Legal Services and Laws of Sri Lanka


SLR-2002 Vol.3-P85

SLR - 2002 Vol.3, Page No - 85

IN RE THE NINETEENTH AMENDMENT

TO THE CONSTITUTION
SUPREME COURT

S. N. SILVA, CJ.,

WADUGODAPITIYA, J.,

BANDARANAYAKE, J.,

ISMAIL, J.,

EDUSSURIYA, J.,

YAPA, J. AND

J. A. N. DE SILVA, J.

SD NOS. 11, 13, 1516-2125-2830-35 AND 37-40 OF 2002

1ST AND 3RD OCTOBER 2002
Constitution - 19th Amendment to the Constitution - Petitions under Articles 121 (1)/123 of the Constitution - Amendments to
Articles 43 (1), 49 and 70 - Legislative power of Parliament - Articles 3, 4, 75, 83 (a), 84 (2) and 99 (13) (a) of the
Constitution - Sovereignty of the people - Separation of powers - Erosion of executive power of the people exercised by the
President - Rule of Law.
A Bill titled "the Nineteenth Amendment to the Constitution" was placed on the Order Paper of Parliament for 19. 09. 2002.
The above-numbered petitions were presented invoking the jurisdiction of the Supreme Court in terms of Article 121 (1) for a
determination in terms of Article 123 of the Constitution, in respect of the Bill.
The Bill deals broadly with four matters :
(1) The central provisions are contained in Clauses 4 and 5 for amending Article 70 of the Constitution relating to
dissolution of Parliament. The amendments drastically remove the President's discretion in the matter, especially where the
President is not a member of the Governing Party in Parliament. The erosion of the President's power is even more severe
after the lapse of one year referred to in Article 70 (1).
(2) An amendment to Article 43 (3) of the Constitution relating to the President's discretion to appoint a Prime Minister,
in view of the
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provisions of Clause 5 which, inter alia, makes it mandatory to appoint a Prime Minister nominated by a resolution of
Parliament - Clauses 2 and 3 (1).
(3) An amendment to Article 49 of the Constitution relating to the dissolution of the Cabinet of Ministers and the
appointment of new Ministers by the President in view of the proposed new Article 70A (1) (b) which compels the President to
dissolve Parliament upon a resolution of no confidence or to appoint a new Prime Minister as may be named in the resolution.
- Clause 3 (2).
(4) A new provision which permits members of Parliament to vote on any amendment contained in the Bill according to their
conscience and yet be immuned from disciplinary action by the Party or by the Group to which such member belongs, as
provided by Article 99 (13) (a) of the Constitution - Clause 6.
Held :

(1) Clauses 4, 5, 2 and 3 of the Bill have to be examined -
(a) In the light of Article 3 of the Constitution which provides - "In the Republic of Sri Lanka sovereignty, is in the
people and is inalienable. Sovereignty includes powers of government, fundamental rights and the franchise.".
(b) In the light of Article 4 which is linked to Article 3 and which sets out, inter alia, the manner in which sovereignty
of the people should be exercised by the legislative, executive and judicial organs of the Governmentand
(c) In the light of the balance of power that has been struck in the Constitution and in the context of the separation of
powers as contained particularly in Article 4.
(2) The organs of Government referred to in Article 4 must exercise their power only in trust for the people.
(3) 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
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would be an alienation of soverlignty inconsistent with Article 3 read with Article 4 of the Constitution.
(4) Dissolution of Parliament is a component of executive power of the People to be exercised by the President for the
People. It cannot be alienated in the sense of being transferred, relinquished or removed from where it lies in terms of
Article 70 (1) of the Constitution. The final say even in situations referred to in Article 70 (a) to (c) remains with the
President. Therefore, the amendments contained in Clauses 4 and 5 of the Bill constitute an alienation of executive power
inconsistent with Article 3 read with Article 4 of the Constitution and require to be passed by the special majority
required under Article 84 (2) and approved by the People at a Referendum by virtue of the provisions of Article 83.
(5) Clauses 2 and 3 (1) of the Bill relate to the dissolution of Parliament and the amendments provided by Clauses 4 and 5
which, inter alia, require the President to dissolve Parliament and appoint a Prime Minister nominated by Parliament. Hence,
those Clauses attract the determination stated above based on inconsistency with Article 4 (b) and require the approval of
the People at a Referendum.
(6) Clause 3 (2) which would require the President to dissolve Parliament on a resolution of no confidence {vide Article 70
A (1) (b)) results in the dissolution of Parliament itself upon such resolution. Hence, it is an alienation of the
legislative power of the people inconsistent with Article 3 read with Article 4 (a). As such Clause 3 (2) requires to be
passed by the special majority specified in Article 84 (2) and approved by the people at a Referendum by virtue of Article
83.
(7) Clause 6 has the effect of partly suspending Article 99 (13) (c) of the Constitution. It also has implications on
franchise defined in Article 4 (c) and judicial power under Article 4 (c). That Clause cannot be validly enacted by
Parliament in view of the specific bar contained in Article 75 of the Constitution.
(8) If Clauses 4 and 5 of the Bill are removed and replaced with a clear amendment to proviso (a) or Article 70 (1) whereby
the period of the year referred to therein is extended to a period not exceeding three years that would not amount to an
alienation of executive power of the President. The inconsistency with Article 3 read with Article 4 (b) would thereby
cease.
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The substituted clause may be passed by the special majority under Article 84 (2) and does not require the approval of the
People at a Referendum.
1. Visuvalingam v. Liyanage (1983) 1 Sri LR 236.
2. Premachandra v. Jayewickrema (1994) 2 Sri LR 90.
3. Gupta and Others v. Union of India (1982) AIR (SC) 197.
PETITIONS challenging the "Nineteenth Amendment to the Constitution" under Article 121 (1) for a determination under Article
123 of the Constitution.
Counsel for petitioners :
SD No. 11/2002 - Batty Weerakoone

