COLOMBO– A member of the team that drafted Sri Lanka’s 19^th Amendment to the Constitution has explained the constraint they worked with, which led to the possibility of a 6-year presidential term enabled by a two-thirds majority vote.

The deficiency in the Constitution was highlighted in a report by EconomyNext on Tuesday (11).

President’s Counsel Jayampathy Wickramaratne, a member of the constitution drafting team, explains that they were instructed not to make changes that required a referendum.

He says the team was advised that a bill to amend the Constitution should be passed “only by a two-thirds majority, in keeping with the pledge of presidential candidate Maithripala Sirisena in his election manifesto that no amendment necessitating a Referendum would be placed before Parliament.

“As such, the draft did not propose reducing the maximum period from six to five years.”

However, he argues the presidential term should not extend beyond five years in the present case, citing several grounds, including the circumstances of ex-president Gotabaya Rajapaksa’s election by the people, democratic principles and constitutional morality.

The full response:

Dear Sir,

I refer to the news item titled ‘Constitutional Error Could Give Ranil and Parliament Another Year’ written by your Political Correspondent in your esteemed journal. It is implied therein that the drafters of the Nineteenth Amendment to the Constitution ‘neglected’ to ensure that the maximum period to which the term of the President and Parliament could be extended without recourse to a Referendum was also reduced to five years while reducing the respective terms to five years.

As a member of the team that drafted the Nineteenth Amendment to the Constitution, I wish to make a clarification for the benefit of your readers. Article 83 lists the constitutional provisions which cannot be changed without a Referendum. The news item reproduces Article 83. You might note the words ‘and this Article’ in Article 83(b). Thus, to reduce the maximum period to five years, Article 83 itself must be amended, requiring a Referendum. The drafting team was well aware of this necessity.

However, the government had clearly advised the drafting team that the Nineteenth Amendment Bill should be passed only by a two-thirds majority, in keeping with the pledge of presidential candidate Maithripala Sirisena in his election manifesto that no amendment necessitating a Referendum would be placed before Parliament. As such, the draft did not propose reducing the maximum period from six to five years.

I wish to take this opportunity to express my views on whether the five-year terms of the current Parliament and the current President could be extended to six years, as the maximum period mentioned in Article 83 is six years.

When the People of Sri Lanka voted Gotabhaya Rajapakse as President and later elected the present Parliament, the term of the President and Parliament was five years.

Voters knew that Parliament could be dissolved earlier in the circumstances laid down in the Constitution and that the President could seek a fresh mandate after four years in office.

However, the upper limit of each term was clearly five years. As the People voted for a President and a Parliament for only five years, such a Parliament cannot extend the terms by even a day as that would violate the franchise already exercised by the People.

Any amendment of the Constitution that impinges on the franchise must be approved by the People at a Referendum, as the franchise (Article 3, read with Article 4) is an entrenched provision listed in Article 83. Any increase in the duration of the term of the President or Parliament can apply only to a new President or a new Parliament for whom the People vote knowing what the applicable term is.

On this issue, I take the further view that a two-thirds majority in Parliament and a 50-%-Plus-One majority of the People cannot make ANY amendment to the Constitution.

In international law, certain basic norms (jus cogens) are accepted as peremptory norms from which no derogation is permitted. Examples include prohibitions against slavery and torture, genocide, the use of armed force and piracy on the high seas and racial non-discrimination.

Similarly, are there basic norms from which a democracy such as Sri Lanka cannot derogate? Can a tyrannous majority adopt any constitution? Would the Supreme Court have the power to examine a Bill for the amendment of the Constitution or a new Constitution, certified by the Cabinet of Ministers as one that requires the People’s approval at a referendum, if certain basic democratic norms are alleged to be violated? Such questions may seem academic at first blush, but given experiences from elsewhere, should they be brushed aside?

When freedom from torture is recognised as a peremptory norm that binds the international community, can the People of Sri Lanka restrict its application within the country, invoking their sovereignty? Put differently, are there no limits to the internal dimension of sovereignty?

The Lawyers Collective recently raised the pertinent question of whether the amending process is also governed by the principle of ‘constitutional morality’, a concept which has recently gained wide acceptance in India.

Simply put, constitutional morality demands that the spirit of the Constitution be respected and should not be undermined even at the behest of the majority. It is thus a counterpoise to popular or social morality that can sometimes be undemocratic and violative of rights.

In Navtej Singh Johar v. Union of India, the Indian Supreme Court observed as follows: “The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.”

The Court explained that it is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.

“The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, and so on and so forth, provided that their different tastes and likings remain within their legal framework and neither violate any statute nor result in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality.” (AIR 2018 SC 4321).

My view is that peremptory norms that limit the internal dimension of sovereignty are found in the Preamble to our Constitution, which refers to ‘immutable republican principles of representative democracy’ that assure to ‘all peoples freedom, equality, justice, fundamental human rights and the independence of the judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations of the People of Sri Lanka’.

Increasing the terms of the current President and Parliament who were elected for five years goes against those ‘immutable republican principles of representative democracy.’

(Dr) Jayampathy Wickramaratne, President’s Counsel

-economynext.com