SPOTLIGHT

The constitutional crisis:
cohabitation and defence

By Rohan Edrisinha Attempts to resolve the current constitutional crisis seem to have floundered due to disagreement on the question of defence. The President, after agreeing to appoint a defence minister nominated by Prime Minister Wickremesinghe soon after the UNF's victory, at the parliamentary elections of 2001 removed the defence minister in November 2003 and seems determined to retain the portfolio herself.

Attorney General K. C. Kamalasabayson Chief Justice Sarath N. Silva

The Prime Minister's position seems to be that he needs to have control of defence since it is an integral part of a peace process which includes the maintenance of a ceasefire agreement as well as complex constitutional and political negotiations.

There is considerable confusion about the Supreme Court's intervention on the issue. Various claims have been made as to the import of the Supreme Court's opinion, the nature of its jurisdiction and its consequences.

The President sought an opinion on two matters. One was the general question as to whether the powers vested in the Defence Minister were subject to the overriding control of the President. The second was the more specific question relating to some amendments made by the Defence Minister to regulations made under the Army, Navy and Air Force Acts.

Constitutional provisions

The President invoked the consultative jurisdiction of the Supreme Court through Article 129 of the Constitution which is itself a controversial provision. Several commentators  including the constitution's admirers, such as H.M. Zafrullah, in his early commentary on the Constitution of 1978, Sri Lanka's Hybrid Presidential And Parliamentary System And The Separation Of Powers Doctrine(1981) have expressed concerns about the constitution requiring the Supreme Court to exercise nonjudicial functions. Since the Supreme Court is the final authority for constitutional interpretation, it is undesirable that court should be required to provide advisory opinions for the President.

The Supreme Court should deliver judgments, determinations and orders which are decisions of a binding nature rather than mere opinions which are non-binding in character. Since the President can have access to a wide array of legal advice from the Attorney General to other legal counsel, there is no need for the highest apex court of the country to a1so have to function as a legal adviser to the President, who, notwithstanding the strange assertion of the Supreme Court to the contrary in its determination on the 19th Amendment to the Constitution, under the Constitution of 1978 is a partisan political actor. Zafrullah, in fact, refers to the fact that the article provides that the court "may" report to the president, to suggest that the court should decline to express its opinion when it considered it inappropriate to do so.

Apart from the criticism of article 129 in terms of principle from the perspective of a functional separation of powers, the article itself, is undesirable from a perspective of constitutionalism. The relevant parts of the Article read as follows:

Article 129

(1) If at any time it appears to the president of the republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that court for consideration and the court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the president, report to the president its opinion thereon.

(3) Such opinion, determination and report shall be expressed after consideration by at least five judges of the Supreme Court, of whom, unless he otherwise directs, the Chief Justice shall be one.

(4) Every proceeding under paragraph one of this article shall be held in private unless the court for special reasons otherwise directs.

a) The article refers to the Supreme court expressing an opinion on a question of public importance. Yet many parts of the Article shut the public out of the process, contrary to basic principles of the rule of law which require transparency and public scrutiny of judicial proceedings. 129 (4) provides for proceedings to be held in private unless the court for special reasons directs otherwise.

b) The procedure for the exercise of such consultative jurisdiction is not clear. Who is entitled to make submissions to the court? Do relevant stakeholders who may be affected by the opinion have a right to be heard? Do members of the public have a right to be heard, or is it a matter solely at the discretion of the court?

Article 134 ( l ) provides for the Attorney General to be heard in consultative jurisdiction hearings while Article 134 (3) provides generally, that in all matters involving the jurisdiction of the Supreme Court, the court has the discretion to grant to any other person or his legal representative such hearing as may appear to the court to be necessary in the exercise of its jurisdiction.

c) The procedure with respect to the time frame involved for the exercise of consultative jurisdiction which entitles the president to specify time limits is unsatisfactory as it undermines the autonomy of the courts. The same criticism can be made of Article 122 (1) (c). Such provisions are similar to Section 65 of the Constitution of 1972 which resulted in the fiasco in relation to the Constitutional Court's hearing on the Press Council Bill in 1972 and the resignation of several of its most distinguished members.

d) Article 129 (1) provides that the Supreme Court shall "report to the president its opinion thereon." Articles 121 and 122 of the Constitution contain similar provisions with respect to the Supreme Court's pre-enactment constitutional review jurisdiction. (The speaker is sent a copy of the determination as well). Unfortunately, the court has interpreted these provisions legalistically and not made such determinations available to even the petitioners in such cases, let alone members of the public. Similarly, even though the court's opinion on defence was considered a matter of public importance, the opinion is not available to the public!

