Unconstitutionality of 17th Amendment

by E. P. Wickremasekera

(March 19, Colombo, Sri Lanka Guardian) The Seventeenth Amendment to the Constitution was enacted by Parliament mainly as a response to allegations of abuse of executive powers by exerting pressure on the Police, the Elections Commissioner, and the public service. There was a clamour for some mechanism to ensure the independent functioning of these institutions. But regrettably the remedy provided has been worse than the disease.

The Seventeenth Amendment provided for the appointment of a Constitutional Council and seven commissions purported to be ‘independent’ namely:

(a) The Elections Commission;

(b) The Public Service Commission;

© The National Police Commission;

(d) The Human Rights Commission of Sri Lanka;

(e) The Permanent Commission to Investigate Allegations of Bribery or Corruption;

(f) The Finance Commission;

(g) The Delimitation Commission

The Constitutional Council (CC) is to consist of the Prime Minister, the Speaker, the Leader of the Opposition, one person appointed by the President, five persons appointed by the President on the nomination of both the Prime Minister and the Leader of Opposition and one person nominated by a majority of members of the political parties which do not belong to the Government Party or the party of the Leader of the Opposition.

It must be mentioned at the outset that although seven commissions as per (a) to (g) above were to be newly instituted, detailed provisions have been made only in respect of the three commissions first named above. The only change relating to the existing commissions as those described from (d) to (g) is that the power of nominating persons constituting those commissions is transferred from the President to the CC. How they are affected by the Seventeenth Amendment in other respects has not been set out.

Such desiderata as above and some hereinafter mentioned would constitute what Michael Foley described in his work "The silence of Constitutions" as "constitutional abeyances". Governments continue to function with such gaps and abeyances, which lie in the penumbra of the Constitutional and Legal Order. In course of time such constitutional aberrations keep on growing with no effort to weed them out creating governance more and more chaotic and cumbersome, and the Constitution becoming distorted, to use a homely image, like a cricket ball after a double century by Jayasuriya. In the post 1978 period particularly, the Constitution itself has been amended nineteen times with no exhaustion of the unresolved issues. Many a law has been passed only to lie in peace in the Statue Book, soon becoming a dead letter.

The constitutionality or otherwise of the provisions of the Seventeenth Amendment must be viewed from the theoretical, conceptual and structural framework of the 1978 Constitution and its specific directives. The 1978 Constitution is held to incorporate the exalted Presidency of the French (De Gaulle) Constitution with the fusion of the offices of the Head of State and Head of Govt. in the President elected by the whole country holding defined powers specific to the Presidency, and as head of the Cabinet in which executive powers are vested; the doctrine of the separation of powers of the American Constitution as specified in Art. 4 of the Constitution; and the system of government by a Cabinet (which Bagehot described as the effective part of British Government) whose members (except the President) play dual roles as legislators as well as members of the executive;

Under Art. 3 of the Constitution, the sovereignty is in the people and is inalienable. Sovereignty includes powers of government fundamental rights and the franchise. Thus whoever exercises power does so on behalf of the people.

The sovereignty of the People shall be exercised and enjoyed in the manner set out in Art. 4. i.e. by the three main organs of government, the legislature, executive and judiciary and through the exercise of the franchise and the enjoyment of Fundamental Rights.

The Supreme Court has consistently held that Art. 3 and 4 are interlinked in that Art.4 specifically sets out the manner in which the sovereignty of the people is to be exercised. (S/C Determinations on the 18th and 19th Amendments).

The S/C in its Determination on the 17th Amendment held that "The Constitutional Council is essentially a body that comes within the aegis of Parliament with the Speaker as its Chairman and nine members `85." In the Determination on the 19th Amendment, on the contrary, the S/C held that the CC performs executive functions. Even before the ink was dry on the 17th Amendment, the 18th Amendment was brought to "amend the Amendment" seeking legal immunity to the acts of the CC and to oust the F/R jurisdiction of the S/C under Art.126. The S/C held: "The Constitutional Council established under the 17th Amendment is part of the Executive and is attributed to executive power. Thus the Council would come within the executive organ of government in regard to Article 4(d) of the Constitution, referred to above.`85The total immunity contemplated by the amendment, taking away the judicial review of the actions of the Constitutional Council out of the fundamental rights jurisdiction, in effect would alienate the judicial power from the people in contravention of Articles 2 and 4 of the Constitution."

