Sri Lanka’s apex judiciary – the Supreme Court in its special determination on the controversial 20th Amendment ruled that bill could be enacted with a mere two thirds majority (special majority).
The five judge bench presided by Chief Justice Jayantha Jayasuriya PC, and Justices Buwaneka Aluwihare PC, Sisira J. de Abrew, Vijith K. Malalgoda PC and Justice Priyantha Jayawardena PC ruled that although four clauses vis-à-vis Clauses 3, 5, 14 and 22, in their present form are inconsistent with the Constitution.
However, such inconsistency in two such clauses vis-à-vis Clauses 3 (i.e. Powers and functions of the President) and 14 (i.e. summoning, prorogation and dissolution of Parliament by the President) would cease by amending in accordance with the proposed Committee Stage amendments and consequently would not require a Referendum.
In addition inconsistency in Clause 5 (i.e. Immunity of President from suit) would cease, if the clause is suitably amended as specified in this determination hereinbefore at the Committee Stage and consequently, would not require a Referendum.
However, it could be inferred that the passage of the remaining clause (i.e. Clause 22) pertaining to the repeal of Article 104GG (which stipulates that failure to comply with directions of the Elections Commissions to be an offence) would not only require a mere two thirds majority (special majority) but also a Referendum.
The conclusion of the determination is as follows:-
“We have considered other Clauses in the Bill that are not mentioned hereinbefore, and are of the view that none of them are inconsistent with any of the Articles referred to in Article 83. For the reasons herein before stated we are of the view that the Bill titled “Twentieth Amendment to the Constitution” –
a) Complies with the provisions of Article 82(1) of the Constitution;
b) Requires to be passed by a special majority specified in Article 82(5) of the Constitution;
c) Clauses 3, 5, 14 and 22, in their present form are inconsistent with Article 3 read with Article 4 of the Constitution and therefore require approval by the People at a Referendum by virtue of the provisions of Article 83. However, such inconsistency in Clauses 3 and 14 would cease by amending in accordance with the proposed Committee Stage amendments and consequently would not require approval by the People at a Referendum; and,
d) Such inconsistency in Clause 5 would cease, if Clause 5 is suitably amended as specified in this determination hereinbefore at the Committee Stage and consequently, would not require approval by the people at a Referendum”
Justice Priyantha Jayawardena, PC, concurring with the above issued the following:-
“I agree with the conclusions of His Lordship, the Chief Justice and my brother judges B. P. Aluwihare, PC, J., Sisira J.de Abrew, J., and Vijith K. Malalgoda, PC, J. that Clauses 3, 6, 7, 14,15, 16, 17(4), 20(3), 27, 28, 31, 32, 33, 34, 35, 36, 37, 38, 39 and 40 of the Bill can be passed by a special majority required under Article 82(5) of the Constitution without seeking the approval of the People at a Referendum by virtue of the provisions in Article 83 of the Constitution.”
The determination is to have been conveyed to both the President and the Speaker Mahinda Yapa Abeywardene and it is learnt that the Speaker will announce the determination on 20 October. (By Rashmika Ranasinghe)