SC concludes hearing petitions for and against constitutionality of 20A

Determination to be conveyed to President, Speaker

By Chitra Weeraratne and A.J.A. Abeynayake

The Supreme Court yesterday concluded the hearing of petitions for and against the constitutionality of the proposed 20th Amendment to the Constitution. The decision of the court will be conveyed to the President and the Speaker.

The five-Judge Bench of the Court heard petitions for the fourth day yesterday.

Thirty nine petitions were filed against the proposed 20th Amendment to the Constitution.

 The immunity granted to the President in Article 35, was only during his term of office, Attorney General, Dappulu De Livera informed the Court yesterday.

He appeared for the state, pertaining to the Bill.

President’s Counsel De Livera explained that according to the 20th Amendment the decisions of the Supreme Court were final. Similarly, the Parliament enjoyed certain immunity. There was immunity around every organ of the government, he said.

The immunity under Article 35, was only confined to the term of office in the Bill, but liable thereafter.

“Article 31 states that the President is the Head of Armed forces, according to the amendment. This is needed for public safety, law and order during natural disasters and catastrophes.

If the acts of the President is to be obstructed it will affect all the aforesaid issues. If the President’s actions as are to be subjected to judicial review it will impede his work. This immunity is in Article 35.

In the amendment the President is vested with immunity to safeguard the nation and national security.

The Article 126 jurisdiction is not necessary in view of Article 138 in the Bill, which is a constitutional check on the President.

If the President is constantly pulled back by Article 126, his work will be impeded. The Article 138 in the Bill checks on the acts of the President.

In a vibrant democracy this check has to operate.

In terms of Article 131, the President Exercised Executive power. If that was impeded the sovereignty of the people would be affected.

If the Acts of the President were subject to constant judicial review, his work as President would be impeded. The President had to exercise executive power in public interest and no other, the AG argued.

The AG submitted that Article 126 jurisdiction amounted to a fetter on the presidential acts. He then referred to the dissolution of Parliament in section 14 of the Bill, which seeks to restore the power of the President to dissolve Parliament within one year.

The power to dissolve is granted to the President in public interest. When the President exercises the power vested in him under Article 70, the franchise of the people is ensured. When Parliament is unstable the sovereignty of the people has to be protected. The Executive under public interest can handle instability. Parliament may be elected by the people. If a bad situation arises, the Parliament should be dissolved and the people will be asked to give a fresh mandate.

The Prime Minister has to command the confidence of the Parliament. If that is lost, the remedy is for the President to remove him.

The power to remove the Prime Minister in public interest is vested in the President in the new amendment.

The four-and-a half-year period for the dissolution of Parliament had proved ineffective. The Parliament must go on for the welfare of the people, not otherwise when Constitutional Council is replaced by Parliamentary Council, the institution had only been re-defined, the AG added.

The final decision maker was the President. He would exercise t in public interest, the AG added.

“The Executive Power is in the President, not in the Constitutional Council. The President’s hands are not tied.

On Wednesday (30), counsel appearing on behalf of 32 of the petitions filed challenging the proposed constitutional amendment concluded their statements.

When the petitions were taken up on Friday (02), the counsel representing all 39 petitions against the constitutional amendments concluded their oral submissions against the original draft of the 20th Amendment.

During the hearings last week Attorney General Dappula de Livera informed the Supreme Court that amendments would be introduced during the committee stage debate in Parliament on the draft 20th Amendment.

The Samagi Jana Balavegaya (SJB) and the Tamil National Alliance are among  the groups that filed petitions in the court against the 20th Amendment to the Constitution.

The five-Judge bench of the Supreme Court headed by Chief Justice Jayantha Jayasuriya commenced hearing of the petitions last Tuesday (Sept. 29).

 The bench includes Justices Buwaneka Aluwihare, Justice Sisira de Abrew, Justice Priyantha Jayawardena and Justice Vijith Malalgoda.