As explained above, the only instance where members of the legislature are permitted to exercise executive powers, is in relation to members of the Cabinet. The members constituting the CC being members of the legislature and their nominees and not being members of the Cabinet (except the premier) are thus precluded from exercising the powers vested in the CC, which are executive powers. Thus, it is our respectful submission that the 17th Amendment would not be valid unless approved by the people at a referendum, as it violates the specific directives of Articles 3 and 4 of the Constitution defining the bounds of each organ of government.

The SC determination on the 17th Amendment referring to the establishment of the CC stated that "the Council is essentially a body that comes within the aegis of Parliament with the Speaker as its Chairman and nine members`85"—all being members of Parliament and their nominees. The CC is thus purely political in complexion devoid of any independent character.

The 18th Amendment sought immunity for the actions of the CC and ousting the fundamental rights jurisdiction of the S/C under Art.126. When the 18th Amendment Bill came before the S/C for its determination on its constitutionality, Court ruled that "The Constitutional Council established under the 17th Amendment, is part of the Executive and is attributed executive power. Thus the Council would come within the executive organ of government in regard to Article 4 (d) of the Constitution, referred to above."

In the S/C determination on the 19th Amendment, Court ruled further that:

"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 he read into each of the sub paragraphs in Article 4. The relevant sub paragraphs would then read as follows: the legislative power of the People is inalienable and shall be exercised by Parliament; the executive power of the People is inalienable and shall be exercised by the President, and the judicial power of the People is inalienable and shall be exercised by Parliament through Courts."

It has been further ruled that the sovereignty of the people as defined in Aricle 3 is not only exercised at periodic elections and at a referendum, but continually exercised through respective organs.

It is also a principle implicit in the doctrine of separation of powers enshrined in Art.4 that one organ of government is not competent to intrude into the functions of another organ. Thus the legislature cannot, as it were, jump over the legislative fence and indulge in executive acts as CC members and then return to their parliamentary seats and pretend as if nothing untoward happened.

The 17th Amendment seeks to create a new category of power-holders not envisaged by the Constitution. The only exception is where members of Parliament who are members of the Cabinet exercise executive powers specifically granted by the Constitution. Another principle implicit in the Constitution is that the independence of the judiciary and the Public Service Commission are secured by specific provisions incorporated in the Constitution itself following a specific pattern of Constitutional architecture. The independence of the Judiciary is secured by Chapters XV and XVI relating to security of tenure while control is exercised by the procedure laid down in Art.107. A creation of any new body to control the judicial functions would be clearly unconstitutional and a violation of the People’s sovereignty exercised by courts.

The 17th Amendment also violates another important principle of the Rule of Law : that laws should address the general community or classes of the community, should be prospective and known in advance.

Nominating of members of the CC and engaging in executive actions is beyond the powers of the legislative members in as much as choosing the executive and administrative team is a prerogative of the Executive as a corollary of its executive responsibility. The method of surveillance over executive performance envisaged by the Constitution is through Parliamentary Committees established according to Standing Orders and Parliamentary Powers and Privileges Act. Most of the matters dealt with in the 17th Amendment are the subject matter of normal laws such as election law and normal procedures prevailing in government departments for disciplinary control over officials, and by rules regarding transfers, promotions etc. The view is irresistible that Parliament, having failed in it’s duty of enacting appropriate laws, has resorted to this aberration of the Constitution, to gain a handle to interfere with the executive functions, for the CC has only to get a member or two of the commissions to resign to immobilize the entire executive arm of the government.

Art. 104A (a) and (b) grant immunity to acts of the Commission placing them beyond the reach of judicial review when such immunity was denied in the case of the 18th Amendment.

Through Art.104B(4) the Commission is given the power to prohibit the use of movable or immovable property of the state in circumstances described in sub-paragraphs (i) and (ii) i.e. for the benefit of any or for the disadvantage any candidate. However, non-compliance with such order is not made an offence but only non-performance of a ‘duty’, and no penalty is imposed for non-compliance or non-performance. (The Commission would have to consult legal oracles to ascertain what remedies are available.) Obviously the Commission has no power to seize the property in the event of continued breach.

