The proposed king making 20th Amendment to the Constitution Bill will cripple democracy by vesting the Executive President with ultra vires powers to arrogate the duties and functions of the other two pillars of democracy, the Legislature and the Judiciary, sans any semblance of checks and balances. This in essence is the contention of the 39 special determination petitions filed before the Supreme Court (SC) challenging the constitutionality of the proposed 20th Amendment. 

Gotabaya Rajapaksa

Among the petitioners are Indika Gallage, R. Sampanthan, Anil Kariyawasam, Nagananda Kodituwakku, Dr. Paikiasothy Saravanamuttu, Ranjith Maddumabandara, Rajith Keerthi Tennakoon, S.C.C. Ilankovan, Shreen Abdul Saroor, the Transparency International Sri Lanka, the Young Lawyers Association, Dr. Ajantha Perera, Oshala Herath, Jeran Jegadeesan, Dr. Chandima Wijegunawardana, Sylvester Jayakody, T.D.B. Wijegunawardena, P.K.R. Perera, Lohini Fernando, Rasika Lakmal Jayakody, Professor Ratnajeevan Hoole, Akila Viraj Kariyawasam, Mangala Samaraweera, Rauff Hakeem, Ruwan Wijewardene, Mayantha Dissanayake, Kalinga Indatissa, P. Liyanaarachchi, E.A.D. Prasad Prasanna Pushpakumara, the Sri Lanka Press Institute, Arif Samsudeeen, Ibrahim Lebbe, Adam Lebbe Thua, Eric Senaratne Balasuriya, D.T. Pathmasiri, Dr. Visakesa Chandrasekaran, M.K. Jayatissa, A.S. Chulasinghe de Soyza, Bennett Samarasiri Jayawardena, P.D.S. Premasiri Gunathileka, S.K.S.H.K. Sooriyarachchi, Namal Rajapaksha, Achala Seneviratne, Ruwan Laknath Jayakody, Kavindya Christopher Thomas and Silvester Mariya Chammika Manoj Dilusha Kumar, among several others. 

One such petition (S.C. S.D. 32/2020) was filed on 28 September by the petitioners Ruwan Laknath Jayakody, Kavindya Christopher Thomas and Silvester Mariya Chammika Manoj Dilusha Kumar.

The Attorney General has been named as the sole respondent. 

Counsel Sanjaya Wilson Jayasekera will appear for the petitioners on the instructions of Attorney-At-Law (AAL) Manjula Balasuriya. AALs Swasthika Arulingam and Kaushalya Sendanayaka Arachchi assisted in the drafting of the petition while President’s Counsel Singhanathage Tharapathi Jayanaga provided guidance. 

The petitioners state that the said Bill contains proposed changes which would: repeal/amend provisions which place checks on the powers of the President,  which were introduced by the 19^th Amendment to the Constitution; grant vast powers to the President over and above the powers vested in the Executive Presidency under the original 1978 Constitution prior to the 17^th Amendment to the Constitution and subsequently consolidated by the 18^th Amendment to the Constitution; directly impact upon the sovereignty by weakening and/or making defunct the legislative powers of the Parliament; subordinate the Judiciary to the will of the Executive; grant the Executive immunity on any fundamental rights (FR) violations he may commit in the course of his tenure; endanger Constitutional rights by way of urgent bills; weaken the sovereignty in terms of the franchise; make the Election Commission (EC) subservient to the Executive and thereby weakening and placing in peril the franchise; and violate FR as the President cannot be held accountable for FR violations in the course of anything he does in his capacity as the President.

The petitioners observed that the 20^th Amendment Bill is similar to the 18th Amendment. 

The Constitution, the petitioners point out, has a basic norm (grundnorm), a basic structure and salient features which are founded on democratic principles that guarantee among others democratic rights including freedom, equality, justice, dignity and wellbeing, fundamental human rights, and the independence of the Judiciary. The sovereign powers reposed on the Executive to be exercised in trust on behalf of the people should not be abused, among others, to crush the freedom of expression and dissent, workers’ movements (demanding basic standards of living) and democratic rights. 

The petitioners noted that the 20^th Amendment results in the Executive usurping the powers of the Legislature, weakening the Legislature and making it subservient to the will of the Executive. 