SD No. 13/2002 - Sarath Weragoda (in person)

SD No. 15/2002 - D.P. Mendis, PC with Nadeera Gunawardena and Keerthi Segara

SD No. 16/2002 - S. S. Sahabandu, PC with Keerthi Segara, Situge and S. D. Yogendra

SD No. 17/2002 - A. A.De Silva, PC with A. W. Yusuf, Prasanna Obeysekera and Chaminda Weerakkody

SD No. 18/2002 - R. I. Obeysekera, PC with A. W. Yusuf, P. Liyanaarachhci, Chaminda Weerakkody and PiyalRanatunga

SD No. 19/2002 - B. Jayamanna with Swinitha Gunaratne

SD No. 20/2002 - L. V. P. Wettasinghe with Swinitha Gunaratne

SD No. 21/2002 - M. A. Sumanthiran with V. Corea and Renuka Senanayake

SD No. 25/2002 - Anil Obeysekera, PC with Palitha de Silva and Bandula Wellala

SD No. 26/2002 - E. P. Wickremasekera (in person)

SD No. 27/2002 - A. A. de Silva, PC with P. Abeykoon and Kanishka Witharana

SD No. 28/2002 - Manohara de Silva

SD No. 30/2002 - Wijedasa Rajapakse, PC with Kapila Liyanagamage and Ranjith Meegaswatta

