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Should SC be empowered more in constitutional amendments process?


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The United States of America introduced the 22nd Amendment to the Constitution on 24 March 1947. It went on to say: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.” Before that there were no restrictions in the US Constitution about the number of terms of the president, from the time of George Washington, who did not seek a third term mainly because the founders of the constitution thought that the two-term limit of presidency would work as a defence against a monarchy. However, several Presidents tried a third term unsuccessfully prior to Franklin D. Roosevelt who was the US President for four terms. In the 1944 election during World War II Roosevelt won a fourth term but died in office the following year. Thereafter US law makers decided to have a restriction on the term of the President and introduced the 22nd Amendment to the Constitution. At that time and thereafter as well there were arguments against the 22nd Amendment. Those were that in any case he would be elected by the people and stability and experience he would bring along with the third term. However those arguments were refuted by the opponents. One was that it would be deteriorated to ‘elective dictatorship’ which meant that a strong president using the undoubted advantage of incumbency to win election after election. The other was that the longer the tenure the greater the chance of corruption. “The whole point of the two-term convention, which developed into the 22nd Amendment, was that no one man is greater than the office of President.” The situation in Sri Lanka The situation in Sri Lanka is quite different. The Constitution introduced in 1978 was a combination of US and French Constitutions and the President was much more powerful than the President of the US. He enjoyed immunity and was virtually placed above the law. Therefore, there was a Constitutional provision as a part of checks and balances that the President should have two terms only. The duration of a term in the US Constitution was four years whereas in the Sri Lankan Constitution it was six long years. The former President came into power promising that the presidential system would be abolished and he had continued to state the same during the election for his second term as well. However, soon after the election he wanted to increase the number of terms and brought the amendments as an urgent bill, restricting a public debate over it. According to paragraph 2 of Article 31, “No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People.” In the case of the Constitution of Sri Lanka, when there is an amendment to the Constitution, it should be referred to the Supreme Court. According to Article 120 (a) of the Constitution, the Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution provided that in the case of a Bill described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the people at a referendum by virtue of the provisions of Article 83. Article 83 reads as follows: “Notwithstanding anything to the contrary in the provisions of Article 82- a: a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1,2,3,6,7,8,9,10 and 11 or of this Article; 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 six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole 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”. 18th Amendment When the 18th Amendment to the Constitution was introduced, it was referred to the Supreme Court of Sri Lanka to check whether it was in line with the provisions of the constitution. The main amendment was to repeal paragraph 2 of the article 31 as stated above which dealt with the number of terms of the President. In the determination Supreme Court it was indicated that the Article 3 and Article 4 should be read together. Article 4 (e) stated as follows. “the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament and at every Referendum by every citizen who has attained the age of eighteen years and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors”. In its determination Supreme Court argued as follows. “It is to be noted that the aforesaid Article 4 (e) of the Constitution refers to the exercise of the franchise of the People and the amendment to Article 31 (2) of the Constitution by no means would restrict 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 choice 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. In such circumstances the said amendment does not restrict or curtail the provisions contained in Article 4 of the Constitution and accordingly there is no inconsistency either with Articles 3 and/or 4 of the Constitution.” Due to the limitation imposed by the Constitution, the Supreme Court focused on Article 4 (e) per se. The Supreme Court had not taken into consideration the Sri Lankan ground scenario discussed above and the arguments for the limitation of number of presidential terms discussed at the beginning of this article. More importantly, the Supreme Court was not allowed and therefore it has not considered to what extent the checks and balances in-built in the Constitution would affect if the restriction of number of terms of the president were to be removed. It is true that some of the points discussed above are basically political and should be debated in the Parliament. However, when drafting the new Constitution, considering the pivotal role the Supreme Court plays, it would be advisable to expand the scope of the Supreme Court in deciding whether the bill requires approval of the people at a referendum. Among the other issues at least the Supreme Court should be able to consider whether the checks and balances of the Constitution are affected by the amendment to the Constitution. 19th Amendment In the determination of the 19th Amendment Supreme Court argued as follows against the transfer of executive powers from the President to the Prime Minister based on the Articles 3 and 4. “There is no doubt that Executive powers can be distributed to others via the President. However, if there is no link between the President and the person exercising Executive power, it may amount to a violation of mandate given by the people to the President. If the inalienable sovereignty of the people which they reposed on the President in trust is exercised by any other agency or instrument who do not have any authority from the President then such exercise would necessarily affect the sovereignty of the people.” A referendum is needed for this. But unlike in the previous instance where the 18th Amendment was introduced, this time there was a public debate about abolishing the executive presidency. It was loud and clear in the election manifesto and in the 100-day program of the incumbent President that he will take steps to abolish the executive presidency and to establish an executive which will be responsible to Parliament through the Cabinet of Ministers. For the first time in our history we have a leader who is willing to curtail his powers and fulfil the election promise. Transferring power Transferring power from the President to Prime Minister is more democratic and less autocratic in the current status of the Constitution. Although it is stated in the Constitution that the President shall be responsible to the Parliament for the due exercise, performance and discharge of his powers, duties and functions, those are mere words without any proper mechanism to exercise it. By and large now it was perceived that it is easier to give more powers to those who have power as happened in the Supreme Court determination of the 18th Amendment and it is much difficult to transfer power from them as happened in the Supreme Court determination of the 19th Amendment. As per the provisions of the Constitution per se as we discussed, this should be the case. However in natural justice and in common sense democratic constitutions as democratic governments should be of the people, by the people and more importantly for the people. Therefore, when drafting a new Constitution, it would be appropriate to widen the scope of the role of the Supreme Court when deciding on amendments to the Constitution. Then the Supreme Court should be able to safeguard the interests of the people from autocratic tendencies and the Courts would be happy about that as once commented by late Mark Fernando, one of the great judges Sri Lanka has ever produced. (The writer is a Chartered Accountant by profession and holds a Master of Business Administration degree awarded by the Postgraduate Institute of Management of University of Sri Jayewardenepura.)

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