SC sits as Constitutional Court as 20A goes for scrutiny
• Petitioners say proposed amendment contains major violations of Constitution and devalue Parliament •Sectoral Oversight Committees abolished and Consultative Committees under ministers set up
As the first legislative phase of the 20th Amendment to the Constitution was through in Parliament last Tuesday, paving the way for stakeholders to challenge its provisions in the Supreme Court, indications of other accompanying measures have become evident.
In a move that raised eyebrows, Chief Government Whip and Minister Johnston Fernando informed government parliamentarians that their presence in the House was compulsory on Thursday. The rumour mill took over. In telephone calls, opposition parliamentarians kept telling one another that the Government was planning some unexpected but serious move. What was it? Most government MPs seemed unruffled though they too were unaware.
As hours went by on Thursday, it became clear. Parliament adopted a resolution to do away with the Sectoral Oversight Committees (SOCs) set up by the previous Yahapalana government. The Government did not want the move to come in a depleted house and be defeated. It was the then House Leader Lakshman Kiriella who moved that "That this Parliament resolves that during the operation of the Sectoral Oversight Committees, Standing Order Nos. 104 to 120 of the Parliament (both inclusive) shall be suspended." It was on December 19, 2015.
Ranil’s view on SOCs
Standing Order No 104 said, “The Committee of Selection shall at the commencement of every Session of Parliament and from time to time as necessary may arise appoint a number of Consultative Committees corresponding to the number of Ministers of the Cabinet.” In terms of 120
“A Standing Committee may continue its deliberations although Parliament be adjourned. Provided, however, that at the conclusion of a session a Standing Committee has not completed its deliberations and presented its report to Parliament, the proceedings of that Committee shall stand referred to the Standing Committee to which the Bill/Proposed Statute may be referred in the next session.”
The Sectoral Oversight Committees was the brainchild of former Prime Minister Ranil Wickremesinghe. Addressing a workshop for parliamentarians on February 16, 2016, he declared that “the main objective of establishing Sectoral Oversight Committees (SOC) is to empower parliament by transforming the entire legislature into a government.” The then Premier explained that the cabinet of ministers as well as other members of parliament would be given the power to take decisions on the problems faced by the country.
The three-day workshop from February 15 to 17, 2016 was held under the patronage of the then Speaker Karu Jayasuriya with the participation of a delegation of British parliamentarians led by Labour Party MP Fiona McTaggart, according to the Parliament website. Delivering the keynote address on the opening day of the workshop, Wickremesinghe said these committees should have the power to summon chief ministers and provincial ministers before them. He also pointed out the need of opening them for the general public, a report said.
At least on paper, one of the salient features of the SOC was the requirement that all draft legislation before Parliament should first be reviewed by the SOC. It was only thereafter that it was to be presented to Parliament. However, in practice, it did not take place. Only one or two draft bills were examined that way. That included the Counter Terrorism Bill which did not see the light of day. Another drawback was the placing the chairmanship position of such committees in the hands of parliamentarians. For example, heading the SOC on Finance was then TNA parliamentarian Abraham Sumanthiran or the one on education was UNP’s Ashu Marasinghe. The SOC sittings were also plagued by constant absenteeism. Samagi Jana Balawegaya (SJB) leader Sajith Premadasa raised issue over the SOC in Parliament on Friday, saying it was a “violation of the democratic process” to do away with them.
House Leader and Minister Dinesh Gunawardena told the Sunday Times, “This is only a transitionary measure. We will set up Consultative Committees for the 28 ministries, each chaired by the Minister in charge.” He said these committees had been in place for years. The Speaker has already picked the government and opposition MPs who should serve. “We have had many requests from MPs for these Consultative Committees which are more productive and useful,” he said.
Concerns in Government ranks
Ahead of 20A in the House, the constitutional amendment figured at the government parliamentary group meeting on Monday evening. It was chaired by President Gotabaya Rajapaksa. Ministers Wimal Weerawansa and Vasudeva Nanayakkara, who were critics of 20A during cabinet meetings, explained their positions. The two, together with Minister Udaya Gammanpila, earlier wanted 20A to retain 19A provisions which debarred dual citizens from contesting elections. Weerawansa’s “C” news website also carried a video comment he had given to television outlets. There, he said, “The Prime Minister has promised that the recommendations made by the committee to look into the 20th Amendment will be incorporated at the committee stage." The remarks reflected his and his National Freedom Front’s disappointment.
At the meeting, two others -- Premnath C. Dolawatte and Gevindu Kumaratunga -- were to note that there were some acceptable features in 19A and there were new provisions in 20A -- a remark that drew the attention of President Rajapaksa.
