Between the policy and the law

Continued from yesterday

INTERPRETATION OF ARTICLES 70(1) AND 33(2)

The main articles relating to dissolution of Parliament of Sri Lanka are contained in article 70(1) and 33(2) of the 1978 Constitution which require analysis from a legis-prudential perspective.

These two articles appear to collide against each other and therefore it seems difficult to harmonize these two articles in order to find a solution to the constitutional problem. Hence, we must look at the legislative process as to how article 70(1) and article 33(2) got inserted into the 19th Amendment to the Constitution.

Article 70(1) was included in the draft Bill relating to the 19th Amendment to the Constitution. The draft Bill said that the President cannot dissolve Parliament until four and a half years unless Members of the Parliament request the President to dissolve Parliament with a two-thirds majority.

Article 70(1) is an “absurd” provision for the following reasons –

Firstly, it is impossible for the President to dissolve Parliament under article 70(1), as the Members of Parliament will never commit “hara-kiri” against themselves, when they are showered with pension benefits, etc.

Secondly, the President has very little control over Parliament, since the Prime Minister has more to do with Members of Parliament than the President and therefore any attempt by the President to dissolve Parliament prior to four and a half years may boomerang against him.

Thirdly, this Article 70(1) does not balance well with the Doctrine of Separation of Powers or Checks and Balances or Latimer House Principles, since the Parliament can impeach the President with a simple or two-thirds majority subject to certain conditions. Likewise President should be allowed to dissolve Parliament subject to similiar conditions. The doctrine relating to the Separation of Powers is designed to balance the three organs, namely, Executive, Legislature and the Judiciary in a rational manner. This doctrine has been recognized as a constitutional fundamental from Montesque to Latimer House Principles.

Hence, Article 70(1), as it stands, is an “absurdity” as it violates the pith and substance of the doctrine of Separation of Powers unless we recognize article 33(2) as a separate provision relating to the dissolution of Parliament.

Article 33(2) states that the President can dissolve Parliament without any restrictions. This article was included as a Committee Stage amendment. It is not clear whether it has been done so at the instructions of the Supreme Court or at the discretion of the architect/drafter of the 19th Amendment to the Constitution. It is likely that the Supreme Court would have looked at the previous decision relating to the 19th Amendment in suggesting such an amendment to the Constitution.

In incorporating article 33(2), it appears that the Draftsman/architect has not looked at the consequential effects of such incorporation into the 19th Amendment of the Constitution (2015). In the absence of such provisions, the Supreme Court is empowered to fill the gaps by reference to sub-articles in article 70 for a dissolution under article 33(2) under the Dynamic Rule.

It must noted that Seven Member Bench decision of the Supreme Court In Re the Nineteenth Amendment to the Constitution, [2002] 3 SLR, pages 85-112 should be binding on Three Member Bench in relation to the same matter, due to the Doctrine of Stare Decisis as outlined in Bandahamy vs Senanayake, (62 NLR 313), unless it is balanced with article 33(2) of the 19th Amendment. (Also see: Dr. Kanag-Isvaran, PC – The Tissue of Justice and Judicial Attitudes – Memorial Orations 2008-2012 - K.C. Kamalasabayson, PC).

It is also important to note that if there are two provisions of the 1978 Constitution which are inconsistent with one another, it is axiomatic to interpret the Constitution in the way it can work and not in a way the Constitution can become futile.

In this regard, the legal maxim – Ut res magis valeat quam pereat has been applied in several Common Law countries. This legal maxim means it is better for the Constitution to have effect than cease to operate. In the USA, Chief Justice Marshall in McCulloch vs Maryland (1819) said that the Constitution must be interpreted in a way it can operate and not in a way it can perish. In Trinidad Cement Company Limited vs AG of Guyana (2008) The Caribbean Community (CARICOM) Secretariat as amicus curiae argued successfully that the CARICOM economic integration legislation is futile unless the corporate entities are granted locus standi to institute proceedings in the Caribbean Court of Justice (CCJ) by adopting this legal maxim as the promissory clause 222 of the Treaty Chaguaramas is ambiguous.

