Decisive week ahead for 20A
The Supreme Court (SC) of Sri Lanka has seen its share of political upheavals in the past, but the hearing of 39 petitions filed against the proposed 20th Amendment Bill as well as the seven intervening petitions would definitely be a tough one. It would be quite similar to the time when the SC had to hear petitions filed against the constitutional crisis brought about by former President Maithripala Sirisena during the latter part of 2018.
However, this week would be a decisive week for the 20th Amendment Bill.
The members of the SC bench hearing the petitions headed by Chief Justice Jayantha Jayasuriya, Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardena, and Vijith Malalgoda, commenced considerations last Tuesday (29 September).
Attorney General (AG) Dappula de Livera on Tuesday informed the bench that the Government intends to bring amendments to the proposed Bill at the committee stage in Parliament.
According to those amendments, the period that must elapse before the President could use his powers to dissolve Parliament will be changed from two-and-a-half years to one year.
Also, the number of members of the Election Commission (EC) is to be increased from three to five, and one of its members will be a retired officer of the Department of Elections or EC, who has held office as a Deputy Commissioner of Elections or higher. The other members are to be those who have distinguished themselves in any profession or in the fields of administration or education.
It is learnt that the clause dealing with the appointment of the Auditor General is to be amended. The amendment is to entail that a qualified auditor be appointed by the President after inquiring into the observations of the Parliamentary Council as well as to bring the Offices of the Secretary to the President and Secretary to the Prime Minister under the oversight of the Auditor General. Both these clauses have not been included in the draft 20th Amendment Bill tabled in Parliament.
A new section is to also be added to Clause 57: “All applications instituted under Article 126 against the Attorney General (AG) in respect of anything done or omitted to be done by the President in his official capacity and ending on the day immediately preceding the date of commencement of their Act shall be continued and disposed of accordingly.”
The Article on the powers and functions of the President are to also be amended to include the words: “To ensure the creation of proper conditions for the conduct of free and fair elections, at the request of the Election Commission.”
The AG has informed court that the determination of the Court would have to be made on or before 13 October and that the Government intended to move amendments to the proposed Bill at the committee stage debate in Parliament.
However, Justice Sisira de Abrew had responded to the AG’s statement by saying that there were no guarantees that the amendments will be moved at the committee stage, and the determination of the SC will be based on the Bill that has been published in the gazette.
At the outset of the first day of the hearing last Tuesday, the Chief Justice had informed counsel for the petitioners that the Court intended to conclude hearings by Friday (2) and had requested them to limit submissions to 30 minutes each while filing written submissions if they so wish.
During Tuesday’s hearings, counsel for petitioners challenging the Bill had argued that the 20th Amendment sought to alter the basic structure and framework of the Constitution, take away the power of one organ of government and transfer it to another, and trample on the sovereignty of the people. The counsel for the petitioners had also pointed out that giving the President full immunity from suit would create a position above the law of the country.
They had submitted that the clause to reintroduce blanket immunity for the President should not only be passed by a two-thirds majority in Parliament, but must also be approved through a referendum.
Counsel Suren Fernando, who appeared for Samagi Jana Balawegaya (SJB) General Secretary Ranjith Madduma Bandara, had dealt with several of the clauses that are to be introduced by way of the 20th Amendment, including the one granting immunity to the President.
He had observed that this takes away the rights of the citizens to initiate action against the President, and places one person above the law.
He had further observed that if the 20th Amendment is enacted, citizens’ participation in the lawmaking process would be further reduced with the reintroduction of urgent bills, as well as the reduction of the time duration between a bill being published in the gazette and presented to Parliament from 14 to seven days.
“We have a very limited period to challenge unconstitutional bills at present, which is 21 days, but this will be reduced to 14 once the time period for a bill to be published in the gazette is reduced to seven from 14 days. As there is no room for post-enactment legislative review, the citizenry can only speak during this short period, or have to hold their silence forever,” Fernando had submitted.
He had said even more obnoxious is the amendment to reintroduce urgent bills, in which case the SC will have only 24 hours to rule on the constitutionality of a bill, and if the President so decrees, up to 72 hours.
Fernando had noted that the enactment of these clauses would eat away the judicial power of the people and will prejudicially impact the sovereignty of the people.
Fernando had further said that the Constitutional Council set up by the 19th Amendment made the process for making appointments a more consultative one, and leaving the power in the hands of one person leaves potential for abuse and politicisation.
He had added that the replacement for the Constitutional Council under the 20th Amendment, which has been named the Parliamentary Council, is only tasked with making non-binding observations, while the President can proceed to do as he wishes. “Such a council does not enhance the quality of democracy and is a drain on public finances.”
