30 October, 2020

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The 20th Amendment Bill – Some Serious Constitutional Issues

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The author of the 1978 Constitution has never been officially disclosed. It was included in the report of a select committee of the National State Assembly appointed to consider amendments to the first republican constitution of 1972 without it ever having been considered by that committee. It was passed in the NSA with the requisite two-third majority and became law in September 1978. For the first time in our constitutional history, twelve of its Articles were declared to be unamendable except with a two-third majority in the Parliament that it established, followed by approval of the people at a referendum. The first of these Articles changed the name of the Island from the “Republic of Sri Lanka” to “the Democratic Socialist Republic of Sri Lanka”, following the example of Chairman Kim Il-Sung who renamed his country as the Democratic Peoples’ Republic of Korea. Article 3 states that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. A Bill which is inconsistent with this Article becomes law only when it is passed with a requisite majority and then approved by the People at a referendum. Article 4, which is not among the twelve, explains how sovereignty shall be exercised and enjoyed.

The powers of government

The President of the Republic is described in Article 30 as “the Head of State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces”. The description of his title is identical to that in both the 1946 and 1972 Constitutions. In the exercise his powers and functions (except when appointing the Prime Minister), he is required to act on the advice of the Prime Minister and the Constitutional Council. Therefore, he is in every respect, a constitutional Head of State. Under the Constitution, the powers of government are vested in the Prime Minister who is the Member of Parliament who enjoys the confidence of Parliament, and in the Cabinet of Ministers who are all Members of Parliament chosen by the Prime Minister. The Prime Minister may be removed from office only through a vote of no-confidence passed in Parliament, and it is only the Prime Minister who may determine whether or not to remove a Minister from his or her office. The Cabinet of Ministers are collectively responsible and answerable to Parliament. The 20th Amendment Bill seeks to transfer all the powers of the Prime Minister to the President and empowers him even to remove the Prime Minister and the Cabinet of Ministers. It also seeks to abolish the Constitutional Council. Article 3 states quite emphatically that the powers of government, as set out in the Constitution, are “inalienable”. To vest these powers in a single individual, as the 20th Amendment Bill is seeking to do, is a gross violation of the sovereignty of the People protected by Article 3.

The judicial power of the People

The Constitution has vested judicial power exclusively in the judiciary. The 20th Amendment Bill seeks to vest the President with the power to appoint not only the Judges of the two appellate courts, but also the members of the Judicial Service Commission which is responsible for the appointment of judges of original courts. Today, he may exercise these powers only with the approval of the Constitutional Council. In effect, therefore, the person who has absolute control of the executive, as well as the legislative programme in Parliament, will also be the person who will have absolute discretion is choosing and appointing the judiciary which is the institution vested with the power to determine whether the actions of the executive and the legislature are in accordance with the constitution and the law. Will this not infringe the judicial power of the People which is identified in Article 4 of the Constitution as being an element of the sovereignty of the People protected by Article 3?

The judicial power of the people includes the right of access to the judiciary. The Constitution now enables a citizen to invoke the jurisdiction of the Supreme Court to determine whether any provision in a Bill placed on the Order Paper of Parliament is inconsistent with the Constitution. The 20th Amendment Bill seeks to limit, if not deny, that right by permitting the Cabinet to certify that a Bill in “urgent in the national interest”. In such event the Bill will be forwarded by the President to the Supreme Court for a special determination on constitutionality to be made within 24 hours. That determination will be forwarded only to the President and the Speaker, and the Bill may be immediately passed by Parliament. The denial of access to the judiciary is surely an interference with the judicial power of the People protected by Article 3.

The fundamental rights of the People

The fundamental rights of the People are protected by Article 3. These are set out in Chapter III of the Constitution; in Article 126 which provides a remedy for the infringement of any fundamental right; and in Article 35 which provides a remedy for the infringement of a fundamental right by any act done or omitted to be done by the President in his official capacity. The 20th Amendment Bill seeks to abolish the fundamental right to a remedy in respect of the official acts of the President now provided in Article 35 and is clearly an infringement of Article 3.

The franchise

The integrity of the franchise is protected by the establishment of an independent Election Commission appointed by the President on the recommendation of the Constitutional Council. The 20th Amendment Bill seeks to empower the President not only to appoint the Commission, but also to remove any member of that Commission, thereby seriously compromising the independence of the body established by the Constitution to ensure the integrity of the electoral process. The franchise is an integral element of the sovereignty of the People protected by Article 3.