It is also important to note that the legal maxim Generalia Specialibus Non Derogant (where there is conflict between the general and specific provision, specific provisions prevail) does not apply in this regard. The renowned author on this subject – Dr D. C Pearce in his book titled Statutory Interpretation in Australia, 8th Edition (2014) at page 185 states that when two provisions are not linked to each other, then this legal maxim does not apply. The dissolution of Parliament under article 33(2) is distinct from dissolution of Parliament under article 70(1) which operates at the request of the Parliament after four and a half years. Therefore, the President can dissolve Parliament at his discretion either under article 33(2) or under article 70(1), as these two articles are not linked to each other and differ in content and the manner in which they apply. In Sri Lanka, Queen vs Murgan Ramasamy (66 NLR 265) illustrates the manner in which this maxim applies. (See: Australian Securities and Investment Commission vs Administrative Appeals Tribunal [2009] 263 ALR 411 at page 78).

RELEVANCE OF THE DOCTRINE OF CONSTITUTIONAL NECESSITY

In this situation, it is also relevant to consider whether the Doctrine of Constitutional Necessity can justify the dissolution of Parliament. In India, Pakistan, Nepal, Grenada, Fiji and many other Commonwealth countries, the Doctrine of Constitutional Necessity has been applied in dealing with a constitutional deadlock.

In a book titled God Save the Honourable Supreme Court written by the distinguished Indian Lawyer, Fali S. Nariman cites the case of Krishna Kumar Singh vs State of Bihar 2017 (Bench of seven Judges), where constitutional necessity was applied in upholding certain Ordinances which were patently unconstitutional. (See also Qarase and Others vs Bainimarama and Others [2009] 3 LRC 614 – The Commonwealth Latimer House Principles: Practitioner’s Handbook).

It is also relevant to consider whether the application the Doctrine of Constitutional Necessity is justified since there has been a “deadlock” between the President and the Prime Minister for some time. This deadlock has arisen due to divergent policies relating to the sale of national assets, ratification of FTAs without adequate consultation with affected parties, involvement of the PM in the Bond Scam and pursuing a flawed legislative agenda by relying on neo-liberal economic policies unsuitable for Sri Lanka in the 21st century.

In this situation, the President has made an attempt to resolve this deadlock by requesting Karu Jayasuriya, and later on, Sajith Premadasa to accept the post of Prime Minister. Both refused to accept the proposal.

Hence, the application of the Doctrine of Constitutional Necessity may be justified in order to resolve the present constitutional crisis in Sri Lanka by reference to the people. After all, sovereignty of the people as enshrined in Article 3 is the grund-norm of 1978 Constitution.

CONCLUDING REMARKS AND SUBMISSIONS

It can be concluded that the Constitution of a country is a “living document” and therefore it must interpreted in a manner it can work and not in a manner it can perish.

In dealing with the 18th Amendment to the Constitution, the Supreme Court of Sri Lanka said in no uncertain terms that “The power of dissolution of Parliament and the process of impeachment should be exercised where necessary in trust for the people only to preserve the sovereignty of the people and to make it meaningful, effective and beneficial to people.” – See: Ex Cathedra Statements of Justice Saleem Marsoof, PC on this point in Some Thoughts on the Sovereignty of the People and the Rule of Law - Memorial Orations 2008-2012 - K. C. Kamalasabayson, PC.

The 19th Amendment to the Constitution did not resolve the constitutional problem envisaged by late Dr. N. M. Perera. Instead, the 19th Amendment has created many conceptual, contextual and syntactic ambiguities due to ad hoc Committee Stage amendments.

The architect/drafter has not transformed the Presidential System to a Parliamentary System of Government by using the correct legislative technique as adopted in the 17th Amendment to the 1978 Constitution. The 17th Amendment reduced the powers of the President by requiring him to act on the advice and/or on the recommendations of the Constitutional Council in the exercise of his executive powers in relation to certain appointments.

In this context, it is recommended that the 19th Amendment should be repealed and replaced by a new 19th Amendment to the Constitution, as it has ceased to be the centerpiece for good governance. Such an exercise should be assigned as Justice Frankfurter of the US Supreme Court said – to those who are capable and experienced in undertaking such tasks.

(D. Laksiri Mendis has been an UN and a Commonwealth Legal Expert on Drafting Legislation and Treaties for several years. He served as First Parliamentary Counsel and Head of the Parliamentary Division in Sierra Leone (West Africa) and as Legal Draftsman and Legislative Expert in many Commonwealth countries. He also served as Sri Lanka’s Ambassador in Austria and Permanent Representative to the UN in Vienna.)

Concluded



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