He said there were no new features in 20A. That meant that what was being introduced were provisions in 18A which had later been incorporated in 19A. The President said that in sections of the media, there had been reports that he was bulldozing 20A. That is wrong, I will, however, take the full responsibility for the amendments, he asserted. Referring to Minister Vasudeva Nanayakkara, who had observed that the change of age of eligibility to contest the presidency has been lowered from the present 35 years to 30 years. He had opined that it was to facilitate the candidature of Minister Namal Rajapaksa. President Rajapaksa dismissed the argument by saying that the Sports Minister was now over 35 years and hence no such need arose. On a humorous note, he declared that the change would enable 99.9 percent of those who are ambitious to contest a presidential election. The change, he noted, will not only help but encourage them.
As reported in these columns last week, the Cabinet of Ministers decided not to make any amendments to 20A and to pass it in its current form. Of course, some resultant procedural changes are to be moved at the committee stage of the 20A debate in Parliament. This will mean Premier Mahinda Rajapaksa-appointed Committee’s report would not be accommodated. However, there are two areas where amendments are still possible during the committee stage. This is particularly if the Supreme Court does make any recommendation to that effect. The other is if the Government decides at the eleventh hour on any minor changes though it is highly unlikely. The latter is particularly in the light of pressure from different quarters.
President Gotabaya Rajapaksa said if there were MPs who felt that there should be amendments, they should forward them through the Prime Minister. The remarks were more to draw out views of the MPs. This is particularly in the light of the Government decision not to move amendments per se in respect of the provisions in 20A. Only one such possibility was mooted by President Rajapaksa. That is to introduce a clause denouncing separation when MPs take their oaths in Parliament. However, he admitted, that though not pointedly stated, such provisions do exist in the constitution even now meaning that the change was not compulsory.
Minister Gammanpila referred to the power of the President to dissolve Parliament. According to 19A, the President could dissolve Parliament only after it serves at least four and half years of its five-year term. The 20th Amendment seeks to reduce the period to one year. The Minister said the G.L. Peiris Committee had recommended that the period be increased to two and half years. This was also one of the recommendations on which the Peiris report expressed two views, one in favour of Gammanpila’s suggestion and the other to change it to one year. Similarly, even in respect of the existing provision debarring dual citizens from contesting elections, the report gave two viewpoints.
President Rajapaksa explained that during the Sirisena-Wickremesinghe Government, there were serious frictions over governance. More often than not, the President was in a frustrated position because of the constraints in his office and disagreements with his Premier. This showed there were no checks and balances between the Presidency and Parliament. The 20th Amendment would make it more coherent. He noted that many other matters would be considered when the draft new constitution was formulated.
Other than official business, the government parliamentary group also unanimously adopted a resolution, which is easily a damning indictment on former Minister and now Samagi Jana Balavegaya (SJB), National List MP Harin Fernando. This was over his remarks against Cardinal Malcolm Ranjith, the Archbishop of Colombo. This was reported widely in the media. The resolution was moved by Arundika Fernando. The Colombo Archdiocese also said in a statement, “We wish to therefore condemn this puerile attempt of Mr. Fernando to find excuses for his own grave misdeed and cast unjustified and unfounded aspersions on His Eminence.”
President Rajapaksa, who set in motion the constitutional amendment process, embarked on another programme this week. It was Meet the President or Janapathi Hamuwa , a programme where he visits undeveloped villages to meet people and address their shortcomings. The first in this series was on Friday when he was in a cluster of villages near Haldumulla (close to Haputale). The recently appointed District Coordinating Committees are being used as the main base for this project and the Badulla district Coordinating Committee chairman and Minister Nimal Siripala de Silva was present. Most complaints the President heard from villagers were about poor road facilities and the absence of electricity or water in an area rich with pepper cultivation. He declared he would raise Rs 115 million. He urged that road, power and water projects get under way immediately. He warned that contractors for the projects should be chosen carefully since there were ones who had defaulted earlier. There was no need to wait for circulars and his directions should be taken as one, he pointed out.
SJB protests
In what are signs that the main opposition in Parliament – the Samagi Jana Balavegaya (SJB) – is asserting itself, it staged protests in the well of the House against 20A last Tuesday. SJB MPs held posters, one liners, criticising the amendment. At the party leaders’ meeting on Friday, the SJB urged Speaker Mahinda Yapa Abeywardena to have a debate on the Millennium Challenge Compact (MCC) from the United States government. Even earlier, SJB leader Sajith Premadasa had made a request but it did not materialise.
