Between the policy and the law

An outline on the legal issues relating to the dissolution of the Parliament is of value to the general public in order to understand the constitutional ramifications. Hence, I will proceed to provide the background, the nature of constitutional law, the rules relating to constitutional interpretation and finally deal with the interpretation of articles 70(1) and 33(2) which impinge on the dissolution of the Parliament.

Since attaining Independence in 1948, Sri Lanka had three Constitutions, namely, Soulbury Constitution 1946, First Republican Constitution 1972 and Second Republican Constitution 1978. All three Constitutions differed very much from one another.

Soulbury Constitution adopted the Westminster model of Government and His Majesty King George VI of Great Britain was retained as Head of State. Late Sir Ivor Jennings, who drafted the Soulbury Constitution for Ceylon, incorporated section 29(2) from the Irish Constitution to protect minorities. In the Privy Council Lord Pearce held in Queen vs Liyanage (1965) that the ad hoc and ad hominem Criminal Law (Special Provisions) Act 1962 is ultra vires the Constitution, as the Soulbury Constitution recognized the doctrine of separation of powers. This case is cited in many Commonwealth countries for constitutional interpretation.

The First Republican Constitution 1972 transformed Sri Lanka from a Monarchy to a Republic. Her Majesty the Queen was no longer the Head of State. Instead, under 1972 Constitution, we had a non-executive President. It made several changes to our constitutional order by providing a chapter on Fundamental Rights and Directive Principles of State Policy. It also gave foremost place to Buddhism. Under this Constitution, the Public Services ceased to be independent from the executive arm of the government.

The Second Republican Constitution 1978 transformed Sri Lanka into a Executive Presidency very different from the Westminster model. It has been called a “Presidential Parliamentary System of Government”. Professor A. J. Wilson called it the “Gaulist Constitution”. However, the 17th Amendment reduced the powers of the President by requiring the President to act on the advice or on the recommendations of the Constitutional Council. This legislative technique made 17th Amendment operative with a two-thirds majority in Parliament without a Referendum.

The 19th Amendment did not change the Presidential System to a Parliamentary System of Government as intended, but repealed some of the provisions of the 18th Amendment and added the Right to Information as a Fundamental Right. It expanded the provisions of the 17th Amendment but did not regulate the use of executive powers of the President in relation to the Legislature.

In this context, it is useful to analyze whether the dissolution of Parliament is legal and legitimate by reference to the 19th Amendment of the Constitution. Before dealing with this issue, it is important the nature of constitutional law.

NATURE OF CONSTITUTIONAL LAW

Constitutional law is a mixture of law and politics. The Constitution cannot be interpreted and applied without taking into account constitutional conventions, practices and politics which have played an important role in constitutional interpretation.

The 1978 Constitution has a constitutional conundrum as a expounded by late Dr. N. M. Perera. He said that if the President and Prime Minister belonged to two different political parties, it can lead to a “piquant situation” or “deadlock”. This defect has not been remedied by the 19th Amendment although it was intended to transform Sri Lanka into a Westminster model of Government in some form or the other.

The poet, T. S. Elliot said that “between the policy and the law, falls a shadow”. In the 19th Amendment, there is a shadow of uncertainty in relation to the dissolution of Parliament by the President.

It is intended therefore to unravel the “shadow” of uncertainty by reference to the Rules relating to the Interpretation of the Constitution and interpreting the relevant provisions relating to the dissolution of Parliament in the 19th Amendment.

RULES RELATING TO THE INTERPRETATION OF THE CONSTITUTION

In dealing with the “shadow” of uncertainty in relation to the legality and legitimacy of the dissolution of Parliament, it is useful to understand the rules relating to the interpretation of the Constitution.

Rules relating to the interpretation of the Constitution can be described as Lex Specialis or sui generis (of its own kind). These rules are classified as the Literal Rule, Mischief Rule (today referred to as Purposive/Contextual Rule) and Golden Rule (today referred to as the Dynamic Rule or Judicial Activism).

