20A: Most petitioners say the President will be like a king above the law
For the first time in the country’s legal history, the Supreme Court this week heard 37 petitions challenging a bill - the 20th Amendment to the Constitution, presented to Parliament on September 22.
Along with more than three dozen petitions, another twenty intervenient petitions were taken up this week before five judge bench of the Supreme Courts. It was headed by Chief Justice Jayantha Jayasuriya.
The Court proceedings were held at the Ceremonial Court to ensure that COVID-19 health regulations were properly adhered to in the spacious octagonal building complex.
The petitioners were given adequate time varying from thirty minutes to forty-five minutes to present their arguments considering the time constraints of the Court to announce its verdict by October 13 to the Speaker of Parliament.
On the proposed amendments to the bill submitted by the Attorney General to the Courts on Wednesday, a group of counsel representing petitioners urged the Courts to disregard them indicating that the main reason why they came before the Courts is to challenge the gazetted bill alone.
They also pointed out there was no guarantee these proposed amendments would be included during the committee stage of the debate in Parliament. They said there was a common practice of smuggling in clauses without being subjected to judicial review.
Friday's proceedings
On Friday, the Attorney General told the Court he had been informed by the Justice Minister that the proposed amendments to 20A which would be included during the second reading of the bill at the committee stage of the debate in Parliament.
Asking a rhetorical question in the Court whether the bill should be jettisoned as demanded by counsel claiming that some of the provisions of the bill directly violated the core foundations of the Constitution, the AG noted that the SC could only determine the requirement to go for a referendum or not in terms of Article 83 of the Constitution.
“Some counsel called for a total rejection of the bill. My submission is that it would be violating the Constitution on the basis of Article 120,” AG Dappula De Livera said.
Justice Priyantha Jayawardena intervened to note there were three categories of provisions in the bill in which some of those provisions can be found in the 1978 Constitution, 17th and 18th Amendments which were removed due to 19A and a few fresh Constitutional changes.
The Attorney General acknowledged Justice Jayawardene’s categorisation saying that those same provisions which were subjected to the scrutinisation of the SC in the past were merely being restored through this amendment, therefore there was no need to go for a referendum. “They have passed the test,” he said. Rejecting specific submissions made by petitioners arguing that this bill would pave the way for authoritarianism and majoritarian rule at the expense of the well being of minority communities, the country’s Attorney General said those are hypothetical considerations and conjunctions. Instead, the AG said he believed this bill would enhance the sovereignty of the people.
The AG explained that the sovereignty of the people should be enjoyed by three organs - namely legislative power by Parliament, executive powers by President and judicial powers through Parliament to the Courts.
"The Constitution operates on a balance of these powers with strong checks and balances," the AG said.
He said there could not be a transfer of power or erosion of power from one institution to another as per Article 4 of the Constitution since power bases were peculiar to each institution. The Court, the AG argued, was called upon to decide whether there had been a violation with regard to power balances of these three organisations.
“Constitutions are considered as a living organism. They are subjected to changes and modifications to serve the times and conditions of the people. They cater to the needs of the society. Flexibility is a hallmark in a Constitutional document,” the AG said, reiterating that the Sri Lankan Constitution was based on the peoples’ sovereignty, and amendments could be brought in to serve the people and enhance their sovereignty.
Sanjeeva Jayawardena PC, appearing
on behalf of MBC Networks Pvt Ltd, a leading electronic broadcasting institution, raised the issue of certain clauses which he argued would be detrimental to media freedom, particularly during an election period.
Citing a provision in the proposed bill where it indicated that during elections media, particularly electronic broadcasting institutions, should abide by the directives and regulations set by the Government along with state media, posed a severe threat to the freedom of thought and access to information which were guaranteed by the Constitution, he said.
The lawyer said media freedom which was further strengthened after the 19th Amendment, should not become the price for introducing 20A to the Constitution.
“Restricting the content that is aired on electronic media during elections has a direct impact on a person’s right to freedom of thought and affects free speech as a whole,” Mr Jayawardena said.
He argued that amending Article 10 (1) which guaranteed freedom of thought, required a referendum. “Nothing more, nothing less,” he said. Lakshan Dias, counsel appearing for one of the 39 petitioners told the SC that stripping away the powers enjoyed by the Auditor General's Office and the National Audit Commission would have serious implications on the country’s economic situation, in addition to there being no transparency on the spending of taxpayers’ money.
He argued, the proposed bill excluded important state offices like the Presidential Secretariat and the Prime Minister office under which hundreds of departments function, along with public companies registered under the Public Companies Act from the audit scrutinisation process by the National Audit Commision.
The SC was told there were some 170 public registered companies with the estimated assets of Rs three trillion which were currently subjected to the audit process by the Auditor General in addition to further scrutinisation by the parliamentary Committee on Public Enterprises (COPE) and the Committee on Public Accounts (COPA).