Opinion and due process

In S.C. Reference No. 2/2003, Reference under Article 129(1) Of The Constitution Of The Democratic Republic Of Sri Lanka By Her Excellency The President, Article 129 was invoked by President Kumaratunga probably for the first time ever. The Chief Justice and the Supreme Court should be commended for conducting the proceedings in open court and not 'in private.' With regard to the process, however, perhaps the court should have done more to make it inclusive and representative. Furthermore, the opinion of the court should have been widely disseminated by the court itself, at least after it was communicated to the President, as it involves a matter of public importance.

The opinion states that Attorney General Kamalasabayson and Egalahewa appeared "for the state," while Messrs. H.L. de Silva, R.K.W. Goonesekere and Nigel Hatch were "granted permission to appear under Article 134 (3) of the Constitution." Page four of the opinion rather curiously refers to "H.L. de Silva P.C. who appeared for an applicant granted a hearing in terms of Article 134 (3) of the Constitution." In the interests of transparency and, indeed, history it would be important to know the identity of the applicant as a reading of 134 (2) and (3), and the fact that the opinion refers specifically to the President, suggest that de Silva could not have been appearing for the President.

The Supreme Court would certainly have benefited from hearing a more diverse range of legal submissions on a difficult, yet, important issue that could well have far reaching constitutional and political ramifications including the future of co-habitation in the country. A perusal of the Supreme Court's opinion does not make clear what the Attorney General's submissions on behalf of the state were, while Messrs H.L. de Silva's and R.K.W. Goonesekere's submissions seemed to support the view that the President wields extensive powers with respect to the subject of defence.

The Supreme Court relied extensively on its determination on the 19th Amendment to the Constitution. The court in that determination quite rightly declared that a badly drafted and partisan constitutional amendment that was also ad hoc and ad hominem, violated several basic features of the constitution, and therefore could not be passed without the approval of the people at a referendum, in addition to a two-thirds majority vote in parliament. While the conclusion reached by the court was welcome, some of the reasoning adopted by the court and several 'principles' it declared were retrogressive.

A critique of the reasoning

of the 19th Amendment

determination

a) The Supreme Court's view that Article 4 is entrenched by implication, is not only contrary to i) the intention of the framers of the constitution, ii) a text based, literal interpretation of the constitution, and iii) precedent, in the form of the determination of, literally, a full bench of the Supreme Court in the 13th Amendment case, but also the values of constitutionalism and a teleological approach to interpretation. Constitutionalism highlights the underlying assumptions of a constitution, its rationale and objectives. Constitutionalism is concerned about limits and restraints on power, is counter -majoritarian, and seeks to empower people and protect the people from the wielders of political power.

While the author believes that constitutional interpretation is required to go beyond both text and original intent of the framers, like constitutional courts in India the United States, Canada, South Africa  and indeed most constitutional democracies have done, the Sri Lankan Supreme Court has generally adopted a far more conservative approach to constitutional interpretation. It was, therefore, out of character and unnecessary for the court to engage in creative interpretation or the judicial activism it embarked upon in the 19th Amendment judgement.

b) The manner in which the Court extrapolated from the principle declared in Article 3, that sovereignty was in the people and was inalienable, the fact that the division of power spelled out in Article 4 in terms of legislative, executive and judicial power was each in itself, inalienable, was unconvincing, a logical non sequitur and also contrary to the values of constitutionalism. Such an interpretation, not only introduced an unacceptable degree of rigidity into the constitution, but also exalted the powers of an already overmighty executive.