The C-in-C and Minister of Defence

There appears to be a misunderstanding of the President’s role as Commander-in-Chief.  Under the 1946 Constitution, the Queen was the Head of State, Head of the Executive and the Commander-in-Chief of the Armed Forces, and these powers were exercised on her behalf by a succession of Governors-General who acted on the advice of the Prime Minister.  When the 1972 Constitution replaced the Queen with a President as Head of State, Head of the Executive, and Commander-in-Chief of the Armed Forces, those high-sounding titles did not bring with them any special powers. The Commander-in-Chief is not a uniformed officer. In parliamentary democracies, the principle of civilian control of the military is established through the designation of the Head of State as Commander-in-Chief as well. It is the President who declares war and peace, subject to the provision of resources by Parliament. It is the President who invokes the Public Security Ordinance and declares a state of emergency, subject to the approval of Parliament. These powers are vested in the Head of State, and not in the Minister of Defence.

Provincial Councils

The Government appears to have overlooked the fact that the abolition of the Constitutional Council, which is seeks through the 20th Amendment Bill, also impacts on the chapter in the Constitution dealing with Provincial Councils.  Section 41 of the Bill seeks to amend Article 154R, an Article in Chapter XVIIA (Provincial Councils) of the Constitution. The purpose of the amendment is to enable the President to appoint three members of the Finance Commission without seeking the recommendation of the Constitutional Council, since the Bill seeks to abolish that Council. However, 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 Provincial Councils stand dissolved, and the new Provincial Councils have not yet been elected.

The Provincial Councils Elections Act imposes a duty on the Election Commission, within one week of the dissolution of a Provincial Council, to publish a notice of its intention to hold an election to such Council. That has not been done. The failure of the Election Commission to perform its statutory duty cannot affect the constitutional rights of Provincial Councils. Therefore, when the 20th Amendment Bill was placed on the Order Paper of Parliament two weeks ago, it was done in violation of Article 154G of the Constitution. It is a repetition of the notorious 2012 Divineguma Bill episode where the Supreme Court held that Parliament could not proceed with such a Bill even if it was only in one province that a new Provincial Council had not yet been elected. Moreover, the failure to consult the Provincial Councils elected by the People also impinges on the franchise, an element of the sovereignty of the People protected by Article 3 of the Constitution.

An intractable problem?

There is no legal impediment for the Government to withdraw the 20th Amendment Bill from the Order Paper, delete section 41, and place the Bill back on the Order Paper. That would be in accordance with the Constitution. However, adopting that course will not resolve the Government’s problem. If section 41 is deleted from the Bill, Article 154R will remain in the Constitution in its present form, which means that 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.

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Latest comments

  • 14
    4

    When Sri Lanka mimicked the American presidency, it had few if any lawyers with American degrees. It still doesn’t. All our lawyers come from the British legal system. And even the ones who can afford an overseas education, go to Britain.
    USA and Britain are two different beasts. And Sri Lankans don’t appear to get that. The problem surrounding the presidency which have been going on for over 25 years can be solved by strengthening the judiciary. But Sri Lankans don’t know how to that because they have American educated lawyers.

    • 24
      10

      TODAY what they ve been trying to do is to capitalize the lower death rate in COVID as if this is only in SRILANKA. They are a number of countries where COVID cases and death rates are far lower. However, Rajakshes are on a self-congradulationg process in order to mislead the nation.
      :
      By today, nothing is achieved by GOTLER govt. With sky high price hikes in daily essentials, they make every effort to get the attention away from the danger before the nation. If bitch s sons would get 20A passed in the parliament, it is inevitable that SRilanka will become an another SOMALIA.

      • 8
        18

        Mr. LM (Loose Motion),
        .
        United States of America (USA).
        – US got their incumbent president infected while trying to hold presidential election.
        .
        Democratic Socialist Republic of Sri Lanka.
        – SL managed to hold parliamentary election during pandemic without getting a single election related infection.
        .
        “””pleased to be appointed as an envoy to Sri Lanka that has overcome the COVID-19 pandemic”””
        – German Ambassador Holger Lothar Seubert.
        .
        I think you are going to say that German doesn’t belong in Europe.

        • 8
          12

          Mr. IDIOT,
          .
          Its not having zero patients.
          .
          What is most important is to have number of patients under our medical capacity.

          • 10
            4

            Ms SCP,

            I think you are all often standing before a mirror , is not that so ? Your monologues could please Rajakashe rascals but not us CT readers.

