Whither Seventeenth Amendment (17 A):

Link between Presidency and Constitutional Council

Many persons among the English educated intelligentsia are of the opinion that the 17th Amendment is the be all and end all of justice ensuring the Rule of Law.

Even the Political Forces which are anxious to topple the government make a big clamour for the implementation of the 17th Amendment as it would remove some of the executive powers of the President, which powers actually helped the President to crush the 30 year old terrorist movement which baffled Sri Lanka and the entire world.

Hence, it is proposed to analyse certain aspects of that 17th Amendment which could impinge on the Executive Sovereignty of the People reposed in the Executive President elected by the People, and the consequent inconsistency with the Constitution, even though the Amendment was passed by the Parliament with the blessings of a Three - Member Bench of the Supreme Court (now retired) which determined the constitutionality of the Bill.

In this regard it is pertinent to state that some of the executive powers such as the authority to appoint the Chief Justice and other Judges, the Attorney General and persons to other similar important posts were vested with the President under the present Constitution prior to the enactment of the 17th Amendment, During that period nobody made a fuss about the appointments to the above mentioned posts. Everything went on smoothly until about 2001 when the JVP (prior to its split) spearheaded a movement within Parliament to curb some of the Executive Powers of the Presidency as brought about by the 17th Amendment, which was of course passed with the support of all the Members of Parliament. The SLFP succumbed to the JVP pressure as the then President was a lame duck at that time.

Now, let us analyse some of the relevant executive powers of the President as given in the Constitution.

Article 3 - In the Republic of Sri Lanka Sovereignty is in the People and is inalienable. Sovereignty includes the powers of the government fundamental rights and the franchise.

Article 4 - The Sovereignty of the People shall be exercised and enjoyed in the following manner.

(a)...............................

(b) The executive power of the People, including the defense of Sri Lanka, shall be exercised by the President of the Republic elected by the People.

(c)...............................

(d)...............................

(e)...............................

Article 30 (1) - There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the government, and the Commander - in Chief of the Armed forces.

Article 33 - In addition to the power and functions expressly conferred on or assigned to him by the Constitution or by any written law whether enacted before or after the commencement of the Constitution, the President shall have the power.

(a)................................

(b)................................

(c)................................

(d) To keep the Public Seal of the Republic, and to make and execute under the Public Seal, the Acts of Appointment of the Prime Minister and other Ministers of the Cabinet of Ministers, the Chief Justice and other Judges of the Supreme Court.

(e)................................

(f)................................

Article 54 - The President shall appoint all public officers required by the Constitution or other written law to be appointed by the President, as well as the Attorney - General and the Heads of the Army, the Navy, the Air Force and the Police Force.

Article 56 (1) - There shall be a Public Service Commission which shall consist of not less than five persons appointed by the President. The President shall nominate one of the members of the Commission to be the Chairman.

The above Executive powers of the President are exercised by the President absolutely and not being subjected to any restriction whatsoever. The absolute power of the President cannot be referred to as a discretion of the President. Of course, in the exercise of any power there is an element of discretion.

It is also pertinent to state here that on many occasions our Supreme Court has held that my power that is attributed by the Constitution to one organ of government cannot be transferred to another organ of government or relinquished or removed from that organ of government, and any such transfer, relinquishment or removal would be an alienation of sovereignty which is inconsistent with Article 3 read together with article 4 of the Constitution.

Hence relinquishing or removal of any of the executive powers of the President by an Act of Parliament is an alienation of sovereignty inconsistent with Article 3 read with Article 4(b) of the Constitution. Because of this inconsistency with Article 3 read with Article 4(b), such an Act of Parliament has to be passed not only by the special majority in Parliament (two-thirds majority) but also by the People at a Referendum, as otherwise the Act is ultra vires the Constitution.

Now let us see whether there is a relinquishment or removal of the executive power of the President by the various new Articles that have been introduced to the Constitution by the 17th Amendment. The provisions relating to the establishment and functions of the Constitutional Council from the core of the 17th Amendment, and they are contained in Articles 41A to 41H. The most relevant Articles or portions of such Articles shall be discussed here.

