17 May, 2022


Repeal Of 13A Flouting Constitution – CPA Urges SC To Uphold Integrity Of Constitutional Process

The Centre for Policy Alternatives (CPA) has highlighted to the Supreme Court, the serious dangers of failing to hold that failure to follow the mandatory provisions of the Constitution and refer the JHU Bill to repeal the 13th Amendment to every established province does not enable such a Bill to be ‘passed into law’. In written submissions filed on behalf of the CPA, it has been pointed out that it is imperative for the Supreme Court to continue to uphold the integrity of the constitutional process by not departing from the established jurisprudence of the Supreme Court, which has given harmonious construction to the constitutional provisions, so as to enable mandatory requirement of compliance with mandatory provisions of Article 154G(2) and Article 154G(3) of the Constitution.

Dr Paikiasothy Saravanamuttu - Executive Director - CPA

It is reliably learnt that in their written submissions, the CPA urges the Supreme Court to recognize that it is both empowered and required to consider (and not decline to) make determination as to the issue of non-compliance with the mandatory constitutional provisions, in order: (a) to enable the Parliament and the citizenry to have the benefit of the relevant Constitutional interpretation that it involves; and (b) for the Supreme Court, as the judicial organ of government to be duly compliant with Article 4(d) of the Constitution.

Narrating at length the way in which the Supreme Court has not hesitated to protect the integrity of constitutional process by ruling several times in the past on the mandatory requirement to comply with the Constitutional requirement to refer such Bills to the Provinces in order for them to be capable of being passed into law, the Supreme Court is strongly urged not to discard this jurisprudence, which would only weaken the role of the Supreme Court.

The Attorney General and intervenient-petitioners have submitted the argument that the Supreme Court should hold that it does not have the power to look at whether mandatory procedural requirements of the Constitution have been followed up to the Bill being placed on the Parliament Order Paper. This argument is contrary to clear rulings of the Supreme Court in several recent Bill challenges, by different benches of the Supreme Court. The petition of the CPA that The Colombo Telegraph was able to get and publish in an earlier story refers to those rulings. (Click here)

Several constitutional and political analysts contacted by The Colombo Telegraph for their views (who were reluctant to be named), were of the opinion that if the Supreme Court refuses to rule on the matter of non-compliance with mandatory constitutional process, it would only pave the way for further serious flouting of the Constitution by the Rajapakse regime.

The bench which took up the Bill was headed by de facto Chief Justice Mohan Pieris who was installed in office after Chief Justice Dr. Shirani Bandaranayake was forcibly prevented from functioning, after a kangaroo style impeachment inquiry process by a Parliamentary Select Committee (PSC) that was held illegal by the Appeal Court and according to a Supreme Court ruling.

The Supreme Court is urged by the CPA to (a) determine that the Bill titled “The 21st Amendment to the Constitution (Private Member’s Bill) has not been validly placed on the Order Paper of Parliament and cannot be enacted into law; and (b) determine that the Bill can only be placed on the Order Paper of Parliament AFTER such Bill has been referred by the President, after its publication in the Gazette and BEFORE it is placed on the Order Paper of Parliament for the expression of its views thereon within such period as may be specified in the reference, and shall not become law unless there is due compliance with Article 154G(2) of the Constitution, including the requirement that such Bill is duly referred to every Provincial Council.

Several lawyers also pointed out that by naming this Bill as the “21st Amendment”, it seems that the drafter is ignorant of legal matters. They said there have only been 18 amendments to the Constitution so far, which means the next one would be only the “19th Amendment” (not the 21st). They pointed out that it is dangerous for people ignorant of the law to try and draft such important laws.

On 01.07.2013, after oral submissions were made on the Bill, all parties were told by the court to file written submissions by 08.07.2013 and that the court’s ruling would be given on 12.07.2013.

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Latest comments

  • 0

    13th amendment itself was brought unconstitutionally, no referendum was held, and therefore this argument does not apply for repealing. Same argument can be brought for any dilution or restriction of certain powers. This argument is not acceptable for complete repealing of 13th amendment.

    • 0

      When Presidential term was extended by the 18th amendment, was a referendum held? Especially when this amendment was not for the benefit of the public or for the benefit of the majority and was only for the benefit of one single individual, all the more reason why a referendum should have been held. So when a matter concerning the executive president is approved and accepted without a referendum, why should there be referendums for any other amendments?

      • 0

        Referendum was a necessary requirement to confirm 13A amendment which was not held, disarming was not done as agreed. Most likely JHU bill will be approved by a Referendum. JHU has a right to bring a bill.

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