            According to you USA, UK and other countries that are the pioneers for MEDICAL research to score lot of COVID patients – should be far poor by their health care achievement…
            :
            Europeans incl. leading PHARMA COMPANIES stay mum FURTHER being unable to predict a date of a reliable vaccine for containment of the sprread of COVID 19.
            :
            This comes from a stupid man of an island nation/who has been caught by a criminal gang as the leaders today.
            :
            Ohoma YANG, there is a saying KUMBIYAGE URINE AS THEY SEE IS SO BIG AS A RIVER… likewise, you the frogs would never see it right.
            :
            But with Belarusians become cornered today, to the very same degree, srilankens will have to face it … with trade embargo and everything if ballige puthas would not realize the danger before the nation, after passing 20A next days.
            :
            Aba saranyi to SRILANKENs controlled by Rajapkshes rascals: Good riddance !

            • 5
              8

              Mr. LM(Loose Motion),
              .
              Germany,
              Holder of the Presidency of European Union.
              From July to December 2020.
              .
              “”As German Ambassador to Sri Lanka, I am looking very much forward to further strengthening the already very close relations between Germany and Sri Lanka. A prime example for our strong bilateral ties amid the pandemic was the Technical Cooperation Agreement signed between our two Governments in June this year. This agreement amounts to 11 Million Euros with an additional grant of 2 Million Euros allocated as post-COVID-19 support. The German assistance comprises, among others, promotion of vocational training and support for small and medium-sized enterprises.””
              .
              Ambassador Holger Seubert.

              • 5
                10

                And…..
                .
                You uneducated idiot is talking about Belarusian’s trade embargo.
                .
                Help yourself mate. Check your head.

                • 5
                  4

                  If I am uneducated, you the kind of backlickers should not have gone to school.
                  :
                  https://www.gov.uk/guidance/arms-embargo-on-belarus

                  Your criminals would destroy the country to the very same manner Zimbabwian Mugabe did. Mugabe took few decades but your looters would take few more months. Nothing is achieved during laat 10 months.
                  .
                  And that Apawithra- the Padikkama of POHOTTUWA has the guts to say, that people should wear masks again. This bitch ruined srilanken health ministry. Today whole lot of SRILANKENS suffer not having enough medicine. They talk hight but they cant even fullfill the basic needs of the patients.

                • 0
                  2

                  Ms SCP,

                  This is what reminds me whenever I read your comments.

                  In the summer you’re the winter
                  In the finger you’re the splinter
                  In the banquet you’re the stew
                  Say, I could do without you
                  In the garden you’re the gopher
                  In the Levi’s you’re the loafer
                  Like an overturned canoe
                  Well, I could do without you
                  …………………………………………
                  ………………….

                  You are so intelligent (***frech grins) we would like you to take part in our Forum (Annual Session for Contagious Disesease control) scheduled to be held in Jan 2021 in Coupenhagen.
                  :
                  Your predictions about COVID 19 would be very useful to all of us around the world .
                  :
                  Immediately after your gender OP is successful, please let us know !
                  Get well soon.

              • 5
                3

                This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!??????????????????

        • 7
          2

          SCP,

          Unofficial reports from SL says Covid-19 affected 400 persons have been identified in Gampaha District. The district that gave GR and MR the biggest lead!

          Karumam pillai, karumam.

          • 4
            9

            Mr. GATAM,
            .
            As a matter of fact we all know the reliability of your “Unofficial reports”
            .
            If those were true…..
            Sajith Premadasa is SL president.
            Parliament majority belongs to AKD
            And…
            RK is still our Finance Minister…….
            .
            You got it wrong only by 398.
            Very close I suppose.

            • 6
              2

              SCP,

              You rely on Heroin TV for your news. That is the problem.

              I’m sorry about Darling Duminda. Hope he will be out soon.

              Karumam Pillai, Sariyaana Karumam!

            • 8
              0

              790 in quarantine in Gampaha alone.

              Who is trying to fool who? Rat fever?

            • 5
              1

              This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!??????????????????????????????????not schadenfreude but u need to start your education from a Montessori, srilanka s Covid infection rate can go up drastically, their self proclamations cant last long. I am sorry for the people.

        • 10
          3

          S. C. Passqual

          “Democratic Socialist Republic of Sri Lanka.
          – SL managed to hold parliamentary election during pandemic without getting a single election related infection.”

          Gota bought/borrowed 1000 body bags from ICRC.
          Could he account for the entire consignment.

          G L has ordered the schools to be indefinitely shut from tomorrow.
          What is happening?

          • 4
            9

            Mr. Native Kudda,
            .
            So what……??

            • 5
              2

              S. C. Passqual

              “So what……??”

              What exactly is that So what……??

            • 7
              2

              Come on SCP. I don’t think NV relies on Heroin TV for his news. BTW what really happened to 1,000 body bags imported by AluGota?

            • 5
              1

              This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all ????????????????????????? get well soon!!!!!!

