By Yogan Yoganathan –

If anything, the TNA may be blamed for resting on its laurels. The party was so sure that Tamils would march to their tune that they hardly campaigned for the vote at the last general election. They even engaged in backbiting. In bed with the UNP, they hardly challenged the UNP when it neglected the people. Party leaders turned on each other for the preferential vote. The electoral reverses of the TNA were telling, when the TNA vote went down and Mahinda Rajapaksa was able to boast that he had more MPs from the North-East than the TNA. It was true and hurt.

Thus when the SLPP grabbed for more power through the 20th amendment to the constitution that centralized everything in the hands of the President, the TNA turned its legal guns on the effort.

As of 24 September, twelve cases had been filed in the Supreme Court. Perhaps the best written of these is the case written up by M.A. Sumanthiran for TNA Leader R. Sampanthan. Filed on 24 September, in its essence states that several clauses of the Bill infringe and derogate from Articles 3, 4 and 83 of the Constitution. 

Article 3 of the Constitution

It  provides 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”.(emphasis added)

As such Article 3 recognises inter alia that:

(a) The Sovereignty is in the People of the Republic (and not in the Republic itself or any instrument of the Republic); and

(b) Fundamental Rights and Franchise are part of the sovereignty of the People.

CLAUSE 5 of the BILL 

Clause 5 of the Bill derogates from and infringes the provisions of Article 3 of the Constitution and negatively impacts the Sovereignty of the people.  It confers immunity on the individual elected to hold the office of President and removes the ability of the People to hold to account the said individual by an Application in terms of Articles 17 and 126 of the Constitution in relation to powers exercised qua President. This is an effective check on the holder of the office of President and exercised by the People to ensure no one is above the law. The removal of this check will in effect remove the power of the People to hold the office of President accountable. 

CLAUSE 6 OF THE BILL 

Clause 6 of the Bill repeals the entire Chapter VIIA of the Constitution and replaces it with a new Chapter VIIA. The main impact of the proposed Clause 6 would be to inter alia abolish the “Constitutional Council” and replace it with a “Parliamentary Council”.  The Parliamentary Council will be constituted only of Members of Parliament with their mandate limited to making “observations” with no power to make binding recommendations. Thus, there is no provision that the President is bound by the “observations” of the Parliamentary Council.

Moreover, the President has the power, to at any time remove three (the Prime Minister, the nominee of the Prime Minister and the nominee of the Leader of Opposition) out of the five Members of the Parliamentary Council for any reason [proposed Article 47(a) of Clause 6 of the Bill and proposed Article 41(A)(7) of Clause 6 of the Bill].  This will in effect provide the President control of the Parliamentary Council with no safeguards to prevent interference. 

The Constitutional Council as provided in the Constitution functions independently of the Executive with safeguards in place to ensure that decisions can be made that act as a check on executive overreach and interference.  The proposed Parliamentary Council will remove safeguards and allow the individual holding the office of President unfettered discretion to make appointments as she/he wishes, to these positions, thus leading to weakening of independent institutions and eroding the rule of law in Sri Lanka. 

As recognized in a continuous line of judicial authorities of their Lordships’ Court “our Law does not recognise that any public authority, whether they be the President or an officer of the State or an organ of the State, has unfettered or absolute discretion or power”. The provisions in Clause 6 of the Bill therefore derogates from and infringes the provisions of Article 3 of the Constitution.

CLAUSES 7 AND 14 OF THE BILL 

Clause 7 of the Bill repeals the entire Chapter VIII of the Constitution and replaces it with a new Chapter VIII. This would inter alia; 

(a) Remove the security of tenure of the Prime Minister, as long as she/he holds the confidence of Parliament. 

(b) Result in the position of Prime Minister to one of that which serves at the pleasure of the President.

(c) Remove the constitutional requirement that the President has to act on the advice of the Prime Minister when appointing from among Members of Parliament, Ministers, to be in charge of the Ministries determined by him.

(d) Remove the constitutional requirement that the President has to act on the advice of the Prime Minister when appointing from among Members of Parliament, Ministers who shall not be members of the Cabinet of Ministers.

(e) Remove the constitutional requirement that the President has to act on the advice of the Prime Minister when appointing from among Members of Parliament, Deputy Ministers to assist Ministers of the Cabinet of Ministers in the performance of their duties.

(f) Remove the constitutional requirement that the President has to act on the advice of the Prime Minister when removing a Minister of the Cabinet of Ministers, a Minister who is not a member of the Cabinet of Ministers or a Deputy Minister.

(g) Remove the constitutional limitations on the total number of Ministers of the Cabinet of Ministers, the number of Ministers who are not members of the Cabinet of Ministers and Deputy Ministers.

Clause 14 of the Bill would provide the President power to decide when to dissolve Parliament at any time after the lapse of one year from the date of the last General Election, except in certain limited situations. The impact of clauses 7 and 14 of the Bill is that the President will have full control over Parliament and be able to determine when Parliament should be dissolved. Such clauses would weaken the Parliament’s role of being an effective check on the President, paving the way to a situation where Parliament will be at the whim and fancy of the Executive. Such a trend can lead to the violation of the separation of powers, erode the rule of law and undermine the sovereignty of the People.  The provisions in Clauses 7 & 14 of the Bill derogate from and infringe the provisions of Article 3 of the Constitution.

