A costly mistake while enacting 1978 Constitution

How did Article 4 go missing from the entrenched list in the Constitution?

The Nation should be grateful to Neville Ladduwahetty for enlightening us of a mystery, which, otherwise, would have been buried forever in the constitutional history of our country. Without labouring among words, I shall straight away move to a segment of events that took place on August 16, 1978 at the National State Assembly (then Parliament) of Sri Lanka (cited from the Hansard); 

“Constitution of the Democratic Socialist Republic of Sri Lanka Bill Considered in Committee 

(The SPEAKER in the chair)

R. Premadasa: Before we proceed may I ask your permission to invite the Attorney General and the law officers to assist us? 

The Chairman: Yes. We will now consider the Constitution of the Democratic Socialist Republic Socialist Republic of the Sri Lanka Bill. 

R. Premadasa: Before we do that I want to bring to your notice that we have circulated all the amendments that the Government proposes to move at the appropriate stage. May we take it that the amendments have been moved, because there are numerous amendments? 

The Chairman: Do you not think that it would be better to take up the amendments when the appropriate clauses are taken up? 

R. Premadasa: Yes. I would also like to formally ask your permission for consequential amendments to be made as is normally done.”

This was how the members of the Parliament (constituted as a standing committee) began to consider clause by clause of the new (1978) constitution.

  
Eventually they reached clause 83 of the Draft Bill. This clause deals with “entrenched” Articles (Sections) of the Constitution. Articles classified as ‘entrenched’ need the mandate of the people at a referendum in order to amend or remove. Clause 83 was presented for approval (Hansard of the National State Assembly of August 16, 1978 (column 2003));

“Clause 83 (Approval of certain Bills at a Referendum)

( K. W. Devanayagam)

I move,
“In page 49, lines 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 and 11’.

(R. Premadasa)

එය සිංහල කෙටුම්පතේ මෙසේ සංශෝධනය විය යුතුයි
”52 වන පිටුවේ” 24 වන පේළියේ x1 වන, 2 වන, 3 වන, 4 වන, 9 වන, 10 වන සහ 11 වන යන ඉලක්කම් සහ වචන ඉවත් කර ඒ වෙනුවට x1 වන, 2 වන, 3 වන, 4 වන, 6 වන, 7වන, 8 වන, 9 වන, 10 වන සහ 11 වන යන ඉක්කම් සහ වචන ඇතුළු විය යුතුය...

(Translation: -To amend in the Sinhala Draft as follows;-
Remove the numbers and words “1st , 2nd, 3rd, 4th , 9th, 10th and 11th” in line 24 of page 52, and insert numbers and words 1st ,2nd 3rd, 4th, 6th, 7th, 8th, 9th, 10th and 11th” ) (emphasis mine)

Though K. W. Devanayagam moved to remove Article 4, R. Premadasa read the Bill with Article 4 for approval. Accordingly (as it is recorded) Article 83 was passed with Article 4 included in the list of entrenched Articles. But in constitution in hand Article 83 is stated as follows;-   

83. Notwithstanding anything to the contrary in the provisions of Article 82 – 
(a) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 or of this Article ; and 
(b) a Bill for the amendment ................. of paragraph (2) of Article 30 or of, paragraph (2) of Article 62 ............,

shall become law 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), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80. 

Article “4” has gone disappeared from the list

How Article 4 was removed from the constitution, remains an unresolved mystery. However it was against the will of Parliament.   

According to Ladduwahetti, when the above stated Hansard was shown to a former Director General of Parliament, he had admitted that the omission of Article 4 as an entrenched article from the published versions of the Constitution was a MISTAKE! Then who is responsible for that “Mistake”? Why do we still keep a version of a constitution with those Mistakes for so long? Have our parliamentarians been sleeping over it for almost 40 YEARS!   

Judicial Wisdom

Whatever the causes of this ‘unforgivable mistake’ may be, the Judges of the Supreme Court form the very inception have taken a firm position that Article 4 is strongly linked with Article 3 (another entrenched Article). How Article 4 work in the constitution was described by R.S. Wanasundara J. in the Determination on the 13th Amendment to the Constitution (1987) as follows;

  
Article 4, although not mentioned specifically in Article 83, is consequential to and an elaboration of article 3 and spells out the concept of Sovereignty of the People and how it should be exercised. There is in Article 4 the laying down of the structure of Government in the form of the three great departments of Government, namely, the Legislature, the Executive, and the Judiciary. Article 4 spells out also the earlier reference in Article 3 both to fundamental rights and the franchise.”