SD No. 31/2002 - Neville Jayawardene with P. D. R. S. Panditharatne

SD No. 32/2002 - H. L de Silva, PC with Nigel Hatch

SD No. 33/2002 - R. K. W. Goonesekera with Gaston Jayakody

SD No. 34/2002 - Dr. Jayampathy Wickremaratne with Gaston Jayakody

SD No. 35/2002 - Dr. Jayampathy Wickremaratne with Gaston Jayakody

SD No. 37/2002 - A. R. I. Athurupana with R. Edirimanne

SD No. 38/2002 - A. W. Yusuf with Piyal Ranatunga

SD No. 39/2002 - A. A. de Silva, PC with P. Abeykoon and Kanishka Witharana

SD No. 40/2002 - Petitioner absent and unrepresented
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Counsel for the State :
K. C. Kamalasabayson, PC Attorney-General with S. Marsoof, PC Additional Solicitor-General, Uditha Egalahewa, State Counsel
and Harsha Fernando, State Counsel.
Intervenient :
Shibly Aziz, PC with L C. Seneviratne, PC, Daya Pelpola, S. G. Mohideen, Ronald Perera, Chandimal Mendis and Rohana
Deshapriya.
Cur. adv. vult.
October 01 and 03, 2002
A Bill bearing the title "19th Amendment to the Constitution",was placed on the Order Paper of Parliament for 19. 09.
2002. Twenty-four petitions, numbered as above have been presented invoking the jurisdiction of this court in terms of
Article 121 (1) for a determination in terms of Article 123 of the Constitution, in respect of the Bill.
Upon receipt of the petitions the Court issued notice on the Attorney-General as required by Article 134 (1) of the
Constitution.
The petitioners or Counsel representing them, the Intervenient petitioner and the Attorney-General were heard before this
Bench at the sittings held on 01. 10. 2002 and 03. 10. 2002.
The proposed 19th Amendment to the Constitution as contained in the Bill deals with broadly four matters :
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(1) the appointment of the Prime Minister, an amendment to Article 43 (1) of the Constitution, as contained in clause 2
(2) the dissolution of the Cabinet of Ministers, an amendment to Article 49 as contained in clause 2
(3) the dissolution of Parliament, an amendment to Article 70 as contained in clauses 4 and 5
(4) the conferment of an immunity from disciplinary action that may be taken against Members of Parliament by recognized
political parties or independent groups in respect of speaking, voting, or abstaining from voting on any amendment to the
Constitution contained in the Bill, as set out in clause 6 of the Bill.
Since the Bill taken as a whole hinges on the provisions contained in clauses 4 and 5 with regard to the dissolution of
Parliament we would consider this matter first.
DISSOLUTION OF PARLIAMENT
The provisions presently in the Constitution regarding dissolutionof Parliament are contained in Article 70 (1). The main
paragraph in Article 70 (1) reads as follows :
The President may, from time to time, by Proclamation Summon, Prorogue and Dissolve Parliament."
The broad power thus attributed in the President is subject to certain limitations and clarifications as are specified in
provisos (a) to (d) of the sub article. The contents of these provisos may be summarized as follows :
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(a) where a General Election has been held consequent upon a dissolution of Parliament by the President, the President shall
not thereafter dissolve Parliament until the expiration of one year from the date of such election unless Parliament by
resolution requests the President to do so.
(b) the President shall not dissolve Parliament on the rejection of the statement of government policy at the commencement
of the first session of Parliament after a General Election.
(c) restriction on the power of dissolution where a motion for the impeachment of the President has been entertained by the
Speaker.
(d) where the President has not dissolved Parliament upon the rejection of the Appropriation Bill, Parliament shall be
dissolved if the next Appropriation Bill is rejected.
It is seen that provisos (a), (b) and (c) are specific restrictions on the power of dissolution, whereas proviso (d) is
mandatory and requires dissolution.
THE CONTENTS OF THE BILL WITH REGARD TO THE DISSOLUTION OF PARLIAMENT
The amendments in the Bill in this regard are contained in clauses 4 and 5. Clause 4 repeals proviso (a) of Article 70 (1),
referred to above and substitutes a new proviso with two sub paragraphs. Asnoted, proviso (a) is a restriction on the
powers of the President to dissolve Parliament within one year after a General Election, that had been held consequent upon
a dissolution of Parliament by the President. The effect of the amendment is two-fold :
(1) the proviso will apply irrespective of the circumstance that caused the General Election. That is, whether it resulted
from
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a dissolution by the President or by the expiration of the term of Parliament being 6 years, as contained in Article 62 (2).
(2) the residuary power which in terms of the present proviso (a) lies in the President not to dissolve, even where the
Parliament by resolution requests the same, is removed and it becomes mandatory on the President to dissolve within 4 days
of the resolution being communicated by the Speaker, However, the period of 1 year from the General Election during which
the proviso will apply, remains.
Clause 56 seeks to add a new provision as Article 70A immediately after Article 70. The new Article will have four sub
articles, the provisions of which can be grouped as follows :
(1) Article 70A (1) (a) which deals with a situation "where the majority of the Members of Parliament belong to a recognized
political party or parties or an independent group or groups of which the President is not a member". In such event after
the expiration of one year from the General Election the President shall not dissolve Parliament unless upon a request by
Parliament supported by a resolution passed by not less than two-thirds of the whole number of members, including those not
present.
(2) Articles 70A (1) (b) and 70A (2) are linked. Paragraph (b) provides that where the Parliament passes a resolution that
the Government no longer enjoys the confidence of the Parliament, the President shall dissolve Parliament. However, as
stated in paragraph (2), if such a resolution identifies a Member of Parliament who enjoys the confidence of Parliament and
the resolution is passed by not less than one-half of the whole number of members (including those not present) the
President shall not dissolve Parliament but shall appoint such person as Prime Minister.
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(3) Articles 70A (3) and (4) are consequential provisions the contents of which need not be referred to for the purpose of
this determination.
Considering the somewhat diffused picture that comes to mind when the amendment is read into the existing provision, we
would summarize the situation that will emerge as follows :
(1) the main provision in Article 70 (1) referred to above, which broadly attributes the power of dissolution of Parliament
to the President, remains :
(2) the substituted proviso (a) which applies in relation to the first year after the General Election remains. The
discretion that now lies with the President not to dissolve even if the Parliament requests such dissolution is removed and
such dissolution- is mandatory on the part of the President.
(3) There is a bifurcation in the provisions that will apply in respect of the period after the lapse of 1 year from the
date of the General Election. These provisions are :
(a) Where the majority of the Members of Parliament belong to a recognized political party or independent group or groups
of which the President is not a member, the power of dissolution is totally removed from the President and can be exercised
by thePresident only upon a resolution passed by not less than two-thirds of the whole number of members (including those
not present) request such dissolution.
(b) If the President is a member of the majority party or group in Parliament, the power of dissolution will remain as it
presently stands, subject to the provisions in Articles 70A (1) (b) and (2) referred to above.
