And a possible remedy for it from the U.S. Constitution

The objection on principle, basically, is that given the gravity of some of the proposed changes for instance, removal of term-limits for the President, why rush?  Why not go through the normal procedure set out for enacting Constitutional amendments, a procedure that allows for at least three weeks for Supreme Court review.  In fact, the Bar Association of Sri Lanka had raised a similar argument, and had written to the government, both when the very idea of using the “Urgent Bill” provision to move a Constitutional amendment was first mooted, and also on the very day of the Parliamentary debate.  Mr. Sumanthiran quotes from the letter:

The Bar Association of Sri Lanka is perturbed by the move of the Government to introduce the 18th Amendment to the Constitution as an “Urgent Bill”….As the professional body representing all lawyers of this country, we strongly urge the Government not to move this proposed Bill without a further public discussion and debate on such an important matter.[21]

No doubt, Mr. Sumanthiran, the BASL, and everyone who was relying on “principle” had a very good point.  The reply, however if one were to argue from the Government’s point of view, is that, technically, there’s nothing prohibiting the use of the “Urgent Bills” provision to enact Constitutional amendments.  In other words, nowhere in that provision, or anywhere else in the Constitution, does it say explicitly or expressly that the “Urgent Bills” provision does not apply to Constitutional amendments.  So, technically, the Government is perfectly within its rights to resort to the tactic.  And that’s the end of the matter.

The second objection is related to the first, and involves the substantive question as to what exactly is “urgent” about this particular Bill.  Article 122(1)—i.e., the “Urgent Bills” provision—says, in essence, that it may be resorted to, “In the case of a Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest, and bearing an endorsement to that effect under the hand of the Secretary to the Cabinet.”[22]  So, Mr. Sumanthiran asks:

The issue with regard to the removal of the term limits of the President will not be faced by this country at least for another four years and two months.  How then can this Bill be “urgent in the national interest” to warrant such indecent haste?[23]

He also points out that the Cabinet in this instance may not even have been given the final version of the proposed Bill, because there is a discrepancy between the version given to the Cabinet, and the one submitted to the Supreme Court.  A reference to a “Constitutional Council” in the former had turned into “Parliamentary Council” in the latter.

The gist of the objection is that the people who were supposed to consider the Bill on its merits and determine that it was indeed “urgent in the national interest” did not do their job properly.  The principle here is actually a very interesting and important one in Administrative Law as well as in cases dealing with Fundamental Rights:  namely, that where a person in authority has been given the power to make a decision, and he makes it, it has to be reasonable and proper not just “in his view,” or “to his satisfaction,” but must also conform to general standards of reasonableness and propriety.  In other words, we ought to be able to evaluate the decision by standards independent of the subjective or personal perspectives of the person making it.

To digress a moment, one of the leading Sri Lankan “Fundamental Rights” cases in regard to this matter is Sunil Kumara Rodrigo v. Secretary, Ministry of Defense.[24]  There, the court ruled that the Secretary of Defense acted ultra vires in ordering the arrest of two persons on suspicion of conspiring to assassinate the President.  The court reasoned that  the relevant provision in the law imposed an obligation on the Secretary to make the decision as to arrest not on his subjective belief or impression of the threat posed by the individuals in question, but on criteria that could be judged reasonable and appropriate generally, and independently.  In short, if the suspects posed a threat, it really had to be a threat:  it couldn’t be something that was a threat only in the Secretary’s “view,” or one just because he says so.

To return, the crucial question is whether the above type of principle applies in the present case.  For instance, in this case there is no specific individual whose rights have been violated, and who is now turning to the courts for redress and remedy, which is one of the prerequisites for invoking Fundamental Rights jurisdiction.  Article 122(1) indicates very clearly that only two things are necessary to activate the “Urgent Bills” mechanism:  one, the proposed Bill has to be urgent in the national interest, “in the view of the Cabinet of Ministers,” and two, it has to also bear an endorsement to that effect “under the hand of the Secretary to the Cabinet.”  Nowhere does it say that the “view” of the Cabinet has to be correct, i.e., that it should pass muster in terms of independent criteria of reasonableness or propriety.  In fact, nowhere does it say that the Cabinet ought to even read the Bill.  For instance, the Cabinet could be of the “view” that the Bill is “urgent in the national interest” simply because the President says so.  And this would be perfectly consistent with the provision.

