The President has proposed to make changes to the constitution via an urgent bill.  The changes known as the 18^th Amendment to the Constitution, seek to remove the two term limit on being elected to the office of the President and the Constitutional Council under the 17^th Amendment.  As required under the Constitution, the President has referred the urgent bill to the Supreme Court.  Supreme Court heard the Government’s arguments and the arguments of six intervening petitioners on Tuesday 1 September 2010.  These changes have not been discussed in the public domain and they are sought to be made in secret.  It is important to note that even at the Supreme Court hearing the intervening petitioners were only given copies of the proposed changes after the government started making its submissions.  This article explains how the Constitution can be amended, what the key changes are and the legal arguments advanced in favor of and against the changes.

Procedure for changing the Constitution

The Constitution can be amended by passing a bill with a two-third majority of Parliament.  However any constitutional changes that affects certain entrenched Articles of the Constitution needs a two third majority and approval at a referendum.  For example a change that affects Article 13 (which devolves power to provincial councils) or Article 3 (which establishes the sovereignty of the people) would require a referendum.  A referendum is only successful if the total number of ‘Yes’ votes amount to an absolute majority of the total valid votes cast at the referendum.

If Parliament seeks to amend the Constitution via an urgent bill, the President is required to seek the opinion of the Supreme Court.  In its opinion, the Supreme Court is required to state a) whether the bill actually changes the Constitution and b) whether a referendum or whether a simple a two third majority is sufficient to make the proposed changes.

On Monday, 30 August 2010, the President and Cabinet of Ministers introduced an urgent bill to make changes to the Constitution.  On Tuesday, 31 August 2010, the urgent bill was referred to the Supreme Court.

Key Proposed Changes to the Constitution

• Removal of the two term limit: There will no longer be a limit on the number of times an individual can be elected to the office of the President.
• Repeal of the 17^th Amendment: the Constitutional Council will be replaced with a new Parliamentary Council. The President will seek the ‘observations’ of the Parliamentary Council in making appointments to key governments posts.  However where the Parliamentary Council fail to communicate its observations to the President within the specified time, the President can proceed to make appointments solely at his discretion.
• Restricting the role of the Election Commission: The Election Commission will no longer have the power to issue directions to prevent political parties from using state resources to advance their campaigns during elections.  Further the private media will be under a duty to comply with guidelines issued by the Election Commission.

Proceedings before the Court

The reference by the President was heard by a special Supreme Court bench comprising of Justices Bandaranayake, Sripavan, Ratnayake, Imam and Suresh Chandra.  The Attorney General advanced arguments on behalf of the Government, and explained the proposed changes to the Court.  A summary of his arguments is as follows:

• Changes enhance the franchise. Removal of the two term limit is in fact an enhancement of the franchise of the people.  It will introduce a “galaxy of choices” in terms of presidential candidates.  “The people’s choice will be unfettered.”
• Improve accountability: Mandatory attendance at Parliament by President will bring the President more in to the process of the Parliament, and thus make him more accountable to the People.
• From the outset it was clear that 17^th Amendment could not work.  In its original 17^th Amendment judgment, the Supreme Court “prophesized” that the 17^th Amendment would not work.  The 17^th Amendment is directory and not a mandatory provision of the Constitution.  Therefore the current proposal to repeal it, would not affect the sovereignty of the people.  [That is 17^th Amendment does not affect ‘sovereignty’ which consists of fundamental rights, franchise and powers of government]
• The Constitutional Council was inherently flawed. It was impossible to reach a consensus on who should be appointed to the Council.  Further, the Constitutional Council consisted of members outside the Parliament; therefore, it was impractical for the members to reach a consensus.  The new Parliamentary Council would consist only of members within the Parliament.  Therefore, it is bound to work better than the Constitutional Council.

