23 October, 2020

Blog

The 20th Amendment – A Violation Of Procedure?

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Last week, the controversial 20th Amendment Bill was placed on the Order Paper of Parliament, the First Reading was moved by the Minister of Justice, and its journey through the legislature commenced. None of the legislators appear to have realized that what was taking place was in breach of the procedure laid down in the Constitution.

Section 41 of the Bill seeks to amend Article 154R, an Article in Chapter XVIIA of the Constitution. That Article provides for the establishment of a Finance Commission which would recommend the allocation of funds from the annual budget for the purpose of meeting the needs of the Provinces. The Commission includes three members appointed by the President on the recommendation of the Constitutional Council to represent the three major communities, each being a person who has distinguished himself or held high office, in the field of finance, law, administration, business or learning. Section 41 seeks to amend that Article by deleting the reference to the Constitutional Council, thereby enabling the President to act on his own when making these appointments.

Article 154G of the Constitution states that no Bill for the amendment or repeal of any provision in Chapter XVIIA shall become law “unless 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, to every Provincial Council for the expression of its views thereon”. That was not done because the term of every Provincial Council has ended, and the new Provincial Councils have not yet been elected. Therefore, placing the Bill on the Order Paper last week was not in accordance with Article 154G of the Constitution. Moreover, the failure to consult the elected Provincial Councils impinges on the franchise as well, an element of the sovereignty of the people protected by Article 3 of the Constitution.

Ordinarily, the solution would be to withdraw the 20th Amendment Bill from the Order Paper, delete section 41, and place the Bill back on the Order Paper. However, adopting that course will not resolve the problem. For as long as Article 154R remains in the Constitution in its present form, the Constitutional Council will also need to remain in place since it is on the advice of the Constitutional Council that the President may make appointments to the Finance Commission. But the 20th Amendment Bill seeks to abolish the Constitutional Council. Therein lies an almost intractable problem.

The anonymous draftsman of the 20th Amendment Bill, who apparently overlooked the requirements of Chapter XVIIA of the Constitution, and the Minister of Justice who moved the First Reading of the Bill, apparently disregarding the requirements of Article 154G (2) of the Constitution, will together need to resolve this dilemma.

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Latest comments

  • 22
    6

    So far we had several presidents since JRJ s consitution was first introduced. Almost any president elected sofar wanted to work on abolsihing the executive presidency.
    .
    CBK came to power with a greater mandate and though promised failed to abolish the executive presidency.
    :
    MR came to power and promised THE SAME but ruled like a monster AND made the country eternally servile to CHINA. Entire world compared srilankens with belarusians and people in Swaziland.

    Not to forget MR so called regime, abusing their power, they even passed 18A for his dictatorship. All these were against the will of the people . Almost any civilized nations thought his govt was no different to that of zimbabwian Mugabe. Consequence was him to be defeated by 2015.
    .
    Good governance govt though achieved some reforms through 19 A. Just because PISSU SIRISENA ‘s rule (total ignorance and lack of knowledge as a president, his rule betrayed almost everything) ruined almost everything that good governance achieved. It is clear to any world consitutional expert, that former president s spineless or total ignorance should be putting the blame on 19A.

    As it is being revealed today, easter sunday disaster could WELL be a premeditated act of Mahinda Rajapakshe, Sirisena and also Incumbent president.

    • 2
      24

      Mr. LM (Loose Motion),
      (As humbly requested by you to address as above)
      .
      CBK came to power with a greater mandate (?) – But didn’t abolished the Executive Presidency.
      .
      GR came to power with a GREATER MANDATE promising more powerful executive presidency.
      .
      So …..
      As you wish …..
      .
      LET’S HONOR PEOPLE’S MANDATE.
      .
      Thank you for the trust you place on GR.

