In the matter of an application for an order in the nature of a writ of Prohibition under and in terms of Article 140 of the Constitution
Posted on January 31st, 2015

IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

In the matter of an application for an order in the nature of a writ of Prohibition under and in terms of Article 140 of the Constitution

Jayantha Liyanage

14/7 Dharmapala Avenue

Pollatthapitiya

Kurunegala                                                                                                                                                                 CaseNo:CA(Writ)57/2015                                                          Petitioner

Vs.

  1. B. Abeykoon

Secretary to the President

Presidential Secretariat

Old Parliament Building,

Colombo

  1. Sumith Abeysinghe

Secretary to the Cabinet

Office of the Cabinet of Ministers

Republic Square

Sir Baron Jayatilake Mw.

Colombo 1

  1. Ranil Wickremesinghe

Prime Minister

Prime Minister’s Office

No. 58 Sir Ernest De Silva Mw.

Colombo 7

  1. Attorney General

Attorney General’s Department

Hulftdorp Street,

Colombo 12

Respondents

TO HIS LORDSHIP THE PRESIDENT AND THEIR LADYSHIPS AND LORDSHIPS THE OTHER HONOURABLE JUDGES OF THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

On this 26 Day of January 2015,

The Petitioner appearing through his attorney K.M. Niroshi De Alwis states as follows:

  1. The Petitioner is a citizen of Sri Lanka.
  1. The 1st Respondent is the Secretary to the President of Sri Lanka, the President being the head of the Executive Branch of the Government, and head, inter alia, of the Cabinet of Ministers. The 2nd Respondent is the Secretary to the Cabinet of Ministers, the sole body authorized by the Constitution to endorse Urgent Bills.”
  1. The 3rd Respondent is the Prime Minister, duly appointed under Article 43(3) of the Constitution, as the person who, in the President’s opinion, is most likely to command the confidence of Parliament.” He is made respondent for the purpose of giving notice of this action.  The 4th Respondent is the Chief Legal Officer of the State and is made Respondent for the purpose of giving notice of this action.
  1. The Petitioner considers that, as a general matter, where he or any other citizen perceives that there is an imminent likelihood that a Statutory Authority, including the Executive Branch of Government, will act in excess of its powers, and such ultra vires act has the potential to do irreparable harm to his interests, along with the interests of the public at large, he has a right and a duty to plead to Your Lordship’s court and request a writ of Prohibition to prevent the commission of such act.
  1. The Petitioner states that, as a result of his perusal of a statement published by the Office of the President titled, 100-day Program”, articles in newspapers describing the plans of the new Government, and also statements made in Parliament by the Prime Minister, he has come to a reasonable conclusion that there is an imminent likelihood the Executive Branch will attempt to enact Constitutional amendments through the Urgent Bills” provision of the Constitution, and/or, a misuse of Article 84 of the Constitution.
  1. The Petitioner considers that, recourse to the Urgent Bills” provision, or any misuse of Article 84, will deprive him of the limited opportunity he (and other citizens) have, under the regular procedure for amending the Constitution set out in Article 82, to challenge the proposed changes before the Supreme Court.
  1. The Constitution is the Supreme Law of the Land, and the basis of all the other rights and privileges enjoyed by the Petitioner, as a citizen of this country. Indeed the Constitution is the very basis of the legal existence of all citizens.
  1. The Petitioner considers that any attempt by the executive branch, the legislative branch, or any other statutory body, to change the Constitution without allowing citizens an opportunity to challenge the proposed changes before the Supreme Court, a right explicitly given them under the provisions of Chapter 12 of the Constitution, is an ultra vires act.
  1. Therefore, the Petitioner considers that he has a right and a duty to plead before Your Lordship’s court and request a writ of Prohibition to prevent the imminent commission of that aforesaid act.
  1. The Petitioner’s argument with respect to the above matters consists of three components, as follows:
  1. The Petitioner’s reasonable conclusion that an attempt will be made within the 100-day program” to resort to the Urgent Bills” provision, or a misuse of Article 84, to bring about Constitutional changes,
  1. The Petitioner’s arguments with respect to why, according to the inherent logic of our Constitution itself, resorting to the Urgent Bills” provision, or any misuse of Article 84 as aforesaid, to enact Constitutional changes, is illegal.
  1. The Petitioner’s general argument as to why, the right of citizens to challenge proposed Constitutional changes before the Supreme Court, a right allowed them under the provisions of Chapter 12 of the Constitution, cannot, and should not, be by-passed.

