Saturday, 08th November 2014
Lakshman I.Keerthisinghe LLB, LLM.MPhil, Attorney-at-Law
Fiat justitia, et pereat mundus’ Let justice be done though the world peridh
- Emperor Ferdinand I - Saying
It has been reported that a reference has been made to the Supreme Court by President Mahinda Rajapaksa as provided for in Article 129(1) of the Constitution, seeking the opinion of the Supreme Court on two questions of public importance, which are as follows:-
1)Whether the incumbent President is entitled, at any time after the expiration of four (4) years from the commencement of his current term of office, by Proclamation declare his intention of appealing to the people for a mandate to hold office by election for a further term, as amended by the 18th Amendment?
(2)Whether the incumbent President is qualified to be elected to the office of President for another term in terms of Article 31(2) read with Article 92(c) as amended by the 18th Amendment or vice versa?
In the writer’s opinion the following legal arguments are applicable to indicate the grounds for answering both the above questions in the affirmative.
I. The effect of the Eighteenth Amendment
The Eighteenth Amendment became law after being certified on 09th September 2010 and was published as a Supplement to Part II of the Gazette of the Democratic Socialist Republic of Sri Lanka of 09th September 2010, as an Act to amend the Constitution of the Democratic Socialist Republic of Sri Lanka, Article 2(1) of the said Eighteenth Amendment repealed Article 31(2) of the said Constitution, which stated;
‘No person who has been twice elected to the office of President by the people shall be qualified thereafter to be elected to such office by the people.’
Article 2(2) of the Eighteenth Amendment amended paragraph 3A (a) (i) of that Article to read as;
(a)‘Notwithstanding anything to the contrary in the preceding provisions of this Chapter, the President may, at any time after the expiration of four years from the commencement of his current term of office, by proclamation declare his intention of appealing to the people for a mandate to hold office,
(b) by election for a further term.
Provided that, where the President is elected in terms of this Article for a further term of office, the provisions of this Article shall mutatis mutandis apply in respect of any subsequent term of office to which he may be elected.’
(the amended portions are highlighted for clarity and the portions relevant to answer the first question above are underlined)
Article 92(c) of the Constitution which read as ‘if he had been twice elected to the office of President by the people’ has been repealed by Article 15 of the Eighteenth Amendment thereby completely eradicating such disqualification from the Constitution.
Thus it is seen that in terms of the above provisions of the Constitution as amended by the Eighteenth Amendment that both the above questions have to be answered in the affirmative.
II. Retrospective effect:
It is respectfully submitted that the retrospective effect of the above provisions of the Eighteenth Amendment have been guaranteed by Article 75 of the Constitution, which provides that;
‘Parliament shall have power to make laws including laws having retrospective effect and repealing and amending any provision of the Constitution or adding any provision to the Constitution…’
As the Eighteenth Amendment does not contain a provision specifically stating the retrospective effect of the above provisions it becomes necessary to ascertain the legislative intent when passing the said Amendment. One of the accepted external aids to interpretation after the celebrated decision in Pepper v.Hart(1993)AC 573 are Parliamentary debates recorded in Hansard. However in this case the House of Lords inter alia held that judges may look only at statements made by a Minister or other promoter of a Bill and that such statements must be clear in order for them to be relied upon.
The statement made by Basil Rajapaksa, Minister of Economic Development, during the debate on the 18th Amendment to the Constitution that “This amendment does not extend the incumbent President's tenure and the President is still required to be duly elected by the people. This has removed the ‘two-term’ barrier and has thus enhanced the supremacy of the people.
All those who favour people’s supremacy should support this,” and the statement made by the Prime Minister D.M. Jayaratne in presenting the Bill to Parliament, which clearly stated that the intention of the Bill was to remove the impediment placed on the President seeking a third term, which is the intention of the Legislature. The speeches have been reported in the Hansard of 8th September 2010. It is therefore seen that the intention of the Legislature is very clear in passing the Eighteenth Amendment to the Constitution, which is a prime factor in interpreting a statute.
III. Intention of the Legislature
Maxwell commences his treatise on the Interpretation of Statutes (12th Edition) with the words ‘A Statute has been defined in previous editions of this work simply as the ‘will of the Legislature’ and this definition it is submitted, remains sufficient…’ In passing the Eighteenth Amendment to the Constitution, the speeches made in Parliament clearly indicated the will of the Legislature which was to remove the impediment placed on the incumbent President from contesting for a third term. This is the will of the people of Sri Lanka expressed by the people through their elected representatives as provided in Article 4 of the Constitution which describes the legislative power of the people which is part and parcel of the sovereignty of the people of Sri Lanka guaranteed under Article 3 of the Constitution.