      • 12
        1

        Ms SCP@ AND all other slaves that are caught by GOTLER’s mantra@

        We perfectly know that talking to you Gangata kepu ini wage (ගඟට කැපූ ඉනි වගේ) Describes some work that has been done in vain, with no returns or profit.

        Nevertheless please give it a try, even 10 year olds would get it, but you ?

        https://www.youtube.com/watch?v=jFICRFKtAc4

        I think people will realize it soon

        Rae vetunu valeh daval vatenne nae (රෑ වැටුනු වලේ දවල් වැටෙන්නේ නෑ) The man who fell into the pit at night, does not fall into it again in broad daylight. People should learn from their mistakes.

      • 12
        0

        Some info for srilanken people@

        Today what they have achieved for the benefit of the masses – almost NOTHING..

        Thanks to millitary, they contained the spread of virus within the country. But that should not be abused to mislead the nation. There are even lot more countries that had lower death rates
        .
        Blatant lies are being spread to have succeeded COVID. Whole lot of far poor african countries also had lower death rates, but those leaders never tried to capitalized their numbers, but RAJAPAKSHEs did.

        By 2015, entire world stood against SRILANKA. No GSP plus or concessions on fish exports etc were totally taken away because human rights records were similar to that of Lybia, Zimbabwe or the like totalatarian regimes.

        • 1
          9

          I find the human rights claim absurd cause you can’t have a civil war , let alone a war without violating human rights.

        • 1
          9

          leelagemalli,
          Not the entire world. Only the countries with hypocrites. That includes the country that you live.

          “By 2015, entire world stood against SRILANKA.”

      • 9
        0

        S C P – Were the amendments or the proposals now in the Gazette ever revealed as in the

        present 20A ever mentioned to the SB Voters or to the Yellow Robe hierarchy????

    • 19
      1

      Last part is missing. Gota to react other way around, asking more powers through 20A should be a joke for the very same nation.it us high time both voters and their politicians go and have their heads checked. ????????????????

    • 12
      1

      Last part is missing. Gota to react other way around, asking more powers through 20A should be a joke for the very same nation.it us high time both voters and their politicians go and have their heads checked. ??????????????????????

      • 0
        13

        Mr. leela ge …..,
        .
        May be a visit to “Panchikawaththa” on the cards………

        • 9
          0

          Sorry Ms SCP, I dont know the places where your shanties are located????? – I only know Galle face hotel where we usually spend our days in Colombo.

    • 9
      0

      Please friends, watch the VIDEO below- we dont want the kind of VIDEOs to be published from SRILANKA in Gotler’s term…. is not that so ?

      https://www.youtube.com/watch?v=E2zrqzvtWio

      If GOTLER would turn out to be no second to ADOLF, it will be too late: They have nothing to loose, everyone outside knows that the rascals are high criminals.
      .
      This man and his jackels should be defeated by any means.

    • 9
      0

      You are 100% correct.
      What can we do? The crooked MPs from the opposition will be bought over and will make sure the 20th Amendment will be passed to the detriment of the country.
      The most of the members in the parliament need to be serving their sentences in a real world.

  • 18
    0

    Gota is in a mighty hurry to pass 20A.

    • 2
      17

      Yes Mr. GATAM,
      .
      Do you remember what happened to “Yahapalana” setup..??

      • 11
        0

        SCP

        Sirisena passed 19A within 4 months. Nandasena ? can’t pass 20A even after 10 months!

        Don’t forget Namal also voted for 19A!!! ?

      • 8
        0

        Ms SCP,
        .
        YAHAPALANA achieved a lot. But former president was raped by MR and his criminals.

        If YAHAPALANA govt did not implement an independent election commission, stupid GOTABAYA would have gone for holding elections, not caring the little about COVID spreads. However, election commission s brave stand, saved the nation to the extent you SCP boast today. If you cant get it, please contact your grand children.. they can teach you well.
        :
        BOND SCAM was introduced by that APE (Cabral) under MAFIA BOSS in the high days of Mafia BOSS’s monsterous administation

        . That he is well aware of – and that is the reason why SIRISENSA was morally raped for their come back.
        :
        Punnaku drinkers of your nature, would grasp it next days. Gamarala had no whatsover leadership skills, his presidency was like ” a mad soldier took the weapon”:
        :

    • 16
      1

      That is because GOTLER loves the nation according to Ms SCP and the like slaves?????????