The Petitioner will now proceed to explain each of these components in more detail.

  1. First, the Petitioner reached the reasonable conclusion that there is an imminent likelihood of a resort to the Urgent Bills” provision, or a misuse of Article 84, to bring Constitutional amendments, as a result of his perusal, inter alia, of the following documents:
  1. The 100-day Work Program” put out by the Government contains the following statement:

Wednesday January 21:  The process will begin of abolishing the authoritarian executive presidential system and replacing it with an executive of a Cabinet responsible to Parliament, and of repealing the 18th Amendment to the Constitution with legislation to establish independent institutions, including a Judicial Services Commission, a Police Commission, a Public Service Commission, an Elections Commission, a Commission against Bribery and Corruption, and a Human Rights Commission.  This will be through a 19th Amendment to the Constitution, which will be presented to Parliament and passed as swiftly as possible.”

The Petitioner annexes a copy of the aforesaid 100-day Program” in Sinhalese, obtained from the President’s official website, marked as P1, and submits as part and parcel hereof.  The Petitioner also annexes a copy of the same 100-day program” in English, published in the Daily News of 10 January 2015, marked as P2, and submits as part and parcel hereof.

  1. An article in The Island of 21 January 2015, titled, Ranil promises constitutional reform to solve national problem.” That article quotes from the Prime Minister’s statement in Parliament on that day.  In that statement, he says, inter alia,

We hope to bring about radical pieces of legislation before this Parliament under the 100-day program including a bill to transfer the executive powers of the President to Parliament through the Cabinet of Ministers, the 19th Amendment to the Constitution repealing the provisions of the 18th Amendment and to establish independent commissions, a bill on national drug policy, national auditing act and the right to information act.

The Petitioner annexes a copy of the aforesaid article, marked as P3, and submits as part and parcel hereof

  1. Finally, an article in the Daily Mirror of 17 January 2015, titled, NEC TO MOVE 19TH AMENDMENT AS URGENT BILL” says the following:

The National Executive Council (NEC), the all-party body responsible for the execution of the 100-day Programme, decided at its Thursday meeting, to move the 19th Amendment to the Constitution aimed at reforming the presidential system as an urgent bill in the national interest, informed sources said.”

The Petitioner annexes a copy of the aforesaid article, marked as P4, and submits as part and parcel hereof.

  1. The Petitioner interprets the above statements, particularly the Prime Minister’s statement taken in conjunction with the related quote from the 100-day Program,” as follows:
  1. There are only two ways to bring radical pieces of legislation, including a bill to transfer the executive powers of the President to Parliament,” by initiating action through the Cabinet of Ministers: one, by resort to the Urgent Bills” provision, and two, by a misuse of Article 84, as follows.
  1. The Urgent Bills” provision, if accepted as a legal means of making Constitutional changes, allows an amendment to be enacted by by-passing the requirements of Articles 78(1) and 121, which allow citizens to challenge proposed legislation at the Bill stage. (Article 78(1) requires that the Bill be placed on the Order Paper of Parliament, and Article 121 allows a citizen one week’s time to challenge the bill before the Supreme Court, and gives the court 3 weeks to issue its ruling.)
  1. The relevant portions of Articles 84(1) and 84(2), meanwhile, are as follows:

84(1):  A Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, but which is inconsistent with any provision of the Constitution may be placed on the Order Paper of Parliament without complying with the requirements of paragraph (1) or paragraph (2) of Article 82

84(2):  Where the Cabinet of Ministers has certified that a Bill is intended to be passed by the special majority required by this Article or where the Supreme Court has determined that a Bill required to be passed by such a special majority, such a Bill shall become law only 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 a certificate by the President or the Speaker, as the case may be, is endorsed thereon in accordance with the provisions of Article 80 or 79.”