The Honourable Supreme Court of Sri Lanka has adopted all three rules to interpret all three Constitutions of Sri Lanka since the attainment Independence. In relation to judicial review of legislation vis-à-vis the Constitution, especially in regard to fundamental rights, Purposive and Dynamic Rules have been adopted in Sri Lanka and elsewhere.

The Literal Rule provides certainty to law. In the USA, it is referred to as “textualism”. If the constitutional provisions do not have any ambiguity, the words alone reflect the intention of the Parliament/Constitution as propounded by Justice Tindal, CJ in Sussex Peerage Case (1844).

Late Justices Amerasinghe and Mark Fernando have used the Literal Rule to interpret various provisions of the Constitution for sake of certainty of the law. In Somawathie vs Weerasinghe (1990) and Faiz vs Attorney General (1995), the Literal Rule was applied.

In Faiz vs Attorney General (1995), Justice Mark Fernando said “Jurisdiction cannot be expanded by twisting, stretching or perverting the constitutional provisions”. Likewise, late Justice Antonin Scalia who was a Judge of the Supreme Court of the USA said in his famous book On Reading Law (2012) – “The descent into social rancor over judicial decisions is largely traceable to non-textual means of interpretation.” He further said “Non-textual interpretation which makes “Statesmen” of Judges, promotes the shifting of the political blame from the political organs of the Government to the Judiciary”. These words of late Justice Scalia is of value to the Courts in Sri Lanka and elsewhere.

However, Justices Ahron Barak, Bagawati, Bandaranayake and Siripavan have used the Dynamic and the Purposive Rule in relation to the interpretation of fundamental rights, as such rights need to be adapted and dovetailed to changing social needs and demands. Chief Justice Ahron Barak of Israel has called the Purposive Rule as the ultimate legal principle in statutory and constitutional interpretation.

In Sriyani Silva vs Iddamalgoda (2008) and Noble Resources International Pte Ltd vs Ranjith Siyabalapitiya (2016), Justice Bandaranayake and the Chief Justice Siripavan have adopted the Purposive and the Dynamic Rule to fill gaps in the 1978 Constitution. Hence, any gap in article 33(2) could be filled by reference to other provisions in the 1978 Constitution.

In the UK and other Commonwealth countries, the Purposive Rule has been introduced by way of legislation or judicial activism. For example, in Australia, sections 15A and 15B of the Interpretation Act adopted the Purposive Rule in an elaborate manner for the benefit of the statute users. Likewise many Commonwealth countries have amended their Interpretation Acts to adopt the Purposive Rule of Interpretation. Sri Lanka has not done so up to now.

In the UK, Pepper vs Hart (1993) is a landmark decision which adopted the Purposive Rule by way of judicial activism. It empowered the Courts to consult extrinsic material such as the Hanzard to ascertain the intention of the Parliament.

Hence, the Purposive Rule has gained some dominance in statutory and constitutional interpretation.

The Supreme Court has recently rejected the draft clause 200 of the Inland Revenue Bill 2017, which introduced the Purposive Rule to interpret any ambiguous provisions of the Inland Revenue Bill 2017. The Supreme Court held that this provision is inconsistent with the sovereignty of the people, but gave no reasons.

Nonetheless, all three Rules and their permutations in regard to statutory and constitutional interpretation are necessary to interpret the constitutional provisions relating to the dissolution of Parliament, especially when there are two provisions colliding with each other head-on in relation to dissolution of Parliament.

(D. Laksiri Mendis has been an UN and a Commonwealth Legal Expert on Drafting Legislation and Treaties for several years. He served as First Parliamentary Counsel and Head of the Parliamentary Division in Sierra Leone (West Africa) and as Legal Draftsman and Legislative Expert in many Commonwealth countries. He also served as Sri Lanka’s Ambassador in Austria and Permanent Representative to the UN in Vienna.)

To be continued