Accepting that the sovereignty of the people is inalienable does not necessarily mean that each organ of government which is part of the concept of sovereignty together with fundamental rights and the franchise, exercises inalienable power. There are several other constitutional provisions that spell out how the legislative, executive and judicial power of the people and the fundamental rights of the people are to  be exercised. The nature and scope of the three organs of government must be determined in the light of those constitutional provisions as well.

The nature of the constitution

For example, the rigid and simplistic approach of declaring that the executive power of the people vests solely in the president and is inalienable is inconsistent with a fundamental rule of interpretation that the constitution should be read as a whole. Chapter VIII of the Constitution is titled The Executive. Article 43, which is part of that chapter provides that a collectively responsible cabinet of ministers is chaired with the direction and control of the government.

The second Republican Constitution of 1978 has, since its inception  been described by both its defenders and detractors, as providing for a hybrid presidential-parliamentary system of government. Therefore, it would be more accurate to state that executive power is vested both in the president and the cabinet of ministers in terms of Article 4 (b), Article 43 (1) and other provisions of chapter VIII and IX of the Constitution.

As Zafrullah observes in Sri Lanka's Hybrid Presidential And Parliamentary System And The Separation Of Powers Doctrine;

"The resulting structure is that the present constitution of Sri Lanka, whilst preserving the republican character of the 1972 Constitution, did not found the new system of government entirely on the Westminster model which had characterised Sri Lanka's governmental structure until the adoption of the new constitution. Instead it represents a hybrid constitutional structure of a presidential and a parliamentary system."

Another feature of the hybrid presidential-parliamentary system is that members of the cabinet other than the president must be members of parliament unlike in the United States or France. The fact that ministers are not only responsible but also answerable to  parliament is an important mechanism by which the sovereign people through their elected representatives exercise scrutiny and control over the cabinet of ministers which, together with the president, exercise the executive power of the republic.

As Prime Minister J.R. Jayewardene MP, as he then was, observed on September 22, 1977 speaking on the Second Amendment to the Constitution of 1972 which introduced the presidential system:

"The new departure we are making from the extant constitution, from the Constitution of the United Kingdom, from the Constitution of the United States of America, even from the  Constitution of France because under the French Constitution the ministers are not chosen from the legislature but from outside. We say, they must be from the legislature because I personally believe that a minister being in the house, subject to questions, subject to adjournment time, subject to control of the house, is one of the essential features of the house being representative of the sovereignty of the people."

The fact that Sri Lanka has a mixed system in which the president, the cabinet of ministers and the parliament each has indispensable roles and functions to perform, has been recognised by the Supreme Court of Sri Lanka.

In regard the 13th Amendment to the Constitution (1987) 2 SLR 312 at 341 Wanasundera, J. made the following important observation:

"...the Constitution in Chapter VIII requires that 'there shall be a cabinet of ministers charged with the direction and control of the government of the republic, which shall be collectively responsible and answerable to parliament' (Article 43 (l)). Article 43 (2) states that 'the President shall be a member of the cabinet of ministers, and shall be the head of the cabinet of ministers'....

"It is quite clear from the above provisions that the cabinet of ministers of which the president is a component is an integral part of the mechanism of government and the distribution of executive power and any attempt to bypass it and exercise executive powers without the valve and conduit of the cabinet would be contrary to the fundamental mechanism and design of the constitution.

"It could even be said that the exercise of executive power by the president is subject to this condition. The people have also decreed in the constitution that the executive power can be distributed to the other public officers only via the medium and mechanism of the cabinet system. This follows from the pattern of our constitution modelled on the previous constitution, which is a parliamentary democracy with a cabinet system.

The provisions of the constitution amply indicate that there cannot be a government without a cabinet. The cabinet continues to function even during the interregnum after parliament is dissolved, until a new parliament is summoned. To take any other view is to sanction the possibility of establishing a dictatorship in our country; with a one man rule."

