And a possible remedy for it from the U.S. Constitution
But the problem with the above type of argument is that it still has to be proved, with evidence. Unfortunately, when it comes to the particular circumstances of Sri Lanka, no such evidence exists at present, for the simple reason that we have never had a President go beyond a second term of office: we simply do not have any experience of the consequences of having a President with unlimited terms of office. So, again, strictly speaking, it is perfectly correct to say that there is nothing “inconsistent” with the proposed amendment and Article 4(e) of the Constitution.
Let’s turn next to the argument involving the 17th Amendment. The petitioners’ argument here was that the attempt to do away with the Constitutional Council impinged on, and undermined, again, Article 4 of the Constitution, but this time 4(c), having to do with the Judicial power of the People. Part of the function of the Constitutional Council was to place certain restrictions on the President’s discretion to appoint Supreme Court judges. The petitioners’ argument, therefore, was that by removing the Constitutional Council, the proposed Amendment compromised the independence of the judiciary.
Court replies to this by first conceding that the purpose and intention behind the 17th Amendment was indeed to impose certain restrictions on the discretion of the President to make key appointments, including that of Supreme Court judges. But then, court says that even prior to the 17th Amendment, which latter was passed only in 2001, there were restrictions on the President claiming untrammeled discretion, and cites two important cases as having established this point. The two cases are: Silva v. Bandaranayake (1997), and Premachandra v. Jayawickrema (1994).
In Silva, court had queried the proposition whether Article 107 of the Constitution, which gave power to the President to make appointments to the Supreme Court and the Court of Appeal, gave carte blanche power in the sense that it carried with it absolute discretion. The court said that the discretion given was, “neither untrammeled nor unrestrained, and ought to be exercised within limits. Article 107 does not expressly specify any qualifications or restrictions. However, in exercising the power to make appointments to the Supreme Court there should be cooperation between the Executive and the Judiciary, in order to fulfill the object of Article 107.”
More important is a quote from Premachandra v. Jayawickrema: “There are no absolute or unfettered discretions in public law; discretions are conferred on public functionaries in trust for the public, to be used for the public good, and the propriety of the exercise of such discretion is to be judged by reference to the purposes for which they were entrusted.”
In short, prior to the 17th Amendment, the People of Sri Lanka still had these basic protections to help maintain the independence of the judiciary. The 17th Amendment merely enhanced or extended these restrictions and controls. The court’s overall argument, then, is that the 18th Amendment proposed only to change or modify the enhancements, not to jeopardize or threaten in any way basic and more fundamental protections. The court says,
On a consideration of the totality of the provisions dealing with the establishment of the Parliamentary Council, it is abundantly clear for the reasons aforesaid that the proposed amendment is only a process of redefining the restrictions placed on the President by the Constitutional Council under the 17th Amendment in the exercise of the executive power vested in the President, which is inalienable. Accordingly, these clauses have no inconsistency either with Articles 3 and/or 4 of the Constitution.
Someone might say, “Yes, but redefining in a way that increases the President’s discretion!” That may be true. But the fact is that they don’t destroy the basic protections alluded to earlier—i.e., those that existed prior to the 17th Amendment. For instance, under no stretch of the imagination can it be said that the 18th Amendment seeks to give the President completely unfettered and untrammeled discretion to make appointments to the Supreme Court. Strictly speaking, therefore, it is perfectly correct to say that there is no “inconsistency” between the relevant clause in the Amendment and Article 4(e) of the Constitution.
That exhausts, then, the main arguments raised against the Amendment at the hearing before the Supreme Court. As we have seen from the quite reasonable counters to all those arguments, both the general ones as well as the ones at the hearing, it would appear that the Amendment is on very solid legal ground, at least with respect to its compliance with the “letter” of the law. Or is it? As-indicated earlier, there is at least one argument that has not yet been raised, and which, in my view, constitutes a decisive rebuttal, not just to the Amendment, but to the entire practice of resorting to the “Urgent Bill” provision to enact Constitutional Amendments. Let’s briefly turn to this argument.
