A gingerly cautious approach to the 20th Amendment Bill

The Supreme Court’s reasoning on the 20th Amendment Bill which was challenged before a Divisional Bench for inconsistency of its clauses with the People’s sovereign legislative and judicial powers, thus requiring approval at a Referendum and not only a two thirds majority in Parliament, is vastly interesting.

Four clauses ruled as needing a Referendum

As the Court’s Determination was available in the public domain, its aspects warrant immediate attention. The Court went into the Bill following 38 petitions lodged before it challenging various aspects as well as 11 intervenient petitions supporting its contents. Essentially the Court ruled that four clauses of the 20th Amendment Bill need a Referendum. These were its clauses repealing constitutional changes brought in through the 19th Amendment to the Constitution including most importantly the ability of citizens to file fundamental rights challenges to Presidential immunity.

The other three clauses related to repealing President's duty to create the conditions for the holding of free and fair elections as requested by the Elections Commission, the empowering of the President to dissolve Parliament within one year as opposed to current constitutional stipulation of four years and on removal of the constitutional provision requiring public officers to obey directives and guidelines of the Elections Commission during the period of elections.

In coming to its Determination, the Court took into account the proposed committee stage amendments submitted to Court by the Attorney General. While it ruled that three of the clauses decided to need approval by the People at a Referendum could be stripped of their constitutional inconsistency to Article 83 by these committee stage amendments, the restoration of full scale Presidential immunity needed correction at the committee-strage level.

A right to remedy against Presidential acts violating the Constitution

In fact, the Court’s reasoning as to why Presidential immunity should not be returned to the status of the 1978 Constitution is interesting. It ruled that the 20th Amendment Bill’s removal of the existing right guaranteed through the Constitution ( Article to the People to invoke a fundamental rights challenge under Article 126 to presidential acts was offensive to the sovereign power of the People under the Constitution.

The ability to file fundamental rights challenges against the Attor ney General citing Presidential actions was a right to a remedy by citizens. Therefore this right was not one that could be replaced, as the Attorney General argued, by an impeachment process which could be initiated against the President for the intentional violation of the Constitution. The nature of these processes were entirely different, the judges said. Impeachment is a process whereby a President is removed from office only on well defined recognised grounds. This is quite distinct from the fundamental rights jurisdiction which provides the People with a prompt remedy to address individual injuries that they may face at the hands of the executive.

‘ Immunity from suit will most certainly leave the ordinary citizen and future generations without an adequate remedy regardless of the substantiality of their claims’ the Court said. The Bench was moreover distinctly unimpressed by the argument of the Attorney General, ( and as we may recall, echoed also in the public arena by Government spokespersons), that subjecting the President to fundamental rights challenges would make the President less efficacious. The Constitution, which is founded on the Rule of Law, does not tolerate non- justiciability, the Bench observed. There is no rational or logical nexus between the non- justiciability of the President’s acts and the efficient performance of his duties, it was pointed out.

‘Making history’ forty years after the 1978 Constitution

The judges took into account the specific argument of the Attorney General that the amendments effected by ‘most of the clauses’ in 20A would result in the re- introduction of provisions that were in operation prior to the 19th Amendment. These came in only through the 2/ 3 majority in Parliament. Therefore, to revert to that position should need no Referendum. However on the 20th Amendment Bill’s proposal of the restoration of Presidential immunity to the old Article 35 of the 1978 Constitution, the Court referred to the fact that this constitutional article had actually not been subjected to scrutiny by Court by way of constitutional review previously.

This, in effect, made its instant task all the more important. It was observed that the post 1978 pronouncements by the Court making narrow inroads into this area of immunity were in the context of Article 35 already being part of the Constitution. This is ‘ historic’. the Court declared as more than forty years later, the Court is called upon to examine the compatibility of the constitutional provision relating to Presidential immunity with the sovereign power of the People.

The Court meanwhile did not accept the argument by some petitioners argued that certain clauses of 20A offends the basic structure of the Constitution and as such, those clauses could not be approved even by a Referendum. It was stated that the argument regarding 20A offending the basic structure of the Constitution cannot be accepted and that this was an argment that was rejected by the SC in its Determination on the Tenth Amendment Bill ( SC NO 3/86 (special)) and in the majority decision of the Court in the Determination on the 13th Amendment Bill ( SC No 7/ 87 ( special) and Nineteenth Amendment Bill ( SC SD NO 32/2004). As such, the only question before the Court was if the challenged clauses needed approval by the people at a Referendum

Constitutional duties of the President during elections

It is also of note that the Court accepted the argument of the Attorney General that certain duties of the President, which were brought in by the 19th Amendment but sought to be repealed by the 20th Amendment Bill, are anyway set out elsewhere in the Constitution. This included repeal and replacement of Article 33 (1) which made it a duty of the President to ensure that the Constitution is respected and upheld, to promote national reconciliation and integration, to ensure and facilitate the proper functioning of the Constitutional Council and on the advice of the Elections Commission, to ensure the creation of proper conditions for the conducting of elections.

The Court observed that, it is desirable to list the duties of the President under a single heading ‘rather than leaving it for the people to figure them out by going through the entire Constitution.’ But, as it said, it is not for the Court to address issues in the context of desirability but in the context of inconsistency with Article 83. Even so, it was observed that the Presidential duty to ensure the creation of proper conditions for the conducting of elections on the advice of the Elections Commission is not reflected elsewhere in the constitutional provisions.

Thus, removing that duty would offend Article 3 read with Article 4 of the Constitution needing approval by the People at a Referendum. It was meanwhile opined that the committee stage amendments proposed by the Attorney General would result in that Presidential duty being restored and therefore, the constitutional inconsistency with Article 83 would cease.

And so the court scene is now over, setting the stage for the political drama that would now follow.