Supreme Court allows basic structure of 20A to remain without a referendum

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By P. K. Balachandran

COLOMBO – In the determination on the 20th Constitution Amendment Bill leaked to the media, the Sri Lankan Supreme Court has let the basic structure of the proposed 20A bill remain unaffected while making a referendum necessary in the case of four relatively minor provisions.

The Court’s determination suits the government because its basic requirements have been met. And the government has already expressed its readiness to entertain amendments at the committee stage in Parliament, which will look after some of the demands of the Supreme Court. The Court has accepted these assurances.

As per the Court’s determination, the government’s bid to strengthen the Executive Presidency by abolishing the powerful Constitutional Council (with non-MPs in it) and replacing it with a powerless Parliamentary Council of MPs, will not need a referendum.

The 20A bill’s stipulation that the Parliamentary Council will only make ‘observations’ on the proposals of the President in respect of appointments to key positions in the public service and the judiciary, is not unconstitutional the Court  said. That provision only amounts to a ‘redefining’ of the presidential power of appointments, the Court ruled.

The Court also held that empowering the President to remove the Prime Minister and appoint a new Prime Minister who, in his opinion, commands the confidence of Parliament, does not infringe the sovereignty of the people and therefore, does not need a Referendum.

The 20A’s bid to make the President immune from legal action if he intentionally violated the Constitution, will be subject to a referendum in addition to getting a two-third majority, the Court ruled. It dismissed the argument that: ‘immunity is essential for the unimpeded and efficient discharge of functions’. The Court further said that the remedy of impeachment of the President, which had been advanced by the Attorney General to suitably address the question of the President’s intentional violation of the Constitution, is not an alternative remedy sufficient for the purpose.

The Court added that Clause 5 of the 20th Amendment Bill should be amended to provide for the people to invoke the jurisdiction of the Supreme Court in such instances. The Court’s ruling is in line with the 19th Amendment to the Constitution which, amended the old Article 35 of the 1978 Constitution by allowing fundamental rights petitions to be filed against the Attorney General, “in respect of anything done or omitted to be done by the President in his official capacity”.

The Court ruled that the 20th  Amendment Bill’s repeal of Article 104GG, which made it an offence, inter alia, for a public officer and other holding like positions to disobey directives and guidelines issued by the Elections Commission would have a prejudicial impact on the franchise and as such, would require a Referendum to be passed along with a special majority in Parliament.

The Court said that Clause 3 of the 20th Amendment Bill, which deleted the duty of the President to ensure the creation of proper conditions for the conducting of elections on the advice of the Elections Commission was, to that extent, inconsistent with Article 3 read with Article 4 of the Constitution and would have to be approved by the People at a Referendum along with the special majority in Parliament.

However, it noted that the committee stage amendments proposed by the Attorney General includes restoring that duty to Article 33.  As such, the Court ruled that the inconsistency would cease as a result of that amendment as proposed.

Dual Citizenship

The Court has dismissed the claim that holding Dual Citizenship is a disqualification for election as a Member of Parliament, stating that arguments pertaining to ‘split loyalties’ and ‘conflicts of interests’ are “surmise and conjecture” that it is not called upon to consider.

Clause 15 of the 20th Amendment Bill that, any amendment proposed to a Bill in Parliament must not deviate from the merits and principles of such Bill, has been noted as “progressive” by the Court. It also acknowledged that this clause appears to have been removed in the proposed committee-stage amendments by the Attorney General.

In relation to the time limit to challenge a Bill being narrowed to seven days from fourteen days, the Court has declined to hold that this affects the People’s judicial or legislative power but has opined that this merely ensures that challenges to Bills are efficiently and expeditiously filed.

Urgent Bills

The Court held that the clauses of the 20th Amendment Bill, bringing back the mechanism of Urgent Bills requiring the Supreme Court to make its Determination within twenty four hours or such longer period not exceeding three days as the President may specify or allowing the President to place bills defeated by Parliament to the People by a Referendum, can be passed by the special majority alone.

Auditor General

As regards the powers of the Auditor General over auditing the Office of the Secretary to the Prime Minister and the Secretary to the President that were absent in the 20th Amendment Bill which amended Article 154 of the Constitution, the Court noted that the committee stage amendments proposed by the Attorney General would bring back that power which then rectifies the adverse impact on the legislative power of the People.

Where the auditing of companies where the government holds fifty per centum or more of the shares are concerned which provision was to be deleted by the Bill, the Court accepted the argument of the Attorney General that the mere absence of reference to any class of institutions in Article 154 does not preclude the Auditor General from exercising his powers under the National Audit Act which includes such entities as ‘auditee entitees.’

Sumanthiran’s reaction

Tamil National Alliance (TNA) MP and President’s Counsel, M.A. Sumanthiran welcomed the Court’s upholding the citizen’s right to challenge a Presidential decision in court. The Court’s ruling is in line with the 19th  Amendment to the Constitution which, amended the old Article 35 of the 1978 Constitution by allowing fundamental rights petitions to be filed against the Attorney General, “in respect of anything done or omitted to be done by the President in his official capacity.”

While the amendments suggested by the court will be taken up at the committee stage to avoid a referendum, the basic issue of the gargantuan powers sought to be assumed by the Executive President through 20A still remains, Sumanthiran said.

“Since the Supreme Court has already given its determination, the legal avenue is closed to us. We have to fight the 20A bill politically, which is what we are going to do,” he added.

The political battle is not going to be a walkover for the ruling Sri Lanka Podujana Peramuna (SLPP). It has 149 MPs, one short of a two-thirds majority needed to pass the 20A. But already one MP, Vidhura Wickramanayake, has said that he is voting against the bill. Another MP Wimal Weerawansa has said that he will not be responsible for any unfavourable political fallout of the 20A.

The main complaint of the MPs and the political class against the 20A is that it renders Parliament, the Cabinet, the Prime Minister and the Parliamentary Council, virtually powerless and makes a single man, the President, all powerful.

-P K. Balachandran is a senior Colombo-based journalist who in the past two decades, has reported for The Hindustan Times, The New Indian Express and the Economist

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