If we look at the matter from the Government’s point of view, then, there’s absolutely nothing in the Constitution that says that to resort to the “Urgent Bills” provision, the Cabinet has to be convinced that the issue in question is genuinely urgent in the national interest:  technically speaking, all that is required is the endorsement under the hand of the Secretary.  Thus, again, technically speaking, the Government is perfectly within its rights to use the provision.

Mr. Sumanthiran’s final objection is technical, and has to do with two of the clauses in the Amendment that involve the Provincial Public Service Commission and the Provincial Police Commission, which, according to him, entail a clash with Articles 154 G (2) and (3).  He says that the case law is clear on the matter, and cites two rulings:  Water Services Reform Bill (2003) and Local Authorities (special provisions) Bill (2010).  In both these cases, court had ruled that since the Bills in question involved matters set out in the Provincial Council List, the proposed amendments could not be placed in the order paper of Parliament without first being referred to each of the Provincial Councils.  Mr. Sumanthiran’s general point, then, is that in the extremely short time the Supreme Court had to review the matter, the above two cases and their ramifications had somehow slipped past the court’s attention.  He then makes the following interesting comment:

I am now aware that the Supreme Court in this urgent and hurried determination has held that such a procedure was not necessary, forgetting that it has previously determined otherwise.  Those were not urgent bills and the Supreme Court had a little more time to consider the law at that time.  This principle is known as per incuriam, which means that the court had ruled in forgetfulness of a relevant provision of law or precedent.  Such rulings are set aside later as a matter of course when court becomes aware of its mistake.  This Bill therefore is in danger of being later ruled as not having become law.  I am only referring to a well-established rule of law called the per incuriam rule.  I am not being disrespectful to the judges of the Supreme Court.[25]

Let us, for the sake of argument, say that Mr. Sumanthiran may indeed have a point with regard to the relevance of The Water Services Reform Bill and The Local Authorities (Special Provisions) Bill.  What would that mean in terms of the 18th Amendment as matters stand now?  Unfortunately, nothing.  The  per incuriam rule cannot come into play in this case—for the simple reason that there is a categorical restriction placed by Article 80(3) of the Constitution.  Recall, Article 80(3) says, among other things, that once a Bill is passed into law, “no court or tribunal shall inquire into, pronounce or in any manner call in question the validity of such Act on any ground whatsoever.”  So, the government can simply point out the above, and it is “checkmate” as far as any critics are concerned.

That brings to a close, more or less, the general arguments against the Amendment.  I next turn to the Supreme Court hearing.  I shall confine myself only to the clauses concerning the repeal of Presidential term limits, and also the Constitutional Council, since these were the most serious of the proposed changes under the Bill.

With respect to the clause to repeal Presidential term-limits, the petitioners’ argument was that it interfered with, or undermined, Article 4(e) of the Constitution, i.e. the Franchise of the People.  The argument was that if the President were given unlimited terms of office, it would somehow reduce the opportunity that voters had to choose other candidates to that high office, and therefore constitute a restriction of their franchise.  By extension, it would also violate Article 3 of the Constitution, which says that “sovereignty” is in the People, and is inalienable.  It is generally conceded that Articles 3 and 4 have to be read together.  Therefore, as per the dictates of Article 83, where Article 3 is threatened, the proposed Amendment has to be put to a referendum of the People.

The court replies to this as follows:

It is to be noted that the aforesaid Article 4(e) of the Constitution refers to the Franchise of the People and the Amendment to Article 31(2) of the Constitution by no means restricts the said franchise.  In fact, in a sense, the Amendment would enhance the franchise of the People granted to them in terms of Article 4(e) of the Constitution, since the voters would be given a wide chance of candidates including a President who had been elected twice by them.  It is not disputed that the President is directly elected by the People for a fixed tenure of office.  The Constitutional requirement of the election of their President by the People of the Republic strengthens the franchise given to them under Article 4 of the Constitution.[26]

There is no question that the court is perfectly right.  Allowing a sitting President to contest an election beyond a second term of office does, in fact, increase the possibilities or options the voters have to pick a President—i.e., the available pool of candidates is always increased by one.  No doubt the petitioners were relying on certain ancillary or presumptive arguments—for instance, in practical terms, allowing a sitting President to contest elections indefinitely means that he or she can then bring to bear on those elections the entire weight of the organization, party apparatus and political machinery at his or her disposal, and which, it is reasonable to suppose, would put the other candidates at a certain disadvantage.  In other words, letting a President contest elections indefinitely means that, in practical terms, the voters’ choice is reduced.