  1. The Petitioner considers that, it may be possible, through a misuse of Article 84(2) above, to push through a Bill containing provisions that transfer at least some of the executive powers of the President to Parliament, without designating the Bill in question as a Bill intended to amend the Constitution, but certifying it as a Bill requiring a two-thirds majority in Parliament.
  1. In such a scenario, it may be possible to pass the Bill without complying with the provisions of Article 78(1) and thereby deny citizens the chance to challenge the Bill, allowed them under Article 121.
  1. Therefore, given the explicit statements made by the Government that it will bring about radical Constitutional changes within the 100-day program, and that it will do so by action through the Cabinet of Ministers, the Petitioner reiterates that he has reasonable grounds to believe that there is an imminent likelihood of the breach of the provisions of Chapter 12 of the Constitution, the normal procedure set out to bring Constitutional amendments.
  1. The Petitioner will now give his specific arguments regarding why the Urgent Bills” provision, or a misuse of Article 84, cannot—and should not—be used for purposes of bringing Constitutional amendments.
  1. The Petitioner’s claims with respect to the Urgent Bills” provision consists of two arguments, one general and the other technical, as follows:
  1. The general argument
  1. First, as a general matter, the Petitioner considers it reasonable to presume that, when a Statute, or a Constitution, sets out a procedure for bringing amendments, the framers of that Statute or Constitution intended that procedure, and none others, to be used for the purpose of bringing amendments.
  1. The Sri Lanka Constitution has a chapter titled, Amendment of the Constitution” (Chapter 12), comprising of Articles, 82, 83 and 84.
  1. Article 82(6), meanwhile, says,

No provision in any law shall, or shall be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article.”

  1. The preceding provisions” of Article 82(6) are: 82(1), 82(2), 82(3), 82(4), and 82(5)
  1. Article 83, meanwhile, sets out a special requirement (i.e. a referendum in addition to a 2/3 majority) in order to amend certain specific provisions—for instance, Article, 1,2,3,6,7,8,9,10, and so on.
  1. Article 84 (relevant portions of which are quoted in paragraph 10(c) above) is clearly intended as a mechanism for passing Bills that are not Constitutional amendments, but which are inconsistent with the Constitution.
  1. On account of the matters set out in paragraphs ‘c,’ ‘d,’ ‘e’ and ‘f’ above, it is reasonable to presume that, the framers of the Constitution intended Articles 82 and 83 to cover the subject of Constitutional amendments comprehensively.
  1. Article 122 (the Urgent Bills” provision) obviously cannot be considered a preceding provision” of Article 82(6).
  1. Therefore, prima facie, the framers could not have intended Article 122 to be used for purposes of bringing Constitutional amendments.
  1. The technical argument
  1. a) First, the portions of Articles 122 and 123, relevant for the Petitioner’s argument, are as follows:

122(1):  In the case of a Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest, and bears an endorsement to that effect under the hand of the Secretary to the Cabinet-

  • The provisions of Articles 78(1) and of Article 121, shall, subject to the provisions of paragraph (2) of this Article, have no application;
  • The President shall by a written reference addressed to the Chief Justice, require the special determination of the Supreme Court as to whether the Bill or any provision thereof is inconsistent with the Constitution. A copy of the reference shall at the same time be delivered to the Speaker;
  • The Supreme Court shall make its determination within twenty-four hours (or such longer period not exceeding three days as the President may specify) of the assembling of the Court, and shall communicate its determination only to the President and the Speaker

123(1):  The determination of the Supreme Court shall be accompanied by the reasons therefore, and shall state whether the Bill or any provision thereof is inconsistent with the Constitution, and if so, which provisions of the Constitution.

