By S.S. Selvanayagam
Senior Counsel Manohara de Silva yesterday, making a submission on the 20th Amendment of the Constitution, contended that if the 20th Amendment is enacted, it would create a monstrous government with two organs which do not know each other’s decision.
Petitions challenging the Bill was taken up before the Bench, comprising Justices Sisira J. de Abrew, Prasanna S. Jayawardena and Murdu N. B. Fernando, for special determination on the constitutionality.
The said Bill was presented by JVP Gampaha District MP Vijitha Herath to the Parliament as a private Bill on 5 September to amend the present Constitution to curtail some of the powers of the Executive Presidency provided by the 18th Amendment.
Counsel Manohara de Silva PC appeared for Petitioner Udaya Gammanpilla of Pivituru Hela Urumaya, challenging the constitutionality of said Bill.
He said that the power to the Executive President is presently vested by the People, not by the Cabinet of Ministers.
He stated the Bill provides both the President and the Cabinet of Ministers the executive power to exercise, and that it is encroaching the executive power of the President.
He said it needs to be understood that it is to make the President as ceremonial President or Head of the State.
He submitted the 1972 Constitution provided the executive power to be exercised through the President and the Cabinet of Ministers and that here, a simple provision is included in the said Bill providing both the President and the Cabinet of Ministers executive power to concurrently exercise.
He said the Bill provides executive power to two organs to exercise it independently, and there is a fundamental shift of power to parallel two organs to exercise executive power, totally altering the present structure of the Constitution.
In the Provincial Councils, the power is vested to be exercised through the Governor on the advice of the Board of Ministers of the Provincial Council, he said.
He pointed out that there is no provision in the Bill that the President is a part of the Cabinet of Ministers and not even a member of the Cabinet, and that if the Bill is enacted, the President can continue to exercise his executive power without the advice of the Prime Minister, in particular take decisions without the consent of the Cabinet of Ministers.
He pinpointed as per the new Bill, the President does not make the statement of the Government, and the people do not know which direction the country is heading for.
Sanjeeva Jayawardena PC appeared for intervenient Petitioner Ven. Iththekande Sadhatissa Thera. Dharshan Weraduwage appeared for Jayantha Samaraweera MP from Wimal Weerawansa’s Jathika Nidhahas Peramuna.
Petitioners seek from the Court the determination that the Bill violates Article 3 (…in the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the power of government, fundamental rights and the franchise).
They also seek a determination that the Bill infringes Article 4 (exercise of sovereignty) and Article 30(2), (…the President of the Republic shall be elected by the people, and shall hold office for a term of six years).
Their request from the Court is to have the Bill passed by two-thirds majority in the Parliament and a referendum by the people.