament prematurely in view of the provisions contained in Article 70 of the Constitution as amended by the 19th Amendment of the Constitution.
Therefore, it is not based on any principle of constitutionalism that the term of office of Parliament and President was reduced to 5 years. It was all about political expediency.
The said provisions in the 19th Amendment which shackled President Sisirena from dissolving Parliament saved the then Prime Minister Ranil Wickremesinghe. Ironically, the same amendment is now discussed as a lifesaver for President Ranil Wickremesinghe. Thus, the same person who masterminded the plot under the 19th Amendment to the Constitution is now predicted to receive the benefits of an extension of term resulting from multi-optional maneuver designed for President Sirisena.
The scheme of the Constitution when considered in line with the original version of the 1978 Constitution is that the term of office of the President and Parliament is 6 years. Any extension of the said terms of office beyond the maximum period of 6 years required the approval of the people at a referendum. The proponents of the 19th Amendment did not want to have the 19th Amendment placed before the People at a referendum and thus, they only reduced the term of office of the President and Parliament to 5 years without amending the provisions in Article 83 of the Constitution which required the approval of the people at a referendum for extension of term.
Therefore, the literal meaning of Article 83(2) read with Article 30(2) would mean that Parliament is empowered to extend the term of President up to 6 years (and not beyond 6 years) by passing an Act with a two-third majority, without referring the same for approval of the people at a referendum.
Interpretation of the Constitution is sui generis from interpretation of statutes. The principles and presumptions that would be applicable in interpreting an ordinary legislation are not applied with equal force in interpreting the Constitution.
Original intention
One approach to interpret the Constitution is searching the original intention of the framers of the Constitution. The original intention of Article 83(2) with regard to extension of the term of President and Parliament (when the maximum duration of term was 6 years) was that Parliament alone is prevented from extending the term beyond the elected period without the sanction of the People at a Referendum. Thus, the original meaning of Article 83(2) prevents Parliament from extending the term of the President and Parliament on its own without the approval of People.
However, the constitution is considered as a ‘living document’. The meaning of a provision in the Constitution is not static. The constitution should be interpreted suiting to the evolving circumstances. Thus, the text in the constitution has to be interpreted giving effect to the values underlying the constitution.
According to the preamble to the Constitution, Sri Lanka is a ‘Democratic Social Republic’ which ratifies ‘immutable republican principles’. Article 3 of the Constitution, whereby Sovereignty is reposed in People, is the founding stone of the entire constitution. Sovereignty is inalienable and includes the powers of government, fundamental rights and franchise. When Article 83(2) is interpreted in the light of the core values enshrined in the Constitution, any extension of term beyond the period mandated by the People requires the sanction of the People. Such sanction has to be obtained at a referendum.
If the government has the audaciousness even to attempt to survive a further few months by manipulating an extension of the term by Parliament, it would be written in the chronicles as the ugliest political ploy in the history of Constitutional governance in this country.
It should not be forgotten that the United Front government staying in power for 7 years from 1970 and JR extending the term of Parliament by the conduct of a referendum did not usher in political stability. Those myopic maneuvers were in fact politically suicidal in the long run.
The dangerous outcome of the government even contemplating such a manipulation of the Constitution - to extend the term - would be the deterioration of the People’s faith in constitutional governance.
Periodical elections are the founding norm of democratic governance. Periodical elections give vent to the fermenting frustration of the People. Elections give new hopes. Elections are the civilised substitute for rebellion.
Even at the time of the uprising against Gotabaya, the faith in the constitutional governance did not completely fade away although there were arguments advanced that the uprising has set a ground norm.
The perception that would be engraved (by a constitutional manipulation for extension of the terms of office) is that people would perceive constitutional governance as a myth and the constitution as a device that can be exploited at the whims and fancies of the men in power. Such perception would lead to unexpected eruptions of unprecedented magnitude which would completely destroy the political stability in the society.
(The writer is an attorney-at-law and a visiting lecturer in Constitutional Law at the Open University of Sri Lanka)