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Lawyers for petitioners State to Courts that the 20th Amendment seeks 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.

By Chandani Kirinde

Attorney General Dappula De Livera yesterday informed the five-member bench of the Supreme Court considering the petitions in relation to the Twentieth Amendment to the Constitution Bill that the Government intends to bring amendments to the Bill at the Committee Stage.

The SC bench, headed by Chief Justice Jayantha Jayasuriya PC, and comprising Justices Buwaneka Aluwihare PC, Sisira de Abrew, Justice Priyantha Jayawardena PC, and Vijith Malalgoda PC, are considering a record 39 petitions challenging the constitutionality of the Bill and several intervenient petitions.

The AG said the determination of the Court would have to be made on or before 13 October, and that the Government intends to move amendments to the Bill at the Committee Stage debate in Parliament.

However, Justice Sisira de Abrew observed that there is no guarantee that the amendments will be moved at the Committee Stage, and the determination of the SC will be on the Bill which was published in the Gazette.

At the outset of the first day of hearing, the Chief Justice informed counsel for petitioners that the Court intends to wind up hearings by Friday, and requested them to limit submissions to 30 minutes each, and file written submissions if they so wish.

During yesterday’s hearings, counsel for petitioners challenging the Bill argued that the 20th Amendment seeks 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.

Counsel Suren Fernando, who appeared for Samagi Jana Balawegaya (SJB) General Secretary Ranjith Madduma Bandara, 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 said this takes away the rights of the citizens to initiate action against the President, and places one person above the law.

He also said if 20A is enacted, citizens’ participation in the law-making 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 7 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 submitted.

He 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 said that the enactment of these clauses will eat away the judicial power of the people, and will prejudicially impact on the sovereignty of the people.

Fernando submitted 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 said the replacement for the CC under 20A, 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 also noted that removing the Offices of the President and Prime Minister, and companies in which the Government has more than 50 per cent shares, from the oversight of the Auditor General leaves grave room for corruption. He said such exclusions would be aggravated by the immunity given to the Executive.

He noted that 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 mandate.

President’s Counsel MP M.A. Sumanthiran, who appeared for the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu, 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 said the SC, in its determination on the Nineteenth Amendment to the Constitution, held that the transfer of power attributed to one organ of Government to another organ or body would be inconsistent with Article 3, read with Article 4 of the Constitution. He said the 20A seeks to transfer various powers from organ to another.

He said that when the Bill is taken as a whole, it is a clear attempt to shift power from one organ of Government to another. He argued that the evolutionary process of a Constitution must be progressive and not regressive.

Sumanthiran also made submissions in relation to the clause to allow dual citizens to be elected to Parliament, saying that when the 1978 Construction was enacted, there was no provision for Sri Lankans to hold dual nationality, but since then it has become possible for Lankans who have sworn allegiance to other countries to continue to hold citizenship. He said this would allow people with divided loyalties to sit in positions where crucial decisions are made for the country.

He added that the provisions of 20A 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. He urged the Court to rule the entirety of the Bill is unconstitutional, and declare that it cannot be enacted into law.

President’s Counsel K. Kanag-Isvaran, who appeared for Tamil National Alliance (TNA) MP R. Sampanthan, in his submission warned that, if enacted, the 20th Amendment to the Constitution Bill would deface and defile the country’s Constitution, and destroy its basic structure and framework.

He said the enactment of 20A 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 yesterday. Further submissions will continue today.

Courtesy:Daily FT