SUB­VER­SION OF JU­DI­CIAL RE­VIEW DI­MIN­ISHES SOVEREIGNTY

Daily Mirror (Sri Lanka) - - EDITORIAL - By Malinda Se­nen­vi­ratne

Iprovin­cial coun­cil elec­tions, com­pletely dis­re­gard­ing the par­lia­men­tary stand­ing or­ders and the rel­e­vant pro­vi­sions of the Con­sti­tu­tion (Article 78) deny­ing the cit­i­zens any right to chal­lenge them.

The law en­acted by fraud­u­lent means was chal­lenged in the Supreme Court by for­mer Chief Jus­tice Sarath N Silva and by pub­lic in­ter­est lawyer and 2020 Pres­i­den­tial Can­di­date Na­gananda Kodi­tuwakku. ma­lin­dasenevi@gmail.com Un­like in Bri­tain where the Queen is Sovereign, in the Repub­lic of Sri Lanka, sovereignty is in the peo­ple the stage when the Bill is ready to be put to Par­lia­ment for its ac­cep­tance.”

But what does Article 82 (1 and 2) say? They re­fer to the amend­ment or re­peal of the Con­sti­tu­tion and read as fol­lows:

82. (1) No Bill for the amend­ment of any pro­vi­sion of the Con­sti­tu­tion shall be placed on the Or­der Pa­per of Par­lia­ment, un­less the pro­vi­sion to be re­pealed, al­tered or added, and con­se­quen­tial amend­ments, if any, are ex­pressly spec­i­fied in the Bill and is de­scribed in the long ti­tle thereof as be­ing an Act for the amend­ment of the Con­sti­tu­tion.

(2) No Bill for the re­peal of the Con­sti­tu­tion shall be placed on the Or­der Pa­per of Par­lia­ment un­less the Bill con­tains pro­vi­sions re­plac­ing the Con­sti­tu­tion and is de­scribed in the long ti­tle thereof as be­ing an Act for the re­peal and re­place­ment of the Con­sti­tu­tion.

The ver­sion sub­mit­ted at the 3rd Read­ing, as Kodi­tuwakku points out, was not on the Or­der Pa­per. It was in­cum­bent on the part of the At­tor­ney Gen­eral, as per re­spon­si­bil­i­ties de­tailed above with re­spect to the peo­ple, to point all this out at the rel­e­vant stage of the process. In other words, the At­tor­ney Gen­eral could have in­sisted that the pro­ce­dure adopted at the third read­ing was out of or­der. Since Article 78(2) clearly states that “The pass­ing of a Bill or a res­o­lu­tion by Par­lia­ment shall be in ac­cor­dance with the Con­sti­tu­tion and the Stand­ing Or­ders of Par­lia­ment.” This safe­guard has been sub­verted in this process. In­stead, the At­tor­ney Gen­eral comes out to de­fend an act by the Speaker, which the At­tor­ney Gen­eral ap­pears to have sanc­tioned ei­ther il­le­gally (that is de­ceit­fully) or through neg­li­gence.

The lat­ter states “it is ap­par­ent that at the 3rd Read­ing, the Original Bill passed at the Sec­ond Read­ing has been to­tally dis­re­garded with a com­pletely new set of pro­vi­sions ‘smug­gled in’ at the Com­mit­tee Stage. There­fore, the Bill passed at the 3rd Read­ing is not the Bill passed at the Sec­ond Read­ing as recorded in page 398 of the Par­lia­men­tary pro­ceed­ings.” He fur­ther ar­gues that this wrong­ful act amounts to to­tal dis­re­gard of the law­mak­ing process and nega­tion of the Rule of Law es­tab­lished by the Con­sti­tu­tion and the Par­lia­men­tary Stand­ing Or­ders.

Even a cur­sory read­ing of the rel­e­vant stand­ing or­ders (50-53) would in­di­cate that the Speaker is in vi­o­la­tion of the Con­sti­tu­tion. In par­tic­u­lar, Stand­ing Or­der 52 and 53 ex­pressly state that the Bill has to be sub­mit­ted to a Com­mit­tee ei­ther nom­i­nated by the Speaker or else is a Stand­ing Com­mit­tee.

In­ter­est­ingly, San­jay Ra­jarat­nam, ap­pear­ing on be­half of the At­tor­ney Gen­eral, has claimed, cit­ing Article 80 (Once the Speaker cer­ti­fies a bill, the Supreme Court has no ju­ris­dic­tion) and Article 124 (which speaks to lim­i­ta­tions of the Supreme Court with re­spect to the va­lid­ity of bills and leg­isla­tive process), that the Speaker was not out of or­der.

How­ever, it is strange that the At­tor­ney Gen­eral ap­pears to be ig­no­rant of a case law (land­mark case, ‘Land Re­form Com­mis­sion Vs Grand Cen­tral of 1981), as de­tailed in the rel­e­vant Sri Lanka Law Re­port p148), which speaks to the role of the At­tor­ney Gen­eral.