Part 2: The Argument
Most reasonable people would agree that the real danger with the Amendment is the Pandora’s Box the Government has opened in successfully resorting to the “Urgent Bills” provision to enact a Constitutional Amendment. The ramifications of this are that, henceforth, if the Government wants to pursue a measure contrary to the Constitution, and perceives that it will not be able to make the necessary changes to the Constitution using “normal” channels, due to public outcry, and so on, all it has to do is ensure a temporary two thirds majority in Parliament, lasting even just for the day on which the crucial vote on the Bill is taken, and submit the Bill as an “Urgent Bill.” This is not to say the Government will resort to this tactic invariably, and whenever it wants to pursue Constitutional Amendments: but it does mean that the option is now available.
So this is the situation we face today. The only way to take away this option is to establish beyond any reasonable doubt that resorting to the tactic in question is illegitimate and illegal—and that the illegitimacy and illegality derives from the very “letter” of the law, rather than, say, the “spirit” of the law. As we have seen, arguments based on the “spirit” of the law invariably flounder. Is there any way to make such an argument?
In my view, there are only two ways such an argument can be made on the “letter” of the law. The first is to show that the Constitution itself, by express words, prohibits the tactic in question. The second is to show that our Constitution-makers never intended the “Urgent Bills” provision to be used for purposes of enacting Constitutional Amendments. Of these two, the first is clearly unavailable in this case: nowhere does the Constitution explicitly bar the use of the “Urgent Bill” provision being used to enact Constitutional Amendments.
The second method—i.e., looking to the “intention” of the Constitution-makers—is difficult, because it entails looking outside the Constitution in order to help interpret crucial passages. For instance, it involves looking at writings, commentaries, and discussions by the Constitution-makers on the issues in question at or around the time they were also writing the Constitution. This method of interpretation suffers from the well-known infirmity that, for one thing, it is difficult to determine which set of writings or discussions is the most pertinent to the issues in question.
For instance, it is quite possible that different Constitution-makers have, at different times, made contradictory or inconsistent statements with respect to the same issues. In those instances, which statements get priority? Due to these reasons, courts have shown a reluctance to resort to secondary sources when interpreting statutes in general—and that reluctance has been even stricter when it to interpreting a Constitution. Our courts, when it comes to interpreting the Constitution, have tended to follow a policy of relying more or less on the literal meaning of the words as they appear in the document itself, and no doubt this is a wise policy.
In addition to this, with regard to Sri Lanka, there is a further difficulty: Sri Lanka’s Constitution-makers simply did not leave behind a great deal of secondary writings or commentary on the Constitution. For instance, this country doesn’t have the equivalent of something like The Federalist that the Americans have, which is a detailed exposition by some of the leading Founding Fathers of the American Constitution of their reasoning as they went about framing the latter Constitution.
Given this situation, what is one to do with respect to generating any effective arguments against the 18th Amendment, as well as the larger issue of using the “Urgent Bill” provision to enact Constitutional Amendments? This is where my argument comes into play.
The argument itself is quite simple and straightforward. All attempts thus far to challenge the 18th Amendment on the “letter” of the law have tried to show that there is an inconsistency between the various clauses in the new Amendment and some provision or other already existing in the Constitution. For instance, as we saw with the arguments at the Supreme Court hearing, there the attempt was to show that relevant clauses in the new Amendment contradicted Articles 3 and 4 of the Constitution.
In my view, however, something has been forgotten in this process. It may certainly be true that the various clauses of the proposed Amendment don’t contradict certain other Articles of the Constitution, but it has to be the case, both logically and by definition, that each clause in the proposed Amendment contradicts, or is inconsistent with, the provision in the Constitution it is intended to replace. For instance, an Article that imposed Presidential term-limits, logically and by definition, would be inconsistent with any new Amendment which sought to repeal those limits. The same would also be true for any other Amendment and its “twin” in the Constitution.
The key to this whole matter is that we are dealing here with a Constitutional Amendment and not an ordinary piece of legislation. Obviously, in the case of an ordinary piece of legislation, there could be inconsistencies and contradictions with existing provisions. But in that case, once the Bill is forwarded to the Supreme Court, the court detects the inconsistency and advises on what to do about it. With a Constitutional Amendment, however, there is no question of whether or not there is an inconsistency between the proposed change and some existing provision in the Constitution: as I have pointed out, it is invariably and inexorably the case that there is such an inconsistency. More crucially, the inconsistency cannot be cured: as long as the new Amendment seeks to repeal, alter or change its “twin” in the Constitution, those two provisions will always be inconsistent with each other.