      • 10
        0

        The only nation GR (his wife and son) and BR (and his wife and daughter) love is United States of America.

      • 1
        13

        Mr. LM (Loose Motion),
        (As humbly requested by you to address as above)
        .
        Yes.
        We respect him.
        .
        He risked his own life for 20 long years for the country as a army officer. And another decade as a Secretary Of Defense.
        While you idiots are hiding under a bed.

      • 10
        0

        Yes his aggressive body langauage and hik hik filled..condescending responses-.

        … ” I am the one, what else to be made as CIRCULARs ? when anything comes out of my back end, that should be considered as the law of the country “- my gosh, so primitive. We should really be proud of this president :(????????????????????????????????

        I think the bugger was thinking as if the gathering was his junior soldiers. Mr Fonseka added once, Gota did not even complete his trainings well. More than he served to the army, he spent in the USA – at the time, experienced seniors were in demand in the days the war was at its heights. That is all about his PSEUDO patriotism. However, thanakola eaters dominated srilanka would not realize it today.

  • 12
    2

    ” Therein lies an almost intractable problem. “
    Man Lankawe Ghost Writer of 20A not going to answer for this. One thing, probably because of this hurdle he/she doesn’t want to come out.

    Again they may simply ignore it the same way they did when the parliament election date fell beyond June 2nd, without calling back the legal & term unexpired parliament.

    Certainly this is going to beat the 19A on embedded flaws.

    Comedy Thamai, Slap Party”s 20A! C

  • 23
    2

    It Is The Law Because I Say So. Who cares about writing things down. Actually when you write only you make mistakes. See what has happened with this constitution writing business now. I don’t know what’s wrong with Sabry and Peiris. I thought these guys are smarter than me because they know how to write unlike me. But even they have made mistakes while writing it down. But wait … I’m not even sure if they’re the fellows who wrote this 20th Amendment. I really don’t know who wrote the damn thing. Any way let’s go with … It Is The Law Because I Say So – Writing Is Overrated. .

  • 13
    1

    The country is on fire ? ?? with a full squadron of all NOes.
    @
    There’s no money no job s no food to eat no freedom no proper ? schools and it’s all a nothing NOes country except where the cost s of living is going to the moon by the second.
    @
    The power crazy greedy rajapuka s instead of resolving these paramount shortcomings are only interested in becoming the undisputed dictators.
    @
    This is the thanks that the peasant s get for giving the sordid stinky rajapuka s the 2/3rd majority.
    @
    The entire Yakko clan deserve what they are getting whilst I feel sad for the Muslims the Tamils and the other minority races who have to abide in this cursed beleaguered shitty island.

    • 2
      8

      rj1952,
      Native Sinhalayo did not bring the ancestors of these minorities to Sinhale. If the descendants of kthonis and slaves are not happy living in this shitty island they are free to find some other place where they feel happy without grumbling as you have done. Native Sinhalayo will be very happy to get rid of these trouble makers.

      “I feel sad for the Muslims the Tamils and the other minority races who have to abide in this cursed beleaguered shitty island.”

  • 11
    1

    Last part is missing. Gota to react other way around, asking more powers through 20A should be a joke for the very same nation.it us high time both voters and their politicians go and have their heads checked. ????????????????

