Part 4
The authoritative pronouncements by the Supreme Court from the 20A determination (2020), which was related to constitutional amendments procedures together with arguments raised therein may now be presented below in outline.
• As referred to by the Supreme Court at the beginning in the 20th Amendment Determination
‘Article 120 of the Constitution stipulates the Constitutional Jurisdiction of the Supreme Court. Proviso (a) of Article 120 reads as follows:
“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-
(a) 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 of the Constitution 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’.
Petitioners in the 20th Amendment to the Constitution Bill Determination, contended that some of the Clauses of the Bill are inconsistent with some of the Articles enumerated in Article 83 and hence require to be approved by the People at a Referendum in addition to the number of votes cast in favour of the said Bill being not less than two-thirds of the whole number of Members (including those present) and the certificate of the President is endorsed thereon as provided under Article 82 (5) of the Constitution, if the said Bill is to become law.
• On behalf of some of the petitioners, it was contended that the Bill under consideration could not become law even if it is approved by the people at a Referendum in addition to it being passed with two-thirds majority in Parliament. They contended that the provisions of the Bill affect the basic structure of the Constitution and therefore could not become law under any circumstances. It is their contention that the preamble to the Constitution assures the People Freedom, Equality, Justice, Fundamental Human Rights and the Independence of the Judiciary as intangible heritage and ratifies republican principles of Representative Democracy as an immutable republican principle. They contended that the Bill as a whole violates such principles and therefore cannot become law even adhering to the procedure stipulated under Article 83.
• On this matter however, the Supreme Court in the 20th Amendment to the Constitution Bill Determination observed as follows:
“However, the Supreme Court in 10th Amendment to the Constitution Bill, (SC No 3/ 86 (special, Decisions of the Supreme Court on Parliamentary Bills (1984- 86) Vol. II page 47 at 48)”, in the majority decision in 13th Amendment to the Constitution Bill and Provincial Councils Bill (SC No. 7/87 (Special) & SC No 8/87 (Special), Decisions of the Supreme Court on Parliamentary Bills (1987) Vol. III Page 21 at 37) and 19th Amendment to the Constitution Bill (SC SD No 32/2004, (Decisions of the Supreme Court on Parliamentary Bills (2004- 2006) Vol. VIII Page 58 at 60) declined to follow such construction”.
 People waiting to cast their vote. |
The Supreme Court added: “Furthermore, it is pertinent to observe that Articles 1, 2 and 3 of the Constitution, expresses the nature of the State and the Sovereignty of the People. They encapsulate core features described in the preamble to the Constitution. Article 120 (a) read with Article 83 of the Constitution provides that Articles specified therein, including Article 1 of the Constitution can be amended if such amendment is approved by People at a Referendum in addition to it being passed with the special majority in Parliament. Hence we are unable to agree with the contention that some of the provisions of the Constitution cannot be amended even with the approval of the People, in addition to a special majority in Parliament’.
On this matter the Supreme Court further continued; “In numerous occasions, the Supreme Court had determined that when a Bill falls within the ambit of Article 120 (a), the only question this Court has to determine is whether the Bill under consideration requires the approval by the People at a Referendum by virtue of the provisions of the Article 83 of the Constitution. In the decision of the Supreme Court in Fourth Amendment to the Constitution Bill, (SD No 3 of 1982 P/ Parl, Decisions of the Supreme Court on Parliamentary Bills (1978 -1983) Vol. I Page 157), decided that it does not have jurisdiction when the draft Bill in its long title has been described as being for the amendment of the Constitution and is intended to be passed with the special majority required by Article 83 and submitted to the People at a Referendum.
‘These proceedings, however relate to applications that had invoked the jurisdiction of this Court in terms of Article 121 read with Article 120(a) of the Constitution where the sole question this Court is called upon to determine whether the Bill as a whole or any of its provisions is required to be approved by the People at a Referendum in addition to it being passed with the special majority in Parliament, if it is to become law.’
• Intervenient Petitioners (save for one Intervenient Petitioner) and the Attorney- General contended that none of the Clauses in the Bill are inconsistent with any of the entrenched Articles that are referred to in Article 83 of the Constitution. They, therefore contended that the Bill under consideration can 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) and upon a certificate being endorsed thereon by the Speaker.
• Furthermore, it is their contention that the amendments effected by most of the Clauses in the Bill would result in the re-introduction of the provisions that were in operation prior to the Nineteenth Amendment to the Constitution. Further, they contended that no Referendum would be required to reverse the changes that had taken place due to an amendment that was passed only with the special majority in Parliament. The Supreme Court in SC SD No.8/2000, Determination on 17th Amendment to the Constitution Bill (Decisions of the Supreme Court on Parliamentary Bills (1999-2003) Vol. VII, Page 213 at 218), observed:
“It would indeed be illogical to contend that the Amendment which was introduced only with a Special Majority without submission to a Referendum could be repealed only if it is submitted to a Referendum’.
• On this matter the Supreme Court in the 20A determination observed:
‘This observation in our law should be considered in the proper context of the circumstances, under which the Court made its’ determination. Court had taken into account the unique features in the surrounding factors when it made the final determination. The Amendment that was considered by the Court was to introduce a new electoral process’.
