And a possible remedy for it from the U.S. Constitution
The “normal” procedure to amend the Constitution takes full cognizance of the above situation, and, in fact, addresses it. Article 82(1) explicitly says that any Bill intended to amend the Constitution has to expressly specify this function in its long title—i.e. that it is “An Act for the Amendment of the Constitution.” In other words, the first step when attempting to amend the Constitution is to designate with absolute clarity the purpose of the Bill in question. Once this is done, there is no question of looking for any “inconsistencies” with other provisions of the Constitution other than those specified under Article 83, to which we will turn in a moment.
Meanwhile, Article 82(5) says, “A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law if the number of votes cast in favor thereof amounts to not less than two-thirds of the whole number of members (including those not present).” In other words, the obvious inconsistency between the proposed Amendment and its “twin” already existing in the Constitution doesn’t matter: if two-thirds of members of Parliament support the new Amendment, it passes into law.
Article 82(6) then says: “No provision in any law shall, or be deemed to, amend, repeal or replace the Constitution or any provision thereof, or to be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.” We shall consider the full relevance of this provision in a moment, but first let’s turn to Article 83.
Article 83 is crucial, because it is the only occasion where “inconsistencies” become relevant—namely, where the proposed Amendment clashes with Articles 1,2,3,6,7,8,9,10, and 83 itself, or, with Articles 30(2) and 62(2). In these cases, the Amendment in question becomes law “If the number of votes cast in favour thereof amounts to not less than two-thirds of the number of Members (including those not present), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80.” In other words, on those occasions where there are clashes between the proposed Amendment and the Articles listed under Article 83, two basic things are needed for the Amendment to pass: a two-thirds majority in Parliament, plus approval by the People at a Referendum.
The question then is, “What happens when a Constitutional Amendment is filed as an “Urgent Bill”? In that case, the provisions set out in Article 82 and its subsections, i.e. the “normal” procedure to enact Constitutional Amendments, no longer apply. That means the court, when reviewing whether the proposed Amendment has inconsistencies with existing provisions of the Constitution, has to consider the inconsistency that the proposed Amendment has with its “twin” already in the Constitution. Court will not— indeed cannot—proceed to review the Bill as if the “twin” doesn’t exist, or has already been repealed. The Constitution is the Supreme Law of the Land, the ultimate and definitive expression of the “sovereignty” and “will” of the People, and not a comma in such a document can be removed or altered except by proper and prescribed procedures.
So, there we have the conundrum: Article 82(5) allows a Constitutional Amendment to be passed regardless of whether there are inconsistencies with existing provisions, other than those listed under Article 83. All that is required is a two-thirds majority in Parliament. But 82(5) cannot be resorted to if one files the Amendment under Article 122(1), i.e., the “Urgent Bills” provision. This is where Article 82(6) becomes crucial. Recall, it says that no provision in any law shall be deemed to amend the Constitution “or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.” Article 122(1), by no stretch of the imagination, can be deemed a “preceding provision” of Article 82(6)! If one files under 122(1), and there is an inconsistency, then the remedy is in Article 123(2), not 82(5).
So, let’s turn to Article 123(2). It says:
Where the Supreme Court determines that the Bill or any provision thereof is inconsistent with the Constitution, it shall also state-
(a) whether such Bill is required to comply with the provisions of paragraphs (1) and (2) of Article 82; or
(b) whether such Bill or any provision thereof may only be passed by the special majority required under the provisions of paragraph (2) of Article 84; or
(c) whether such Bill or any provision thereof requires to be passed by the special majority required under the provisions of paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of the provisions of Article 83,
and may specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent.
To turn to Article 84 for a moment, this Article is very interesting, because, other than Article 82(5), it is the only other Article which explicitly addresses the issue of enacting Bills into law which are inconsistent with the Constitution. Article 84, however, relates to Bills other than Constitutional Amendments. It explicitly says, “A Bill which is not for the Amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, but which is inconsistent with any provision of the Constitution may be placed on the Order Paper of Parliament without complying with the requirements of paragraph (1) or paragraph (2) of Article 82.” The 18th Amendment, for example, would most definitely not come under this Article, because its long title explicitly says that it is a Bill for the Amendment of the Constitution.
