How the Supreme Court coped with the 19th Amendment -The Constitutional Madhouse – Part 6
Posted on March 7th, 2019

By C.A.Chandraprema Courtesy The Island

The Supreme Court was called upon to deliver a judgment relating to the provisions of the 19th Amendment for the first time when several political parties including the UNP petitioned the apex court against the dissolution of Parliament and the declaration of a general election, late last year. The instance in which the 19th Amendment was considered by the Supreme Court before that was when it was still a Bill. The document that went before the Supreme Court, in early 2015, as a Bill to amend the Constitution was very different to what we have today in the form of the 19th Amendment. The SC shot down many of the provisions that were in the original 19th Amendment Bill on the grounds that the change envisaged would have to be approved by the people at a referendum in addition to being passed with a two thirds majority in Parliament.

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As the country has now found out, the one change that the Supreme Court missed when examining the 19th Amendment Bill, was the provision in the amended Article 70(1) prohibiting the dissolution of Parliament before the lapse of four and a half years unless a resolution is passed to that effect with a two thirds majority. Many lawyers believe that the reason why the SC overlooked the change that had been made to Article 70(1) was the introduction, by the 19th Amendment itself, of Article 33 (2) (c), which appeared to give the President unfettered power to dissolve Parliament as a special discretionary power ‘in addition’ to the other powers conferred on him by the Constitution. It was only much later that the public found out that Article 33 (2) (c) was only the ‘driving licence’ and that the ‘road rules’ were contained in Article 70(1)!

The case, filed in the Supreme Court, by several political parties against the dissolution of Parliament and the declaration of a general election still does not have a name by which it is known to the public, but going by the first petitioner and the first respondent, one can refer to it as Rajavarothiam Sampanthan vs The Attorney General. This is the judgment that confirmed that under the 19th Amendment, Sri Lanka has a Parliament that cannot be dissolved. The dangers inherent in this situation were explained in earlier articles in this series and need not be repeated here.

Some days before the Supreme Court started hearing the case against the dissolution of Parliament and the declaration of a general election, former President Mahinda Rajapaksa made a special statement that it was completely contrary to the Parliamentary tradition to have a Parliament that could not be dissolved. He pointed out that the Parliamentary system could not function unless Parliament could be dissolved on occasions such as the defeat of the government at a vote on the budget or the passage of a no-confidence motion or the rejection of the government’s statement of policy.

However, the Supreme Court upheld the change made to Article 70 (1) to the effect that the only way Parliament could be dissolved before the lapse of four and a half years was if Parliament passed a resolution by a two thirds majority requesting the President to dissolve it. The court held that though Article 33 (2) (c) conferred on the President the power to dissolve Parliament, the only ‘way’ in which it could be done was laid out in Article 70 (1). In arriving at his decision, the Supreme Court based itself on certain principles which it has laid down in pages 59 to 69 of the judgment. I would like to draw attention, in particular, to the following verbatim extracts therefrom:

What the Court said

*”Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be.” (P. B. Maxwell on the Interpretation of Statues states 12th ed. at p. 28-29

*”If the language employed is plain and unambiguous, the same must be given effect to irrespective of the consequences that may arise.” (Kesavananda Bharati v State of Kerala (1973) 4 SCC 225, p 690 Per Palekar J)

* “It is not competent for the court to proceed on the assumption that the legislature knows not what it says, or that it has made a mistake. We cannot assume a mistake in an Act of Parliament. If we think so, we should render many Acts uncertain by putting different constructions on them according to our individual conjectures. The draftsman of the Act may have made a mistake. If so, the remedy is for the legislature to amend it.” (N.S.Bindra 12th ed. at p. 205)

*”How should the words of this provision of the Constitution be construed? It should be construed according to the intent of the makers of the Constitution … we have to interpret the Constitution on the same principles of interpretation as apply to ordinary law and that we have no right to stretch or twist the language in the interest of any political, social or constitutional theory… The question before us is not as to the expediency, still less as to the wisdom of these provisions, but is one of law depending on the construction of the relevant articles of the Constitution.

It is no doubt a legitimate and in the case of a Constitution, a cogent argument, that the framers could not have meant to enact a measure leading to manifestly unjust or injurious results to the nation and that any admissible construction which avoids such results ought to be preferred. Having regard to the precise and comprehensive provisions of chap. III of the Constitution, we are not in the happy position of a learned Judge of the United States, who is said to have observed that there was no limit to the power of judicial legislation under the “due process” clause of the 5th and 14th Amendments, except the sky. I consider it to be both legally and constitutionally unsound, even though the invitation has been extended to us by learned counsel, to eviscerate the Constitution by our own conceptions of social, political or economic Justice”. (A.R.B.Amerasinghe J, in SOMAWATHIE vs. WEERASINGHE 1990 2 SLR 121 at p. 124)

*”…it is to be kept in mind that the task of interpreting a statute must be done within the framework and wording of the statute and in keeping with the meaning and intent of the provisions in the statute. A Court is not entitled to twist or stretch or obfuscate the plain and clear meaning and effect of the words in a statute to arrive at a conclusion which attracts the Court.”

*”It is necessary to state here that our Law does not provide for a Court to review or question the validity of a statute which has been enacted by the Legislature. Thus, in GAMAGE vs. PERERA [2006 3 Sri L.R. 354 at p.359] Shirani Bandaranayake CJ stated: “Article 80(3) of the Constitution refers to a Bill becoming law and reads as follows: “Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no Court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever”. The aforesaid Article thus had clearly stated that in terms of that Article, the constitutional validity of any provision of an Act of Parliament cannot be called in question after the certificate of the President or the Speaker is given. Reference was made to the provisions in Article 80(3) of the Constitution and its applicability by Sharvananda, J. in Re the Thirteenth Amendment to the Constitution and had expressed his Lordship’s views in the following terms: `Such a law cannot be challenged on any ground whatsoever even if it conflicts with the provisions of the Constitution, even if it is not competent for Parliament to enact it by a simple majority or two third majority.”

In the opinion of this writer, what the SC has said here in so many words is that it is not the business of the Court to look into the merits and demerits of a law that has been passed by Parliament and that once something is passed into law, the courts are bound to enforce it “however harsh or absurd or contrary to common sense the result may be” and further that the Court “cannot assume a mistake in an Act of Parliament” and that if the draftsman of the Act may have made a mistake, the remedy is for the legislature to amend it. Some people who find themselves in the unenviable position having a raving lunatic in the family whom they can neither control nor maintain admit the patient to the Angoda mental hospital and then disappear.

It may be argued that the judiciary has basically done in Rajavarothiam Sampanthan vs The Attorney General is to wash its hands of the 19th Amendment and place the responsibility for any consequences that may arise out of it squarely on the doorstep of Parliament, which passed it into law.

One Response to “How the Supreme Court coped with the 19th Amendment -The Constitutional Madhouse – Part 6”

  1. Hiranthe Says:

    What they did was to interpret the provisions in 19A to the liking of the West. That is all.

    They took such a long time to figure out how to defend their stand and came up with these “sophisticated” childish arguments that simply says as “the stupid provisions in the 19A were legislated by the stupid and uneducated legislators in the parliament and unless these stupid legislators amend it, we, the clever and highly educated and respected judges will abide by those laws”

    It further implies as “We have nothing to do with the law as the girl who got gang raped did not attack the rapists and did not show her will against it and because of that, the prosecuting of these rapists is a violation of their fundamental rights”.

    Do we need to respect and call “HAMUDURUWO” to such highly paid and highly placed SC judges who take such a “selfish and uneducated” decision against the land they are living and the land they were given free education?

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