        • 0
          1

          Hu Hu,.. Ms SCP.. Rajapakshe Virologist is gone missing today. Can you talk even today ? Surely you can because you are standing on your head. You the kind of idiots are like BLUE FLIES being found on CADAVAs. My gosh, where are we marching today ?

          Unsubstantiated sources say, the numbers could upto few thousands – worldometers is not updated because ballige puthas provide them with wrong info.

          Balllige puthas lived up their fantasies on the cost of gawky easy targets. People should finally open their eyes and see it wider how these men would abuse their power today. How can they open their eyes so long TV channels such as DERANA and HIRU keep on lying to the same audience. THere are enough information to stand against Derana and HIru today but THEY ARE PART AND PARCEL of the Kunukanda/Garbage dumps aka SRILANKEN society today.
          :
          Gotler is speechless and looks like caught by mental asylum, because his men are beyond all ethics and morals.

  • 6
    2

    Nonsense! What “HE” says is the”LAW”

  • 6
    5

    Don’t insult a Professor of Law and a President’s Counsel.

  • 30
    4

    Mr Jayawockrema
    You think a war criminal will look into legal aspects.
    Ranil and Srisena screws country well and good only looking at democracy but not the Administration and economy and state Security.
    War criminal master minded the Easter attack support by his henchmen in state Intelligence. He had previously supported those terror group through his intelligence officers. His intelligence officers met the suicide bomber before it goes off.

    However you are also responsible as secretary to ministry of justice that did away with independent commission in 1972. Remove protection of minorities under section 29 which paved the way for uprising of the Tamil youth.
    While I appreciate your wisdom now which probably was overshadowed by arrogance of power in 1972.

    • 2
      11

      Mr. Dilshan,
      .
      And……….
      Earth is flat I suppose.

      • 8
        2

        S.C.Pasqual
        So that’s your belief!!!!!
        No wonder you are a sinhaleyo -buddhist!!!
        Even though your name sounds like that of one of Cardinal’s folk.

      • 13
        4

        SC Pasquali, no the earth is a globe but your head is flat.

        • 6
          3

          Tamil from the north@

          Ms SCP is a headache to us CT readers on long term.
          :
          This guy/eunach would never grasp it. The bugger is so cheap would do any low work for his selfish gains. SHould be the black sheep in that family.

          • 1
            2

            leelagemalli, unfortunately we have these types of frogs in the well on both sides. These fellows all have ulterior motives, if the country moves forward together as one, this vermin will lose his profits. If the nation is in chaos, they stand to make money. So he needs to promote his garbage.

        • 6
          3

          Tamil from the north

          Hi how are you?
          You have been for a long long time?
          Hope you are alright.

          • 2
            2

            Hello NV, I was busy with some personal matters…..but I am back to drive these racists to hell. I enjoy so much freedom in my adopted country Canada, I hope the same for Lankans. I hope one day will come these Lankans will all live in peace and harmony and see each other as brothers and sisters.

        • 3
          0

          Not just her head!

      • 5
        1

        This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!????????????????????????????

      • 4
        1

        MS Scp please grow up. This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!???????????

  • 19
    4

    Dilshan,
    You are right.

  • 21
    1

    Mr.Westham
    FYI: The U.S. common-law system evolved from the British tradition (English legal system) that spread to British colonies during the 17th- and 18th-century. As such , besides UK, Common law is also practiced in Australia, Canada, Hong Kong, India and New Zealand. Dr. Nihal Jayawickrama certainly has the expertise to comment on the constitutional conundrum in Sri Lanka. Unlike GL Peiris, Nihal has the integrity and intellectual honesty. He is one of the very few legal writers who can analyse even complex legal issues lucidly and with clarity.

  • 15
    1

    A “Respondent” cited in the petitions against the “20A’ is the Attorney General who stands for the “President” as per the “Constitutional Amendment” brought in by the “19A”. In one of the appearances, AG – the respondent informed courts that a “Series” of “Amendments” to the “20A” would be proposed at the “Committee” stage in Parliament. The petitioners wanted to know what those “Suggested Amendments” are and the Courts directed the “Respondent” to provide that information asked for. Now, in another appearance, the “AG” told courts that this “20A” is “SIMPLY” to “RE-INSTATE” the “1978 Constitution” to its “ORIGINAL” form. Now, if this is the position of the “AG” (representing the President) the Courts would be required to determine: Shouldn’t that “REINSTATEMENT OF THE 11978 CONSTITUTION” be subjected to the approval by the “PEOPLE” at a “Referendum”? In one instance the “AG” (for the President) says “Amendments to 20A” would be made at “Committee Stage”, while in another instance the same “AG”(again for the President) says, “20A” is to “Reinstate” the “Original” 1978 Constitution. What is going on? Any inputs?

