23 October, 2020

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Will 20A Even With The AG’s Amendments, Affect A Referendum For A New Constitution? 

By Sanja De Silva Jayatilleka 

Sanja De Silva Jayatilleka

Even with Covid-19 spreading in unexpected ways and in too many places, it wasn’t enough to overwhelm the curiosity, anxiety and interest in the President’s draft of the 20th amendment to the Constitution, as the country awaits with interest a new Constitution which a Minister promised will be presented in six months. 

With numerous petitions, discussions, webinars, and the Supreme Court determination, the curiosity of an ordinary citizen has turned into confusion. But these are matters for lawyers who know these things. And for parliamentarians who are entrusted with protecting the people’s sovereignty in evaluating such amendments. So here are some issues that sprang to mind for consideration by those who are tasked with voting for draft amendments, while attempting to make sense of two documents now in the public domain: The draft 20A and the leaked Supreme Court’s determination.

1. The Supreme Court determined that Clause 3 of 20A (Duties and Functions of the President) as it is, needs a Referendum because it removes:

33 (d) “It shall be the duty of the President, on the advice of the Election Commission, to ensure the creation of proper conditions for the conduct of free and fair elections and referenda.”

However the Supreme Court determined that if it is amended as per the Attorney General’s submissions, to

 “(c) ensure the creation of proper conditions for the conduct of free and fair elections at the request of Election Commission”, then the inconsistency would cease and therefore wouldn’t need a referendum.

Does the inconsistency still remains ceased despite the following? 

a) Where is the reference to referenda which was in Article 33 (d) of the Constitution which is sought to be repealed?

Isn’t this significant especially when Clause 16 of draft 20A seeks to have defeated bills put to a vote at a referendum?

The new Constitution which is planned will also need a referendum. 

Aren’t referenda covered anymore after the 20th amendment? 

b) The duty of the President, “on the advice of” the Election Commission to conduct free and fair elections means the responsibility still lies with the President for free and fair elections. However, the substitution of that sentence with “ensuring” the conduct of free and fair elections “at the request” of the EC passes the responsibility to the EC, or so it seems. 

What if the Election Commission fails to “request” such a thing? Does the Election Commission have a duty to request the President to conduct free and fair elections? This doesn’t seem to be in the Constitution. 

Does the Election Commission have a constitutional duty to ensure free and fair elections?

By seeking to remove Article 104GG (Compliance with the Election Commission’s requests) doesn’t draft 20A also reduce the authority of the Election Commission to ensure free and fair elections anyway?

c) Removing “duty” to ensure free and fair elections, together with the removal of immunity from suit (even with the promised amendment), still leaves the citizen deprived of the guarantee afforded them by the Constitution in allocating that duty to the President who is constitutionally accountable to the people.

d) This is especially significant when Article 22 of 20A seeks to repeal Article 104GG which ensures compliance with the Election Commission by Public Officers, employees of Corporations and Business with 50% of shares held by the Government and makes non-compliance an offence that could lead to imprisonment in addition to a fine. (The Supreme Court has however determined that Article22 needs a referendum) 

2. The Supreme Court determined that Clause 5 (Immunity from suit) needs a Referendum. 

The Attorney General argued that this only takes it back to the 1978 Constitution. 

The Supreme Court has pointed out that any enhancement of sovereignty cannot be reduced without a referendum.

However, the Supreme Court determination states that if Clause 5 is “suitably amended” to “make provision for the People to invoke jurisdiction of the Supreme Court under Article 126, in the instances where there is a violation or an alleged imminent violation of a Fundamental Right due to an act of the President, the inconsistency would cease.[Article 17 : “Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this Chapter”]

a) Isn’t the omission of Referenda from the Constitution an infringement which impinges on the franchise and therefore on the sovereignty of the people? 

b) Also, isn’t passing responsibility for conduct of free and fair elections to an official appointed by the President, also a reduction of sovereignty and therefore a violation of a fundamental right?

In the context of the additional powers granted to the President to dissolve parliament, remove the PM, make all important appointments including Ministers, AG, EC, etc. doesn’t the intent to remove immunity indicate a wish to acquire rights but not responsibility, power but not accountability?

3. If a new Constitution is due in 6 months, why seek power now, to

* Dissolve parliament 

* To remove PM

* To appoint EC

* To reintroduce immunity from suit

* To remove “duty” to conduct free and fair elections and referenda?

What good will it do, to do all these things before the next Constitution is approved by the people and the parliament in 6 months?  