Fernando had noted that removing the Offices of Secretaries of the President and Prime Minister, and companies in which the Government has more than 50% shares, from the oversight of the Auditor General, leaves grave room for corruption. He had added that such exclusions would be aggravated by the immunity given to the executive.
According to Fernando, the executive and the legislature have been given two separate mandates by the people, and questioned if one mandate can be used to crush the other.
President’s Counsel MP M.A. Sumanthiran, who appeared for the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu, had submitted that the entirety of the Bill is unconstitutional, and is in violation of the fundamental principles which make up the bedrock of the Constitution.
He has said the SC, in its determination on the 19th Amendment, had held that the transfer of power attributed to one organ of the government to another organ or body would be inconsistent with Article 3, read with Article 4 of the Constitution. He had pointed out that the 20th Amendment sought to transfer various powers from one organ to another.
He had explained that when the Bill is taken as a whole, it is a clear attempt to shift power from one organ of government to another and that the evolutionary process of a constitution must be progressive and not regressive.
Sumanthiran had further spoken in relation to the clause to allow dual citizens to be elected to Parliament, saying that while there was no provision for Sri Lankans to hold dual nationality when the 1978 Construction was enacted, it has become possible since then for Lankans who have sworn allegiance to other countries to continue to hold citizenship, which would allow people with divided loyalties to sit in positions where crucial decisions are made for the country.
He had added that the provisions of the 20th Amendment to allow the President to refer a bill rejected by Parliament to people at a referendum will strengthen the hands of the executive like nowhere else in the world, and set up a super position where the person is immune and unaccountable.
Sumanthiran had urged the SC to rule the entirety of the Bill as unconstitutional and declare that it cannot be enacted into law.
President’s Counsel K. Kanag-Iswaran, who appeared for Tamil National Alliance (TNA) MP R. Sampanthan, in his submission had warned that, if enacted, the 20th Amendment would deface and defile the country’s Constitution, and destroy its basic structure and framework.
He had noted that the enactment of the 20th Amendment is a move at arrogation of power of monarchical proportions, adding that the separation of powers is an inherent feature in the Constitution, and there should be no room to pluck from one arm and place it in the hands of another.
Counsel for seven petitioners made submissions on Tuesday while further submissions continued on Wednesday (30 September).
On Wednesday, Counsel Eraj de Silva, representing United National Party (UNP) Deputy Leader Ruwan Wijewardene, had said that priority should be given to the sovereignty of the people and Buddhism in the country should not be harmed and could not be changed by any amendment to the Constitution.
De Silva had noted that the people would be deprived of their sovereignty and all the powers would be vested in the hands of the President, and the power of the legislature and the judiciary would be diminished.
He had further said that paragraphs 3-57 of the draft 20th Amendment Bill were against the Constitution.
De Silva had further observed that the draft piece of legislation vests the power of the legislature and the judiciary in the hands of the President and the provisions would see the rule of law, accountability, and the equilibrium among the three main sectors of governance being lost.
That is also against the power-sharing policy; the law of trust is also violated and this draft delegates ruling powers to a person with dual citizenship, he had added.
PC Ronald Perera, representing UNP General Secretary Akila Viraj Kariyawasam, had said that the judicial power of the people mentioned in Articles 3 and 4 of the Constitution as well as the executive power of the people are violated.
In addition, fundamental rights and the franchise of the people are violated, he had added.
Attorney-at-Law Viran Corea, appearing for the petitioners, had said the 20th Amendment directly damaged the sovereignty of the people as enshrined in Article 3 of the Constitution. “The provisions of this Bill allow a dual citizen to rule the country, thereby directly affecting the independence of Sri Lanka.”
PC Crishmal Warnasuriya, appearing for four petitioners including Dr. Ajantha Perera, had said: “Article 5 of the Bill violates the rule of law, and the balance of powers between the executive, legislature, and judiciary will be lost.”
Meanwhile, Attorney-at-Law Gehan Gunatilleke, who appeared for Samagi Youth Force member Rasika Lakmal Jayakody, had stated in court that holding citizenship in any other country typically entails pledging allegiance to a sovereign other than the people of Sri Lanka.
He had argued that Clause 17 of the Bill, which repeals restrictions on dual citizens being elected to Parliament or holding the office of president, would send the country crashing back to an era in which those with allegiances to foreign powers would wield legislative and executive power.
Providing examples in court of some foreign citizenship oaths, Gunatilleke had quoted Section 42 of the British Nationality Act 1981, as amended (paragraph 26): “I, (name), swear by Almighty God that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law.”
He went on to read out the oath of citizenship according to Section 337 (a) of the US Immigration and Nationality Act of 1952 as well: “I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.”
Apart from the constitutional norms at stake, Gunatilleke had also pointed out that there could be practical implications of removing the disqualification. This includes dual citizens being appointed to cabinet positions which would leave them privy to matters that are of a highly sensitive nature including bilateral agreements as well as defence and procurement. As a cabinet member, they could also be privy to sensitive information that directly pertains to the interests of the country in which such a member is also a citizen.
