By S.S. Selvanayagam
Parliamentarian M.A. Sumanthiran reiterated that the proposed 20th Amendment Bill had no prejudicial impact on the sovereignty of the people but rather it enhanced the country’s sovereignty.
He made his submissions before a bench comprising Justices Sisira J. De Abrew, Prasanna S. Jayawardena and Murdu N.B. Fernando for special determination on the constitutionality of the 20th Amendment to the Constitution.
The said Bill was presented in Parliament by Gampaha District MP Vijitha Herath of the Janatha Vimukthi Peramuna as a Private Bill on 5 September 2018 to amend the present Constitution to curtail some of the powers of the Executive Presidency provided by the 18th Amendment.
The Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu intervened in the petition filed by Pivituru Hela Urumaya parliamentarian Udaya Gammanpilla challenging the 20th Amendment to the Constitution which attempts to reduce the powers of the Executive Presidency.
Sumanthiran, making his submission on behalf of CPA, reiterated that there was no infringement of the people’s sovereignty ensured under Article 3 of the Constitution when the institutions exercising the people’s sovereignty as mentioned in Article 4 of the Constitution is changed.
He contended that the sovereignty was with the people and would continue to remain with the people even under the proposed Amendment to the Constitution and there was no prejudicial impact on the sovereignty of the people by the proposed Bill.
He added that the proposed Bill did not directly violate any entrenched provisions stated in Article 83 and therefore was not required to be passed through a referendum.
He submitted that Article 83 of the Constitution had to be read narrowly and be strictly construed.
He underlined that the Judiciary could not go beyond the intention of the framers of the Constitution and add more articles other than the ones that already existed.
Article 83 of the Constitution states as follows: “Notwithstanding anything to the contrary in the provisions of Article 82 - a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, 8, 9, 10 and 11 or of this Article; and
a Bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions of paragraph (2) of Article 30 or of, paragraph (2) of Article 62 which would extend the term of office of the President, or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of members (including those not present), is approved by the people at a referendum and a certificate is endorsed thereon by the President in accordance with Article 80.”
Counsel Sumanthiran argued the concept of “basic structure” as originated in India is very different to what the petitioners referred to as “a basic structure” of the Sri Lankan Constitution.
He submitted that in India there could never be amendments altering the basic structure and therefore this did not apply to Sri Lanka as entrenched provisions contrary to the constitution could be changed with a referendum.
He identified that the present Constitution was a bundle of contradictions and brought to the cognizance that the people of Sri Lanka had time and again voted for candidates who pledged to work for the abolition or reform of the executive presidency.
He emphasised that hence a commitment by the present government when elected was to abolish the executive presidency.
He highlighted that the Interim Report of the Steering Committee of the Constitutional Assembly, tabled in Parliament on 21 September 2017, which contains a general consensus that the Executive Presidency in its current form should be abolished and it is the mandate given by the people.
He recollected that the 1978 Constitution was not adopted after the referendum but it was espoused by Parliament through a two-thirds majority and Article 83 too was adopted by a two-thirds majority of the Parliament not by the vote of the people at a referendum.
He stated that Article 4 was deliberately omitted from the list of entrenched provisions of the 1978 Constitution and this omission was to be presumed a very deliberate act of Parliament.
He said that Article 4 was complementary to Article 3 and that Article 4 was not impinged on Article 3 and that more than the Constitution, it did not affect the sovereignty of the people.
He stated that proposed Bill did not violate any provisions included in Article 83 of the Constitution but would further protect the sovereignty of the people recognised and enshrined in Article 3 of the Constitution.
He said there would be a collective body and it enhanced the sovereignty of the people passed by their elected representatives contrary to one individual person and that it was the sovereign will of the people.
The intervenient-petitioners of CPA seek the determination of the Court that none of the clauses in the proposed Bill were inconsistent with any of the articles referred to in Article 83 of the Constitution and therefore the Bill did not need to be submitted for the approval of the people at a referendum.
Sumanthiran PC, with Viran Corea, Bhavani Fonaseka, Shushmitha Thayanandan, Khyati Wickramanayake and Inshira Faliq appeared for CPA.