|
|
 |
 |
| Sunday, 24 November 2002 |
 |
|
 |
Features |  |
| News Business Features Editorial
|
The 19th Amendment and the Supreme Court by Dr. Lakshman Marasinghe Aside from the political ripples that the recent decision of the Supreme Court has caused, its contribution to the Sri Lankan Law regarding constitutionalism needs to be carefully noted. First, the decision has introduced into the jurisprudence of Sri Lanka a new constitutional theory. Under that theory there are some laws which parliament is incompetent to legislate even under any amendment formula. These are laws which the courts in Sri Lanka may find as those which impinge upon the "basic features" of the constitution. This introduces into the jurisprudence of Sri Lanka a third category of laws which may not be repealed or be amended under any amending formula that the constitution may carry. The other two categories being those laws that may be repealed or amended with a simple majority or with a special majority, as the case may be. The idea of the unamendable or unrepealable basic structure of a constitution arose in 1967 in a much celebrated decision of the Indian Supreme Court (Golak Nath v State of Punjab), which was subsequently elaborated by the same court in a succession of decisions: in 1973 (Kesavananda Bharati v State of Kerala), in 1975 (Indira Nehru Gandhi v Raj Narain), in 1978 (Menaka Gandhi v Union of India), in 1980 (Minerva Oil Mills Ltd., Union of India), in 1994 (Bommai v Union of India), and more recently in 2002 (Association for Democratic Reforms v Union of India). The creation of this third category of unamendable and unrepealable laws provide a castiron guarantee that the political policies of those who control the Ark of government shall not be permitted to encroach upon the freedoms, rights and immunities to which the citizens are entitled, either as a part of the substantive laws found in the constitution or upon those that the courts may find as the basic features of the constitution. In Kesawananda Bharati, The Indian Supreme Court, per Sikri C.J., observed: "The expression amendment of the constitution does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the constitution so as to destroy its identity. With these limits parliament can amend every Article." In the unanimous decision rendered by the Supreme Court of Sri Lanka, on the constitutionality of the 19th Amendment, their Lordships wrote: "... we note that Article 99(13)(a) has implications on the exercise of the franchise and the exercise of judicial power. The clause (S. 6 of the 19th Amendment) has the effect of distorting the former and removing the latter. ... we have no difficulty in concluding that Article 99 (13) (a) is a part necessary for the working of the constitution." Therefore, the Supreme Court held that Article 99 (13) (a) was neither amendable nor repealable under the constitution. The Article represented a basic feature of the constitution and therefore was not subject to any amending or repealing formula contained in the constitution. This provides the commencement of a significant process, where the courts in Sri Lanka are now able to lend real protection to all declared and undeclared rights given to citizens, found in the constitution or as the basic features of the constitution. This is a matter that should interest the people of Sri Lanka at this critical juncture in its history. Second, a matter which boggles one's mind is an unsolicited and unargued matter in the Reference, to which their Lordships have referred. While dealing with the matter relating to the President's power to dissolve parliament, their Lordships expressed the view that where there was a revision of the one year period found in Article 70 (1) (a) to one "Not exceeding three years (being one half of the period of Parliament as stated in Article 62(2)) , that would not amount to an alienation, relinquishment or removal of the executive power attributed to the President." It is with respect that I must point out that this part of the decision appears to have been made outside the Reference and appears not to have been a matter that was argued at their Lordship's Bar. At the most, that part of the judgement appears to have been made sub-silento and at the least it is irrelevant and remains without effect, either as a matter of Law or mixed Law and Fact. On the whole, the court may be commended for their boldness in introducing a new element to the equation that provides protection to rights recognized and stated in the constitution. Finding the "basic structure" of the constitution and making that structure unrepealable and unamendable introduces a new approach to the protection of constitutional rights of the people of Sri Lanka. It additionally sends a message to parliament that the powers of parliament to amend and repeal constitutional provisions are limited. And that this limitation charts an area to which the amending formula found in the constitution will not apply. Finally, as the Indian Supreme Court had done since the establishment of the Indian Constitution on the 26th of November 1949, Sri Lanka's Supreme Court appears to have assumed the power to hear and determine what constitutes a basic feature of the constitution, and having found such a feature would be able to protect such a feature from legislative invasion. (Dr. Lakshman Marasinghe is an Attorney-at-Law & Barrister-at-Law of the Inner Temple, Visiting Professor of the Law University of Colombo. Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada.) |
|
News | Business | Features
| Editorial | Security Produced by Lake House |