Justice Wanasundera's approach is to be commended as it includes a consideration of the consequences of interpretation and promotes an interpretation that limits and restrains power rather than one which exalts or enhances power. It is in marked contrast to the approach of the Supreme Court in the 19th Amendment determination where the court seems oblivious to the consequences of its strict and rigid interpretation:

Therefore the statement in Article three that sovereignty is in the people and is 'inalienable', being an essential element which pertains to the sovereignty of the people should necessarily be read into each of the sub paragraphs in Article 4. The relevant sub paragraphs would then read as follows:

(a) the legislative power of the people is inalienable and shall be exercised by parliament; (b) the executive power of the people is inalienable and shall be exercised by the president; and

(c) The judicial power of the people is inalienable and shall be exercised by parliament through Courts.

The court then proceeded to explain the word alienate. It stated:

"The meaning of the word 'alienate' as a legal term, is to transfer anything from one who has it for the time being to another, or to relinquish or remove anything from where it already lies. Inalienability of sovereignty, in relation to each organ of government shall not be transferred to another organ of government, or relinquished or removed from that organ of government to which it is attributed by the constitution.......It necessarily follows that the balance that has been struck between the three organs of government in relation to the power that is attributed to each such organ has to be preserved if the constitution itself is to be sustained."

If the rigid presidential interpretation of executive power and the notion of inalienability had been applied to the 17th Amendment to the constitution how could the Supreme Court in that determination have held that the reduction and dilution of the president's powers of appointment and dismissal of several important constitutional actors and the establishment of a Constitutional Council with significant powers did not amount to a constitutional amendment that warranted a referendum? The establishment of the Constitutional Council was welcomed across the political spectrum mainly because it significantly reduced the powers of the executive president.

The power to appoint and dismiss persons to important institutions is certainly more inextricably linked with executive power than for example the power to prorogue and dissolve the legislature. No executive president in established presidential systems has such a power. It is, therefore, difficult to reconcile the approach of the Supreme Court in its two determinations on the 17th and 19th Amendments to the Constitution. The different approach of the Supreme Court in the 17th Amendment to the Constitution:

It places a restriction on the discretion now vested in the president and the cabinet of ministers in relation to these matters and subjects the exercise of that discretion to the recommendations or approval of the new body to be established, known as the 'The Constitutional Council.'

The power of making appointments to the respective commissions and the appointment of  the officers referred to Article 41 B  of the Bill is now exercised by the President. In relation to the public service the power is vested in terms of Article 55 (1) of the Constitution in the cabinet of ministers, which too is headed by the president. As noted above the amendment seeks to subject the exercise of this discretion to recommendations and approval of the Constitutional Council. This power is exercised through public officers and commissions that have been referred to above. It is in this context that the president is vested with the power of appointment, in relation to these officers and bodies.

The question that has to be considered is whether the subjection of the discretion of the president to the  recommendation and approval of the Constitutional Council as envisaged by the bill would amount to an effective removal of the president's executive power in this respect.

........the amendment does not remove the executive power of the president in relation to the subjects coming  within the purview of the bill.

Although, there is a restriction in the exercise of discretion hitherto vested in the president, this restriction per se would not be an erosion of the executive power by the president, so as to be inconsistent with Article 3 read with Article 4 (b) of the Constitution (emphasis added).

The above dicta demonstrates a markedly different approach to that adopted in the 19th Amendment determination, is more flexible and allows for readjustments in the balance of power between the key organs of government so as to promote  accountability, checks and balances and more importantly an interpretation that promotes the values of constitutionalism.

Another weakness in the opinion of the Supreme Court on defence issues is that it attaches too much significance to the Second Amendment to the Constitution of 1972 which introduced the executive presidential system to that constitution presumably because Prime Minister Jayewardene could not wait until the new constitution was drafted in its entirety to wield executive presidential power. Jayewardene's conduct in this regard was unfortunate. While the Supreme Court is entitled to take note of this historical fact, the powers and functions of the executive president elected under the provisions of the Second Republican Constitution of 1978, over two decades after its adoption should be determined in the context of the constitution read as a whole.