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THE GROUNDS OF CHALLENGE
The petitioners challenge the provisions contained in clauses 4 and 5 on the basis that they constitute an erosion of the
executive powerof the President, which is inconsistent with Article 3 read with Article 4 (b) of the Constitution and urge
that the inconsistency is aggravated by the criterion upon which the power of the President in this regard is reduced to
nothing, viz the absence of membership in a particular political party or a group.
ANALYSIS OF THE GROUND OF CHALLENGE AS TO CLAUSES 4 AND 5
The Court has to consider whether the said clauses require to be passed by the special majority provided in Article 84 (2)
and approved by the People at a Referendum by virtue of the provisions of Article no 83. The petitioners contend as noted
above that these provisions require to be approved at a Referendum in terms of Article 83 (a), as they are inconsistent with
Article 3 read with Article 4 (b) of the Constitution. Since extensive references were made to Articles 3 and 4 of the
Constitution, we reproduce the respective Article in full.
(3) "In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of
government, fundamental rights and the franchise."
(4) The sovereignty of the People shall be exercised and enjoyed in the following manner :
(a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the
People and by the People at a Referendum
(b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the
Republic elected by the People
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(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and
established, or recognized, by the Constitution, or created and established by law, except in regard to matters relatingto
the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be
exercised directly by Parliament according to law
(d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by
all the organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent
hereinafter providedand
(e) the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament,
and at every Referendum by every citizen who has attained the age of eighteen years, and who, being qualified to be an
elector as hereinafter provided, has his name entered in the register of electors.".
These Articles relate to the sovereignty of the People and the exercise of that sovereignty. Mr. H. L. de Silva, PC,
submitted and correctly so, that the two Constitutions of Sri Lanka of 1972 and 1978 are unique in proclaiming that
sovereignty is in the People and specifically elaborating the content of such sovereignty, whilst in most Constitutions the
term "sovereignty" is used only as descriptive of the power of the State, similar to Article I, which states that - "Sri
Lanka (Ceylon) is a Free, Sovereign, Independent, and Democratic Socialist Republic and shall be known as the Democratic
Socialist Republic of Sri Lanka". This submission was further developed by Mr. Batty Weerakone from the perspective of
political theory and he submitted that in terms of Articles 3 and 4, sovereignty is transmuted from a "grim reality" to
something that is "tangible" or "palpable", without being elusive or visionary.
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It was the common submission of counsel for the petitioners that sovereignty conceptualized in Article 3 is given a
practical dimensionin Article 4. Although Mr. Shibly Aziz, PC, counsel for the intervenient petitioner sought in a brief
argument to delink the two Articles, the Attorney-General submitted that they are linked together and should be read
together. Indeed, the Attorney-General's submission has been the constant trend of decisions of this Court that date back to
the year 1980. Whilst the previous decisions relate to alleged instances of the erosion of judicial power, fundamental
rights / franchise or devolution of power to subordinate (or as alleged, coordinate bodies), we are presently confronted
with an alleged erosion which involves the Legislative organ of Government and the Executive organ of Government. Hence, it
is necessary to examine the concept of the sovereignty of the People and the working thereof, as set out in Articles 3 and 4
from a slightly different perspective.
Sovereignty, which ordinarily means power or more specifically power of the State as proclaimed in Article 1 is given
another dimension in Article 3 from the point of the People, to include -
(1) the powers of Government
(2) the fundamental rightsand
(3) the franchise.
Fundamental rights and the franchise are exercised and enjoyed directly by the people and the organs of government are
required to recognize, respect, secure and advance these rights.
The powers of government are separated as in most Constitutions, but unique to our Constitution is the elaboration in
Articles 4 (a), (b) and (c) which specifies that each organ of government shall exercise the power of the People attributed
to that organ. To make this point clearer, it should be noted that subparagraphs (a), (b) and (c) not only state that the
legislative power is exercised by Parliamentexecutive power is exercised by the President and judicial power by
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Parliament through Courts, but also specifically state in each subparagraph that the legislative power "of the People"
shall be exercised by Parliamentthe executive power "of the People" shall be exercised by the President and the judicial
power "of the People" shall be exercised by Parliament through the Courts. This specific reference to the power of the
People in each sub paragraph which relates to the three organs of government demonstrates that the power remains and
continues to be reposed in the People who are sovereign, and its exercise by the particular organ of government being its
custodian for the time being, is for the People.
Therefore, the statement in Article 3 that sovereignty is in the People and is "inalienable", being an essential element
which pertains to the sovereignty of the People should necessarily be read into each of the sub paragraphs in Article 4. The
relevant sub paragraphs would then read as follows :
(a) the legislative power of the People is inalienable and shall be exercised by Parliament
(b) the executive power of the People is inalienable and shall be exercised by the Presidentand
(c) The judicial power of the People is inalienable and shall be exercised by Parliament through Courts.
The meaning of the word "alienate", as a legal term, is to transfer anything from one who has it for the time being to
another, or to relinquish or remove anything from where it already lies. Inalienability of sovereignty, in relation to each
organ of government means that power vested by the Constitution in one organ of government shall not be transferred to
another organ of government, or relinquished or removed from that organ of government to which it is attributed by the
Constitution. Therefore, shorn of all flourishes of Constitutional Law and of political theory, on a plain interpretation of
the relevant
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Articles of the Constitution, it could be stated that any 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. It necessarily follows that the balance that has been struck between the
three organs of government in relation to the power that is attributed to each such organ, has to be preserved if the
Constitution itself is to be sustained.
This balance of power between the three organs of government, as in the case of other Constitutions based on a separation of
power is sustained by certain checks whereby power is attributed to one organ of government in relation to another. The
dissolution of Parliament and impeachment of the President are some of these powers which constitute the checks incorporated
in our Constitution. Interestingly, these powers are found in chapters that contain provisions relating to the particular
organ of government subject to the check. Thus, provision for impeachment of the President is found in Article 38 (2)
contained in Chapter VII titled 'The Executive, President of the Republic". Similarly, the dissolution of Parliament is
