By Neville Ladduwahetty Courtesy: Island

The Supreme Court in its determination on the 19th Amendment stated that it “… came to a conclusion that the transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Though Article 4 provided the form and manner of exercise of the sovereignty of the people, the ultimate act or decision of his executive functions must be retained by the President”.

Article 3 is an “Entrenched Clause”, meaning that any amendment that would impact on Article 3 would require the approval of a 2/3 majority of Parliament AND the approval of the People at a referendum for it to become law. On the other hand, even though as stated by the Supreme Court, “Article 4 provided the form and manner of exercise of the sovereignty of the people”, it was NOT included in Article 83 as an entrenched clause in the 1978 Constitution. Consequently, any amendment that would impact on Article 4 would ONLY require a 2/3 approval of Parliament for it to become law.

The Supreme Court in this current determination found certain Articles in the 19th Amendment to qualify for a 2/3 approval of Parliament and the approval of the people at a referendum because these Articles provided for the President to “transfer” executive power to another “organ or body” – the Prime Minister. These Articles were deleted by the Government at the Committee stage to avoid the prospect of having to hold a referendum.

One such Article that was deleted was Article 43 (1). This particular Article entitles the Prime Minister to “determine the number of Ministers of the Cabinet of Ministers, and the Ministries and the assignment of subjects and functions to such Ministers”. However, the Court did not find the need for Article 43 (2) also to require a referendum despite the fact that it states: “The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers to be in charge of the Ministries”. Consequently, Article 43 (2) remains part of the 19th Amendment and as it currently stands, the Ministers are appointed on the advice of the Prime Minister, but the assignment of subjects and functions of the Ministries are determined by the President.

Such anomalies occur because Article 3 is entrenched and Article 4 is not. The nearest to the link between Articles 3 and 4 is the determination by the current Supreme Court that Article 3 should be read with 4 presumably on the premise “that not all violations of Article 4 will necessarily result in violation of Article 3. This is where the story as to why Article 4 is NOT entrenched begins.

STORY of Articles 3 and 4

The story of Articles 3 and 4 begins with the 13th Amendment. In the course of their determination, 4 judges of the Supreme Court stated:

“It was submitted that Article 4 which sets out how the sovereignty of the People is to be exercised, has to be read with Article 3, and as such is entrenched along with Article 3 by Article 83. The Constitution expressly specifies the Articles which are entrenched. Article 4 is not one of those Articles. The legislative history of the 1978 Constitution shows that Article 4 was deliberately omitted from the list of entrenched articles. The report of the Parliamentary Select Committee on the Revision of the Constitution published on 22. 6. 1978 discloses that the Committee recommended the entrenchment of Article 1- 4, 9, 10, 11, 30 (2), 60 (2) and 83 (para. 9 of the Report). The Bill for the repeal and replacement of the 1972 Constitution (published in the Gazette of 14. 7. 78) included Article 4 in the category of entrenched Articles. However, when the Bill was passed, Parliament omitted Article 4 from the list of entrenched provisions. That omission must be presumed to have been deliberate, especially as Articles 6, 7 and 8 were added to the list” [1987] 2 Sri L.R.

How could Article 4 that was included as an entrenched Article in the original Bill, and also included to be so by the Parliamentary Select Committee, be omitted in the version that was finally passed by Parliament? The 3rd Reading of the Bill provides the answer to this mystery.

The 3rd Reading of the Bill on the “Constitution of the Democratic Socialist Republic of Sri Lanka” commenced on August 16, 1978. At the very outset Mr. R. Premadasa stated:

“Before we do that (i.e., consider the Bill) I want to bring to your notice that we have circulated all the amendments that the Government proposes to move at the appropriate stage…” (Hansard, p. 1958).

With regard to Article 83 the Hansard states:

Mr. K. W. Devanayagam stated in English: “I move, in page 49, line 12 and 13, leave out Articles 1, 2, 3, 4, 9,10, and 11, and insert Articles 1, 2, 3, 6, 7, 8, 9, 10, 11” (p. 2004). (Note: Devanayagam moves for Article 4 to be left out.)

Mr. R. Premadasa responded in Sinhala and stated: (translated version) “page 52, line 21, Articles 1, 2, 3, 4, 9, 10, 11 numbers and words to leave out and instead Articles 1, 2, 3, 4, 6, 7, 8, 9, 10, 11 numbers and words shall be (Ibid). (Note: Premadasa calls for inclusion of Art.4)

(Note: page 49 of English version corresponds with page 52 of the Sinhala version).

Continuing, the Hansard states:

“Question, that the words proposed to be left out stand part of the Clause, put, and negatived”.

“Question, that those words be there inserted, put, and agreed to”.

“Question, that the Clauses, as amended, stand part of the Bill, put, and agreed to”.

“Clause 83, as amended, ordered to stand part of the Bill”.

The insistence by Mr. R. Premadasa that Article 4 shall be included in the List of entrenched Articles is understandable since it was included in the original Bill and also recommended by the Parliamentary Select Committee. What then is the explanation for Article 4 to be excluded for the final version of the Bill passed by Parliament?

The reason for this strange happening is that the List of entrenched Articles in the minutes of Parliament does NOT match material recorded in the Hansard. According to the practices of Parliament the minutes are prepared from the records in the Hansard. Despite this fact, Parliament places greater credibility on the minutes than on the Hansard. However, as strange as all this may appear, the indubitable fact is that Parliament deliberated and concluded that Article 4 should have the status of an entrenched clause. But for all intents and purposes of the documented Constitution, it does not.

CONCLUSION

Whether Article 4 was NOT included in the list of entrenched Articles because of a bona fide omission or a deliberate effort to distort the Parliamentary records, the undeniable fact is that its current status leaves room for determinations of the Supreme Court to vary. For instance, the Court that ruled on the 13th Amendment took a pedestrian view and determined mechanically that since Article 4 was not in the List of entrenched Articles it had a lower status than Article 3. Had they interpreted differently, it could very well have been that the 13th Amendment would have required a referendum in which case the history of Sri Lanka would have been vastly different.

On the other hand, the current Court took the more enlightened view that Article 3 should be read with Article 4, thereby acknowledging the umbilical connection between the two; a position espoused by the petitioners of the 13th Amendment.

Thus, the material presented above conclusively establishes the fact that Parliament INCLUDED Article 4 deliberately as an entrenched Article in the List of Article 83. In view of these facts, the presumption that Article 4 was OMITTED deliberately is incorrect.
The possibility for such discrepancies between the material in the Hansard and the minutes of Parliamentary Proceedings could perhaps be avoided by reviewing the current procedures adopted by the administration in Parliament. Since the 1978 Constitution is likely to stay with us for the foreseeable future, it is best that measures are explored to make good the gross mistake relating to Articles 3 and 4. If a lesson is to be learnt from this experience all concerned have to be vigilant and make sure that the Amendments proposed and agreed upon during the Committee Stage of the 19th Amendment are correct in all respects before the Bill becomes law.