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18th Amendment
also rejected The decisions reflect poorly on Government judgement, and constitutional decision-making with the country's highest court aborting legal arguments midway during the hearings on the 18th Amendment which dealt with providing immunity for members of the constitutional council as being an encroachment on judicial powers and holding that at least one clause in the 19th Amendment was "unenactable" amounting to a suspension of the Constitution. The court held that the 18th Amendment - in its entirety - needs a two-thirds majority and a referendum. While the Government can argue that the 18th Amendment was well-meaning and done to get the independent constitutional councils moving, the 19th Amendment which dealt with the President's powers to dissolve Parliament after December 5 at her discretion had all the hallmarks of a botched up political exercise. The UNF Government threw away a 'window of opportunity' to get the required two-thirds majority in Parliament (150 votes of the 225) by winning PA support by making threatening noises, then presented a poorly drafted bill and eventually had none but the Attorney General to argue a bad brief. Earlier, the SLFP central committee had at a late night meeting presided over by President Chandrika Kumaratunga agreed in principle to consider an amendment on the line of her letter to the Speaker assuring she would not dissolve Parliament except in defined circumstances. Senior lawyers, H. L. de Silva, R.K.W. Goonasekera and Lakshman Kadirgamar had been drafting a compromise to ensure PA support for a constitutional amendment. Just at this stage, according to PA sources, a statement by Constitutional Affairs Minister G. L. Peiris threatening the President with ultimatums to support the amendment and other ministers saying they had the required number of PA MPs for the two-thirds majority caused a rupture in the PA life-line. A new draft containing fresh provisions - which the Supreme Court has ruled as being "unenactable" - was introduced for PA consideration, and the window of opportunity was shut. In their 27-page judgment, the seven member Supreme Court presided over by Chief Justice Sarath Silva held, unanimously, that the clause relating to an MP voting according to his conscience on the sole issue of the President's power to dissolve Parliament was legislating for a solitary purpose. This amounted to a suspension of the Constitution, they said adding that this clause, therefore, could not be rectified even by a referendum. The court held that the 'conscience voting' provision enabling an MP to override the party whip if necessary and vote for the 19th Amendment without facing disciplinary action can be considered if the conscience voting is allowed for all bills before parliament - but even here, the court held that in such an event, they will have to consider its implications on the overall party system in the country, since an MP also obtains votes because of the party he belongs to. The rest of the 19th Amendment was identified as requiring a two-thirds majority in Parliament and a referendum because it upset the balance of power between the legislature and the executive president and affected the entrenched sections of the Constitution relating to the sovereignty of the people. In a case of judicial activism, the Supreme Court went on to make a non-binding recommendation that the President might consider refraining from dissolving Parliament until the expiry of three years - half the lifetime of a parliament, not one year as presently provided in the Constitution. There the Supreme Court argued that not all cases of erosion of executive presidential power are equally grave, that there are gradations, and that such a three-year term, half way house of a term parliament is voted for, will not affect the balance of power between Parliament and the President. In making this recommendation, the Supreme Court has held that it is the duty of the country's highest court to ensure that the balance of power (separation of powers) between Parliament and the President is maintained. Meanwhile, Speaker Joseph Michael Perera confirmed he had received the court's determination and would make the announcement soon. However, under the standing orders of Parliament, there is no room for a debate to be permitted on such an announcement. The two bills have been pushed to item numbers fifteen and sixteen on the order paper of Parliament for Tuesday just behind the Appropriation Bill's second reading which is scheduled for November 6. |
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