found in Article70 (1), which is contained in Chapter XI titled, 'The Legislature, Procedure and Powers.".
Mr. H. L de Silva, PC, submitted forcefully that they are "weapons" placed in the hands of each organ of government. Such a
description may be proper in the context of a general study of Constitutional Law, but would be totally inappropriate to our
Constitutional setting, where sovereignty as pointed out above, continues to be reposed in the People and organs of
government are only custodians for the time being, that exercise the power for the People. Sovereignty is thus a continuing
reality reposed in the People.
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Therefore, executive power should not be identified with the President and personalised and should be identified at all
times as the power of the People. Similarly, legislative, power should not be identified with the Prime Minister or any
party or group in Parliament and thereby be given a partisan form and character. It should be seen at all times as the power
of the People. Viewed from this perspective it would be a misnomer to describe such powers in the Constitution as "weapons"
in the hands of the particular organ of government. These checks have not been included in the Constitution to resolve
conflicts that may arise between the custodians of power or, for one to tame and vanquish the other. Such use of the power
which constitutes a check, would be plainly an abuse of power totally antithetic to the fine balance that has been struck by
the Constitution.
The power that constitutes a check, attributed to one organ of government in relation to another, has to be seen at all
times and exercised, where necessary, in trust for the People. This is not a novel concept. The basic premise of Public Law
is that power is held in trust. From the perspective of Administrative Law in England, the "trust" that is implicit in the
conferment of power has been stated as follows :
"Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely - that is to say, it can
validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended."
(Administrative Law 8th ed. 2000 - H. W. R. Wade and C. F. Forsyth, p. 356).
It has been firmly stated in several judgments of this Court that the 'rule of law' is the basis of our Constitution
(Visuvalingam v. Liyanage,(1) Premachandra v. Jayawickrema.(2)
A. V. Dicey in "Law of the Constitution" postulates that 'rule of law' which forms a fundamental principle of the
Constitution has three meanings, one of which is described as follows :
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"It means, in the first place, the absolute supremacy or pre-dominance of regular law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness of prerogative, or even of wide discretionary authority on the
part of the government. Englishmen are ruled by the law, and by the law alone . . ."
The Attorney-General has appropriately cited the dictum of Bhagawati, J. (later, Chief Justice of India) in the case of
Gupta and Others v. Union of India (3) - where he observed :
"If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law
and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within
the limits of the law and thereby making the Rule of Law meaningful and effective."
To sum up the analysis of the balance of power and the checks contained in the Constitution to sustain such balance, we
would state that the power of dissolution of Parliament and the process of impeachment being some of the checks put in
place, should be exercised, where necessary, in trust for the People only to preserve the sovereignty of the People, and to
make it meaningful, effective and beneficial to the People. Any exercise of such power (constituting a check), that may stem
from partisan objectives would be a violation of the rule of law and has to be kept within its limits in the manner stated
by Bhagawati, J. There should be no bar to such a process to uphold the Constitution.
Our conclusion on the matters considered above can be stated as follows :
(1) The powers of government are included in the sovereignty of the People as proclaimed in Article 3 of the Constitution.
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(2) These powers of government continue to be reposed in the People and they are separated and attributed to the three
organs of governmentthe Executive, the Legislature and the Judiciary, being the custodians who exercise such powers in
trust for the People.
(3) The powers attributed to the respective organs of government include powers that operate as checks in relation to other
organs that have been put in place to maintain and sustain the balance of power that has been struck in the Constitution,
which power should be exercised only in trust for the People.
(4) 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.
(5) The transfer of a power which is attributed by the Constitution to one organ of government to anotheror the
relinquishment or removal of such power, would be an alienation of sovereignty inconsistent with Article 3 read with Article
4 of the Constitution.
CONCLUSIONS APPLIED TO THE PROVISIONS OF THE BILL
Conclusions arrived at in the foregoing analysis have now to be applied to the provisions of the Bill, the constitutionality
of which should be examined in the light of the ground of challenge.
It is clear that according to the framework of our Constitution, the power of dissolution of Parliament is attributed to the
President, as a check to sustain and preserve the balance of power that is struck by the Constitution. This power attributed
to the President in broad terms in Article 70 (1) is subject in its exercise to specifically defined situations as set out
in provisos (a) to (c) referred to above. Even
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in these situations, the final say in the matter of dissolution remains withthePresident.Theonlyinstanceinwhich
dissolution is mandatory, is contained in proviso (of), in terms of which, if the AppropriationBill (the Budget)hasbeen
rejected by Parliament and the President has not dissolved Parliament, when the next AppropriationBillisalsorejected,
the President shall dissolve Parliament. This is a situation of a total breakdown of the governmentmachinery,therebeing
no money voted by Parliament for the government to function. In such an event dissolution is essential andtheConstitution
removes the discretion lying in the President by requiring a dissolution. As the Constitution now standsthisistheonly
instance where Parliament could enforce a dissolution by the President and that too through the obliquemeansofrejecting
the Appropriation Bill twice. Thisdemonstrates the manner in which the Constitution has carefully delineated thepowerof
dissolution of Parliament. The People in whom sovereignty is reposed have entrustedtheorgansofgovernment,beingthe
custodians of the exercise of the power, as delineated in the Constitution. It is in this contextthatwearrivedatthe
conclusion that any transfer, relinquishmentorremovalofapowerattributedtoanorganofgovernmentwouldbe
inconsistent with Article 3 read with Article 4 of the Constitution. The amendments contained in clauses 4 and 5 of theBill
vest the Parliament with the power, to finally decide on the matter of dissolution by passing resolutions to thateffectin
the manner provided in the respective sub clauses set out above. The residuary discretionthatisnowattributedtothe
President (except in Article 70 (1) (d) - Appropriation Bill being rejected for the second time) - is removed and itbecomes
mandatory on the part of the President to dissolve Parliament within four days of the receipt ofthecommunicationofthe
Speaker notifying such resolution.
The provision which attracted most of the submissions of the petitioners who opposed the Bill, is theproposedArticle70A
(1) (a) referred to above, which totally removes the power of the President to dissolve Parliament, if themajorityofthe
members of Parliament belong to a political party or independent group of which the President
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is not a member. In such event the President shall not dissolve Parliament unless upon a resolution passed byParliamentby