• The Parliament which enacted the 1978 Constitution, did consist of members that were elected through an election held under First Past the Post system. However, in the 1978 Constitution, the election process was to be held under Proportional Representation System where the voter did not have an opportunity to express their preferential votes. Fourteenth Amendment to the Constitution introduced the opportunity for a preferential vote into the Proportional Representation System. The amendment the Court was considering (17th Amendment) changed the electoral system to a mixed system comprising both elements of First Past the Post system as well as Proportional Representation System. However, it did away, with the preferential vote that was introduced by the Fourteenth Amendment.
• The core question (in the 17th Amendment Determination) therefore was the Constitutionality of the change of the electoral system of which one component was the removal of the preferential vote. The Court in its determination recognizes the fact that the change in the Proportional Representation system by introducing the preferential vote was introduced through the 14th Amendment that was passed only with the special majority in Parliament.
However, the said factor is not the sole matter that the Court took into consideration, in finally deciding the Constitutionality of the Bill
• It recognized two other features in the new electoral system proposed to be introduced by the Bill namely,
“voters would, in terms of the Amendment have a choice of electing candidates to represent their representative electorate, being a choice not provided as the law stands and which is necessary if Franchise is to have its true meaning’ and
“the names of the candidate nominated for election under the District PR system and the National PR system would be known to the voters at the time of election and could be taken into account when they exercise their franchise’.
(supra at 218)
Therefore it was the cumulative effect of all these factors that led the Court to its final determination.
The Supreme Court also observed:
“Above factors show that the opportunity available to the voter through the ‘preferential vote’ was not fully taken away in the new system introduced by the Amendment that was under consideration. Hence, there was no complete reversal of the enhancement of franchise granted through the preferential vote in introducing the mixed electoral system by the Amendment, which the Court determined that it did not alienate the franchise of the People.
In our view, it is in this context that the above stated observation of this Court in SC SD NO 8/2000, (supra) should be considered’.
• Petitioners contended that the manner in which a prior amendment was adopted should not have any influence when the Constitutionality of the Bill is considered. It is the effect that the Bill would have on the Constitution as it stands at the time amendment is proposed, that has to be examined in determining whether the Bill should be presented before the People at a Referendum as provided under Article 83 of the Constitution. They contended that the question the Court should consider is whether any of the provisions in the Bill are inconsistent with the Articles I, 2, 3, 6, 7, 8, 9 and 10 of the Constitution.
The Supreme Court also observed that ‘Under the Constitution, situations where the need for a Bill to be approved by the People at a Referendum, if such Bill is to become law is enumerated in Article 83. Accordingly, no other Bill needs to be approved by People at a Referendum even if it is an amendment to the Constitution. In such situations the only requirement is for such a Bill to be approved by the special majority in Parliament, if they are not inconsistent with Article 83 of the Constitution. Under sub-Articles (a) and (b) of Article 83, two situations as observed by the Supreme Court, are identified as the situations that warrant the approval of the People at a Referendum. They are namely,
(a) A Bill for repeal and replacement of any of the Articles enumerated therein;
or
(b) A Bill, which is inconsistent with any of the Articles, enumerated therein.
• The Supreme Court further added:
“It is also pertinent to note that entrenched Articles include Article 3 – the Sovereignty of the People. A Bill to amend the Constitution that is consistent with the entrenched Articles or which enhances the Sovereignty of the People does not require the approval by People at a Referendum. In such instances passage of the Bill with approval by the special majority in Parliament would suffice. However, any subsequent amendment that would impact adversely on such enhancement or the reversal of such enhancement, which creates a prejudicial effect on the Sovereignty of the People, such subsequent Bill would need the approval of the People at a Referendum, irrespective of the fact that the earlier Bill had become law with the special majority, only”.
“Therefore, the need to obtain the approval by the People at a Referendum will have to be decided based on the consistency or inconsistency of the Bill with the entrenched provisions and not based on the manner in which the provisions that are proposed to be repealed or amended, had been enacted”.
• It was further contended that the changes that are introduced by the 20th Amendment Bill, would restore provisions that were there prior to the 19th Amendment and some of them did in fact exist from 1978. Therefore it was contended that those provisions had survived the test of time and therefore restoring the status quo ante should not require the approval by People at a Referendum as the 1978 Constitution was enacted only with the special majority in Parliament.
In this connection the Supreme Court held:
“In this context it is pertinent to note that the 1978 Constitution was enacted after repealing the 1972 Constitution. The 1972 Constitution did not contain any provision requiring the approval of the People at a Referendum, when passing a Bill, if they were inconsistent with any provisions in the Constitution. Therefore, the fact that certain provisions existed in the 1978 Constitution per se cannot negate the effect of Article 83 of the Constitution. As correctly submitted by the Attorney General when considering the Constitutionality of a Bill in the context of Article 83, what should be considered is the provisions in the Constitution as at the time the Bill is proposed to be submitted and the impact the Bill would have on those provisions. It is also pertinent to observe that Article 80(3) of the Constitution precludes any Court making any determination on the validity of a law, after the President’s or Speaker’s Certificate is endorsed on the Bill”.
‘Therefore, the object and purpose and the effect of the Bill namely the restoration of status quo ante 19A per se does not take away the jurisdiction of the Court to examine whether any of the Clauses in the Bill attract Article 83 of the Constitution.’
(The writer is a Retired Professor in Law in the University of Sri Jayawardenepura. He is an Attorney-at-Law, practiced in Courts and holds Ph.D in Law)
To be continued
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