Petitioners and intervening parties
The 39 petitioners include Attorney-at-Law Indika Gallage, SJB General Secretary Ranjith Madduma Bandara, TNA Leader R. Sampanthan, the CPA and its Executive Director Dr. Paikiasothy Saravanamuttu, citizen Anil Kariyawasam, Transparency International Sri Lanka (TISL), former Uva and Central Provinces Governor Rajith Keerthi Tennakoon, human rights activist Shri Abdul Sanun, a resident of Jaffna S.C.C. Illangovan, members of the Samagi Youth Force Lihini Fernando and Rasika Lakmal Jayakody, EC member Prof. Ratnajeevan Hoole, Samagi Youth Force Chairman MP Mayantha Dissanayake, UNP General Secretary Akila Viraj Kariyawasam, UNP Deputy Leader Ruwan Wijewardene, Attorney-at-Law P. Liyanarachchi on behalf of the Sri Lanka People’s Front, 20 lawyers including Attorneys-at-Law Namal Rajapaksa and Achala Seneviratne, the Sri Lanka Press Institute, Eric Senadhiratne Balasuriya, and Arif Shamsuddin Ibrahim Lebbe Hajjiar.
Meanwhile, seven intervenient petitions were filed in the Supreme Court supporting the 20th Amendment.
Of the seven petitions, three were filed by Education Minister Prof. G.L. Peiris, Labour Minister Nimal Siripala de Silva, and State Minister Nalaka Godahewa, and one by Sri Lanka Podujana Peramuna (SLPP) General Secretary Sagara Kariyawasam.
The petitioners have stated that the draft of the 20th Amendment was compliant with the existing Constitution and that it need not be approved at a referendum, as approval with a two-thirds majority in Parliament was sufficient.
Meanwhile, Prime Minister Mahinda Rajapaksa last week expressed confidence in the successful completion of the process to implement the 20th Amendment to the Constitution.
The Premier had noted that diverse opinions within the Government over the proposed piece of legislation would come together as one voice with necessary amendments being introduced during the committee stage of the debate, resulting in the passage of the Bill.
According to Rajapaksa, there was no problem with regard to obtaining the necessary two-thirds majority for the passage of the Bill in Parliament.
The Prime Minister has made this observation during a meeting with newspaper editors and electronic media heads at Temple Trees last week.
He had noted that various individuals and parties within the Government could hold different views about the 20th Amendment and necessary changes would be brought about at the committee stage of the debate.
The Premier had further pointed out that the committee appointed by him had also submitted a report to him and had expressed confidence in mustering the necessary two-thirds majority.
When a question was posed on whether he was agreeable to reducing the powers of the Prime Minister, Rajapaksa had smiled and responded that it depends on the person who holds the post.
However, given the growing displeasure among some allies of the governing party over certain clauses in the proposed 20th Amendment, there is growing speculation that some members of the governing party would refrain from voting when the new piece of legislation is subjected to a vote in Parliament.
The Federation of National Organisations, which is a key ally of the Government, has openly criticised the 20th Amendment and has expressed suspicion over the manner in which the Government was trying to implement the piece of legislation.
The likes of Minister Wimal Weerawansa, after publicly objecting to certain clauses of the 20th Amendment, have now placed the responsibility of its amendments in the Prime Minister’s hands.
It is in this backdrop that several senior government ministers have stated that several members of the main Opposition, the SJB, were in discussion with senior government members to extend support to the 20th Amendment in Parliament in order to ensure a two-thirds majority.
Another governing party member, State Minister Vidura Wickramanayake, was also in the news last week, first over a report that he had decided not to support the 20th Amendment following a request by his sister. However, Wickramanayake denied making such a decision a few hours after the news made it to social media.
Meanwhile, SJB MP Rishad Bathiudeen was also a topic of discussion after photographs of him shaking hands with Minister Chamal Rajapaksa at an official event went viral on social media.
Soon after the photograph was seen on social media, a news story quoting Bathiudeen saying that his party was reconsidering its stance on the 20th Amendment made it to online platforms.
This gave way to speculation on whether Bathiudeen was among the Opposition MPs in discussion with the Government to switch allegiance after supporting the 20th Amendment. Finally, Bathiudeen made a statement saying that his party, the All Ceylon Makkal Congress (ACMC) had not made a final decision on the 20th Amendment.
It is therefore evident that there’s much focus on the Opposition as well as governing party members with regard to the passage of the 20th Amendment Bill in the House.
SLFP weighs in
However, key constituent partner of the Government, the Sri Lanka Freedom Party (SLFP), has admitted that it has some concerns over the 20th Amendment.