It was pointed out at the meeting that the matter had been raised in Parliament once before and the Government had made a lengthy statement. In a bid to accommodate Premadasa’s request, the discussion, therefore, centred on re-wording the SJB request. It was decided that there would be a debate on international agreements. Whilst the SJB will get to discuss the MCC, the government members also expect to speak on the trade agreement which the previous government entered into with Singapore. The debate will take place on Thursday, October 15.
The party leaders also discussed with Speaker Abeywardena an issue over which he had ruled earlier. It was over a statement which All Ceylon Tamil Congress leader Gajendra Kumar Ponnambalam wanted to raise in Parliament over a case. It transpired at the discussion that the Speaker’s position was correct. He had in possession of documents which showed the court case was still proceeding. At this point, TNA’s Abraham Sumanthiran pointed out that the matter had not yet been adjudicated upon by the courts. However, that was of no avail. There was an exchange of views over claims on the grounds that Parliament was misled.
There was also the issue of political party leaders making statements in Parliament. Speaker Abeywardena pointed out that in the previous Parliament there were only eight political parties represented. Now, there were 15 different political parties. Hence, some measures had be to in place to ensure more time was not taken. He said that for a week, eight such statements in Parliament would be allowed. Of course, he insisted, that the statements should be on mat
ters of national or public interest.
Then came the issue of former MPs of the Yahapalana government continuing to occupy the apartments in Madiwela. As a result, newly elected MPs were finding it difficult to obtain accommodation. Speaker Abeywardena announced that he would officially name the over-staying persons in a statement he would make soon. In the meantime, he urged his officials to find temporary accommodation for the MPs.
The seven-day time limit for petitioning the Supreme Court over 20A will expire on September 28. From this date, the time limit for the Supreme Court to take up the petitions which is 21 days will end on October 20.
Accordingly, the government expects to pass the in October.
So far, 18 parties have challenged 20A in the Supreme Court. They are:
1. Samagi Jana Balawegaya (SJB)- Ranjith Madduma Bandara, 2. R. Sampanthan (Tamil National Alliance), 3. Dr Pakiyasothy Saravanamuttu, 4. Centre for Policy Alternatives (CPA), 5. Nagananda Kodituwakku- Sri Lanka Vinivida Peramuna, 6. SJB Youth Wing Samagi Tharuna Balawegaya (Lihini Fernando & Rasika Jayakody), 7. Transparency International (TISL), 8. Keerthi Tennakoon, 9. S.S.C. Ilankovan- Human Rights activist, 10. Abdul Sanoon- Human Rights activist, 11. Anil Kariyawasam – citizen, 12. Indika GallageAttorney-at-Law, 13. Young Lawyers Association. 14. UNP group- Dr. Ajantha Perera, Oshala Herath, Jeran Jegadeesan and Dr. Chandima Wijegunawardana. 15. Ceylon Mercantile, Industrial and General Workers Union General Secretary Sylvester Jayakody, 16. Ceylon Teachers’ Union (CTU), 17. T.D.B. Wijegunawardena – citizen, 18. P.K.R. Perera - citizen.
The petitions will be heard by a five-judge bench of the Supreme Court (SC) from Tuesday. It comprises Chief Justice Jayantha Jayasuriya, Justices Buwenaka Aluvihare, Sisira de Abrew, Priyantha Jayawardena and Vijith Malalgoda. Some of the petitioners released the full text of their petitions whilst a few, for fear of their positions being known early, kept it a secret.
The main opposition Samagi Jana Balavegaya (SJB) on Tuesday filed an 18-page petition before the SC. Here are the significant edited highlights from the issues it has raised. Most of its pleas are based on the “public trust doctrine” and “inconsistencies with the concept of checks and balances.”
The repeal of the present Article 33 (1) of the Constitution (through Clause 3 of 20A) is inter alia inconsistent with the public trust doctrine, prejudicially affects the sovereignty of the People. It cannot be enacted into law except if approved by the People at a Referendum in addition to two thirds vote. The repeal of the first proviso to Article 35 of the Constitution (through clause 5 of 20A) would mean that the official acts or omissions of the President would no longer be subject to review before the Supreme Court. This is inconsistent (with Article 17 of the Constitution). The fundamental right of the people to vindicate their fundamental rights before the Supreme Court. It is inconsistent with the concept of equality before the law (enshrined in Article
12 of the Constitution).
A Parliamentary Council to replace the Constitutional Council, where the views of members are non-binding, would permit the President to make appointments of Members/Chairpersons to specified independent commissions, as well as the appointment of Chief Justice and Judges of the Supreme Court, the President of the Court of Appeal and Judges of the Court of Appeal, and other specified Constitutional functionaries, acting purely in his own discretion.
