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How do we solve a problem like the 19th A?
The Supreme Court this week heard arguments for and against the proposed 19th Amendment to the Constitution which is set to be taken up for debate in Parliament later next week.
Opposition Leader Nimal Siripala de Silva makes a point with lawyers at the Supreme Court. Pic by M.D. Nissanka
The three Judge Bench comprising Chief Justice K. Sripavan, Justice Chandra Ekanayaka and Justice Priyasad Dep, took up 16 petitions and eight intervenient petitions for hearing on Wednesday and Thursday. They were filed by political parties, political activists, media companies, lawyers and individuals after the Prime Minister placed the 19th Constitutional Amendment on the Order paper of Parliament on March 24.
The Supreme Court will hear the Attorney General’s submissions tomorrow.
Some of the petitioners argued that the 19th Amendment could be passed without being put forward for a referendum while others made submissions that it was inconsistent with Constitution and needed to be put forward for a referendum.
The Jathika Hela Urumaya (JHU) , Mahajana Eksath Peramuna (MEP) , Pivithuru Hela Urumaya and Attorneys at Law Gomin Dayasiri , Darshana Weerasekara and D Weraduwage were among those who told court that the proposed 19th Amendment should be put to a referendum and passed by a two-thirds majority in Parliament.
The Janatha Vimukthi Peramuna (JVP) and Tamil National Alliance MP M.A. Sumanthiran were among those who made submissions that a referendum was not needed and that a two thirds majority in Parliament was sufficient .
Manohara de Silva, PC appearing for Western Provincial Council member Udaya Gammanpila and Ven Bengamuwe Nalaka Thera said passing the 19th Amendment without a referendum would be the biggest insult to the people who elected their President.
He argued that the proposed amendment should be placed before the people for their approval since it changes the basic structure of the Constitution.
He said vesting presidential powers with the Prime Minister would make the President a mere ‘rubber stamp’ without powers. He held that since the President is elected by the people the executive powers need to be retained and if a change was required it should be decided at a referendum.
Counsel Gomin Dayasiri who was the first petitioner to challenge the 19th Amendment told court that the proposed Amendment enabled foreigners to seek benefits under Article 14 A (1), which was prohibited under the existing Constitution. He said the amendment gives foreigners access to sensitive areas such as national defence and economy.
“Indirectly it would give access to private papers such as love letters and this would affect the freedom of an individual,” Counsel Dayasiri said.
He pointed out that there were discrepancies between the Sinhala, Tamil and English versions of the 19th Amendment.
“The ‘Tamil and English versions state that unless a 2/3 majority was obtained Parliament cannot be dissolved for a period of four and half years from the date parliament first meets. The Sinhala copy states a simple majority was sufficient. This discrepancy is a violation of the constitution,” Mr. Dayasiri pointed out.
Attorney at law Chrishmal Waranasuriya who appeared for the JVP, an intervenient petitioner, said that the government could go ahead with the 19th Amendment without going for a referendum as it did not infringe on Article 83 of the Constitution which says that certain Bills need approval at a referendum. He also submitted that there was a misconception that the Amendment would grant the Presidents’ Executive powers to the Prime Minister. Executive power is always with the people according to Article 3 of the Constitution therefore nobody can defraud it he said. The provisions regarding the nullification of the President’s’ executive power and right to information are positive features of good governance and people have given their verdict by voting at the presidential election to do the changes of the Constitution, he added.
Attorney at law Kushan D’ Alwis, PC in his submissions on behalf of petitioner Ven Matara Ananda Sagara Thera, said that the 19th Amendment needed to be placed before a referendum. He said the Amendment was in violation of Article 4 which deals with exercise of the Sovereignty of the People, impinging on Article 3 which says that sovereignty is in the people and is an inalienable right.
He pointed out that at present the Prime Minister and the cabinet of ministers exercised Executive power, deriving its authority from the President.
However, in the proposed amendments, the PM who would not be vested with Executive powers would however advice the President on the exercise of the president’s executive power.
He pointed out that the removal of the power of the President to dissolve Parliament, before the expiration of a period of four years and six months in the absence of a request made by Parliament, was in violation of the Executive Powers of the President and therefore in violation of the sovereignty of the people enshrined in the Constitution.
“The transfer of a power which is attributed by the Constitution from one organ of a government to another; or the relinquishment or removal of such power, would be an alienation of sovereignty inconsistent with Article 3 read with Article 4 of the Constitution,” he argued..
Counsel Canishka Witharana making submissions on behalf of Deputy secretary of the MEP Jayakody Arachchige Sisira , said, that the proposed 19th Amendment says, ‘the president shall be the symbol of national unity’, but the existing Constitution describes the national flag as the symbol of unity.
Counsel J.C Bowange appearing for the MEP Vice Chairman Somaweera Chandrasiri said that in the proposed amendments one of the responsibilities of the President was to ‘ensure and facilitate preservation of religious and ethnic harmony’ while the existing Constitution says ‘ the Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions granted by Artilcle 10 and 14 (1) (e). He said therefore there was an inconsistency.
Attorney at law Faisz Musthapha, PC appearing for the Sri Lanka Press Institute submitted that the Amendment should define what political and other broadcasts are.
He said the violation of the guidelines of the Competent Authority by a TV channel that aired a political programme could affect other political or even non political programmes such as musical programmes, teledramas and even news broadcasts.
He argued that this was necessary as the Constitutional Amendment says that if a TV or radio channel contravenes any guidelines issued by the Elections Commission by broadcasting political or any other programme impinging on the election the Competent Authority could take over the management of such an institution.
He pointed out when an actor/actress wanted to contest an election could the Competent Authority ban the teledrama the actor featured in.
He said that restrictions on Right to Information were too wide and should be narrowed down.
President’s Counsel Sanjeewa Jayawardane who appeared for MTV Channel and MBC Networks said the provision that allowed the Competent Authority to take over the management of any institution that contravened guidelines by the Elections Commission during an election would violate the freedom of expression, granted by Article 14 of the Constitution. He said that media’s responsibility was to the public, and not the government and controlling the media by a government body is directly affected the franchise of the people.