SLFP General Secretary Minister Dayasiri Jayasekara had said the SLFP will discuss its concerns with President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa.
He had said this while speaking at an event held to commemorate the 61st death anniversary of the party’s Founder S.W.R.D Bandaranaike at the SLFP headquarters last week.
“We have several concerns over the 20th Amendment to the Constitution. But we will not discuss that openly. We hope to raise the issues with the President and Prime Minister,” he had said.
Jayasekara had further noted that it is time for the SLFP to do proper politics at the cost of facing several challenges, including losing ministerial portfolios and other positions.
The SLFP had appointed a 10-member committee to study the proposed 20th Amendment Bill and submit recommendations to the party.
SLFP General Secretary Jayasekara, issuing a release, stated that after the recommendations of the committee are taken into consideration, the SLFP will present its ideas and proposals to the committee appointed by Prime Minister Mahinda Rajapaksa.
The 10-member committee appointed by the SLFP includes: Minister Nimal Siripala de Silva, Prof. Rohana Lakshman Piyadasa, Minister Mahinda Amaraweera, State Minister Dayasiri Jayasekara, State Minister Duminda Dissanayake, MP Shan Wijayalal De Silva, President’s Counsel Faiszer Musthapha, MP Sarathi Dushmantha, Attorney-at-Law Sanjaya Gamage, and Dr. Chamil Liyanage.
Opposition Leader Sajith Premadasa said last week that the 20th Amendment had been brought forward as a result of the Government’s internal power struggle.
“If constitutional changes are taking place, it must be done for the future of the country, the people, and their betterment,” Premadasa said at a public meeting.
Premadasa had insisted that the 20th Amendment should be defeated to protect the favourable environment that was created through its preceding amendment.
He had also noted that the amendment must further seek to end the power struggle between the President and the Prime Minister by granting them powers.
“Through this, we can create a democratic system in which neither the President nor the Prime Minister will have too much power,” Premadasa had added.
The SJB is engaged in an islandwide campaign against the 20th Amendment and a rally held under this programme came under attack last week.
Stones were thrown by an unidentified group at a political meeting attended by Opposition Leader Sajith Premadasa in Ratmalana last Tuesday.
However, the following day (Wednesday), the Police had arrested two persons and they were remanded till this week by courts.
“Where is the law and order promised by the Government? The freedom enjoyed by the Opposition is a measure of the strength of democracy in a country. However, yesterday, Government thugs tried to disrupt a meeting where the Opposition Leader was speaking. Isn’t this an indication of the decline of democracy in this country today?” SJB General Secretary Madduma Bandara had questioned him at a press conference last week.
He had called on the Police Department to carry out an independent investigation and find those who were involved in the incident.
“It is really deplorable that the Leader of the Opposition was attacked, stoned, particularly when the Government has the primary responsibility to protect the Opposition, especially the Leader of the Opposition,” SJB MP Eran Wickramaratne had said at the same press conference. He had added that the matter should be taken up by the Speaker.
13A to the fore
Amidst all talk of the proposed 20th Amendment, another constitutional issue came to the forefront last week.
Indian Prime Minister Narendra Modi, during the online bilateral discussion with Prime Minister Rajapaksa last weekend, had emphasised that implementation of the 13th Amendment to the Constitution is essential for carrying forward the process of peace and reconciliation.
Modi had called upon the new Government in Sri Lanka to work towards realising the expectations of Tamils for equality, justice, peace, and dignity within a united Sri Lanka by achieving reconciliation nurtured by implementation of the constitutional provisions.
The Tamil National Alliance (TNA) had welcomed the stand taken by Indian Prime Minister Modi on the Sri Lanka Tamil issue.
“We welcome PM Modi calling on Sri Lanka to address the aspirations of the Tamil people for equality, justice, peace, and respect within a united SL including by carrying forward the process of reconciliation with implementation of constitutional provisions,” the TNA tweeted.
Addressing a special media conference, Fisheries Minister Douglas Devananda had said that he had continuously maintained the stance that the 13th Amendment must be implemented.
“My position has not changed,” he had said.
Meanwhile, State Minister of Provincial Councils and Local Government Affairs Sarath Weerasekara had said that he is opposed to the 13th Amendment. He had proposed a new system to replace the provincial council system that was implemented under the 13th Amendment.
Weerasekara had gone on to say that he would not want to be seen as a traitor of the country and would stand by the stance that there was no necessity for a provincial council system in the country.
Meanwhile, referring to the 13th Amendment to the Constitution, the Prime Minister had told newspaper editors and electronic media heads that whatever is in the Constitution has been implemented and justice and fairness to all communities will be ensured when a new constitution is enacted.
He had noted that provincial council elections had been postponed not by this Government and it was his Government that held elections for the Northern Provincial Council for the first time.