Under the proposed 20A, he argued that the Auditor General would become merely another public officer appointed by the President without powers to carry out any independent audit process in any other state institutions.
These proposals in the bill, he argued, would have serious implications on the country’s economic situation and were detrimental to ensure a robust audit process for which the State had agreed to implement best international examples by becoming signatories to international conventions and bilateral agreements.
“As a result, foreign institutions such as the Asian Development Bank or the World Bank will not be willing to grant us loans forcing us to obtain loans at a higher rate from China or in the commercial market,” the lawyer said.
At least twenty intervening petitioners filed petitions as counter arguments to the petitioners. Education Minister G. L. Peiris was also among the petitioners, whose application was supported by Gamini Marapana PC.
Mr Marapana argued that the 18th Amendment which was amended by the 19th Amendment on the basis that it violated franchise did not go through referendum.
Similarly, he said all the 19th Amendment provisions which were to be amended by 20A, need not be presented to the people at a referendum.
He an earlier SC bench determined that the 19th Amendment needed a referendum along with a Parliamentary majority but the amendments were passed without referendum by amending provisions at the Committee stage.
“It is absurd and illogical to say a referendum was needed to remove the amendment that was brought to the legal books with a special two-third majority alone,” Mr Marapana said, urging the Court to apply the same logic.
Two among them, filed by civilians, were rejected by the bench since petitioners could not deliver the petitions to the Speaker as required under Article 121 of the Constitution. The Chief Justice made an order saying the bench was not in a position to hear those petitions.
Wednesday's proceedings
On Wednesday, Lakshmanan Jayakumar representing the Sri Lanka Press Institute (SLPI) said he was deeply concerned about the proposed bill's clause 20 which dealt with government intervention in private media during elections.
The clause, which sought to amend the Article 104 (b) of the Constitution was posing a direct threat to the franchise of the people, in addition to having an impact on freedom of thought and freedom to access information. These were guaranteed in the Constitution.
“The role played by public and private media cannot be questioned,” he said.
Drawing a comparison between private media and state media, which used to function as a mouthpiece of the government of the day, he argued that private media, particularly during elections, was essential for the people to make an informed choice.
“Informed discussions can only take place when a vibrant and diverse private media is functioning in the country. The proposed bill seeks to allow government intervention that would force private media to obey the directives of the government,” Counsel Jayakumar said.
Niran Anketall, representing an Attorney-at-Law, raised concerns on the clauses in the bill that dealt with presidential immunity, particularly filing fundamental rights petitions where presidential acts while in office can be chal
lenged in the SC through FR petitions in terms of Article 106.
The Court was told that the AG had submitted that all FR cases currently pending at the SC would be continued and not terminated.
Faiszer Musthapha PC, representing the Bar Association of Sri Lanka (BASL) argued that in terms of Article 3, the sovereign power was inalienable and there was no rationale behind keeping the President away from judicial scrutinisation.
Mr Musthapha informed the Court that BASL had commissioned a committee to study all the clauses of the bill and submit a comprehensive report.
Regarding the Parliamentary Council, he said the BASL welcomed it but stressed the need to have checks and balances of power rather than being a formal body. The bill said the President could call for observations from the Council ahead of making key appointments.
He said the BASL opposed the dismantling of the current Constitutional Council where there were two members elected from civil society.
Gehan Gunatilleke, Attorney-at-Law representing two petitions filed by Rasika Jayakody and Attorney-at-law Lihini Fernando from the Samagi Tharuna Balawegaya, argued that enabling dual-citizenship holders to take oaths for senior posts in the Government renounced the fidelity to the sovereign people of the country.
Drawing an example from Australian Constitution which bans any dual citizenship holders taking oaths for top legislative and Cabinet posts, Mr Gunatilleke argued that allowing those who took oaths of allegiance to a foreign nation would enable them to access sensitive information such as national security matters in their capacity as Cabinet Ministers.
Representing the Young Lawyers Association, Attorney Nuwan Bopage argued that the proposed bill intended to remove the checks and balances put in place in the Constitution and would enable the President to exercise those powers without any checks.
Rushdhie Habeeb, appearing on behalf of the Lanka Professionals Association, informed the SC said urgent bills which allowed a 24-hour window to file objections to any bills prevented the public from having a say in legislative matters including seeking a court directive.
He also noted as per the Constitution, the enacted laws could not be challenged in Courts, and there had been no post-enactment review in place as of now.
Tuesday's proceedings
On Tuesday, the counsel for petitioners challenging the bill argued that the 20A sought to alter the basic structure and framework of the Constitution, by taking away the power of one organ of government and transferring it to another. This amounted to the trampling of the sovereignty of the people.