The Second Amendment to the Constitution of 1972 certainly does not provide an accurate indication of the balance of powers and the strange hybrid nature of the presidential-parliamentary system that was introduced by the Constitution of 1978. Focusing on the Second Amendment to the previous Constitution presents a distorted picture of the relationship between the executive and the legislature as it ignores the role of the cabinet of ministers in the exercise of executive power and suggests that the President wields more power than the Constitution of 1978 permits. This approach to constitutional interpretation lacks legitimacy and ignores the fact that the Constitution of 1978 repealed and replaced the Constitution of 1972 as amended, and includes a comprehensive delineation of the powers of the executive within its four corners.

The cumulative effect of the Supreme Court's reasoning is to give a kind of primacy to the powers of the executive president at the expense of other constitutionally recognised organs of government such as the cabinet of ministers and parliament. For those of us who have from its very adoption been critics of the Constitution of 1978 primarily on the basis of the overmighty executive ( Prof. C.R. De Silva's well known comment in relation to the powers of the executive president), the Supreme Court has made a bad constitution worse by making an overmighty executive president mightier! Supreme/constitutional  courts in most constitutional democracies do precisely the opposite, invoking principles of constitutionalism and constitutional interpretation.

Even the framers of the constitution and commentators who were generally supportive of the new constitution envisaged a more important role for the legislature and a less dominant role for the president. Discussing a political context (August to December 1994) such as the present one where the president belongs to a party different to that of the party with a parliamentary majority, J.A.L Cooray said, "If some form of 'consensus government' is not possible, the president could agree to act, like the president of the 1972 Constitution, on the advice of the prime minister." (J. A. L. Cooray (1995) Constitutional And Administrative Law Of Sri  Lanka (Sumathi): p.177

Writing almost contemporaneously to the promulgation of the constitution, Prof. Wilson claims that President Jayewardene told him that if there were to be a conflict or direct confrontation between a parliament with a hostile majority and the presidency, President Jayawardene would adopt the course of reverting to prime ministerial government with the President functioning as a constitutional head (see A. J. Wilson (1980) The Gaullist System In Asia (Macmillan): pp.46 and 208, note 8).

The Supreme Court's exaltation of presidential executive power by holding that such power is plenary and inalienable probably rules out Cooray's and Wilson's and indeed Jayewardene's options for resolution of intractable cohabitation problems. Furthermore, as stated earlier it promotes a concentration of power in a single individual.

The opinion and defence

Various spokespersons and associates of the President have claimed that the Supreme Court opinion on the defence issues declares that the President must retain the defence portfolio herself. This is incorrect. The opinion does not state so. The confusion may have been caused by the fact that, during the hearing, the Chief Justice made a characteristically injudicious observation from the bench that in his view the President should be impeached for appointing a defence minister after the last parliamentary elections. It is important to note that this view was, fortunately, not reflected in the opinion. The relevant part of the opinion is as follows:

It is in this background that we state the opinion of this Court in terms of Article 129 (1)  of the Constitution in respect of the first question in the reference. That, in terms of the several articles of the constitution analysed in this opinion and upon interpreting its content in the context of the constitution read as a whole, the plenary, executive power including the defence of Sri Lanka is vested and reposed in the president of the Republic of Sri Lanka. The minister appointed in respect of the subject of defence has to function within the purview of the plenary power thus vested and reposed in the president.

The Supreme Court opinion, indeed, contemplates a defence minister but states that the minister exercises his/her powers within the purview of the overhearing powers of the president who by virtue of his/her office exercises such power.

There are, however, several problems with this dicta. Firstly, the constitution read as a whole does suggest as Zafrullah, Justice Wanasundera, and commentators such as J. A. L Cooray, A.J. Wilson have done, that the constitution's mixed or hybrid nature does not repose plenary executive power in the President. Article 4 (b) read in isolation might support the Supreme Court's position, but not the constitution read as a whole. To declare that the president has plenary executive power is therefore inconsistent with the hybrid/mixed nature of the constitution.

