The piece below recounts a story about the early years of independence that is familiar to many Sri Lankan readers, in terms of the broad brush-strokes if not in terms of the detailed palette-work. But I hope it also serves to remind us again of a number of important, yet often ignored, matters, including the advanced state of constitutional development we were in compared to other decolonising countries, and the gentler and more sophisticated political culture that we enjoyed at the time. Yet none of these things were sufficient to prevent the descent into communal conflict and civil war, and those constitutional issues still remain to be settled. Hopefully, President Sirisena’s immediate reforms will create the political space necessary to dealing with those matters in the future. Thus it is to history that we must turn, to ensure we resurrect the good and bury the bad.
7 November 2014, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is alarmed at recent developments related to Supreme Court Reference No 1/2014 and the processes sought to be used to legitimize a potential third term for President Mahinda Rajapaksa. On 5 November the media reported President Mahinda Rajapaksa as having referred the following questions to the Supreme Court to seek its opinion under Article 129(1) of the Constitution:
a. Whether in terms of Article 31 (3A)(a)(i) of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, have any impediment, after the expiration of four years from the date of commencement of my second term of office as President on 19th November 2010, to declare by Proclamation my intention of appealing to the People for a mandate to hold office as President by election, for a further term?
b. Whether in terms of the provisions of the Constitution, as amended by the 18th Amendment, I, as the incumbent President, serving my second term of office as President, and was functioning as such on the date the 18th Amendment was enacted, have any impediment to be elected for a further term of office?
These questions were sent by the Registrar of the Supreme Court to the President of the Bar Association of Sri Lanka (BASL) requesting its membership to submit written submissions by 3pm, 7 November.
CPA, has subsequently learnt of an in camera sitting by the Supreme Court on 5 November, the same date on which the letter was sent to the BASL. In light of the public and constitutional importance of the issues at stake, Dr. P. Saravanamuttu, Executive Director of CPA filed a motion in the Supreme Court today 07 November requesting that an oral hearing be granted, and followed with his written submissions, in the firm belief that an oral hearing will be provided, as has been the practice in the past.
CPA’s concerns on this matter were articulated in a statement issued on 23 October and warrant reiteration here. With the incumbent President having more than two years remaining of his present term, CPA sees no urgency for the Supreme Court to have a hearing that is shrouded in secrecy and one which, deprives citizens of their right to be heard on a significant national question that will define the future of Sri Lanka.
According to Article 154(G)(2) of the Constitution, no Bill for the amendment or repeal of the provisions of Chapter XVIIA becomes law, unless it has been referred by the President, after its publication in the Gazette and before it is placed to the Order Paper of Parliament, to every Provincial Council. Since no Provincial Council had been consulted in respect of this Bill, CPA contended that it cannot be enacted into law unless there was due compliance with the mandatory provisions of Article 154(G) (2). CPA believes this is an important procedure designed and included in the Constitution to encourage consultation and co-operation between Provincial Councils and the central government, and as a crucial safeguard for provincial autonomy under the scheme of devolution introduced by the Thirteenth Amendment.
During the course of argument before the Supreme Court, the judges hearing the case raised the concern – shared by Counsel representing the Attorney General’s Department as well as the Intervenient-Petitioners – that the Court’s jurisdiction is limited to Article 120 proviso (a) in the case of a Bill for the amendment of the Constitution. In response to this suggestion, CPA in its “further written submissions” contended that Article 154(G)(2) was a specific provision brought about by the Thirteenth Amendment for safeguarding devolution, which was not contemplated at the time of the enactment of Article 120 in 1978. Since Article 154(G) (2) creates a specific requirement of consultation in relation to a specified and limited category of constitutional amendments (i.e., those affecting the provisions of Chapter XVIIA), it seemed clear to us that the specific provisions of Article 154(G) (2) must be given effect to in this case, where the impugned Bill sought to abolish Chapter XVIIA as a whole. This contention was based on the need to give provisions of the Constitution a purposive and workable interpretation, as opposed to an interpretation, which would make certain provisions meaningless and irrelevant. Therefore it was CPA’s position that after the enactment of the Thirteenth Amendment, the restrictive interpretation suggested in relation to Article 120 was no longer reasonably possible.
There was a further objection that Section 3 of the Parliament (Powers and Privileges) Act precludes the Supreme Court from inquiring into the validity of the process by which Bills are placed on the Order Paper of Parliament. In response, CPA contended that the identical objection had been taken up in a previous case in which the Court had dealt exhaustively with the reasons as to why this objection was not correct. CPA also drew the attention of the Court to several of its own judgments, which inquired and pronounced upon the question of as to whether a Bill was properly placed on the Order Paper of Parliament.
In its Special Determination on the Twenty First Amendment to the Constitution Bill, which was placed before Parliament on 12th July 2013, the Supreme Court stated that:
- In terms of Section 3 of Parliament (Powers and Privileges) Act incorporated into Article 67 of the Constitution, the placement of the Bill on the Order Paper was part of parliamentary proceedings that took place on 18th June 2013, and that the Supreme Court is denuded of jurisdiction to impeach proceedings in Parliament.
- The petition filed by the petitioner is misconceived in law and premised on a footing in contravention of the jurisdiction conferred on the Supreme Court by proviso (a) to Article 120 read with Article 124 of the Constitution.
Beyond this, the Supreme Court did not address any of the arguments addressed to it by CPA (specifically in its further written submissions) and held that it cannot grant the determinations that CPA had prayed for in its petition. Finally, it may also be added that in a curious break from past practice the petitioner’s name does not appear on the face of the record of the Supreme Court’s determination published in the Official Report of the Parliamentary Debates on 12th July 2013, although the names of the Intervenient-Petitioners are as usual mentioned.
source: Centre for Policy Alternatives (CPA)
President Mahinda Rajapaksa had in a sudden move initiated action to present an urgent bill in Parliament to amend the Constitution regarding the substance and unit of devolution… The proposed amendment was criticised vehemently by proponents of devolution such as the Centre for Policy Alternatives (CPA) who argued that this move would “render the Thirteenth Amendment worthless as a mechanism to devolve legislative power, as the central government at any given time could take away any or all powers vested in the PCs by passing legislation with a simple majority”.