    • 2
      13

      Mr. leela ge …..,
      .
      A fool’s brain digests philosophy into folly, science into superstition, and art into pedantry.
      – George Bernard Shaw

  • 3
    14

    Legal opinions are dime a dozen these days.
    +
    Only the track record of the opinion provider can help in deciding whether to accept the opinion or throw it in the bin.
    +
    Judging by the opinions on the yahapalana parliament ‘recall’ case, and the Supreme Court’s decision on the case, this particular source certainly is not a reliable one.
    +
    I personally will hold on for another week or so for the SC to decide.
    + Till then, those with opinions should keep them to themselves, pens shelved!

    • 1
      9

      Mr. Ratawate,
      .
      And…..
      GR’s citizenship case.
      .
      Their problem is…..
      If they wait two weeks their time in spotlight will be gone.
      .
      So every one trying to take a shot at GR while they can………..
      .

    • 10
      0

      The Supreme Court Judges hearing the cases that has been made against the 20th Amendment will be get a call from the top telling them not to proceed with the cases. What he says is the SUPREME LAW!

  • 14
    0

    When Dr. Jayawickrama quite rightly sticks the spoke of Article 154 R into the almighty wheel, if the relevant HE seeks to demolish it with his wisdom – “It is the Law because I say so” – , has Dr. Jaya., a leg to stand on? HE may even go further and add;
    ” I am the Monarch of all I survey,
    My right there is None to dispute.
    ….
    I am Lord of the fowl and the brute”.
    It is unwise to forget it
    This dear countrymen is 20th Amendment.

  • 8
    1

    Dr Nihal Jeyawicrama,

    Thank you,

    While not only expressing your thanks to me in your response to my comment pointing out a serious lapse on procedure to your previous article, you had preceded it write a separate article emphasizing the breech and pointing out a way out.

    Dr Nihal Jeyawicrama,this is not the first time, even 19th Amendment could be criticized on this ground.
    Further,
    Agrarian Services Regulations No. 1 of 1988,.Agrarian Services (Amendment) Act. 4 of 1991,Agrarian Services (Amendment) Act. 9 of 1990,Agrarian Services (Amendment) Act No. 40 of 1993 were also passed without following prescribed procedures after 13A was enacted ans certified on 14 November 1987 and become part of the constitution.

    • 6
      2

      Dear SriKrish
      You are genius, more than NJ, not once but all times.
      What is wrong with all these others, they are as bad fools as the 6.8m people voted GR and SLPP, can’ they focus on the current topic without writing rubbish
      *MY SOUL HAS A HAT* by Mario de Andrade (San Paolo 1893-1945)
      I counted my years
      & realized that I have
      Less time to live by,
      Than I have lived so far.
      I feel like a child who won a pack of candies: at first he ate them with pleasure,
      But when he realized that there was little left, he began to taste them intensely.
      I have no time for endless meetings where the statutes, rules, procedures & internal regulations are discussed,
      knowing that nothing will be done.
      I no longer have the patience
      To stand absurd people who,
      despite their chronological age,
      have not grown up.
      My time is too short:
      I want the essence,
      my spirit is in a hurry.
      I do not have much candy
      In the package anymore.
      I want to live next to humans,
      very realistic people who know
      How to laugh at their mistakes,
      Who are not inflated by their own triumphs
      & who take responsibility for their actions.

  • 0
    6

    Matter of factually, we should be reading this Report in the Hansard and not in CT. This is also a poor report card on the grade of the professorial MPs in the House of Diyawanna Oya.

  • 6
    0

    Was AG Dappula de Livera accountable to flag this requirement? Or was he to just determine whether or not the amendment would require a referendum?

    Also, what does it mean to consult the provincial councils on this particular item? Is some sort of voting required to obtain a yay or nay from the PCs, and criterion for % of yay votes required before it can be put to vote in the parliament?

    If elected provincial councils are in place, wouldn’t those councils more or less represent the current political party consensus in their provinces? Then it can be expected that the majority of the PCs would back Gotabaya’s 20A!

    But still the abolition of constitutional council will have to be left for 21A. Which raises the question of what constraints are there on establishing a new constitution.