  • 10
    0

    Come on let’s face the truth. All parties, government, or opposition want the 20th amendment of the constitution which gives a lot more powers to the president.
    The current opposition parties they do love the new constitution, but telling lies to the public, they strongly oppose it and to vote them next time to power for them to undo and revert back to the old system. Do you really think once they come to power on that promise would give up the unlimited power they acquired? NEVER, NEVER my dear, the history tells that. “Those who do not learn from history are condemned to relive it” – Winston Churchill.
    Just turn back the pages of politics in Sri Lanka. When JR Jayawardene brought in the Presidential system, all strongly opposed it. Chandrika Kumaratunge came to power on that single promise, made a big hue and cry calling it a draconian system and power concentrated to a single person, but after gaining power shed various flimsy excuses, and pretending to take action to dissolve the Presidential system reverting back to the old ‘parliamentary system’ but Nothing was done.

  • 6
    0

    continued…

    She cleverly cheated the people again and came back as President for the second time giving excuses that it was something technical that she was unable to abolish the Presidential system and begged for the people to have faith in her and vote her again to see the end of the Presidential rule. The people voted her again. But this time too slept over it allowed the Presidential system to continue.

    All presidential candidates after Chandrika Kumaratunge also won the Presidency solely on the promise to abolish it but enjoyed the power and comfort offered but did not lift a finger to fulfill the promises made to the people but passed on the presidency to their successors.

  • 5
    0

    continued …….

    This time too will not be different. But there is a way out. The people must wake up from their slumber and insist the Presidential candidate who promises to abolish the 20th amendment or the Presidency itself, to sign a legally valid affidavit to reverse the 20th amendment and abolish the Presidential system within a PERIOD OF ONE YEAR but failing to do so, he stands resigned as this document is good as a letter of resignation so as to give chance to another capable leader without having to wait for another five years.

    If he refuses to sign such a document, better you forget him for another Chandrika Kumaratunge.

    This is why the people were cheated all this time and people without having learned history were condemned to relive it. So let us not get cheated now again.

    I would like to ask all those who support President Gotapaya Rajapakse including his new constitution one question. If this very same constitution word to word was forwarded by the UNP would you accept it?

  • 5
    0

    This is what you have to ask yourself. Be truthful to your conscience. If you are happy with it, then support it. But do not complain later in a future UNP Government they used undemocratic and draconian measures, and condemn the constitution and want to abolish it. It was the same constitution you supported and now wanted to be revoked.

    A constitution is for the country and not for a particular political party. People can’t expect a constitution based on political parties. The constitution must be accepted without party politics and that is the reality.

    The choice is yours

  • 6
    0

    An amendment to the Constitution must be carefully crafted. It is not merely chopping off something like an amputation. One has to identify what changes do you want and carefully effect them in the nature of an amendment. I can say very clearly to both NGR and SRP “more haste, less speed”. Why not put out an initial draft, circulate internally first within your crowd, get the corrections and then put out for public comment and go to Parliament with a clean draft.

  • 4
    4

    Except Tamil Nadu parties, no other party in parliament really opposes 20A.

    UNP/SJB knows that it is a matter of time until they get all 20A powers of the president.

    • 6
      0

      UNP/SJB must be in a dreamland, if they think like that.

      • 5
        3

        Greed for power.

        UNP/SJB knows they will produce the next president. The economy is gone. People are starving. Rural areas are in deep frustration which are Rajapaksas’ power base. UNP/SJB is just bidding their time, salivating. Let them make the cake, we will eat it.

        Chandrika did the same thing in 1990s. She eneded 17 years of UNP rule. UNP/SJB will end 17 years of Rajapaksa rule (including 2004-05 MR PM term) in 2024 and enjoy all benefits of a powerful presidency.

        Shrikharan is right.

    • 3
      2

      That is exactly I told in my long analysis

  • 7
    0

    Dr. Nihal Jayawickrama,

    Government says they do not want to go for a referendum and Attorney General says that they will bring in a series of amendments to the 20th amendment at the committee stage.

    Could the Court decide on mere promises?.

    What happened if the government does not bring in the amendments at the committee stage and bring in only token amendments or what happened if these amendments were defeated on the floor of the house either genuinely or deliberately.

    The court will not revisit to look at the amended 20th amendment before it will be put to vote at the committee stage.

    Does not our constitution look a farce and these are really ineffective checks to hoodwink the ordinary people?

    What and where is the remedy?