‘It grants enormous powers to the Executive President to rule without a Parliament even for an indefinite period of time, which undermines and subjugates the sovereignty of the people in the exercise of their franchise, and therefore is undemocratic and unconstitutional. In such circumstances, where the President moves to dissolve and/or suspend the Parliament, public finance would be under the sole control of an untrammeled Executive President, which is an usurpation of the powers of the Legislature and a grave breach of the people’s sovereignty as the life and stability of the Legislature are left to the will of the President. Further, through this, the franchise exercised by the people in electing a new Parliament can be tampered with and vitiated by the Executive President by dissolving it at will’. 

The petitioners also observe that the 20^th Amendment also makes the Legislature defunct. 

‘It imposes an unprecedented limitation to the legislative power of the Parliament as it will prohibit the Parliament from proposing any amendment to a Bill which deviates from the merits and principles of such Bill. This amendment is reeking of bad faith of the Ruling Party’s political interests, and ensures that all laws proposed by a Government with a simple or absolute majority is passed without any substantial change to the Bill. This is a total limitation of the Legislative power of the people and violates immutable republican principles of representative democracy, thereby infringing the sovereignty of the people to be exercised through the Parliament’. 

‘The President is also empowered to submit to the people for approval by way of a referendum, a Bill which has been rejected by the Parliament. This introduces extraordinary powers to the Executive. While a referendum is a method of direct democracy so long as the people are well educated about and acquainted with what they vote for, it is not a mechanism for lawmaking or for Constitution making which should otherwise be done by the Parliament or by a Constituent Assembly. Placing before the people an ostensibly anti-democratic Bill which has already been rejected by the Parliament for a vote is a miscarriage of democracy. Moreover, a yes or no limitation in the referendum process makes it grossly unsuitable for lawmaking by popular people’s vote. Therefore, submitting a Bill rejected by the Parliament where it goes through several stages of discussions, debates and amendments before passed into law, to the people for approval, infringes upon the sovereignty whereby the Executive oversteps the Legislature and its lawmaking power, and the proposed power of the Executive also makes the Parliament a defunct body, stripped off its powers to reject a Bill. Whatever be the proposed piece of legislation that is to be put to the people for a vote at a referendum, the same should be one that adheres to democratic principles, and it cannot be fundamentally anti-democratic. People cannot be asked to vote to elect a dictator, or to commit genocide upon a minority community or self-immolation by way of a referendum. What is put to the people to vote should be progressive and advance democracy, qualitatively. People exercising their sovereign powers do not wish their long enjoyed rights to be abrogated by a Government they elect for themselves. It is the SC that should prevent such a miscarriage of democracy taking place through anti-democratic legislation,’ the petition noted.

The 20^th Amendment also repeals and amends existing provisions enabling the citizens participation in the lawmaking process. 

‘The time available to challenge Bills in the SC is drastically reduced. Whereas the existing provision enables a Bill to be published in the Gazette at least 14 days before it is placed on the Order Paper of the Parliament, the proposed Amendment reduces such time to a minimum of seven days. The reduction of the time in fact reduces the time within which a citizen is made aware of any proposed Bill that may be made law by the Legislature, and given substantial time to study and engage with the lawmaking process. The reduction of such time deprives people of adequate time to be aware of and challenge a Bill in the SC and this makes room for such Governments to pass undemocratic laws, behind the backs of the people’. 

‘The Cabinet of Ministers can introduce to Parliament, Bills urgent in the national interest. The Constitution does not have provisions for urgent Bills. In the past, the Parliament has enacted, bypassing public scrutiny, urgent Bills such as the Prevention of Terrorism (Temporary Provisions) Act {PTA} as amended. The nature of urgent Bills passed into laws thus far amply demonstrate that this provision has only been misused to surpass citizens rights to challenge legislation in the SC before it is enacted. As citizens do not have the right to challenge laws after they have come into operation, shutting the only window available for citizens to challenge proposed laws is curtailing the direct exercise of the sovereignty of the people in lawmaking. Further, despite not enabling the Cabinet to introduce an urgent Bill which will amend, repeal or replace the Constitution, there is no restriction on introducing Bills which will override provisions of the Constitution. This is an Executive-driven escape route to avoid public scrutiny for most critical legislation to be hurried through against the people. The PTA contains provisions excluding the appellate jurisdiction of the Superior Courts which was otherwise guaranteed under the Constitution to all persons, and allows for confessions which resulted in widespread torture,’ the petitioners observed. 