The only thing that jumps out to a non-legal mind is that the President may be perceived to have the power to ensure that PM, Cabinet, some parliamentarians and other relevant appointed officials will go along with the provisions in a new Constitution since he will have the right to remove any of those people at will, and the Elections Commission will have reduced powers at the time of the referendum (repeal of Article 104GG by Clause 22) but enhanced responsibility for the conduct of it.

Fortunately the Supreme Court has ruled that Clause 22 needs a referendum, therefore the Election Commission’s existing powers will hopefully remain.

However it appears that the draft 20A, sought to ensure a clear path to the passage of a new Constitution, minimizing possible opposition to it, and taking away the people’s right to the constitutional guarantee of a free and fair referendum.

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Latest comments

  • 1
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    As long as we allow this Ratha Pottu Mafia FP/ITAK/TULF/TNA + Indian embassy in Jaffna the Sri Lankan “Supreme court” and the “Elected GOSL” (whoever that is) other than the “above folly” (delivered death to the entire Nation even sacrificed a segment fo the children LTTE for its first leg of the journey but keeping the PLOTE/TELO for a rainy day) can go back and forth until end of time…the Majority of the Tamils speaking do not live in Jaffna anymore for a reason.

    • 2
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      No justification of Tamil terrorism but stating a fact. If not for the LTTE created Tamil refugees in western countries, SL would be $50 billion behind. This is what my good friend Siva in Canada said.

      “If not for the LTTE we are still fighting for inches over the fence and salty wells in Jaffna. Now we fight to top the education rakings in Canada, etc. LTTE may not be around but their legacy lives on in the hearts of grateful Tamils.”

    • 2
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      Mr TV, no one forces Tamils to vote for ACTC/FP/ITAK/TULF/TNA. There is a reason why they keep winning since 1947. EPDP/SLFP/UNP/TMVP despite threats, violence and appeasements fail to win anywhere close.

      Tamil people overwhelmingly voted for war winner Field Marshal Sarath Fonseka when TNA requested them to do so just 8 months after the war!

      • 0
        1

        Dear Gatam

        Without the “Ratha Pottu Mafia Killing fields in Jaffna a Tamil crime on Tamil 1970-1977-1981” for your reference I can see why you made the above conclusions……..I would say is a very simplistic statements of a very big tragedy that took place in Jaffna. Did the Sinhalese papers report this to you down south???

        It is also likely you do not know as much about Jaffna as I do as I was born and brought up in Vaddukottai and exposed to all one need to know on the subjects you mentioned above. I have also extensively written here to share info to avoid such mistaken conclusions however you may not have followed all that I respect.

        With regard to Tamil diasporas gratitude to LTTE as per your friend Siva I will not comment/qualify as itself is a tragedy/pains/sacrifices all because guns were introduced in Jaffna by the FP/ITAK/TULF & the Indians 1970-1977-1981.

        The understatements of the century “No one forces Tamils to vote” am sorry to say.

  • 0
    1

    Therefore the Civil service (Jaffna Missionary Tamils) + Indian Tamil Nadu slave Labour supply chain Inc for the Colonial management of the region now turned into (since independent) as the Civil service management forced to sacrifice their Jaffna “children” for “imaginative” freedom causes trained by the Indian slave labour supply chain wing since 70’s…………..1947/1948 Independence Redefined….fortunately other asian post colonial Nations have moved away from this trap except SL is no accident as. we were doomed based on our strategic location for future ventures by “others”??

    Only way to alter this we should have a “referendum” should we allow a foreign sponsored criminal gang the FP/TULF/TNA to be an elected entity/registered party in our Nation after all the killing fields in Jaffna 1970-1977-1981 a landscape systematically vacated of decent brought the Presidential Governance in 1978 in the first place following a separate state mandate push in 1977??

  • 4
    1

    Gotabaya’s objective is very clear. Rajapakse family should control this country, its people, its economy. I can remember before Election Gota said government officials should avoid family members under them. Today whole family and family members are with him. The 20th amendment is to bring back Basil who is missing on that group and him getting back dual american citizenship again. Almost most of our capital resources are sold to China, USA and India. Any objections from the people including Mahasangha will be dealt with Military.

  • 1
    0

    Sanja, your arguments are correct. SC judges and AG appear to be frauds. So is GLP and AS. Reminds me of the old chinese story of allowing worms to cannibalize until the last fat worm emerge..

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