CLAUSE 16 OF THE BILL 

Clause 16 of the Bill gives the President the power to submit to the People by way of a referendum any Bill (which is not a constitutional amendment), which has been rejected by Parliament.  This clause will have serious implications for the sovereignty of the People as it subverts the legislative power of the Parliament.   Thus, the said clause amends the provisions of Article 83 of the Constitution and is inconsistent with, Article 3 of the Constitution.  The provision in Clause 16 of the Bill therefore derogates from and infringes the provisions of Article 3 and/or 83 of the Constitution.

CLAUSE 17 OF THE BILL 

Clause 17 repeals Article 91(1)(d)(xiii) of the Constitution which provides that “a citizen of Sri Lanka who is also a citizen of any other country” is disqualified from being elected as a Member of Parliament. By virtue of Article 92(b) this provision also disqualifies such a person from being elected as President of the Republic. The proposed clause will therefore remove the constitutional restriction of dual citizens from contesting elections for the post of President and to be elected a Member of Parliament, allowing a situation where citizens of another country to hold elected office in Sri Lanka.    The inclusion of such a clause will pave the way for individuals who may have loyalties to another country and possess assets and interests in another country to be elected to key offices in Sri Lanka. It may thus lead to an unfortunate situation where those having divided loyalties and unable to prioritise Sri Lanka and the interests of the People of Sri Lanka holding elected office in Sri Lanka.  Clause 17 of Bill therefore derogates from and infringes the provisions of Article 3 of the Constitution.

CLAUSES 19, 20, 21 AND 22 OF THE BILL 

Clauses 19, 20, 21 and 22 all pertain to a reduction of the powers of the Independent Election Commission.  Clause 6 of Bill provides the President absolute authority to appoint at his discretion the Members of the Elections Commission.  The Bill removes the power of the Election Commission to issue guidelines pertaining to any matter relating to the Public Service during the period of election to ensure a free and fair election.  The Repeal of Article 104GG of the Constitution (Clause 22) will have serious implications. Article 104GG makes it an offence for any public officer or any employee of a public corporation, business or undertaking vested in the Government who fail to comply with the Election Commission to secure the enforcement of any law relating to the holding of an election or the conduct of a Referendum, or a failure to comply with any directions or guidelines issued by the Commission.

The Lordships’ Court has continually held, the franchise of the People as recognized in Article 3, includes the right to a “free and fair election”. Thus, the provisions in clauses 6, 19, 20, 21 and 22 of the Bill as they pertain to the ability of the Elections Commission to function effectively and independently, derogate from and infringe the provisions of Article 3 of the Constitution.

CLAUSES 27 & 28 OF THE BILL 

Clauses 27 and 28 of the Bill provide that in relation to Bills which are “in the view of the Cabinet of Ministers, urgent in the national interest, and bear an endorsement to that effect under the hand of the Secretary to the Cabinet”. will circumvent the present procedure in place and prevent the publication of such Bills in the gazette prior to being tabled in Parliament and preclude citizens from petitioning the Supreme Court in terms of Article 121 of the Constitution. 

The said clauses will also provide the President to directly refer Bills considered urgent to the Supreme Court for a “special determination of the Supreme Court as to whether the Bill or any provision thereof is inconsistent with the Constitution”.

These clauses further provide that there is a mandatory requirement that the Lordships of the Supreme Court make a determination within 24 hours of assembling the Court or such further time, not exceeding three days, as may be granted by the President.  At present the People are provided with a limited pre-enactment review of proposed laws in terms of Article 121 of the Constitution. Sri Lanka also has no post enactment judicial review. Thus, the said clauses will in effect severely limit the People’s ability to challenge the constitutionality of a Bill. 

Clauses 27 and 28 of the Bill thus derogate from and infringe the provisions of Article 3 of the Constitution. Provisions of the impugned clauses 5,6,7,14,16, 17, 19, 20, 21, 22, 27 and 28 of the Bill are contrary to, and inconsistent with, Article 3 of the Constitution and /or The provisions of the impugned Clause 16 of the Bill are thus and otherwise contrary to, and inconsistent with, Article 83 of the Constitution.

It has therefore become necessary for the Petitioner to invoke the jurisdiction of their Lordships’ Court, and to respectfully seek a Determination that;

(a) The provisions of the impugned Clause 5, Clause 6, Clause 7, Clause 14, Clause 16, Clause 17, Clause 19, Clause 20, Clause 21, Clause 22, Clause 27 and Clause 28 of the Bill titled “The Twentieth Amendment to the Constitution” and/or the said Bill as a whole are contrary to, inconsistent with and derogate from Article 3 of the Constitution.

(b)The provisions of the impugned Clause 16 of the Bill titled “The Twentieth Amendment to the Constitution” and/or the said Bill as a whole is contrary to, inconsistent with and derogate from Article 83 of the Constitution.

(c) The provisions of the impugned Clause 5, Clause 6, Clause 7, Clause 14, Clause 16, Clause 17, Clause 19, Clause 20, Clause 21, Clause 22, Clause 27 and Clause 28 of the Bill titled “The Twentieth Amendment to the Constitution” and/or the said Bill as a whole are required to be enacted in terms of Article 83 of the Constitution.

CLAUSE 83 of the Constitution

That is the game now. The government enjoys 2/3 in Parliament. The only way to stop the 20^th amendment is to get the supreme court of invoke Article 83 of the Constitution which provides (giving the part relevant here)  that where a Bill (a bill being a proposed enactment before it is passed and becomes an Act)  is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article 80. 

The government will not want a referendum because those with the Prime Minister do not want his powers transferred to the President.

If the court grants that inconsistency in provisions of the bill, so the thinking goes, the government will jettison those provisions and pass a pruned down version of the 20^th amendment as proposed whose bite on our democratic torso may not be so bad.