“Un­like in Bri­tain where the Queen is Sovereign, in the Repub­lic of Sri Lanka, sovereignty is in the peo­ple in terms of Article 3 of the Con­sti­tu­tion, and there­fore the At­tor­ney Gen­eral rep­re­sents and acts for the peo­ple in the Repub­lic of Sri Lanka.”

Article 77 de­tails the At­tor­ney Gen­eral’s re­spon­si­bil­i­ties with re­gard to pub­lished bills. Note, Article 77(2) : “If the At­tor­ney-gen­eral is of the opin­ion that a Bill con­tra­venes any of the re­quire­ments of para­graphs (1) and (2) of Article 82 or that any pro­vi­sion in a Bill can­not be validly passed ex­cept by the spe­cial ma­jor­ity pre­scribed by the Con­sti­tu­tion, he shall com­mu­ni­cate such opin­ion to the Pres­i­dent: Pro­vided that in the case of an amend­ment pro­posed to a Bill in Par­lia­ment, the At­tor­ney-gen­eral shall com­mu­ni­cate his opin­ion to the Speaker at In 1988, not too long be­fore the United National Party was to lose the five-sixths Par­lia­men­tary ma­jor­ity it en­joyed (and there­fore more than the two-thirds re­quired to amend the con­sti­tu­tion, bar­ring of course those which re­quired in ad­di­tion a ref­er­en­dum) cour­tesy the anti-demo­cratic ref­er­en­dum of 1982 which too was marred by mas­sive fraud, J.R. Jayewar­dene in­dulged in a clas­sic piece of con­sti­tu­tional skull­dug­gery: the 14th Amend­ment

Even a cur­sory read­ing of the rel­e­vant stand­ing or­ders (50-53) would in­di­cate that the Speaker is in vi­o­la­tion of the Con­sti­tu­tion

The Court has not ruled and let’s not be pre­sump­tu­ous about rul­ing. How­ever, if the At­tor­ney Gen­eral’s point stands, what it means is that a dan­ger­ous prece­dent has been cre­ated whereby ju­di­cial re­view of pro­posed leg­is­la­tion is dis­al­lowed ab ini­tio.

What this means is that we can have a sit­u­a­tion where any bill that sub­verts the sovereignty of the peo­ple can be passed by a Par­lia­ment made qui­es­cent by party loy­alty and other con­sti­tu­tional de­vices such as the like­li­hood of ex­pul­sion with the ob­vi­ously dire con­se­quences, sim­ply be­cause the At­tor­ney Gen­eral can look the other way and the Court could be si­lenced by the prin­ci­ple of prece­dent.

We could have, for ex­am­ple, in­def­i­nite post­pone­ment of elec­tions, we can have Par­lia­ment de­cid­ing to ex­tend its life, and we can have Par­lia­ment de­cid­ing to elect the Pres­i­dent.

What then of sovereignty, one must ask. The only op­tion is to de­mand em­pow­er­ing the ju­di­ciary with ju­di­cial re­view of any leg­is­la­tion that is in­con­sis­tent with the rule of law and the Con­sti­tu­tion.

Malinda Senevi­ratne is a free­lance writer. n that in­stance, es­tab­lished pro­ce­dure such as pub­lish­ing in the gazette the draft amend­ment and plac­ing it on the or­der pa­per were sub­verted. The draft of the Par­lia­men­tary Se­lect Com­mit­tee was dumped in the prover­bial waste pa­per bas­ket. JR sent a hand-writ­ten note to the then Chief Jus­tice along with the ver­sion that he, JR, had drafted, re­quest­ing a com­ment on con­sti­tu­tion­al­ity. The CJ, for his part, sent it back with an ‘ok’ when in fact he should have tossed it out or, if he wanted to be po­lite, re­quested JR to follow the pro­ce­dure.

The then Speaker, in his wis­dom, picked JR’S amend­ment and cer­ti­fied it, ig­nor­ing the Se­lect Com­mit­tee ap­proved 14th Amend­ment that was re­ferred to the com­mit­tee of the whole par­lia­ment that passed it. And that’s how we got the 14th Amend­ment which among other things al­lowed party lead­ers to bring through the National List those can­di­dates re­jected at the polls.

Al­most thirty years later, we have the cur­rent Speaker do­ing pretty much the same thing, this time with the pas­sage of a Bill ti­tled Pro­vin­cial Coun­cil Elec­tions Amend­ment Bill after the 20th Amend­ment to the Con­sti­tu­tion that was brought in to post­pone the pro­vin­cial coun­cil elec­tions was re­jected by the Supreme Court.

The Pro­vin­cial Coun­cil Elec­tions Amend­ment Bill pub­lished in the gazette did not con­tain vi­ola­tive pro­vi­sions and hence it was not chal­lenged by the con­cerned cit­i­zens. But at the com­mit­tee stage the Bill pub­lished in the Gazette was com­pletely aban­doned and a whole lot of amend­ments were brought in to the pro­vin­cial coun­cil elec­tion law at the com­mit­tee stage ef­fec­tively post­pon­ing the Blog: www.ma­lin­da­words.blogspot. com

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