41 A (1) There shall be a Constitutional Council which shall consist of the following members:

(a) The Prime Minister;

(b) The Speaker;

(c) The Leader of the Opposition in Parliament;

(d) One person appointed by the President;

(e) Five persons appointed by the President, on the nomination of both the Prime Minister and the Leader of the Opposition;

(f) One person nominated upon agreement by the majority of the Members of Parliament belonging to political parties or independent groups other than the respective political parties or independent groups to which the Prime Minister and the Leader of the opposition belongs and appointed by the President.

41 B - No person shall be appointed by the President as Chairman or a member of any of the Commissions as given below except on a recommendation of the Council.

(a) The Election Commission

(b) The Public Service Commission

(c) The National Police Commission

(d) The Human Rights Commission of Sri Lanka

(e) The Parliamentary Commission to Investigate Allegations of Bribery or Corruption.

(f) The Finance Commission

(g) The delimitation Commission

A Chairman or member could be removed by the President only with the approval of the Council.

41 c (1) - No person shall be appointed by the President to any of the offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.

Schedule

Part I

(a) The Chief Justice and the Judges of the Supreme Court

(b) The President and the Judges of the Court of Appeal

(c) The Members of the Judicial Service Commission, other than the Chairman

Part II

(a) The Attorney General

(b) The Auditor General

(c) The Inspector General of Police

(d) The Parliamentary Commissioner for Administration (Ombudsman)

(e) The Secretary General of Parliament

In terms of Article 41 C(1) the President should make a recommendation to the Constitutional Council and obtain the approval of the Constitutional Council before making the appointments to the high posts as given in the above two schedules.

Further, in terms of Article 41 (B), the President cannot appoint the Chairman or a member of the Commissions stated therein except on a recommendation of the Council.

As stated earlier all these executive powers were exercised by the President himself prior to the enactment of the 17th Amendment.

Thus it is seen that the 17th Amendment has removed some of the executive powers of the President and conferred them on a Council of ten members, seven of whom are not from Parliament. Hence the Council is not answerable to the People or to the Parliament or to the President. It is ludicrous to confer the executive power of the People to such a body. No other country in the world is having this type of ridiculous and absurd arrangements.

Hence it is crystal clear that the 17th Amendment has brought about an erosion or removal of the executive power of the President, and as explained earlier it would result in an alienation of the Executive Sovereignty of the people which is inconsistent with Article 3 read together with Article 4(b) of the Constitution.

It is also pertinent to state here that it is infra dig for a President elected by the People to seek the approval of a body of persons who are mainly nominees of political parties, to perform some of the executive powers reposed on the President by the People.

However in terms of Article 122 (1) (b) the then President referred the Bill titled the 17th Amendment to the Supreme Court to determine the constitutionality of the Bill. A three - Member Bench of the Supreme Court (now all retired) met on 21.09.2001 to determine the constitutionality of the Bill in respect of the 17th Amendment. the material and relevant portions of the entire determination of the Supreme Court as given at pages 251-253 of the “Decisions of the Supreme Court on Parliamentary Bills” 1991-2003 are given below.

“The power of making appointments of the respective commissions and the appointment of the officers referred to in 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.

The question which comes up for consideration and dealt with by the Hon. Attorney General in his submissions is whether the amendment amounts to an erosion of the executive power of the President and is thereby inconsistent with the provisions of Article 3 read with Article 4(b) of the Constitution. In terms of Article 83(a) any Bill which is inconsistent with the provisions of Article 3 would become law only if it is passed by the special majority in parliament and approved by the People at a Referendum.

Article 3 of the Constitution reads thus:

In the Republic of Sri Lanka Sovereignty is in the people and is inalienable. Sovereignty includes the power of Government, fundamental rights and the franchise:

The exercise of the Sovereignty of the People is provided for in Article 4. In the circumstances provisions of Article 3 is in certain respects inter linked with the provisions of Article 4. The relevant provisions as to the exercise of the sovereignty of the people in relation to executive power is contained in Article 4(b), which reads thus:

Executive power of the People, including the defense of Sri Lanka, shall be exercised by the President of the Republic elected by the People.

Therefore the executive power of the people including defense is exercised by the President of the Republic who is elected by the People. 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.

In particular we wish to note the following matters:

(1) In terms of Article 41 A (1) (d) the President is empowered to appoint one member to the Constitutional Council. The person thus appointed shall hold office for such period as the President may from time to time determine the terms of sub clause.

