AG refuses to share written submissions with petitioners' counsel despite court's consent

The Attorney General has refused to share his written submission with counsel appearing for petitioners challenging the constitutionality of the 20th Amendment, despite a five- member Supreme Court bench urging him to do so.

The Supreme Court concluded hearings of the case early this week and sent its determination to the Speaker's office yesterday. When Parliament next meets on Oct 20, the Speaker is expected to announce the SC ruling.

On Monday, Attorney General Dappula De Livera continued his arguments for nearly two hours after submitting a 200-page written submission to the Bench. The petitioners’ counsel demanded that they be given access to AG’s submission so that they could file written objections the following day.

Earlier 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.

The Bench headed by Chief Justice Jayantha Jayasuriya announced that the petitioners could obtain copies of the AG’s submission from the office of the Registrar.

Last week, the Supreme Court heard submissions by 37 petitioners and seven intervenient petitioners at the spacious Covid-guidelines compliant ceremonial hall of the court complex.

The AG told court that his oral arguments would be based on the comprehensive written submission with reference to the past SC judgments on presidential immunity and other issues raised by the petitioners.

During his oral submissions, the AG countered the petitioners’ claim that this bill would pave the way for authoritarianism and majoritarian rule at the expense of the wellbeing of minority communities. The petitioners had supported their submissions by citing previous judgments and SC determinations that stressed President was duty bound to 'respect the Constitution and uphold it" as the head of the Republic.

Appearing on behalf of United National Party ( UNP) General Secretary Akila Viraj Kariyawasam last week, Counsel Ronald Perera PC, instructed by Vidanapathirana Associates, urged the bench not to consider the AG’s amendments to the proposed bill and argued the court should determine the legality of the bill based on the gazette version of the bill.

Mr. Perera said there were no guarantees that the AG’s proposed amendments to the bill would be included at the Committee stage debate in Parliament. “If the government genuinely wants these amendments to the bill, why can’t it issue a fresh gazette?” he asked.

Counsel Perera said if this bill was to be passed, it would pave the way for a ‘ monarchical’ type of governance where the President would exercise not on the executive powers he already enjoys but also the judicial and legislative powers of the sovereign people.

On the replacement of Constitutional Council ( CC) with a proposed Parliamentary Council, counsel Perera told the bench that the new council would merely function as a body that could only submit its observations over key appointments such as appointments of Supreme Court and Court of Appeal judges and appointments to the Judicial Service Commission (JSC).

According to the bill, he pointed out that the President could only call for an observatory report from the Parliamentary Council and he was not mandated to follow its observations.

Supporting the petition filed by UNP Deputy Leader Ruwan Wijewardene, counsel Eraj de Silva argued that this bill which had several clauses that undermined the sovereignty of the people could not be passed as law as it would take away the vital checks and balances in the Constitution.

Indicating that the proposed bill was a personally ‘tailor made’ amendment to suit a group of people who holds dual citizenship to exercise unchecked power, Mr. de Silva submitted that if this bill was passed as law, it would be ‘repugnant to the sovereignty of the people”.

He also raised concerns over the independence of the judiciary if this was bill passed, since the President would be vested with powers to appoint Supreme Court Justices directly without following due process and the JSC would remain a powerless body.

Questioning the thinking process behind this bill, counsel de Silva submitted that one of the key power centres of governance – the legislative power of the people exercised by the Parliament -- too would be exercised by a single person -- the President – especially with regard to public finance.

He told Court that it was Parliament that should decide on matters related to public finance and not an individual, who he argued would take arbitrary decisions that would be detrimental to the country’s interests.

Along with Attorney General de Livera, appearing on behalf of the State were Senior Additional Solicitors General San jay 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 Chief Justice Jayantha Jayasuriya and Justices Buwanaka Aluwihara, Sisira de Abrew, Priyantha Jayawardena and Vijith K. Malalgoda.