A new Article 122 with regard to the enactment of “urgent bills” denies People’s right to invoke the pre-enactment judicial review jurisdiction of the Supreme Court. Note: The Cabinet of Ministers has decided to drop this provision. It will be deleted during the Committee stage.
The provisions of Clause 40 (to replace 154 (1) of the Constitution) will prevent the Auditor General from auditing the Office of the Secretary to the President, the Office of the Secretary to the Prime Minister and Companies in which the Government holds more than 50 % or more shares.
Clause 54 (to repeal 156A of the Constitution) would leave room for greater corruption and abuse of public funds by the Commission to Investigate Bribery or Corruption (CIABOC). It prejudicially affects the sovereignty of the people.
The SJB petition claims that the 20A (Clause 14) permits the President to dissolve Parliament immediately after the conclusion of the General Election. However, the clause under reference states “The President may, from time to time, by Proclamation summon, prorogue and dissolve Parliament.” It is subject to expiration of one year from the date of a General Election is held.
TNA leader Rajavarothiam Sampanthan has challenged 20A in a nine-page petition before the SC on behalf of the Ilankai Thamil Arasu Katchi (ITAK), the key partner in the TNA. Here are edited highlights among issues he has raised before the SC:
The setting up of a Parliamentary Council to replace the Constitutional Council negatively impacts on the sovereignty of the people. It confers immunity on the President and removes the ability of the People to hold such person to account. The removal of this check will in effect remove the power of the People to hold the office of President accountable.
The Parliamentary Council (replacing the Constitutional 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.
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 the Opposition) out of the five Members of the Parliamentary Council for any reasons. This will in effect provide the President control of the Parliamentary Council with no safeguards to prevent
interference.
The proposed Parliamentary Council will remove safeguards and allow the individual holding the office of the President to unfettered discretion to make appointments, to these positions, thus leading to weakening of independent institutions and eroding the rule of law in Sri Lanka. The Sri Lankan 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 of power.
A new Chapter VII would among other matters, (a) Remove the security tenure of the Prime Minister to one where he or she serves at the pleasure of the President. (b) Removes 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 in the performance of their duties. (c) Removes the constitutional requirement that the President has to act on the advice of the Prime Minister when removing a Minister, a non-Cabinet Minister, or a deputy Minister.
The President would have the power to dissolve Parliament at any time after the lapse of one year from the date of the last General Election. The impact of the clauses (7 and 14) is that the President will have full control over Parliament and be able to determine when Parliament should be dissolved. It would weaken the Parliament’s role of being an effective check on the President, paving the way to a situation where it will be at the whim and fancy of the Executive.
The addition of a paragraph (to Article 85 of the constitution) by the insertion of the following: (The President may in his discretion submit to the People by Referendum any Bill (not connected with the constitution) which has been rejected by Parliament. This will have serious implications for the sovereignty of the People as it subverts the legislative power of Parliament.
The 20A (clause 6) provides the President absolute authority to appoint at his discretion the Members of the Election Commission. This 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 (from the present constitution) through clause 22 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 Janatha Vimukthi Peramuna (JVP) -led National People’s Power, an opposition group in Parliament, will not, however, go to the Supreme Court, its leader Anura Kumara Dissanayake told the Sunday Times. “We will vote in Parliament against 20A,” he said, adding that the NPP felt there was no need to go before the SC. “The late J.R. Jayewardene introduced a constitution in 1978 heeding what the western countries wanted. They were playing on the democracy and human rights card then. This government is now following suit, this time to bury the economic crisis that is inevitable,” he said. “Going before the Supreme Court is not going to bring us anything good or bad. It will have to only determine whether 20A is consistent or not with the Constitution. The Government has the two-thirds vote and will push ahead,” he added.
The Sri Lanka Freedom Party (SLFP) with former President Maithripala Sirisena in the chair decided to appoint a committee to study the 20A. Their report is to be handed over to Premier Rajapaksa. Despite reservations over some provisions, the SLFP is the vote in favour of the amendments.
Since the gazetting of 20A, these amendments have sparked a political debate. On Tuesday, the issues enter the legal sphere with the Supreme Court examining the representations made to it. As is now clear, some partners of the Sri Lanka Nidahas Podujana Sandanaya (SLPNS) have expressed reservations over some provisions. Yet, they are reclined to the fate that the amendments will be passed. Tragic enough, the absence of a vibrant opposition has denied the nation an educated debate in the national interest.