The opinion's conclusion that Presidents Jayewardene and Premada-sa who also retained the defence portfolios under their respective terms as president made regulations under the Army, Navy and Air Force Acts in their capacities as president rather than as defence ministers is plausible but not entirely convincing. The question of the amendments to regulations was perhaps the catalyst for the reference, but is not as important as the opinion's reasoning on the nature and scope of the powers of the executive president.

Constitutional interpretation

The approach of the Supreme Court in the 19th Amendment determination and the opinion on defence with their emphasis on inalienability and plenary power, does not facilitate cohabitation and the development of a working arrangement between the executive and legislative organs of government. It is submitted that the Supreme Court has the responsibility of ensuring that a constitution, however flawed it may be, is given an interpretation that promotes the working of the constitution in a manner that is consistent with constitutionalism.

N.S. Bindra in his treatise on Interpretation Of Statutes (8th Ed, 1997) emphasises the sui generis character of constitutional interpretation. He cites Dhavan, J. in Moinuddin Vs. State of Uttar Pradesh (1960) Air 484 at 491 where His Lordship declares:

"The choice between two alternative constructions should be made in accordance with well recognised canons of interpretation -

Firstly, if two constructions are possible the court must adopt the one which will ensure smooth and harmonious working of the constitution and eschew the other that will lead to absurdity or gives rise to practical inconvenience or make well established provisions of existing law nugatory.

Secondly, constitutional provisions are not to be interpreted and applied by narrow technicalities but as embodying the working principles for practical government.

Thirdly, the provisions of the constitution are not to be regarded as mathematical formulae and that their significance is not formal but vital. Hence practical considerations rather than formal logic must govern the interpretation of those parts of a constitution that are obscure.

Fourthly, in a choice between two alternative constructions, the one which avoids a result unjust or injurious to the nation is to be preferred.

Fifthly, before making its choice between two alternative meanings, the court must read the constitution as a whole, take into consideration its different parts and try to harmonise them.

Sixthly, above all the court should proceed on the assumption that no conflict or repugnancy between different parts was intended by the framers of the constitution."

Bindra goes on to say at p. 871: "[a] democratic constitution cannot be interpreted in a narrow and pedantic (in the sense of strictly literal) sense. It is the basic and cardinal principle of interpretation of a democratic constitution that it is interpreted to foster, develop and enrich democratic constitutions. To interpret a democratic constitution so as to squeeze the democratic institutions of their life giving essence is to deny, to the people or a section thereof the full benefit of the institutions which they have established for their benefit."

It is submitted that the Sri Lankan Supreme Court failed to approach the issues raised in the opinion on defence in a manner consistent with the principles of constitutional interpretation described by Bindra above and which are accepted by constitutional courts in most constitutional democracies. Former Chief Justice Bhagwathi of India has often referred to a constitution as an organic instrument defining and regulating the power structure and power relationship. He has argued, therefore, that it must be interpreted creatively and imaginatively with a view to advancing constitutional values and spelling out and strengthening the basic human rights of the large masses of the people.

Conclusion

The Supreme Court's opinion on defence has followed the trend begun with its determination on the 19th Amendment, of enhancing the powers of the executive president at the expense of the power of rival organs of democratic government while the conclusion reached in the 19th Amendment determination was justified, some of the reasoning adopted by the court in reaching its conclusion was, in my view, retrogressive and unnecessary. There are major flaws in the constitutional provisions which entitle a president to seek an advisory opinion from the Supreme Court which impacts adversely upon the independence of the judiciary and the rule of law.

The opinion of the Supreme Court does not preclude the president from appointing a defence minister. However, the minister has to exercise such powers within the purview of the powers relating to defence which are reposed in the president ex officio. While this approach is acceptable the problem lies in the fact that the Supreme Court has gone much further, in my view unjustifiably, and held that such power is plenary and inalienable. Such an interpretation violates principles of constitutionalism, makes cohabitation and the working of the constitution more difficult if not impossible, and more dangerous of all, makes an already authoritarian constitution even more authoritarian.

The writer is a senior lecturer of the Faculty of Law,

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