    It is often said people are supreme. Where is this supremacy?

    • 4
      6

      Mr. srikrish,
      .
      You can ask RW or MY3…..
      Or else Dr. Jayampathy Wickramaratne.
      Or else any “Yahapalana” advocate.
      .
      They have shown how to walk around a court ruling of a amendment.

      • 5
        0

        But 19A was seriously diluted after the court ruling. The president himself supported reducing his own powers. So the court had it easy thereafter. If 20A is seriously diluted there is nothing to it. And the president is trying to increase his own powers (not give up).

        Why does you junta fear a referendum? Corona? 1,000 body bags? Democracy? Elections? DEFEAT?

      • 4
        0

        This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!?????????????????????????????????

      • 4
        0

        This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!?????????????????????????????????

    • 2
      0

      Srikrish,

      The function of the Court is to examine the Bill that has been placed on the Order Paper and determine whether any provision in it requires to be approved by the people at a referendum after being passed with a two-third majority. The Court is not concerned with any amendments which the government proposes to introduce at the committee stage. Therein lies the inherent weakness of pre-enactment review of legislation. Another weakness is that the unconstitutionality of a law often becomes apparent only when it is applied to an individual.

      Prior to the 1972 Constitution, it was possible for anyone adversely affected by the application of any provision in a law to question the constitutionality of that law. In the absence of “ex post facto” review of legislation, there is no way of having committee stage amendments reviewed by the Court. Governments have sometimes adopted the device of committee stage amendments to avoid review of constitutionality by Court.

      The best solution appears to be pre-enactment review of a Bill combined with post-enactment review of the law at the stage when it is applied to an individual.

      • 0
        0

        Dr. Nihal Jayawickrama,

        Thanks for the response.
        But ?
        The pre-enactment review was a farce and the responsibility for this deceit lies with the fathers of 1972 constitution- Dr Colvin R de Silva and Felix R Dias Bandaranaike. Were you – Dr. Nihal Jayawickrama, as Secretary Ministry of justice was also involved in this treachery?.
        I still recollect Dr Colvin R de Siva thundering and lecturing that people are sovereign and so National State assembly will have the final say.

        Nobody not even Judiciary could block the forward march of the National State Assembly towards an egalitarian socialist society.
        Prophetic words!

        Well Dr Colvin R de Siva was one of my childhood heroes.

        Fallen heroes?

        • 0
          0

          Srikrish

          Dr Colvin R de Silva insisted on pre-enactment review on two grounds: (i) that the constitutionality of a proposed law ought to be determined at the earliest possible opportunity. He cited the 1956 Official Language Act which was held by a District Judge to be invalid in 1964. (ii) that the Supreme Court should not be placed above the National State Assembly which was to be the “supreme instrument of state power”. I did not accept the validity of either ground and advised the Prime Minister to write to her Minister rejecting the proposal for pre-enactment review. She did, but her Minister had his way.

          Felix Dias Bandaranaike did not play any significant role in the drafting of the 1972 Constitution, except that he was a member of the “steering committee”. However, it was he who insisted on inserting the reference to a “unitary state” in the Constitution. Colvin resisted that for as long as he could, but finally gave way. I believe Felix was being mischievous in that regard, since he probably expected that he would be entrusted with the task of drafting the constitution.

          I was initially a member of the drafting committee. However, after several of my proposals were rejected, as Colvin claimed, by the “top committee”, I ceased to attend their meetings, but continued to monitor the proceedings in my official capacity. Mrs Bandaranaike claimed to have no knowledge of a “top committee” and said that it was probably the LSSP politbureau !

  • 6
    0

    Mr/Ms Westham,
    You are trivialising a deep and crucial issue.
    “The problem surrounding the presidency which have been going on for over 25 years can be solved by strengthening the judiciary. But Sri Lankans don’t know how to that because they (“don’t” ?) have American educated lawyers”.

    This is not such a nonsensically minor “technical” problem. The plain fact is that 20A intentionally does NOT want to strengthen the judiciary. What self-respecting British (or Timbuktooan) system of jurisprudence gives the President (PM) unquestioned power to appoint of SC Judges and the Chief Justice? What “British system” gives the President such blanket impunity as 20A or seeks to abolish fundamental rights? No Sir/Madam you are barking completely up the wrong tree!!

    To repeat, the fundamental point is that the INTENTION of the President and government is NOT TO HAVE an independent judiciary. No army of American trained constitution drafters could have written anything at variance with their instructions.

  • 10
    2

    Why not take the position that GR was dual citizen at the time of his election and constitutionally his election is invalid?