To return to Article 123(2), in the case of a Constitutional Amendment which contains the abiding and inherent inconsistency with its “twin” already in the Constitution that we discussed earlier—an inconsistency that is incurable—what are the options available? Clearly, the only option available is sub-paragraph ‘a’ of 123(2), meaning, the Bill is referred back to Article 82(1) and the normal procedure is triggered. The other two options are expressly intended for Bills which fall under the purview of Article 84, which latter, as we have seen, is for Bills other than Constitutional Amendments. If a Bill comes under paragraphs (1) and (2) of Article 82, it has to also go through 82(5), and perhaps also Article 83, if necessary. But the important point is that there is no way to “short cut” this process by leaping to Article 122(1)—because, even if we start at 122(1), by virtue of 123(2), we are taken right back to 82 (1). Hence, by the inexorable logic of the Constitution itself, the “Urgent Bills” provision cannot be used for purposes of enacting Constitutional Amendments.
Earlier, I said that there were only two ways to counter the practice of resorting to the “Urgent Bills” provision to enact Constitutional Amendment on the letter of the law: one was to show that the Constitution itself explicitly prohibits the tactic, an option unavailable in the present case. The other was to look into the intention of the Constitution-makers and show that they never intended the “Urgent Bill” provision to be used for such a purpose. We found that this also was difficult, since it entailed looking outside the Constitution for material that could be used to interpret key passages within the Constitution. But now we see that the Constitution itself—in terms of the logic inherent in the literal meaning of its own words—does not, indeed cannot, allow the “Urgent Bills” provision to be used to enact Constitutional Amendments.
That, then, is the argument. Once again, the key to the whole thing is that when a Constitutional Amendment is submitted as an “Urgent Bill,” and, in fact, any form other than the “normal” procedure set down under Article 82 and its subsections, there is an inherent inconsistency between the proposed Amendment and its “twin” already existing in the Constitution. Article 82(5) allows the new Amendment to be passed, as long as it has a two-thirds majority in Parliament to support it. Article 82(6), meanwhile, emphasizes that the “preceding provisions of this Article,” i.e., Article 82, set out the only way to amend the Constitution in the face of inconsistencies with existing provisions, other than those listed under Article 83. To submit an Amendment that is already, and always, inconsistent with the Constitution and to expect to pass it into law by circumventing Article 82 is therefore a clear violation of the “letter” of the law as set down in 82(6).
That it was done, and all perfectly “legally,” is, as I have said, the most eloquent possible testimonial as to the fundamental weakness of the Sri Lanka Constitution. Reform, therefore, is essential.
Section Four: “Solutions”
From the foregoing discussion, and as per the conclusions reached at the end of Section Three, it seems to me two particular solutions suggest themselves, which, in my view, should top any list of possible future Constitutional reforms.
First, the Sri Lanka Constitution must have a genuine and meaningful separation of powers, and this means separation of powers as an “auxiliary precaution,” in my view, along the lines of the American system. There is absolutely nothing wrong with relying on things like the “Public Trust Doctrine,” and even elections. With regard to the latter, for instance, as Madison himself put it, “A reliance on the People is, no doubt, the primary control on government.” Nevertheless, Sri Lanka needs a mechanism independent of all the other mechanisms. Without it, in the final analysis, the People are left only with the internal or personal morality, ethics, and sense of propriety and decency of politicians, to help the latter control themselves, something which, though no doubt devoutly to be hoped for, is hardly to be expected, even in the best of times.
The second solution follows directly from the first, and it is this: Sri Lanka needs a new Constitution. In my view, the changes involved in instituting a proper system of separation of powers go to the very heart of the Constitution, and can’t be carried out piece-meal, through one or two “Amendments.” If the job is to be done right, the entire Constitution has to be re-vamped and re-ordered.
This last suggestion, however, raises an important and interesting issue, which I have not alluded to thus far, but which, under the circumstances, has to be touched on even in passing. That matter is the following: Sri Lanka is today embarked on a great project of reconciliation and “mending of fences,” particularly with its Tamil community, after three decades of civil war. One of the continuing and abiding complaints made by certain Tamils, however, is that they continue to be discriminated against, and that it is impossible for them to live in dignity, or expect justice, in this country. Hence, they say, their only hope is a separate state.