a two-thirds majority. Significantly, there were nosubmissionsinsupportofthisprovision.Article4{b)ofthe
Constitution provides that the executive power of the People shall be exercised by the President of the Republic, electedby
People. Thus, upon election the incumbent becomes the "President of the Republic", who in terms of Article30(1)is"the
Head of the State, the Head of the Executive and of theGovernment, and the Commander-in-Chief oftheArmedForces."The
power attributed to such an office cannot possibly be different, dependent on the absence of membership of a politicalparty
or group. The Constitution conceives of a President, who is the "HeadoftheState",andwhowouldstandaboveparty
politics. This provision moves in the opposite direction. There may be practical considerations that ledtothisprovision
being conceived, of which we cannot be unmindful. However, the Constitution is the "Supreme Law" of Sri Lanka and shouldnot
be seen only from the perspective of such considerations that arise in the moment, but as abodyoflaw,whichwecould
upholdaccording to the oath that we have taken. It is unnecessary to dwell on this matter any further sincetheAttorney-
General in his written submission tendered after thehearinginCourtwasconcluded,suggestedanamendmenttothis
provision deleting the portions that include references to the absence of membership in a political party orgroupandthe
requirement for the resolution to be passed by a two-thirds majority.
We would now consider the amendment suggested by the Attorney-General according to which the proposed Article 70A (1) (a)is
replaced with a provision stating that after the lapse of one year from a General Election, the President shall notdissolve
Parliament unless upon a resolution passed by not less than one-half of the whole number of members of Parliament,including
those not present. It has to be noted that this amendment does not address the inconsistency with Articles3and4,dealt
with in the preceding sections of this determination. We have stated clearly, on the basis of a comprehensive process
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of reasoning, that the dissolution of Parliament is a component of the executive powerofthePeople,attributedtothe
President, to be exercised in trust for the People and that it cannotbealienatedinthesenseofbeingtransferred,
relinquished or removed from where it lies in terms ofArticle70(1)oftheConstitution.Therefore,theamendments
contained in clauses 4 and 5 of the Bill, even as further amended, as suggested by the Attorney-General,constituteinour
view such an alienation of executive power, inconsistent with Article 3 read with Article 4 of the Constitutionandrequire
to be passed by the special majority required under Article 84 (2) and approved by the People at a Referendum, byvirtueof
the provisions of Article 83.
Article 123 (2) (c), empowers this Court when making a determination in the manner set out above, to specifythenatureof
the amendments that would make the provisions in question cease to be inconsistent with the Constitution. Whilst thehearing
was in progress, the Court, from time totime,posedquestionstolearnedCounseltoevokearesponseonpossible
amendments. When questioned about an increase of the period of one year from a General Election duringwhichthePresident
shall not dissolve Parliament unless upon a resolution to that effect passed by Parliament. Mr. H. L. deSilva,PC,firmly
submitted that even the slightest increase of that period would be an erosion of theexecutivepowerandbeinconsistent
with Article 3 read with Article 4 (b). Questions were posed on the basisofsimilarprovisionsinotherConstitutions,
being mindful at all times of thediversity in the particular structure of such Constitutions. More specifically,attention
of Counsel was drawn to the 1996 Constitution of the Republic of South Africa, which has a fixed termforthedurationof
the National Assembly without a broad power of dissolution, as contained in Article 70 (1) of our Constitutionbutincludes
a provision for dissolution after three years if there is a resolution tothateffect,supportedbyamajorityofthe
Members of the Assembly. This is one ofthemorerecentConstitutions,putinplaceafteranextensiveprocessof
consultation and which contributed to the transformation of a conflict ridden country to a unified Nation. However, wenoted
that
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Counsel were slow to respond to these questions. We are mindful of the position that they have to be guidedbyinstructions
received from the persons whom they represent. The lines of division were manifestly sharp and the argumentswereaddressed
from polarized perspectives. It is our view that an amendment of the Constitution cannot be looked atinthismanner.Dr.
Wickremaratne in a submission, replete with facts and instances, cited previous amendmentstotheConstitutionthatwere
alleged to have been done with partisan objectives. These related to a period where the political party in power hadatwo-
thirds majority in Parliament. He may be correct in the sharp criticisms made of suchinstances.However,partisanshipof
one side cannot be pitted against partisanship of the other. In the processofenactinglaw,especiallyinamendingor
reforming the Constitution, sharp edges of the divide should be blunted and we have to seek common ground, bearinguppermost
in mind the interests of the People who are sovereign.
It is obvious that the proposed amendment has been conceived due to certain difficulties that are envisaged. Although,those
who framed the Constitution are presumed to have looked to the future, it may bethattheydidnotfullyvisualizethe
stress on the machinery of State that would build up, when there is adivergenceinpoliciesbetweenthePresidentwho
exercises executive power on a mandate of the People, and the majority in the Parliament exercisinglegislativepoweralso
on a mandate of the People. Article 70 (1) (a) is intended to provide for such a situationintermsofwhichduringthe
first year after a General Election held pursuant to a dissolution ofParliamentbythePresident,Parliamentcouldbe
dissolved only if there is a resolution requesting such dissolution. Thus,ineffectduringthisperiodthematterof
deciding on the dissolution of Parliament becomes a responsibility shared by thePresidentwithParliament.Thereisno
alienation of the power of dissolution attributed to the President. Any extension of this period of one year may be seen as
a reduction or as contended by Mr. H. L. de Silva an erosion ofthatpower.However,weareoftheviewthatonan
examination of the relevant provisions
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in the different contexts in which they have to operate, thateveryextensionofsuchperiodwouldnotamounttoan
alienation, relinquishment or removal of that power. That would depend on the period for which it is extended. If theperiod
is too long, it may be contended that thereby the power of dissolution attributed to the President to operate as acheckto
sustain the balance of power, as noted above, is by a side wind, as it were, denuded ofitsefficacy.But,ifwestrike
middle ground, the balance of power itself being the overall objective would be strengthened especially in a situationofa
divergence of policy, noted above. We are of the view that if Clauses 4 and 5 oftheBill,dealtwithinthepreceding
portion of this determination are removed and replaced with a clear amendment to proviso (a) of Article 70 (1),wherebythe
period of one year referred to therein is extended to a period to be specified not exceeding three years (being onehalfof
the period of Parliament as stated in Article 62 (2)) that would not amount to an alienation, relinquishmentorremovalof
the executive power attributed to the President. The inconsistency with Article 3 readwithArticle4(b)wouldthereby
cease. The substituted clause should be passed by the special majority provided in Article 84 (2) andnotrequireapproval
by the People at a Referendum.
We would now move to the other clauses of the Bill that will be dealt with in the light of the conclusions stated above.