    • 5
      6

      Mr. sAD,
      .
      IDIOT.
      .
      Are you blind and deaf…..?
      .
      GR renounced his US citizenship well before presidential election nominations.
      .
      Ask Prof. Ratnajeevan Hoole. He knows.

      • 3
        0

        You are the idiot pasquale. The time factor is that he did not have proof at the time he contested. Challenge it in a court.

      • 6
        0

        Everyone is called idiots, uneducated etc. but this bitch s son has proved to the world that he is the ultra backlicker of criminals:
        :
        He is shameless. THe kind ofmen are usually cornered within their family circles. Just for pitty gains this bitch seems to be doing almost everyhting for Rajakshes. No different to that street boy (drag queen) Iraj weeraratne. If those underground network could do a great job, if they succeeded getting these buggers away from our sight sooner than later.

  • 6
    0

    Dr.Nihal.J. and Dr.Jayampathy Wikremaratne have been crusaders, on these pages, exposing the flawed 20th A. now being canvassed in the Supreme Court.

    The AG HAS ALSO TOLD THE SC that 28 amendments would be made at committee stage.These are only minor cosmetic changes like Dual Citizens would not be able to contest for the Presidency but allowed to contest Parliamentary and Provincial Council elections! AHA! THIS IS FOR BASIL TO SAIL THROUGH!

    K.Kanageswaran P.C. has argued that the 20th A.is structurally flawed and will take away the separation of powers in the present constitution, if it is upheld, and therefore it should be struck down.

    This tinkering of our constitution to serve Dynastic needs should be thrown out.
    In essence, it is a case of robbing Peter [People ] to pay Paul [ Rajapakses ]!

    • 5
      6

      My dear Plato,
      .
      Jayampathy wickramaratne is a politician.
      He was a UNP National List Member of Parliament.
      All claims, arguments and dismissals are framed by his party interest.
      He is no independent expert on things constitutional.
      He serve his master. RW.

      • 4
        0

        Until so called bond scam came into light, they did a good job.
        Now entire world is aware the bond scam was a continuous system failure started by MAFIA bosses wandibattaya Ajith BL Cabral. When experts reveal all these, SIRISENA the most abusive man in srilanken politcs, stayed mum for some reasons. May be MAFIA boss may have asked him to do so.

        SCP, btw, why is that SO CALLED SRILANKA who controlled COVID imposed curfew for some city limits today ?

        Why is that you are not caught by COVID yet ?DIVINE forces over to you, please get these buggers away from our sights. Srilanka would go down if these men would continue their abusive nature.

      • 7
        1

        SCP: In the end are you yourself objective or All claims, arguments and dismissals are framed by your personal interest.
        Do you not serve your masters MR & GR, judging by your comments.
        Look inwards.

  • 5
    0

    Constitutional niceties are not going to stop an autocrat. Cicero got his throwt cut trying to oppose imperial advance. The determined autocrat with an army behind him and a brand of cronies will go his way. But, closing constitutional avenues of change is not a wise move. The lives of tyrants show that change does take place eventually and that they will be effaced like the King of Kings, Ozymandias. We have a pack of old men in their 70s. Change is an inevitability. They have done damage already. Talk of sovereignty of the people and other constitutional doctrines are niceties that will not prevent these old men with the crawling GL Pieris, another old man in tow and another “constitutional expert” from having their way. But, time will last them out and hopefullyully leave the “sovereign” people of Sri Lanka wiser.

  • 4
    0

    An exhaustive analysis of the constitutional issues arising from the draft of the 20th Amendment.

    The 2/3rds majority appears to be assured with the latest development, which has displeased the Catholic and the Buddhist priests. If a referendum is called, the majority is likely to vote against the draft of the 20th Amendment.

  • 4
    0

    Until so called bond scam came into light, they did a good job.
    Now entire world is aware the bond scam was a continuous system failure started by MAFIA bosses wandibattaya Ajith BL Cabral. When experts reveal all these, SIRISENA the most abusive man in srilanken politcs, stayed mum for some reasons. May be MAFIA boss may have asked him to do so.

    SCP, btw, why is that SO CALLED SRILANKA who controlled COVID imposed curfew for some city limits today ?

    Why is that you are not caught by COVID yet ?DIVINE forces over to you, please get these buggers away from our sights. Srilanka would go down if these men would continue their abusive nature. xxx

  • 7
    1

    I agree with everything that Prof. Jayawickreme says except that the emphasis placed on people and sovereignty, two abstract concepts, has no fit in reality. There are three different people in Sri Lanka, the Sinhalese, Tamils and Muslims. One people have overwhelmingly voted, for whatever reason, for Gota. Rajapaksa. So the sovereignty they have certainly supports what he proposes. That is going to be sad for the other two people, the Tamils and the Muslims, who will have to nurse their rejection or show their resentment. That is the situation that is going to be sad for the country. The slide begun by the Bandaranaike, in which Professor Jayawickreme was complicit, will take us to the rock bottom.

