Growing concerns over 20A clauses
The Retired Judges Association and the Bar Association have come out with some negative observations on the 20th Amendment now before the Supreme Court to test the constitutionality of the wide-ranging provisions contained therein.
They have both questioned the President’s sole power to appoint senior judges, including the Chief Justice, but while the retired judges prefer civil society members vetting the process, the Bar has an interesting rider to their concerns. They say if the President gets the approval (or rubber stamping) of what is seemingly a puppet Parliamentary Council, then that’s fine by them.
The prerogative of selecting ‘The Chief ’ and senior judges has long been with the Head of Government even during a prime ministerial system of yesteryear though there were underlining conventions involved.
The holders of those exalted positions also had something to do with how their office was respected -- or not, by all and sundry. The names of Justices Victor Tennakoon, Neville Samarakoon and Raja Wanasundera stand out among a galaxy of recent upright judges immortalised at Hulftsdorp Hill and in the lore of the law. They were great examples of upright judges, like the entire bench that adjudicated in the 2018 Constitutional crisis, while there were others in the past whose names are best unmentioned who disgraced the Judiciary and themselves in the process by kowtowing before the political apparatus. Constitutional law evolved in recent decades after the introduction of the Executive Presidential system. It adjusted this imbalance in the appointment of senior judges to make competence and merit the gold standard and independence their security of tenure. It might not have worked that way all the time yet it was not for the want of trying to better perfect the system. This process is again being thrown out of the window.
In the United States, right at this moment, a huge debate is raging over a President’s right to appoint a Supreme Court Justice just before an election. The US President argues he has a “mandate” to do so but the uproar continues nevertheless.
The US Supreme Court is different in some ways to the same court in Sri Lanka in that it doesn’t hear all the appeals, is ideologically constituted and sits largely on inter-state disputes and policy issues. It can make law just like Congress. Such a Presidential nominee is subjected to a grilling by a Senate Judicial Committee and then sent to the whole Senate before confirmation. None of that will exist with the 20A.
The state auditors have also made some scathing remarks about 20A neutralising the financial scrutiny of more than 100 StateOwned Enterprises (SOE) while media organisations across the board have raised issue on what appears a move, intended or not, to muzzle the Press at the crucial time of an election. The 20th Amendment has introduced what seems to be ham-handed attempt to control Press freedom and freedom of expression also guaranteed by the Constitution by constitutionally tying it to whatever guidelines an Election Commission appointed by a partisan President may gazette.
Media groups have denounced this infringement on the Constitutional guarantees of a free and unfettered Press. They have, however, recognised the fact that the state media in general and the private broadcast and television media are different because they are funded by the people and the frequencies or airwaves they use also belong to the people. Still, what guidelines are given to them and who implements them become of paramount importance. To tie up the independent print media with a set of unknown guidelines and to be subjected to control by some Commission appointed by a partisan President is the very antithesis of media freedom and strikes directly at the Franchise and the right of voters to make informed choices at an election.