(7) The presence of this member would constitute the link between the President and the Constitutional Council. Hence the President is not removed from the process of the Constitutional Council.

2) As contended by the Hon. Attorney General, the appointments to the Constitutional Council provided for in Article 41A(1)(e) would in any event be made by the President. Therefore, although there is a restriction on the discretion of the President, the appointment as such would be the act and deed of the President.

3) In terms of clause 3 that is Article 55(3), the appointment, promotion, transfer, disciplinary control and dismissal of all heads of departments is vested in the Cabinet of Ministers, chaired by the President. It is provided that this power will be exercised “after ascertaining the views of the Commission” (PSC).

4) In terms of clause 4 that is, Article 61E the President appoints the Heads of the Army, Navy and Air Force. Therefore, the appointment of the Heads of Forces being an integral part of the defense of Sri Lanka referred to in Article 4(b) of the Constitution would be within the purview of the President.

The four matters referred to above taken together, in our view support the inference that the amendment does not remove the executive power of the President in relation to the subjects coming within the perview of the Bill.

Although there is a restriction in the exercise of the 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.

Accordingly this Court determines that the Bill titled ‘The Seventeenth Amendment to the Constitution’

(a) complies with the provisions of Article 82(1) of the Constitution;

(b) requires to be passed by a special majority specified in Article 82(5) of the Constitution;

(c) that there is no provision in the Bill which requires approval of the People at a Referendum in terms of the provisions of Article 83”.

The Bill was presented to Parliament on 24.09.2001. It was passed on 24.09.2001. With much respect it is proposed to make the following comments on the four matters referred to above and the decision of the 3 Member Bench of the Supreme Court with regard to the constitutionality of the Bill pertaining to the 17th Amendment.

As held by the Supreme Court the executive sovereignty of the People is reposed in the President elected by the People and an erosion or removal of such executive power of the President will be inconsistent with Article 3 read with Article 4(b) and such a Bill has to be passed by the special majority in Parliament and approved by the People at a Referendum.

However, the Supreme Court has held that the four matters referred to above taken together support the inference that the amendment does not remove the executive power of the President in relation to the subjects coming within the purview of the Bill and there is only a restriction in the exercise of the discretion hitherto vested in the President.

Under (1) above the Supreme Court states that the President is not removed from the process of the Constitutional Council as the President appoints one member to the Council.

Not being “removed from the process of the Constitutional Council” does not give the President any power over the Constitutional Council, and the Council makes independent decisions. Further by appointing one member of the Constitutional Council, the President does not get any power over the Constitutional Council.

Under 2 it is said that since the appointments to the Constitutional Council are made by the President, the appointment as such would be the act and deed of the President. Again, it should be stated that the President is only appointing the persons nominated by others and the President has no control or say in the selection of the persons to the Constitutional Council.

Under (3) it is stated that the power of appointment, promotion, transfer, disciplinary control and dismissal of all heads of departments will be exercised by the Cabinet of Ministers chaired by the President “after ascertaining the views of the Commission” (PSC). Prior to the Amendment this power was exercised by the Cabinet of Ministers headed by the President and there was no “ascertaining the views of the Commission”.

Only under (4) the power of the President with regard to the appointment of Heads of Forces remains unchanged by the Amendment.

Therefore, again with much respect, it is submitted that it is difficult to presume the four matters referred to in the determination taken together support the inference that the amendment does not remove the executive power of the President in relation to the subjects coming within the purview of the Bill.

Further, the Supreme Court has not commented on Article 41 C(1), by which the President’s authority has been subjected to the approval of the Constitutional Council. This could have been interpreted as an erosion or removal of the executive power of the President.

The Supreme Court has said that there is a restriction on the discretion exercised by the President.

However, the Bill has been passed by the Parliament and now the 17th Amendment is part of the Constitution.

Nevertheless, if the Government so wishes it could repeal the 17th Amendment by passing another Amendment in Parliament by a two-thirds majority as the 17th Amendment does not come within the Articles mentioned in Article 83 which require approval at a Referendum for any amendment.

L.M. Deekiriwewa Attorney-at-Law, Formerly Visiting Lecturer in Law, Open University, Colombo and K. Deekiriwewa, LLB Attorney-at-Law