  • 9
    0

    The Rajapakses know only too well that the average voter in the country can be taken for a ride. It now appears as Dr, Nihal J. points out even Legislators could be caught napping.
    Apart from the procedural flaws how many would know Parliamentary procedure and Erskine May?

    The anonymous Draftsman may or may not have known the implications that is inherent in his treatise. So the Minister of Justice may or may not have known that what he tabled had wheels within wheels !

    Dr. Nihal.J. has raised a fundamental issue. So Parliament has no Jurisdiction to debate the 20th A in its present avatar?

    • 6
      0

      “The Rajapakses know only too well that the average voter in the country can be taken for a ride. “
      This part is interesting only for two small groups, one, importantly, 13A defenders and two, flawless workers. For All other rest is the issue of Constitutional Council going out. There are many writers opposed removing CC. For 13A defenders, there are two issues here, one it affects the funding formulae of the PCs and it is putting the hand on 13A’s stability. For Tamils, letting this go like this means the sugar mountain 13A going to be stolen by ants, crystal by crystal.

    • 7
      0

      Dear Plato,

      Thanks very much. You have articulated it as no other.

      Yes they know it very well in the same time they are masters at looting the state. And the fact, that not just 1-2 but family generations belong to their kind of crime friendly politics. See how they hold public speeches on the public stage ? Their vernacular sinhala contain ” Kunuharupa – Filthy sinhala”- no matter younger children would listen to their public speeches they dont care much about dignified life styles.

      They are shameless CRIMINALS- their ghosts are scattered today in every corners.. No matter UVA and NORTH provinces are filled with the destitute people, Rajaakshes as politicians go on with their luxury life style but on the cost of the tax payers funds.

      I cant steal a cent, if anyone would do so, in front of me, I cant stay quiet either. May well be our genetics is made as such while Rajapkashes and their kith and kin are made to LOOT no matter the curse would boomerang on their generations if not today tomorrow.

      I know it it very well how Rajapakshes supported their thugs stealing the land properties in Matara and Galle Districts. So villagers would not disagree with them.

  • 2
    10

    Nihal…What happened to your legal opinion, when a bunch of people who believed your opinion went to courts and asked the judges to make GR to reconvene Parliament? You said a day over 3 months governance would be illegal and spending money also illegal. Your legal opinion was disregarded. So why this time? I know there will be some changes to proposed 20th amendment. GR knows that. He is ready with a fallback position. Let me tell all about his statement that what he verbally tells should be considered as a “circular” . When a higher level officer/ executive instructs , initial instruction is verbal. There are two ways of confirming that. The officers who have been asked to act that way, can write down the instruction and send to the superiors saying that they act that way and if there is a difference about the understanding, the superior should advise alternative actions. What GR meant was not to hide behind red tapes and not do the job. GR takes the responsibility openly so do the bloody job.

    • 0
      10

      The other alternative for officers is to ask own boss to confirm it while giving instructions to the subordinate to do that way unless instructed otherwise.. It will move up on the ladder until someone top opposed to it.

  • 11
    0

    The thing that this 20A matter teaches us is that never to give a razor to a monkey.
    Whatever anyone says, having given a carte blanche with 2/3 majority, whoever says whatever, the caravan of the Rajapakses will move on inexorably with a bandwagon of sycophants lead by that xx….xx GLP and 20A will see the light of day soon and Light of Democracy will be extinguished.
    Brace yourself for the take off and tighten that seatbelt on.

  • 12
    0

    Contrary to what the learned writer suggests, there will not be a dilemma for drawers of the 20th amendment to Sri Lanka’s constitution. The constitution is only a sheaf of pages that have gradually lost relevance when leaders have blatantly violated it umpteen times already. No judge can rule against unconstitutionality or flaw as self-preservation has to take precedence over justice in their case also.

  • 8
    1

    “the-20th-amendment-a-violation-of-procedure”

    I am not sure why we need Constitution and 20A and 13A

    The new form of governance is :

    “when Gota utters that is the law.”