‘The 20^th Amendment also sets a time period of 24 hours (unless the President specifies more time not exceeding three days) for the SC to read an entire Bill and give its determination. This is not an adequate time period for the Judiciary to make an informed decision on the nature of a Bill particularly in the context of the people being excluded from making representations to the SC on the constitutionality of the Bill. In the context of adequate provisions in the Constitution and the general law of the country already in existence empowering the President at his unfettered discretion to call for a state of emergency, there is no necessity for introducing Articles empowering the Executive to introduce urgent Bills’.

The petitioners also pointed out the ills of a Judiciary appointed and constituted by the Executive. 

‘The 20^th Amendment replaces the Constitutional Council (CC) and empowers the President to at his discretion appoint all Judges of the SC and the Court of Appeal including the Chief Justice and the President of the Court of Appeal. The Judicial Service Commission (JSC) will be appointed by the President, without the requirement of approval by an overseeing authority such as the CC. It grants absolute discretion to the President to remove any member of the JSC. The existing Constitutional provisions empower the President to appoint and remove High Court Judges at the recommendation of the JSC. The JSC is entrusted with appointing all other Judges. With the members of the JSC appointed exclusively by the President and the composition of the two other SC Judges forming the JSC left to the absolute and unchecked discretion of the President, the Executive effectively controls the appointment, promotion, transfer and disciplinary controls of the lower judicial system through the JSC. Thereby, the Executive President effectively controls the Judiciary. A clear conflict of interest arises where, if according to the principle of checks and balances, the Judiciary is mandated under the Constitution to, on the one hand, check the Executive, and on the other hand, is appointed by the very Executive it is tasked to check on; hence being made a subservient arm of the Executive. The independence of the Judiciary is one of the founding principles of our democracy. Hence, no Constitutional provision should allow the Judiciary to become subservient to the Executive’.

In the same vein, the petitioners pointed out the ills of the EC being constituted by the Executive. 

‘The President has the sole discretion to appoint the EC consisting of three Commissioners. The President also appoints the Chairman of the EC at his discretion. The President at his unfettered discretion can grant a Member of the Commission leave for a period of two months and within that period appoint another person to be a temporary Member of the Commission. The Executive powers in the appointing of and granting leave for the Members of the EC is checked by the CC in the existing Constitution. The EC is given powers to appoint the Commissioner General of Elections. Unlike the existing provision whereby the EC’s appointment of the Commissioner General of Elections is subject to the prior approval of the CC, in the proposed Amendment, the Parliamentary Council is not given any such similar powers. Further, the proposed Parliamentary Council does not have the power to bind the Executive by its recommendations; the President has sole discretion to appoint the EC and change its composition when he so desires for a period up to two months. The EC appointed entirely by the Executive will not function independently of the will of the Executive and therefore the holding of elections can and will be biased in favour of the political party of the Executive President. It also enabling anyone to violate a directive of the EC and not be penalized for it. Hence, the mala fides of the Government are apparent’.

Institutions under the President and the Prime Minister and companies with more than 51 per cent of shares vested in the Government not being audited, results in the denial of transparency and the institution of a closed form of Government. 

‘While abolishing the CC and the Audit Service Commission, it will also enable the President with sole authority to appoint the Auditor General,  thereby placing the national auditing of the Government in jeopardy, and resulting in politicization and bias towards the Executive and the President’s political affiliations. Further, it will place the Office of the Secretary to the President and the Office of the Secretary to the Prime Minister that oversee Government institutions under the purview of the Executive President and the Prime Minister immune from auditing. It will also remove from the purview of the Auditor General’s auditing, the companies registered or deemed to be registered under the Companies Act, No. 7 of 2007 as amended in which the Government or a public corporation or local authority holds fifty per centum or more of the shares of that company including the accounts thereof. It is common knowledge that there are about 120 such companies that altogether have assets exceeding Rs one trillion and are being subjected to auditing by the Auditor General. Therefore, it prevents the auditing of these companies, leading to corruption, malpractices and financial irregularities that would even render key State assets bankrupt. This arrangement creates room for a closed form of Government, which lacks transparency and accountability. This is anti-democratic and therefore unconstitutional’.