    • 3
      1

      Cicero
      “There are three different people in Sri Lanka, the Sinhalese, Tamils and Muslims”
      No, dear, in respect of a ‘political solution’ there are only two categories.
      Sinhala language speaking people and Tamil language speaking people. Differences in religions they practise, castes they belong to or the date of arrival in Sri Lanka cannot be taken into consideration. Religion is not legally identifiable. Most of my friends who claim to be Buddhists are very different in actual behavior.
      .
      Tamil speaking people are handicapped in their dealings with the state administrative machinery and the legal system and this problem has to be addressed within practical limitations.
      .
      If the Tamil speaking people desire a separate Homeland they must forgo their differences in religion and unite as one people.

      Soma

      • 2
        0

        Cicero,

        Words such as “Sovereignty”, “People”, and “Unitary” should not be used in a constitution. Language and religion are not subjects that should be included in a national constitution. The 1947 Constitution, which was in force for 25 years was, in my view, the best constitution we have had. Its only defect was that it lacked an enforceable Bill of Rights. Section 29 did not afford adequate protection to “communities”.

        The role of a constitution is to establish the principal institutions of government, define their powers, and ensure that the executive, legislature and the judiciary do not encroach on the fundamental rights and freedoms of the individual. Under the 1947 Constitution, the government was able to deal effectively and expeditiously with a military coup and a bloody insurgency; change governments at every general election; and enable both socialist and capitalist economic systems to be practised.

        • 0
          0

          But, it was not able to deal with the rise of populism and Sinhala Buddhist nationalism manipulated by the Bandaranaikes and the Rajapakses. That has proved to be the difficulty with our constitutions. They have been designed to appease the Sinhala Buddhist resurgence- a necessary factor but one which had to be channelled so that others also had a place in the island. Successive compromises like the Banda-Chelva Pact and the Dudley-Chelva Pact which could have stemmed the tide of communalism were scuttled with Sinhala politicians appealing to more extreme versions of communal politics. Constitutions cannot stem such trends.

  • 4
    1

    This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!This is how ‘know all ‘ Ms Scp aka Rajapak virologist, react s on the question s posed to him/her LMFAO LMFAO LMFAO no seriousness at all  get well soon!!!!!!??????????????????

  • 4
    0

    There is a sudden “Covid-19 fear” in Sri Lanka.
    It was so sudden, one might wonder whether the government has a magic wand to appear and disappear Covid-19 as and when it pleases.
    Schools, campuses, workplaces, Army camps are being closed. Curfew is being imposed. Usual movements are being restricted. People have started panic buying. All these things have happened in one day.
    This is totally opposite to the government’s initial reaction to Covid-19.
    .
    Clearly speaking, Gotabhaya and Basil are all out to pass the controversial 20A amidst curfew to subdue any opposition. Didn’t they say they are going back to 78? Actually they are going back to the 2010-2015 “black era.”
    .
    Creating a Covid-19 fear and subsequent curfew or lockdown is the easiest way to pass the 20A as it gives the government the necessary leverage and justification to create a fear psychosis and suppress freedom of expression in the media, especially social media.
    .
    I sent 3 comments to a Sinhala daily newspaper highlighting the Attorney General’s odd response to the Supreme Court. After I sent the 3rd comment, all my comments disappeared like magic.
    I “only” said, in an extraordinarily unusual situation, the AG has accepted in the Supreme Court that the 20A is an incomplete, informal and a non-consensual document!!!

  • 3
    1

    If 20A pass through, America has to accept the responsibility to that. America ignored the well being of the Ceylon Island by facilitating a war criminal to win election. There is no reason why could not America arrest King and had investigated Ahimsha’ case. America & India helped the same team to win the war. They two are not willing to take responsibility for the chaos going on Lankawe. They two blamed Tigers 20 years ago, by 2000. Still they are blaming Tamils and Tiger, but they two staying as invalids and handicappers. You all know after previous week’s PM. Modi’s telemarketing with Old King, Indian media printed one news and Local Media printed one news. Why can’t the Indian embassy deny the local media reports? UNHRC has become Report Kings after under taking the Lankawe Genocide war investigation. UNHRC has appointed more Commission than Lankawe appointed commission. But nobody knows what is happening to UN and UNHRC’s reports, commission & investigation so far happened.

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