    • 4
      0

      Gota’s law or buff-a-law.

      May be for locals, bal-law.

  • 7
    1

    The repeated attack by Sinhala Buddhist Chauvinist on the current 13A means that no future constitutional amendments can save Tamils. Lankawe started its history on attacking the S29 of the Soulbury Constitution by Don Stephen on the Indian Pakistani Citizenship. The situation is if there is will then there is a way. Sinhala Buddhist Chauvinist are ready to break any dam and flood any protection. Tamils should go alone to save then.

    • 1
      8

      Mallaiyuran,
      Go alone. Where?

      Tamils should go alone to save then.

      • 4
        1

        Eagle

        Go alone. Where?

        On the path of

        Malaysia …………………………………………………………………..Singapore.

    • 2
      3

      You are wrong. There was no violation of S29 of the Soulbury Constitution. Never. If there was, it would have been challenged at the Privy Council, UK which could not be manipulated by stupid Lankan politicians. Every country has the right to determine their citizenry, official and national language and form of governance.

      We need the Privy Council back. Cannot trust the “supreme court”.

      I agree Tamils must go alone. As long as Tamils are ruled over by Sinhalese and Muslims there will never be any real respect for them. Sinhalese are only 15 million in the world and Tamils are 75 million. Sinhalese governing over Tamils is like Jews (15 million worldwide) governing over the Germans (75 million)!

      One island – two mono-ethnic nations! Now!

      • 3
        0

        I reproduce below an extract from the Dr. P.R.Anthonis Memorial Lecture that I delivered in 2016:

        “Did the Citizenship Act discriminate against the Indian Tamil community? In my view it did. However, when section 29 of the Constitution was invoked, both the Supreme Court and the Privy Council retreated. In what bore the stamp of a classic political judgment, they upheld the action of Parliament on the ground that it was “a perfectly natural and legitimate function of the legislature to determine the composition of its nationals.” While that may well be so, both these courts overlooked the fact that our Constitution provided that in performing that function, Parliament must not discriminate against a particular community already resident in the country. A million people were thereby rendered stateless.”

        In 1964, a courageous District Judge held the Official Language Act to be an infringement of section 29. Once more, the Supreme Court retreated. Chief Justice H.N.G. Fernando avoided the substantive issue and held instead that a public servant in Ceylon had no right to sue the Crown for the recovery of his wages. On appeal to the Privy Council, the Chief Justice’s judgment was declared to be wrong, and the case was returned to the Supreme Court to address the substantive issue. For some inexplicable reason, the appeal was not listed for hearing until the Official Language Act was incorporated in the 1972 Constitution.

  • 4
    0

    New Badiuddin Mohamad has said that there is no need to consider 13A or India-Lanka Accord, during constitutional change because constitution is for Lankawe. The new news I saw was very sketchy, his full speech was not there for a context related analysis. Still, all these time communist Pakkaya like ministers said 13A will not be touched in this. Now Ali Sabre denying that. It appears to be retaliation for the news appeared in Madras Hindu that PM Modi and Old King released a joint statement saying 13A will be developed & implemented for devolution. The local Colombo Media reports was in opposite to The Hindu, it basically said Old King did not give consent for Modi’s talk, but nothing about joint statement. Because of the difference between the Both Indian and Local Media reports, Lankaweyans preferred to go by Indian Media. This could be the reason, after The Hindu’s news Ali retaliating on Modi. This retaliation of Ali’s “Ottakuthan Paddukku Iraddai Thaal” to Modi will bring back the fame of the Old King’s losing Dutugamunu face. After 20A talks, Lankaweyans are laughing that Dutugamunu is falling under Hitler’s Jackboot. As recently local Muslim writers and leaders were on high criticism of PM Modi, and resented Ali join Royals. This will wash Ali clean among them too.

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