The petitioners have also pointed out the danger in granting the Executive President immunity against FR applications.

‘Currently, the President is held accountable for FR violations in the SC whereby petitioners could make the Attorney General a party to such actions. The proposed Amendment grants immunity to the President to commit FR violations without being held accountable for it. The FR vested in the people only has meaning if the same are enforceable against the Executive including the primary repository of Executive power, the President. It takes away what was already granted to the citizens and shrinks the ability of the people to hold the Executive President accountable for his official actions. Therefore, it violates the sovereignty and FR’.

Replacing the CC with the powerless Parliamentary Council dismantles limited Government, the petitioners further noted.

‘It will replace the existing CC with a Parliamentary Council. One of the primary functions of the CC was to check the President on the appointments he made to Commissions established by the Constitution, bodies which should be independent of any influence by the Executive. Therefore, the CC was granted powers to recommend persons to such Commissions and the President is bound by those recommendations when he makes his final appointments. The Parliamentary Council however has little powers to check the Executive in making his appointments. The Parliamentary Council is given powers only to send observations to the President on his choice of appointments to Commissions and persons which includes the Chief Justice, the Auditor General and the Attorney General, amongst others. Further, it also empowers the President to remove appointed persons from their offices when there are no enacted legislations prescribing the method of their removal. The President is not required to obtain prior approval from the Parliamentary Council as was required of him where the President was bound by the prior approval of the CC before he could remove such a Chairman or a Member of a Commission. The independence of Commissions will be severely hampered if the Executive, whom these bodies are appointed to check, himself makes appointments to these bodies. There is a prima facie conflict of interest which amounts to the violation of citizens rights. By abolishing the CC and reinstalling a powerless Parliamentary Council, the proposed changes dismantle the Government limited by the Constitution, through the mechanism of independent Commissions, subjecting the same to the whims and fancies of the Executive Presidency, depriving their essential characteristics of independence, integrity and transparency, as vital organs for the check and balance of the Government. This is anti-democratic and unconstitutional’.

The usurpation of the powers of the Cabinet of Ministers makes way for the making of a Presidential dictatorship, the petitioners added.

‘It removes the limitations on the maximum numbers of Ministers, Non-Cabinet Ministers and Deputy Ministers which the President at his discretion can appoint as the Cabinet and further gives unfettered powers to remove any Minister, Non-Cabinet Minister or Deputy Minister he appoints at any time the President so desires. This will lead to patronage distribution in the form of Ministerial appointments, co-opting Opposition Members of Parliament and consequently eviscerating political dissent. This  concentration of powers consequently could reach to such an extent that the President will be empowered to take over the entire functions of the Cabinet including the position of the Prime Minister and run a Government singlehandedly after the dissolution of the Parliament. This would result in a situation where the entire country will be administered by one person as long as he desires without even a functioning Parliament. The President will be empowered to retain any Ministry with him, including the Ministries of Defense and Public Administration, thereby undermining the powers of the Cabinet, whose number is yet again decided by the President himself, and this power arrangement makes room for the absolute concentration of Executive powers with one man or woman elected as the President. This would pave the way for a Presidential dictatorship increasingly reliant on the military and counter-posed against the working people’s struggles. This is therefore inherently anti-democratic. The consequent concentration of power in one person for a long period of time will directly impact and distort the Constitutional democratic character of the Sri Lankan State’.