His Lordship reminds us of a chain of previous Judgements that had settled the law on Articles 3 and 4 of the Constitution; viz.;-   

“This court has in fact ruled in a series of cases that Article 4 had to be read along with Article 3. Vide our rulings in SD.5/78, Sd.4/80. SD.5/80, SD. 1/82, SD,2/83, SD. 1/84. I think it is too late in the day to: argue that this is not so ....”

According to Wanasundara J, ... “13th Amendment is on the basis that it affects and seeks to alter the basic or fundamental structure of the Constitution, both in respect of its express provisions and those that are implied.” It introduced Provincial Councils to our constitution. In this new structure a fraction of powers of organs of government – (legislature, executive and judiciary) - were devolved from the centre to the provinces.   
Article 2 declares that the Republic of Sri Lanka is a Unitary State. The constitution gets its Sovereignty from the People under Article 3. Sovereignty of the People is inalienable. Article 4 decides how the organs of the government are structured in the constitution to give effect to a Unitary State. These three Articles are interconnected and give Sri Lanka a unique unitary character. Any law intruding the Unitary State will be inconsistent with Article 2, 3 and 4. Linking Article 4 with Article 3 gives it (Article 4) the protection of an entrenched provision.  

 
However, S Sharvananda J deviated from that long chain of judicial decisions and legitimized the 13th Amendment. In that he held;   

“It is always open to change the agency or instrument by amending Article 4, provided such amendment has no prejudicial impact on the sovereignty of the People”.
Manohara de Silva, PC declined to accept the accuracy of the judgement of Chief Justice S Sharvananda.(fnÿïjdoSka f.a Wmdhud¾. yd jHjia:d ixfYdaOk-^2017& )
However, the Supreme Court corrected its course in a unanimous decision of seven Judges (S.N. Silva CJ, Wadugodapitiya J, Bandaranayake J, Ismail J, Edussuriya J, Yapa J and J.A.N. De Silva J) - Determination on the 19th Amendment (p.n. this was a different Bill presented in 2002- reported in 2002 (3) SLR 85). Their Lordships held that;   
· “The powers of government are included in the sovereignty of the People as proclaimed in Article 3 of the Constitution.

· The exercise of the sovereignty of the People can only be perceived in the context of the separation of powers as contained in Article 4 and other connected provisions of the Constitution, by the respective organs of government.

The transfer of a power which is attributed by the Constitution to one organ of government to another; or the relinquishment or removal of such power, would be an alienation of sovereignty inconsistent with Article 3 read with Article 4 of the Constitution”

The Supreme Court held this position in later Judgements. Finally, former Chief Justice K. Sripavan reaffirmed it in his Determination on the 19th Amendment to the Constitution (recent amendment bill), viz;   
“It is in this backdrop the Court in the 19th Amendment Determination 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.”

In the midst of a chain of decisions, the view of Sharvananda CJ stands in isolation. Majority of such Judgements have held that ‘relinquishment or removal’of powers of organs of Government as specified in Article 4 is amounting to alienation of sovereignty (Art 3).   

Therefore measures such as (a) Abolition of Executive Presidency (b) Removal of concurrent List (c) giving exclusive legislative powers to Provincial Councils (c) Establishment of a Constitutional Court cannot be done without a referendum.   
Unfortunately Article 4 is in danger again. In the “draft Interim Report”, which is presently before the Steering Committee of the Constitutional Council, Article 4 is proposed to be changed as follows;   

“The legislative, executive and judicial power of the People shall be exercised as provided for by the Constitution”

(Only Dinesh Gunawardena MP is reported to have objected to this formulation).   
The specific manner in which Sovereignty is exercised has been removed in the proposed formulation. Various mechanisms to abolish the “unitary structure” of the State have been proposed elsewhere in the draft report. The entire machinery is to be based on the “Principle of Subsidiarity”, which is capable of creating a structure ‘beyond a federation’. The Unitary State is placed in danger, not by changing Article 2, but by destroying the structure created by Article 4 of the Constitution.   

Constitutional experts have started to question the reliability of the parliamentary legislative process. Senior lawyer and veteran constitutional lawyer Kalyananda Thiranagama, in his work on the 19th Amendment and Sovereignty of people ( 19 jeks ixfYdaOkh ck;d mrudêm;Hh iy isrsfld; wdêm;Hh-^2017&) unveils several instances of manipulations done at the committee stage, to finally remove some executive powers of the president to the benefit of the prime minister. This was against the spirit of the Supreme Court judgement.   

Therefore, before the Government steps into the next stage in the process of making the new constitution, the process of legislation should be amended to make it reliable. Every opportunity left in the system open to manipulation should be removed. For that Parliamentary Standing orders to be amended. Simultaneously it is the responsibility of the Speaker and the Parliamentarians to investigate into the mystery behind hiding Article 4 from 83 and assure the correct version of the constitution is placed before the people.