Intervienients’ Arguments

In proceedings like this, there is a process for interested parties to intervene and raise their objections to the proposed amendments.  There were six intervening parties representing different interest groups, including the Centre for Policy Alternatives and Ravaya newspaper. The six intervening parties were as follows: Jayamapthy Wickramaratne appeared for Lal Wijenayake and Chandra Jayaratne, Saliya Peiris appeared for K W Janaranjana of Ravaya, J C Weliamuna appeared for Janatha Vimukthi Peramuna, Viran Corea appeared for the Centre for Policy Alternatives and Rohan Edirisinha on behalf of himself.  We have summarized the key arguments raised by the intervening parties.

• Manner in which these amendments are sought to be made violate the first principles of Constitutionalism. The manner in which these changes are sought to be made demonstrate a shocking disregard for basic internationally accepted norms of Constitution making.  These changes affect the independence and integrity of democratic institutions of this country.  Yet these proposed changes were hatched in secrecy with no public consultation.  The Constitution is meant to protect and empower the people from those who wield political power.  If the Constitution can be changed by the wielders of power without participation of those whom a constitution is designed to protect the basic rationale for having a Constitution is undermined.
• What is the urgency? The Bar Council of Sri Lanka has passed a resolution stating that amendments to the Constitution ought not to be rushed through as ‘urgent bills’.  Bill are deemed urgent, when the Cabinet decides they are ‘urgent’ in the national interest.  The Attorney General has not made clear why these changes have to be made ‘urgently’.  It is difficult to escape the conclusion that the changes are being rushed through to avoid proper judicial scrutiny and consideration by civil society.   It is important to note that the intervening parties only received their copy of the bill AFTER the Attorney General started to make submissions to the Court.  The Supreme Court should use this opportunity to lay down guidelines and criteria for the introduction of urgent bills.
• Supreme Court has a special responsibility.  The Basic Structure Doctrine as developed by the Indian Supreme Court requires that even with a two third majority basic features/ values of the Constitution can not be amended.  The rational of the Basic Structure Doctrine requires that when those who wield power want to introduce amendments to benefit themselves, and NOT the people, the Supreme Court has a special responsibility to protect the people.  Similarly in the United States there has long been a thought that even if the Supreme Court was to be deferential to the political branches when it comes to political matters, the Court had to accept a special responsibility to ensure the integrity of the democratic process.
• Survey of Constitutions from around the world reveals necessity of term limits. It’s important to see what the practice in other countries is with regards to term limits on the head of government.  First, there are no term limits on countries with parliamentary forms of government.  This is because of the nature of Parliamentary system, you elect a party not a person, and the presence of the Prime Minister is always balanced by the presence of an opposition in Parliament.  Further, the Prime Minister can at any time lose his position if he does not have the support of a majority of Parliament.  Term limits are always found in countries with an executive president.  If you look around the world the following countries do not have term limits:  Azerbaijan,  Singapore,  Syria,  Turkmenistan, Vietnam,  Venezuela, Yemen,  Belarus,  Costa Rica,  Cuba,  Niger,  Algeria,  Burkina Faso,  Libya, Uganda.  Except for Costa Rica, all of these countries are one party states or dictatorships.  Singapore is often portrayed as a model of development, but it is important to remember that it is a one party state.  In its 94 member parliament, 82 are from the ruling party, 9 are appointed members and only 3 are from the opposition.  Only a few countries have removed term limits and still managed to avoid being a dictatorship: Peru, Chile and Uruguay.  In these countries a President can hold office for unlimited number of terms, but the terms can’t be consecutive, thus providing for an important safeguard.  With this proposed 18^th Amendment to the Constitution, Sri Lanka will be joining ranks of one party-states and dictatorships.
• Term limits provide an important check on the concentration of power.  First, the longer a President holds power, the line between the ruling party and the state becomes blurred.  Second, the longer a president holds office; the balance of power between the three arms of government will tilt to the Executive.  Third, term limits allow for those aspiring to power to wait for their chance to run for office.  Thus, it prevents aspiring candidates form resorting to unconstitutional action to get in to power.  Fourth, the term limits promote a party based as opposed to a personality based form of democracy.  Fifth, defeating a long sitting president is a very difficult task.  The sitting President has unrivaled and unfettered access to public resources and campaign funds.  Even in the most consolidated multi-party democracies, there are always flagrant abuses of state resources during elections.  Therefore, having a President that can run for an unlimited number of terms, will significantly weaken the chances of other candidates to wage successful election campaigns.