Samagi Jana Balawegaya (SJB) General Secretary Ranjith Maddumabandara represented by Counsel Suren Fernando dealt with several of the clauses that were to be introduced by 20A, including the one granting immunity to the President. He said this took away the rights of the citizens to initiate action against the President and placed one person above the law.
He warned that said if 20A was enacted, citizen participation in the lawmaking process would be further reduced with the reintroduction of urgent bills, as well as the reduction from 14 to seven days the time duration between a bill being published in the Gazette and presented to Parliament.
“We have a limited period to challenge unconstitutional bills at present, which is 21 days, but this will be reduced to 14 once the time period for a bill to be published in the Gazette is reduced to seven from 14 days. As there is no room for post enactment legislative review, the people can only speak during this short period or they have to hold their silence forever,” Mr Fernando said.
He said even more obnoxious was the amendment to reintroduce urgent bills in which case the SC would have only 24 hours to rule on the constitutionality of a bill, and if the President decreed up to 72 hours.
Mr Fernando said the enactment of these clauses would eat away the judicial power of the people and would have a prejudicial impact on their sovereignty. He said the Constitutional Council set up by the 19th Amendment, made the process for making appointments a more consultative one and leaving the power in the hands of one person left potential for abuse and politisation.
He said the replacement for the CC which had been named the Parliamentary Council under 20A, was only tasked with making non-binding observations while the President could proceed to do as he wished.
"Such a Council does not enhance the quality of democracy and is a drain on public finances," he said.
Mr Fernando also said removing the Office of the President, Prime Minister and companies in which the government had more than 50 per cent shares from the oversight of the Auditor General left grave room for corruption. He said such exclusions would be aggravated by the immunity given to the Executive.
The lawyer said the Executive and the Legislature had been given two separate mandates by the people and questioned if one mandate could be used to crush the other mandate.
President’s Counsel MP M.A. Sumanthiran who appeared for the Centre for Policy Alternatives (CPA) and its Executive Director Paikiasothy Saravanamuttu said the entirety of the bill was unconstitutional and was in violation of the fundamental principles which made up the bedrock of the Constitution.
He said the SC in its verdict on the 19th Amendment held that the transfer of power attributed from one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution. Mr Sumanthiran said 20A sought to transfer various powers from organ to another.
He said when the bill was taken as a whole, it was a clear attempt to shift power from one organ of government to another. He argued that the Constitution's evolutionary process must be progressive and not regressive.
Mr Sumanthiran also made submissions in relation to the clause to allow dual citizens to be elected to Parliament. He said when the 1978 Construction was enacted, there was no provision for Sri Lankans to hold dual nationality, but since then it had become possible for Lankans who had sworn allegiance to other countries to continue to hold citizenship. He said this would allow people with divided loyalties to sit in positions where crucial decisions were made for the country.
He added that the 20A provisions allow the President to refer a bill rejected by Parliament to the people at a referendum. This would strengthen the hand of the Executive like nowhere else in the world and set up a super position where the person was immune and unaccountable. He urged the SC to rule that the bill was unconstitutional and declare that it could not be enacted into law.
President’s Counsel K. Kanag-Isvaran who appeared for Tamil National Alliance (TNA) warned that if enacted, the 20A would deface and defile the country’s Constitution and destroy its basic structure and framework.
He said the enactment of 20A was a move at arrogation of power of monarchical proportions, adding that the separation of powers is an inherent feature in the Constitution and there should be no room to take from one arm and place it in the hands of another.
Appearing on behalf of the State, along with Attorney General Dappula De Livera, were Senior Additional Solicitors General (ASG) Sanjay Rajaratnam, Additional Solicitor General (ASG) Indika Demuni de Silva, ASG Farzana Jameel, Deputy Solicitor General (DSG) Nerin Pulle, Senior State Counsel Shaheeda Barrie, Avanti Perera, Suren Gnanaraj, Kanishka de Silva and State Counsel Induni Punchihewa and Nishara Jayaratne.
The bench comprised the Chief Justice Jayantha Jayasuriya and Justices Buwanaka Aluwihara, Sisira De Abrew, Priyantha Jayawardena and Vijith K. Malalgoda.
The AG is to continue his comprehensive submission tomorrow when the Court sits at 9.00 a.m. The Court decided not to have any oral hearings from petitioners in response to the AG’s submission, and instead urged them to file written submissions if there were any by noon on Tuesday.
“We have a limited period to challenge unconstitutional bills at present, which is 21 days, but this will be reduced to 14 once the time period for a bill to be published in the Gazette is reduced to seven from 14 days. As there is no room for post enactment legislative review, the people can only speak during this short period or they have to hold their silence forever,” Mr Fernando said.
The AG explained that the sovereignty of the people should be enjoyed by three organs - namely legislative power by Parliament, executive powers by President and judicial powers through Parliament to the Courts."The Constitution operates on a balance of these powers with strong checks and balances," the AG said.