In Magor and St Mellons v Newport Borough Council (1952) HL Lord Denning stated thus:
‘We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of Parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis’
In Davis v Johnson (1979) CA Lord Denning considered the parliamentary debates reported in Hansard and stated:-”Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view. ... It is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position. The statements made in committee disposed completely of counsel for the respondent's argument before us.”
IV Section 6(3) of the Interpretation Ordinance
Section 6(3) of the Interpretation Ordinance provided that
‘Whenever any written law repeals either in whole or part a former written law, such repeal shall not, un the absence of any express provision to that effect, affect or deemed to have affected :-
(a) the past operation of or anything duly done or suffered under the repealed written law’
However the above statutory provision is overridden by the Constitutional provision found in Article 75 as Parliament is empowered to make retrospective legislation and there is no constitutional provision that requires such retrospective effect to be specifically mentioned in the Amendment. In Atapattu vs.Peoples Bank (1997)1Sri LR 208, 222, Fernando J referring to the provisions in Section 22 of the Interpretation Ordinance which ousted the jurisdiction of courts, held that as the constitutional provision is a higher norm it must prevail over a statutory norm Thus in that case, provisions of Article 140 of the Constitution which granted writ jurisdiction to the Court of Appeal was held to prevail over the ouster found in Section 22 of the Interpretation Ordinance.
V. Qualification of a person to contest an election
Further, it is submitted that the qualification of a person to contest an election arises at the point of time the nomination is handed in and the provisions of law prevailing at that point of time have to be considered. As a retrospective statute operates forward in time, starting from the date of its enactment starting only from that time forward it changes the legal consequences of past events it is evident that the legal consequences of taking oaths on 27th January 2010 have been in any case changed by the time the incumbent President would hand over the nominations on any future date, by which time whether the statute was retrospective or retroactive would make no difference at all.
Although the disqualification in the repealed Article 31(2) remained at the time the incumbent President took oaths of office on 27th January 2010, that disqualification was removed from 09th September 2010 by the Eighteenth Amendment and the President is entitled to seek a third term in office as there is no statutory impediment subsequent to the passing of the Eighteenth Amendment. Thus the second question also has to be answered in the affirmative.
VI. Sovereignty of the people
Parliament approved the Eighteenth Amendment, with a majority of 144 votes.161 MPs voted for the Bill presented by the ruling United Peoples Freedom Alliance (UPFA), while 17 voted against it. Prime Minister D.M. Jayaratna, tabling the Bill in Parliament said that. Joining the debate, Minister of Economic Development, Basil Rajapaksa said: “All those who favour people’s supremacy should support this.” The Doctrine of Parliamentary Sovereignty or Supremacy is a well established doctrine in most legal systems and especially in the English legal system.
Albert Venn Dicey described the concept of parliamentary sovereignty in the following words: “It is respectfully submitted that the principle of Parliamentary sovereignty means neither more or less than this, namely, that Parliament has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” (A. V. Dicey, Introduction to the study of the Law of the Constitution, 5th edn, Indianapolis: Liberty Fund 1982 38..)
Henry William Rawson Wade held the same view when he remarked that “Holding an Act of the Parliament void is to blaspheme against the Doctrine of Parliamentary Sovereignty.” H.W.R Wade, ‘Sovereignty—revolution or evolution?’ (1996) 112 Law Quarterly Review 568-575. The judiciary also recognises the doctrine of Parliamentary Sovereignty. For instance, in Manuel, Sir Robert Megarry V C observed that “once an instrument is recognised as being an Act of Parliament, no English court can refuse to obey it or question its validity.” (Manuel v. A-G [1982] 3 All ER 786, 793). Lord Simon of Glaisdale held the same view in Docker’s case. (Dockers’ Labour Club v. Race Relations Board [1974] 3 All ER 592, 600). Under the doctrine of Parliamentary Sovereignty, the Parliament is empowered to validly enact any kind of law including retrospective laws. This Parliamentary power was confirmed in (Savannah R.III School District,1950 S.W. 2d 854 [Mo 1997). 14 where Missouri Supreme Court sustained a seemingly unconstitutional retrospective law by asserting that the legislature may waive the right of school districts at will. This confirms that legislatures are legally empowered to enact retrospective laws.
VII. Conclusion
Thus, it could be concluded that as the legislative intent when passing the 18th Amendment was to remove the impediment placed on the incumbent President from contesting for further terms in office the above provisions are deemed to have retrospective effect as found in Article 75 of the Constitution and that the provisions of Section 6(3) of the Interpretation Ordinance are overridden by the Constitutional provisions found in Article 75 read with Articles 3 and 4 of the Constitution. Thus both questions stated at the outset of these submissions can be answered in the affirmative.
From : http://www.dailynews.lk/?q=features/legal-arguments-president-s-eligibility-contest-third-term