123(2):  Where the Supreme Court determines that the Bill or any provision thereof is inconsistent with the Constitution, it shall also state-

(a)  whether such Bill is required to comply with the provisions of paragraphs (1) and (2) of Article 82; or

(b)  whether such Bill or any provision thereof may only be passed by the special majority required under the provisions of paragraph (2) of Article 84; or

(c)  whether such Bill or any provision thereof requires to be passed by the special majority required under the provisions of paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of the provisions of Article 83, and may specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent

  1. b) A Bill to amend the Constitution is fundamentally different from all other Bills, because the former is explicitly identified in its long title as a Bill to amend the Constitution.
  1. c) The above means that, if a Constitutional amendment is submitted as an Urgent Bill” and the Supreme Court is asked to evaluate whether it is inconsistent with the Constitution, the Court must evaluate whether the proposed amendment is inconsistent with the Constitution when the latter contains the provision the new amendment is intended to repeal.
  1. d) The Supreme Court cannot conduct its evaluation by presuming that the provision intended to be repealed or replaced does not exist, or has already been repealed.  The Constitution is the Supreme Law of the Land, and not a comma in such a document can be removed or altered except by proper and prescribed procedures.
  1. e) In the circumstances, the Court will have no choice but to conclude that the amendment is inconsistent with the Constitution.  Furthermore, the inconsistency is incurable, as long as the provision to be repealed or replaced remains in the Constitution when the evaluation as to inconsistency with the new amendment is carried out, and that situation, as explained in paragraph ‘c’ above, does not change
  1. f) Therefore, with respect to the options for recommendations available under Article 123(1), the only option available to the Court is the one set out in sub-paragraph ‘a’, i.e. to state whether such Bill is required to comply with the provisions of paragraph (1) and (2) of Article 82.
  1. g) In the case of a Constitutional amendment which is designated as such, but submitted as an Urgent Bill,” the only option for the Court is to return it back to Article 80(1) and trigger the normal procedure for bringing about Constitutional changes.
  1. Sub-paragraphs ‘b’ and ‘c’, and the addendum to Article 123(1) give the Court options with respect to Bills that are not designated as Constitutional amendments. In those instances, the Court can recommend that the Bill be passed by a 2/3 majority, a 2/3 majority plus a referendum, or suggest the necessary amendments that will make the Bill cease to be inconsistent with the Constitution.
  1. i) Since the long title of a Constitutional amendment submitted as an Urgent Bill” will say it is an Act to Amend the Constitution,” the options set out in sub-paragraphs ‘b,’ and ‘c’ of Article 123(1) are not available. Furthermore, as explained in paragraphs ‘c’ and ‘e’ above, since the inconsistency between a proposed amendment and the Constitution as it exists at any given point in time is incurable as long as the provision to be amended is a part of the Constitution, the option suggested in the addendum to Article 123(1) is also not available.
  1. j)   Thus, even if a Constitutional amendment is submitted as an Urgent Bill,” by the operation of sub-paragraph ‘a’ of Article 123(1), it has to be referred back to Article 80(1), which means the Amendment in question has to be placed on the Order Paper of Parliament, and once it is placed on the Order Paper, it is impossible to pass the Bill without allowing the requisite time for citizens to challenge the Bill before the Supreme Court.
  1. k) Hence, the Urgent Bills” provision cannot be used to bring about Constitutional changes.
  1. The Petitioner will now turn to his argument regarding Article 84, since it is his view that an attempt might be made to bring Constitutional changes through a misuse of this Article also.
  1. The Petitioner will repeat the portions of Article 84 relevant to his argument:

84(1):  A Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, but which is inconsistent with any provision of the Constitution may be placed on the Order Paper of Parliament without complying with the requirements of paragraph (1) or paragraph (2) of Article 82.

84(2):  Where the Cabinet of Ministers has certified that a Bill is intended to be passed by the special majority required by this Article or where the Supreme Court has determined that a Bill required to be passed by such a special majority, such a Bill shall become law only 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 a certificate by the President or the Speaker, as the case may be, is endorsed thereon in accordance with the provisions of Article 80 or 79.”