CLAUSES 2 AND 3 (1) OF THE BILL
These provisions relate to the dissolution of Parliament and the amendments contained in Clauses 4 and 5. They attract the
determination stated above, based on the incomsistency with Article 3 read with Article 4 (b) and require the approval by
the People at a Referendum. This inconsistency would cease, if these provisions are removed and replaced with an amendment
to proviso (a) of Article 70 (1), as stated above.
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CLAUSE 3 (2) OF THE BILL
This provision contains an amendment to Article 49 (2) of the Constitution which sets out certain situations in which, "the
Cabinet of Ministers shall stand dissolved". The sub-article now specifies three such situations, viz. where the Parliament
:
(i) rejects the Statement of Government Policy, or
(ii) rejects the Appropriation Bill, or
(iii) passes a vote of no confidence in the Government.
The amendment removes situation (iii). Taken by itself, this amendment would not make any sense whatever. It appears that
this amendment has to be read in the light of the proposed Article 70A (1) (b) which states that, where Parliament passes a
resolution declaring that the Government no longer enjoys the confidence of Parliament the President shall, dissolve
Parliament. The resulting position is that where Parliament passes a motion of no confidencein the Government, instead of
the Cabinet standing dissolved, as presently provided, the Parliament itself which passed the motion will be dissolved. As
submitted by Dr. Wickremaratne, PC, the resulting position is illogical and arbitrary. In the context of the framework of
the Constitution dealt with above, the matter is more serious. Article 43 (1) of the Constitution states as follows :
43 (1) "There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic,
which shall be collectively responsible and answerable to Parliament."
This is a check put in place by the Constitution relevant to the sot executive organ of government, whereby it is made
collectively responsible and answerable to Parliament. The check is enforced, inter alia, by the provision in Article 49
(2), which empowers the Parliament to pass a vote of no confidence in the Government, resulting in the dissolution of the
Cabinet of Ministers. We are of the view on the
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application of the reasons set out in the preceding sections of this determination with regard to the exercise of the
sovereignty of the People relevant to executive power, that this amendment would amount to an alienation, relinquishment or
removal of the legislative power of the People. The amendment as contained in Clause 3 (2) wouldthen be inconsistent with
Article 3 read with Article 4 (a) of the Constitution and require to be passed by the special majority provided in Article
84 (2) and approved by the People at a Referendum.
CLAUSE 6 OF THE BILL
In view of the nature of the submissions and the amendment suggested by the Attorney-General, we reproduce this clause in
full :
6. "A Member of Parliament who speaks or votes or abstains from voting on any amendment to the Constitution contained
herein, according to his own belief or conscience or free will, shall not be expelled or suspended from membership or be
subjected to any disciplinary action by the recognized political party or the independent group as the case may be on whose
relevant nomination paper his name appeared at the time of his becoming such Member of Parliament for having so spoken or
voted or abstained from voting, and the provisions of sub-paragraph (a) paragraph (13) of Article 99 shall not apply to such
member and the seat of such Member in Parliament shall not thereby become vacant."
All Counsel and petitioners in person, made submissions regarding this Clause. The grounds of objection can be summarized as
follows :
(i) That the clause does not satisfy the requirements of Article 82 (1) of the Constitution. This Article which states that
any amendment of the Constitution must be express, requires that a Bill for the amendment of any provision of the
Constitution
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shall not be placed on the Order Paper of Parliament, "unless the provision to be repealed, altered or added and
consequential amendments, if any, are expressly specified in the Bill ..." It was submitted that the provision of the
Constitution sought to be amended is not expressly stated.
(ii) That the clause is outside the legislative power of Parliament in view of Article 75 of the Constitution which empowers
Parliament to make laws but lays down a specific limitation to that power in the following terms :
"Provided that Parliament shall notmake any law -
(a) suspending the operation of the Constitution or any part thereof . . ." It was submitted that this clause has the effect
of suspending the operation of Article 99 (13) (a), being a part of the Constitution.
(iii) That the clause erodes the franchise, which forms part of the sovereignty of the People. It was submitted that the
People exercised the franchise at the election of the Members of Parliament, by casting a vote for a recognized political
party or an independent group and preference votes were cast to particular candidates, on the premise that they would be
subject to disciplinary control by the party or group and in the event of expulsion, be replaced by another candidate. This
submission was further developed in relation to Members of Parliament elected on the "National List", as provided in Article
99A. It was further submitted that the franchise has a continuing effect, inter alia, through Article 99 (13) (b) (which
provides for the candidate securing the next highest number of preferences to be declared, without a fresh recourse to the
electorate) and that clause is thereby an erosion of the franchise, forming part of the sovereignty of the People
110
and is inconsistent with Article 3 read with Article 4 (e) of the Constitution, as would require the approval by the People
at a Referendum.
(iv) That the clause denies to Members of Parliament equality before the law and the equal protection of the law being the
fundamental right to equality guaranteed by Article 12 (1) of the Constitution. It was submitted that this clause which
confers an immunity from disciplinary action that may be taken by a political party or group, only in the instance specified
in the clause, is a denial of the right to equality which is thereby an erosion of a fundamental right, forming part of the
sovereignty of the People inconsistent with Article 3 read with Article 4 (d) of the Constitution as would require the
approval by the People at a Referendum.
We would deal with grounds (1) and (2) which are connected in certain respects. Article 82 (1), referred to in ground (1),
requires that any Bill for the amendment of any provision of the Constitution should expressly specify the provision of the
Constitution if that is sought to be 'repealed, altered or added and the consequential amendments, if any'. This manifests a
cardinal rule that applies to the interpretation of a Constitution, that there can be no implied amendment of any provision
of the Constitution. The Attorney-General submitted that in view of the reference to the particular provisions of Article 99
(13) (a), the clause should be considered as an 'addition' to that Article and be read as a 'proviso'. In view of ground
(2), which goes to the root of the matter, we do not have to deal with this aspect further.
Mr. R. K. W. Goonesekera who made submissions on this ground of challenge, submitted that provisos (a) and (b) to Article 75
contain specific limitations on the legislative power of Parliament. Proviso (a) cited above, contains a bar on the making
of any law, which suspends
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the operation of the Constitution or any part thereof. That clause 6 in effect suspends the operation of Article 99 (13) (a)
in the situation specified in the clause which therefore cannot be validly included in the Bill. It was further submitted