The most glaring omission is that the candidate or candidates who would gain by the violations would not suffer any disadvantage. Any one would expect that such abuses should constitute an election malpractice or a factor which should weigh in disqualifying an offending candidate for election or if elected his election being declared null and void. Thus article 104 B(4) is a vague and toothless provision.

On the other hand in the case of broadcasting and publishing Art.104B(5) empowers the Commission to issue from time to time guidelines to ensure a free and fair election. Again only a duty is imposed on the state broadcasting organisations to comply with the guidelines.

The Commission is vested with power to make orders but no sanctions are imposed for violations. Laws without sanctions are writ on water.

In the event of non-compliance the Commission is authorized to close down only the SLBC and the Rupavahini Corporation totally through a Competent Authority. No such sanction is imposed on private broadcasting media, a case of gross discrimination and violation of the fundamental right of freedom of expression. Thus the Commission becomes the law maker, executer, judge and punishing authority all rolled into one. Such seizure constitutes a violation of the fundamental right of freedom of expression, of the right of the contestants to have their views communicated to the voters.

It also constitutes a violation of the F/R of equality before the law as the law does not impose such drastic sanctions on the print media which is the more permanent communication media. One may also question whether guidelines acquire the force of law. In the view of eminent authorities such as Hart, laws should be certain and clearly defined for a breach thereof to attract punishment. Guidelines may be appropriate where compliance is sought to be secured by persuasion rather than by sanctions. The term ‘impinge’ used in the above section is most unfortunate to say the least. During election time all broadcasts and publications by candidates impinge on the election and in fact are meant to be so.

To compound matters further sub-section (d) states that parliament may by law provide for the powers and functions of the Competent Authority appointed under sub-paragraph (c). What Parliament should do and has not done is to enact a proper election law. The Commission should have power to implement the law as under Art.104B(2). All the provisions in sub-paragraphs (4) (a) to (c) are matters for enactment under a properly drafted election law. Such a law would have the added advantage that it could be amended as changing circumstances require, by a simple majority without amendment of the Constitution. It is an observable principle in most Constitutions that such details are left to the ordinary law. To illustrate this further, we may cite the glaring instance of the poster war. The government spends nearly 14 million rupees to remove posters adorning walls and every other conceivable place during election time. The poster war is the fount of most election violence. In place of the present lawless state a proper election law could have provided for display by each candidate a poster of specified size and specified contents such as a photograph of the candidate, the symbol, a limited number of words conveying the summary of the candidate’s manifesto or message, to be posted at approved places such as the divisional secretariat, the elections offices, the post office, grama sevaka office, markets, bus stands and such other places approved by the Commission, and in the media. Such a law would control undue expenditure and be more equitable.

The only improvement on the hitherto existing laws would have been for nomination of the relevant officials to be made by the President in consultation with the Prime Minister and the Leader of the Opposition and the Speaker, and approved by the relevant Parliamentary committee, which would consist of representatives of all political parties in Parliament.

The provisions with regard to the Judicial Service Commission is mostly a repetition of the pre-existing law except with regard to appointment of the Chief Justice and the Supreme Court, the President of the Court of Appeal and other officials in part II of the Schedule.

If one were to compare the procedure for similar appointments in other jurisdictions, in the USA, nominations are made by the President and approved by the relevant Congress Committee. Many a nomination proposed by the President has been disallowed by the Congress Committee. The Reagan nomination of Robert Bork to replace a retiring S.C. judge with the object of strengthening the conservative group of the then Warren Court. was rejected by the Congress Committee.

In India the Elections Commission is appointed by the President in consultation with the

Prime Minister. It is well known that the Commission has worked quite independently and efficiently without any Constitutional Council contraption.

The Constitutions of several European countries such as Russia and Germany provide for a Constitutional Court, but hardly do we find this newfangled freak called the Constitutional Council brought forth under the 17th Amendment.


In enacting amendments to the Constitution it is imperative that the legislature should conform to the architectural configuration of the existing Constitution wherein the PSC and the JSC functioned quite independently. Their independence was secured by inbuilt provisions such as Art. 107 and Art. 60 respectively. Any additional safeguards could have been provided by amending Articles or new Articles. The independence of the Elections Commission could have been similarly secured and proper election laws enacted. The emasculation of the Police powers by the newly established Police Commission would cause serious dislocations in law enforcement, with no one particularly responsible for consequences. It is strange that the I.G.P. is not a member of the Police Commission.