Finally, the petitioners state that the Constitutional changes proposed in the 20^th Amendment Bill are unconstitutional, in so much as they: undermine and dismantle the rule of law; undermine the separation of powers; dismantle liberal democracy’s institutional checks and balances; undermine the independence of the Judiciary; undermine FR, liberties and freedoms, and the franchise (by limiting the lifespan and role of the legislature), and republicanism, thereby, infringing upon the sovereignty of the people; undermine the basic features of liberal constitutionalism; being primarily anti-democratic, renders the legitimacy of democratic governance in abeyance; alienates the sovereignty of the people in the exercise of their powers of Government, FR and the franchise by concentrating all powers with an authoritarian Executive Presidency, which is unconstitutional; is a tool of de-democratization, a reversal and undermining of the democratic gains of the people of this State and therefore retrogressive (a Constitutional change is not expected to be backsliding and retrogressive); the proposed Executive structure will be in breach of international human rights obligations; lacks legitimacy and the quality of democracy; undermine the people’s long acquired right to democracy, which is part of the basic structure of the Constitution based on liberal values and democratic constitutionalism; leads to authoritarianism and impunity, and not to the stability of a participatory, pluralist and inclusive democracy; demonstrates bad faith, as they are intended to consolidate the power of an all powerful Executive against the interests  of the people; are tainted with mala fides that are designed to promote the political vision and ideology of the political party in power, aimed at facilitating the convenience of the Executive, rather than the empowerment of the people, as their primary motivation or rationale; represents a comprehensive rejection of the principle of de-politicization of institutional accountability; will render the Prime Minister and the Cabinet subordinate to the President rather than as coeval Executive actors; switch Sri Lanka’s Constitutional regime-type from a Premier-Presidential one back to a President-Parliamentary model, where the Prime Minister and the Cabinet will no longer be responsible solely to the Parliament, but jointly to both the President and the Parliament, which is a structural overhaul of the Constitution of this democratic Republic that is detrimental to the merits of Constitutional democracy guaranteeing limited Government; an attempt to exploit a popular majoritarian vote to advance an anti-democratic Constitution, without the people’s consensus; an attempt to exploit popular a majoritarian vote to advance an authoritarian regime with dictatorial powers; the raison d’être for a Constitution is to act as a check on and guard against majoritarianism, which is another word for mob rule and the sanctification of the rule by the majority, and the concentration of power on the President in order to function as a ruler of the majority in detriment to the interests of minority communities, could easily decelerate into a tyranny of the majority leaving no room for the very foundations of liberal constitutionalism and therefore it entrenches majoritarianism and fails to be counter-majoritarian; goes against the principle of the supremacy of the Constitution, which implies the supremacy of the basic structure of the Constitution that guarantees limited Government, human dignity and the rights of the people; envisages no responsive, accountable and transparent governance, which are basic features of a quality democracy; and whereas the Constitution is meant to protect the people from the class which exercises political power and empower the people vis-a-vis the rulers and therefore the Constitution is  conceived as the guarantee of protection of the people against all arbitrary action on the part of the Executive as well as the other branches of Government, the proposed Constitutional changes fail to meet these demands of constitutional democracy’.

Thus, the petitioners opine that the provisions of the said 20^th Amendment Bill are inconsistent with the provisions of the Constitution including those that are entrenched and provisions guaranteeing FR, and that the Bill does not meet the best standards of democratic Constitution making. The Bill, if enacted, the petitioners noted, places in peril the fundamental democratic, sovereign, independent, republican nature of the Sri Lankan State which respects the principles of representative democracy and assures to all people, freedom, equality, justice, fundamental human rights and the independence of the Judiciary.  

The petitioners have thus prayed the SC to determine that any one or more of the provisions of the said Bill is/are inconsistent with the provisions of the Constitution and require to be passed by the special majority required and/or determine that any one or more of the provisions of the said Bill is/are inconsistent with the provisions of the Constitution and require to be passed by the special majority and approved by the people at a referendum, determine that any one or more of the provisions of the said Bill is/are inconsistent with the fundamental democratic, sovereign, independent, republican nature of the Sri Lankan State which respects the principles of representative democracy and assures to all people, freedom, equality, justice, fundamental human rights and the independence of the Judiciary and, therefore, is/are unsuitable/inappropriate to be put to the people to be approved at a referendum and/or determine that the provisions of the said Bill read as a whole, alter and place in peril the fundamental democratic, sovereign, independent, republican nature of the Sri Lankan State, which respects the principles of representative democracy and assures to all people, freedom, equality, justice, fundamental human rights and the independence of the Judiciary and, therefore, are unsuitable/inappropriate to be put to the people to be approved at a referendum.