  1. b) The Petitioner considers that:
  1. i) Article 84(1) says explicitly that a Bill (which is not a Constitutional amendment) but which is inconsistent with the Constitution may be placed on the Order Paper of Parliament without complying with the requirements of paragraph (1) or paragraph (2) of Article 82.” This means 84(1) envisions that the Bill in question, even though it may by-pass 82(1) and 82(2), will still be placed on the Order Paper of Parliament.
  1. ii) If a Bill is placed on the Order Paper of Parliament, Article 121 allows a citizen to challenge it before the Supreme Court.

iii)  Therefore, it cannot be that Article 84(1) contemplates a situation where a Bill inconsistent with the Constitution is ever submitted for a vote without it being first placed in the Order Paper of Parliament, and hence, without a citizen ever having an opportunity to challenge it before the Supreme Court.

  1. iv) Second, there is a fundamental difference between the Cabinet of Ministers certifying” that a particular Bill is intended to be passed by a special majority, and the Supreme Court determining” the same thing.
  1. v) The Supreme Court is vested with exclusive jurisdiction to determine all questions relating to the Constitution (Article 118(a)). It is reasonable to presume that when the Supreme Court determines that a particular Bill requires a 2/3 majority, it has looked into the substance of the issues involved, and excluded, for example, the possibility that the Bill might also require approval at a referendum.  And, in any event, the Supreme Court’s determination, once made, cannot be challenged.
  1. vi) The Cabinet of Ministers, on the other hand, when it certifies” that a particular Bill requires a 2/3 majority, cannot be presumed to have assessed the Constitutional issues involved in the same manner as the Supreme Court, and in any event the Cabinet is not authorized to make any such final assessment.

vii) The Supreme Court, therefore, continues to have the authority to review the Cabinet’s certification,” and determine whether, in addition to the 2/3 majority, the Bill in question also requires approval at a referendum.

viii)   Therefore, prima facie, even if the Cabinet certifies” that a Bill requires a 2/3 majority, it does not deprive a citizen of his or her right to challenge the Bill before the Supreme Court, to see whether it requires a referendum in addition to the 2/3 majority.

  1. ix) On account of the matters discussed in sub-paragraphs i-viii above, the Petitioner considers that Articles 84(1) and 84(2) cannot be construed as allowing the Cabinet to pass a Bill inconsistent with the Constitution, by compelling Parliament to by-pass the normal procedure of publishing the Bill in the Gazette, the Order Paper of Parliament, and so on, thus allowing citizens a chance to challenge the Bill at the Supreme Court.
  1. The final component of the Petitioner’s argument consists of his general reasons for why the normal process of enacting Constitutional amendments set out in Chapter 12 (and consisting of Articles 82, 83, and 84) must be rigidly adhered to, and not deviated from any way, when bringing Constitutional amendments.
  1. Article 3 of the Constitution reposes sovereignty in the People, and says that Sovereignty consists of the powers of government, fundamental rights and the Franchise.
  1. Article 4 of the Constitution explains how each of the aforesaid elements is to be exercised.
  1. In Re: Nineteenth Amendment to the Constitution (2002) 3SLR 85, Article 4 was interpreted as follows.

The powers of government are separated, as in most Constitutions, but unique to our Constitution is the elaboration in Article 4(a), (b), and (c) which specifies that each organ of government shall exercise the power of the People attributed to that organ.  To make this point clearer, it should be noted that subparagraphs (a), (b) and (c) not only state that the legislative power is exercised by Parliament, executive power is exercised by the President, and judicial power by Parliament through courts, but also specifically state in each subparagraph that the legislative power of the People” shall be exercised by Parliament, the executive power of the People” shall be exercised by the President, and the judicial power of the People” shall be exercised by Parliament through courts.  This specific reference to the power of the People in each subparagraph which relates to the three organs of government demonstrates that the power remains and continues to be reposed in the People who are sovereign, and its exercise by the particular organ of government being its custodian for the time being, is for the People.”