The above analysis would make it clear that under the Constitution no powers are directly granted except to the elected representatives who are made directly responsible to the people through the exercise of the franchise in periodic elections. In Switzerland, all laws have to be approved by the people who also have the right to initiate legislation by petition of a specified number of electors.

Supported by the above analysis, we submit with respect that the 17th Amendment is violative of Articles 3 and 4 of the Constitution, and is ultra vires, invalid and of no force or avail without approval by the people at a referendum.

The Constitution envisages several degrees of inconsistency of laws with the Constitution:

At the lowest level under Art. 84 an act inconsistent with the Constitution can be passed with a simple or special majority without amendment of any provision of the Constitution, and would be valid notwithstanding the inconsistency. (This is another instance of Constitutional abeyance. A proliferation of such laws would threaten the integrity of the legal order).

At the next level Bills for the amendment of any of the Articles other than 1,2,3,6,7,8,9,10 and 11 or 83 and paragraph 2 Art.30 or paragraph 2 of Art 62 would be valid if passed by a 2/3 majority of the total number of members of Parliament.

A bill for the amendment of any of the articles referred to at (b) above would be valid only if passed by the 2/3 majority and approved at a referendum by the people.

A bill for the total repeal and replacement of the Constitution would also be valid if approved by a 2/3 majority and approved by the people at a referendum. Such a bill is also classed in the category of amendments vide Art. 82 (5) & (7) for the purpose of procedure for approval. The significance of describing such a bill for total repeal and replacement of the Constitution as an amendment would be that it provides for the continuance of the Constitutional order without the need for any so-called Constitutional Revolution as said to have happened (according to some constitutional theorists, to which we do not subscribe) in the case of the 1972 Constitution enacted by a Navarangahala drama. When the Constitution provides for the manner of its own demise (pathology of constitutions) the same end cannot be procured by other means. Space does not permit dealing extensively on this issue). The historical continuance of the Constitutional order is further underlined by Art.16(i) which provides for the validity of written and unwritten laws.

It would appear that there is a further category of amendments which though not specifically mentioned in the Constitution would be invalid unless passed by a 2/3 majority and approved by the people at a referendum, being amendments (a) repugnant to the rule of law and democratic norms; (b) fundamentally alter the character of the constitution and/or its basic features;(c) repugnant to its conceptual and theoretical foundations;

The 17th Amendment would also be unconstitutional on the grounds stated in (e) above and per incuriam.

The above observations would raise several important constitutional issues:

The inadequacy of the time limit of 1 week allowed under Art.121 to challenge a bill including a bill for the amendment of any provisions of the Constitution or even for the repeal and replacement of the Constitution.

It is well-nigh impossible to obtain copies of the relevant bills tabled in Parliament and file objections within 7 days. Such drastic limitation of time for objections would amount to denial of the peoples rights which may go by default, particularly as once passed into law a bill cannot be challenged thereafter. In the absence of a second chamber the opportunity to proper examination and debate of bills is not available with the result that ill-thought and ill-digested laws would enter the Statute Book.

Even if a bill is challenged only a few parties who may be immediately affected and are more vocal would come to court. Even they may not place before court all the relevant facts and arguments to enable the court to come to an informed determination.

The S/C is further restrained by the exclusion of views not placed before court during the hearing and time limit of two months for its final determination. In the 19th Amendment determination case the S/C specifically declined to consider arguments placed by the Attorney General because they did not form part of the objections of the parties, even though the court considered they had merit. (This is not to dispute the right of the Court to rest its determination on particular facts and arguments to the exclusion of others in accordance with the doctrine of stare decisis.)

While the political authorities have the responsibility to maintain the integrity of the state and the territorial integrity of the Country the S/C in particular and the judiciary in general are responsible for maintaining the integrity of the Constitutional and legal order. The judiciary cannot perform this function unless it is vigilant and mechanisms are in place to weed out laws which have no proper constitutional and legal pedigree and which erode the constitutional and legal order.

In matters of Constitutional significance court should not be restricted by the adversarial process and should be free to take cognizance of facts and arguments on the court’s own motion

The political authorities as well as the legal profession and the judiciary have a responsibility to ensure that the Statute Book is not loaded with improper legislation, and to ensure the integrity of the state, respecting the will of the people expressed at the last Presidential election.
- Sri Lanka Guardian