• Removal of the two term limit violates the mandate of President Rajapaksa. The proposal to remove the two term limit violates the mandate given by the people at two successive presidential elections.  In 2005, Mahinda Chinthanaya 1 promised to abolish the Executive Presidency before the end of the first presidential term.  Mahinda Chinthanaya 2 promised to a) reduce the powers of the executive presidency, and b) make it more accountable to Parliament.  The proposed changes are totally contrary to these promises contained in the Mahinda Chinthanaya.
• This change requires a referendum because if affects the sovereignty of the people.  [As noted above a referendum is only required when any proposed amendments to the Constitution affects certain provisions.  On the surface the proposed changes don’t affect any of those provisions]. However it was argued that these special provisions need to be interpreted more broadly.  For example, the referendum clause doesn’t say that a referendum is required if the writ jurisdiction of the Court of Appeal is to be taken away.  But surely, if the propose amendments tried to take away the jurisdiction of the Court of Appeal, then that would require a referendum?  Similarly, the proposed changes need to be seen in a broader context and how they undermine the sovereignty of the people.  Any change that affects the sovereignty clause (Article 3) requires a referendum.  Sovereignty includes the powers of government and fundamental rights of the people.  The removal of the two term limit will affect the balance of the three branches of government; in particular it will remove an important safeguard against arbitrary government action.  Similarly, the 17^th Amendment strengthened the sovereignty of the people by providing an important check on arbitrary executive action.  Further the 17^th Amendment, served to enhance the independence, legitimacy and efficacy of the institutions that facilitate the realization the fundamental rights of the people. (For example, the judiciary, the Human Rights Commission, the Elections Commission, the Public Service Commission and Police)  Therefore, as these changes affect the fundamental rights of the people, the balance of powers of government, they ultimately affect the sovereignty of the people, and requires a referendum.

• This change requires a referendum because if affects the provincial councils. One must read the Constitution as a whole.  The proposed amendments seek to significantly do away with the powers of Finance Commission and the National Police Commission.  Such amendments requires further special procedure set out in 154G (2) – (3), that is, the change must be gazetted and referred to all the Provincial Councils, so they can express their views on the proposed changes.
• Attorney General is incorrect to submit that the 17^th Amendment is directory.  The text of the Constitution, the intention of the framers, the rationale or purpose of the 17^th Amendment and the determinations of the Supreme Court (in the 17^th, 18^th and 19^th Amendment cases) show that the 17^th Amendment to the Constitution is mandatory.  The Hansard proceedings of the debate on the 17^th Amendment especially the speeches of Prime Minister Ratnasiri Wickremanayake an Mr Wimal Weerawansa, make it absolutely clear that the intention of the framers, the intention of the legislature was that the provisions of the 17^th Amendment were to be mandatory.
• Toothless Parliamentary Council The proposed alternative to the Constitutional Council would result in the politicization of key government posts. The proposed alternatives would curtail the freedom of thought and conscience of key public officers and Commissions.
• Reducing the powers of the Electoral Commission will undermine the future of free and fair elections. The proposed amendments will do away with a key safeguard that prevents the abuse of state resources by the ruling political party.

Oppression of Private Media The proposed amendments allows the Election Commission to impose guidelines on Private Media during elections.  The private media ought to be able to function freely, enabling voters to freely decide at an election.  This would undermine the general public’s right to information.  The right to information is the staple of their right to through and conscience (protected by Article 10 of the Constitution).

18^th Amendment to the Constitution

The table below in summary form compares the existing provisions of the Constitution and the proposed amendments.

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Editors’ note: Download a PDF of the above table here. An interview with Rohan Edrisinha, a lecturer at the Law Faculty of the University of Colombo and Director of the Centre for Policy Alternatives, on the outrageous process and substance of the Eighteenth Amendment to the Constitution can be viewed here.