  1. The Petitioner reiterates that the key point in the above interpretation is that the powers of government may be exercised at different times by different representatives, but those powers remain at all times with the People, and the representatives exercise the powers in question only in trust for the People.
  1. In such an arrangement, a change to any provision of the Constitution is a change to a right or privilege held by the People, and not by their representatives, in the latter’s capacity as representatives.
  1. The Petitioner considers it a self-evident truth that a person cannot give away that which he or she does not own.
  1. Therefore, it follows that, when any Constitutional change is contemplated, the People must be given even a limited opportunity to voice their concerns (if any) and to challenge the proposed changes, if they so wish.
  1. Chapter 12 of the Constitution sets out a comprehensive mechanism for citizens to challenge proposed Constitutional changes either at the Bill stage, or, with respect to certain specific provisions, at a referendum.
  1. It must necessarily follow, therefore, that any mechanism that allows the executive branch, or for that matter the legislative, to bring Constitutional changes by obviating even the limited opportunities set out in Chapter 2 for individual citizens to participate in the process of Constitutional change, is ultra vires, illegal, and wrong, not to mention contrary to common-sense, reason, and the interests of justice.
  1. On account of the matters pleaded herein before, the Petitioner considers that as a citizen he has an inherent right and a bounden duty to seek solace of Your Lordship’s court, and request a writ of prohibition to prevent the commission of the aforesaid act, and imminent breach of the Constitution.
  1. The Petitioner also respectfully points out that once a Constitutional change is made, by operation of Articles 80(3) and/or Article 124, he (or any other citizen) will never be able to challenge the validity of the change before the Supreme Court, or any other judicial forum, on any ground whatsoever.” The Petitioner considers that all the more reason for him to challenge the proposed change in this instance, before it is made.
  1. It may be argued that the 18th Amendment to the Constitution was enacted by using the Urgent Bills” provision, that the Supreme Court did not see anything wrong with using that provision on that occasion, so, there is precedence for the same provision to be used for the same purpose on this occasion.
  1. The Petitioner replies that, the arguments presented in this Petition to oppose the use of the Urgent Bills” provision to bring Constitutional amendments, were never placed before the Supreme Court on that previous occasion. Other arguments were placed before the court, and the court in its wisdom rejected those arguments. It is a well-accepted legal maxim that:

Nihil debet forum ex scena (The Court has nothing to do with what is not before it)

  1. The Petitioner therefore considers that, if the Court’s ruling on the 18th Amendment is a precedent for anything, it is only a precedent as a rebuttal to the arguments for why the 18th Amendment ought not to be brought through the Urgent Bills” provision, presented before the court on that previous occasion, and has no bearing on the arguments presented in this Petition.
  1. Therefore, the Petitioner reiterates that he has a right and a duty to request Your Lordship’s court for a writ of Prohibition to prevent an imminent ultra vires act, that would do irreparable harm to his interests, as well as the interests of other citizens of Sri Lanka.
  1. The Petitioner states that he has not previously invoked the jurisdiction of Your Lordship’s Court in respect of the subject matter of this application.
  1. An affidavit of the Petitioner is appended hereto in support of the averments contained herein.

Wherefore, the Petitioner pleads that Your Lordship’s Court be pleased to:

  1. Issue Notice on the Respondents
  1. Grant a mandate in the nature of a Writ of Prohibition preventing the 2nd Respondent from endorsing a Constitutional Amendment as an Urgent Bill”, if such Bill is submitted to him for such endorsement under the provisions of Article 122(1) of the Constitution.
  1. Grant a mandate in the nature of a Writ of Prohibition preventing the 2nd Respondent from endorsing any Bill submitted to him under Article 84 of the Constitution, for endorsement as a Bill requiring a special majority, if that Bill has the effect of amending or repealing or in any other way changing any provision or part of a provision of the Constitution.
  1. Grant an interim order, preventing the 2nd Respondent from endorsing a Constitutional Amendment as an Urgent Bill”, if such Bill is submitted to him for such endorsement under the provisions of Article 122(1) of the Constitution.
  1. Grant an interim order, preventing the 2nd Respondent from endorsing any Bill submitted to him under Article 84 of the Constitution, for endorsement as a Bill requiring a special majority, if that Bill has the effect of amending or repealing or in any other way changing any provision or part of a provision of the Constitution.
  1. Grant Costs, and
  1. Grant such other and further relief as Your Lordship’s Court may deem fit.

 

________________________________

Attorney-at-Law for the Petitioner

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