that the Court should in such event, give effect to the provisions of Article 75 by declaring that the particular clause has
not been validly included in the Bill. Since it is outside the legislative power of Parliament no further question arises as
to compliance with the requirement for the clause to be passed by the special majority or be approved by the People at a
Referendum that constitutes stages of a process of making law.
The submission in our view raises a very important question of Constitutional Law and of the legislative power of
Parliament. In terms of the Preamble, the Constitution has been adopted and enacted as the Supreme Law of the Democratic
Socialist Republic of Sri Lanka. All State authority flows from the Constitution, which establishes the organs of
governmentdeclares their powers and dutiesproclaims the sovereignty of the People, which is inalienabledeclares and
specifies the fundamental rights and the franchise that form part of the sovereignty of the People. It necessarily follows
that the Constitution should apply equally in all situations that come within the purview of its provisions. It is in this
context that a strict bar has been put in place in Article 75 on the suspension of the operation of the Constitution or any
part thereof. We have to give effect to this provision according to the solemn declaration made in terms of the Fourth
Schedule to the Constitution, to "uphold and defend the Constitution".
There are two principal questions that arise in considering the objection that has been raised. They are :
(i) whether the provisions of clause 6 have the effect of suspending the operation of Article 99 (13) (a) as contended by
Counsel, and
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(ii) whether Article 99 (13) (a) could be considered as being a part of theConstitution,soastoattractthebarin
Article 75 (a).
We would now examine the first question stated above -
The phrase, "suspending the operation", would in its plain meaning encompass, a situation in which theclausecontainedin
the Bill has the effect of keeping the relevant provision of the Constitution in an inoperative state for atime.Thetest
would be to place clause 6 and Article 99 (13) (a), side by side, and ascertain whether they could apply equally toagiven
situation which comes within their purview. Article 99 (13)(a)recognizestherightofapoliticalpartyorofan
independent group to expel a member, who is a Member of Parliamentthe consequence of such expulsion being the lossofthe
seat of such Member of Parliamentthe review of the validity of such expulsion by this Courtand the process bywhichthe
vacant seat is filled. It is manifest that clause 6 strikes at the very root of the process set out in Article99(13)(a)
in stating that a Member of Parliament "shall not be expelled or suspended from membership orsubjecttoanydisciplinary
action by the recognized political party . . ." If clause 6 is enacted in this form, being the later inpointoftime,it
would have the effect of overriding the provisions in Article 99 (13) (a) and keep those provisionsinoperativeinrespect
of the instance specified in the clause. Hence, we are of the view that clause 6 has the effect of suspendingtheoperation
of Article 99 (13) (a). We have to state that the question would have been different, if clause 6 was soughttobeenacted
as an amendment to Article 99 (13) (a) as contended by the Attorney-General. In such event the clause wouldhavetobeof
general application and not limited to a single instance. The grounds of objection (iii) and (iv)statedabovewouldthen
have to be considered in relation to such amendment.
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We now move to the second question stated above whether, Article 99 (13) (a) the operation of which is sought to be
suspended could be considered as being a part of the Constitution so as to attract Article 75.
The Constitution is divided in Chapters, Articles, Sub-Articles, Schedules and so on. It is significant that Article 75 does
not refer to any of these divisions, but refers to a "part" of the Constitution. This is an indication that we have to look
to the functional aspect of the provision that is being suspended and ascertain whether such provision is necessary for the
working of the Constitution. To ascertain this matter we have to examine the provisions from three perspectives, viz :
(i) the content of the provision
(ii) the context in which the provision is included(iii) the implications of the provision.
As regards (i) we have in the preceding paragraph set out the content of Article 99 (13) (a) by separately identifying its
component elements.
As regards (ii) we note that Article 99 (13) (a) is found in the Chapter titled 'The Franchise and Elections" and
significantly that the Article itself deals with proportional representation, being a novel feature in the present
Constitution.
As regards (iii), we note that Article 99 (13) (a) has implications on the exercise of the franchise as set out in relation
to ground (iii) of the objections referred to above and the exercise of judicial power. The clause has the effect of
distorting the former and removing the latter. On the basis of the foregoing analysis, we have no difficulty in concluding
that Article 99 (13) (a) is a part necessary for the working of the Constitution.
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Accordingly, we hold that clause 6 of the Bill has the effect of suspending the operation of a part of the Constitution and
cannot be validly enacted by Parliament.
Therefore, clause 6 has to be deleted from the Bill.
After the hearing was concluded, the Attorney-General tendered a further written submission requesting us to consider the
amendment of clause 6 by the deletion of the words, ".............. and the provisions of sub-paragraph 13 of Article 99
shall not apply to such member, and the seat of such Member in Parliament shall not thereby become vacant.".
It appears that this amendment has been suggested to overcome the objection referred to above, based on the suspension of
Article 99 (13) (a). However. We note that the main portion of clause 6 yet remains in terms of which it is specifically
provided that a member "shall not be expelled or suspended from membership or be subject to nay disciplinary action by the
recognized political party ..............."So long as that portion remains the consequences that would otherwise flow in
terms of Article 99 (13) (a) would remain inoperative. Therefore, the proposed amendment seeks to achieve by indirectmeans
what cannot be done directly.
The objection referred to above would be applicable in its entirety even if the clause is amended as suggested by the
Attorney-General.
Summary of Determination
(1) Clause 6 of the Bill has the effect of suspending the operation of a part of the Constitution and cannot be validly
enacted by Parliament in view of the specific bar contained in Article 75 of the Constitution.
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(2) Clauses 2,3,4 and 5 contain provisions inconsistent with Article3 read together with relevant provisions of Article 4
and as such have to be passed by a special majority required under the provisions of Article 84 (2) approved by the people
at a Referendum.
(3) The inconsistency with Article 3 read with the relevant provisions of Article 4 would cease if clauses 2,3,4 and 5 are
deleted and substituted with an appropriate amendment to proviso (a) to Article 70 (1) of the Constitution by removing the
period of one year in the proviso and substituting that with a period not exceeding three years.
SARATH N. SILVA, CJ.
S.W.B. WADUGODAPITIYA, J.
DR. SHIRANI A. BANDARANAYAKE, J.
ISMAIL, J.
P. EDUSSURIYA, J.
H.S. YAPA, J.
J.A.N. DE SILVA, J.
Nineteenth Amendment to the Constitution unconstitutional and requires to be passed by the special majority and approved by
the people at a referendum subject to item 3 of the determination.


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