An adequate discussion should be held on the 20th Amendment before its passing in, says Dr. Jayampathy Wickramaratne

An adequate discussion should be held on the 20th Amendment before its passing in, says Dr. Jayampathy Wickramaratne

11 September 2020 08:27 pm

Dr. Jayampathy Wickramaratne was invited to speak and elaborate on the 20th amendment to the constitution of Sri Lanka.

He says that the provisions of the act amendment would take the country back to the period of 2010 to 2015 in the eighteenth amendment.

"Provisions of the act amendment would require the approval of the people at a referendum in terms of its article 83. So, my argument is that it changes adversely on the coverage of the people, violating fundamental rights".

"Now parliament under the 19th amendment can be dissolved at the will of the President after 4 1/2 years. It's like in the UK where there's a fixed Parliament to act. The 2/3 majority could request the President to dissolve Parliament. But all these had been taken away," he said.

During his tenure as Prime Minister, Mr. R. Premadasa said that he was like a peon under the 1978 constitution, Wickramaratne reminisced, adding that today, with the 19th Amendment, the Prime Minister, who has the confidence of Parliament, has many powers.

"But if the 20th amendment is brought the President would be able to dissolve the parliament at any time. There is only one requirement, which is in the 1st year of the period, that the President can only dissolve Parliament at a request of the parliament. But it would apply only had the previous Parliament been dissolved before the end date of its period. And when the Prime Minister has a clear majority in the parliament, the president will be able to remove him at any time of his period. No reasons have to be given," he pointed out.

"Ministers are appointed by the President. Ministers, Deputy Ministers, and Ministers of States not only can be appointed but also can be removed at any time by the president without any reference to the prime minister. Appointing ministers to the sectors and provincials would be at the control of the President. The President himself can hold any number of ministries." he divulged citing the new constitutional adaptation. 

Earlier the composition of the constitutional council would be - A speaker as the chair, the PM, the leader of the opposition, one MP (dominated by the president), one MP from smaller parties, five people (2-members of parliament, 3-outsiders/people of eminence), Dr. Wickramaratne reminded. 

"These 5 people would be appointed by the PM and the leader of the opposition. The other positions such as judges, chief justices, etc should be approved by the constitutional council. But after the 20th amendment, the constitutional council would be abolished and it would be replaced by a parliamentary council."

"Parliamentary council consists of the Speaker, the Prime Minister, leader of the opposition, MP appointed by the PM, and another MP appointed by the legal officers. But that has no power at all. There will only be consultants, and observations would be sorted by the President before doing appointments" he added.

Through the 20th amendment, the President will be given total immunity, he went on. "I argue that this is a clear case for a referendum, because the fundamental right to go to the supreme court against the executive action has been restricted under the 20th amendment. Therefore it violates the fundamental rights factor." Wickremeratne added.

In his emphasis, Wickramaratne further pointed out that in terms of legal drafting, there is nothing recognised as an 'urgent bill', which has been adapted by the latest amendment. 

"In our experience, this urgent view provision was used to short circuit the judiciary. In our country, once a bill is passed, it cannot be challenged. Under the original constitution, one week was given for the government to publish the gazette before it was presented to Parliament. Then it can be challenged and the supreme court says that the certain provinces are against the constitution depending on whether it requires a two third's majority or a referendum. Then action has to be accordingly taken." said Wickramaratne.

The problem with the flow would be its implementation, he added, pointing out that a bill should be subject to study before it is put into action. Propositions have to be done before it is imposed, in view of its inception since 1972, Wickramaratne emphasised.  

"But urgent bills had made it worse, they were not even published in the gazette, it had been sent straight to the supreme court. The supreme court is given 24-72 hours to examine the entire bill."

"If the bill is not published in the gazette, nobody will know about it. I remember in the 18th amendment, the constitution was presented to the supreme court as an urgent bill. I was making submissions on the basis of a draft bill given to me by one of the ministers. And the Attorney general at the time, Mr. Mohan Peris, actually mocked me and said 'what are you reading, this provision that you have.. that you are reading... is not in the bill.' I said, this is what I got from a minister. He said, 'how can you rely on documents given to you by some minister?' Then we all protested and said that we hadn't any copies, demanding for some. Then the court director gave us copies, and that is how we solved the actual provisions of the bill" he reminisced of an old event.

Wickramaratne continued, that two weeks were given prior to the passing of the 19th Amendment, and that urgent bills were completely abolished. Through the 20th amendment, the period is set for decline up to 1 week, and urgent bills would be brought back, which presumably would affect good governance and the people, he added. 

"Then there are other provisions, that the national audits commission is set for abolishment, and the national procurement commission, which formulates the guidelines for the government and institutions, is also being abolished."

At a final remark, Dr. Jayampathy Wickramaratne argued that this 20th amendment seeks to strengthen the executive, whilst diluting the powers of the legislature, the Parliament and the Prime Minister. 

"The PM would be nobody. This will affect the sovereignty of the people. I hope this bill will be discussed adequately in the Sri Lankan society and legislators will think twice before they vote for the 20th amendment" he concluded.

Chavini Abhayasinghe