No Referendum needed for 20A | Daily News
Gamini Marapana, PC tells SC:

No Referendum needed for 20A

Most of the provisions sought to be amended through the 20th amendment are provisions introduced into the Constitution by the 19th Amendment which was enacted into Law without being placed before the People at a referendum, President’s Counsel Gamini Marapana submitted to the Supreme Court yesterday.

President’s Counsel Gamini Marapana with Navin Marapana PC made these remarks while appearing for Minister Prof. G.L. Peiris, an intervenient petitioner into Special Determination petitions filed challenging the 20th Amendment to the constitution.

Marapana said that any Constitutional amendment has been enacted into Law and placed on the Statute book, without it having being placed before the People at a Referendum, the said amendments in the Constitution can be subsequently amended without the need for a referendum.

“This position has been affirmed by a Bench of five Judges of Supreme Court, in SC Special Determination 8/ 2000 when dealing with the proposed 17th Amendment to the Constitution,” Marapana added.

Mr. Marapana further added that the 13th Amendment to the Constitution became a part of the constitution, without the need for an approval of the people at a Referendum.

President’s Counsel Sanjeewa Jayawardena appearing for Ven. Omare Kassapa Thera stated that Dr. Jayampathi Wickremaratne, the one of architects of the 19th amendment had accepted the fact that unexpected issues had arisen due to the 19th amendment to the constitution.

Former President Maithreepala Sirisena had also blamed the 19th amendment for its ineffective nature. This amendment caused the split between the President and the Prime Minister. The Easter Sunday terrorist attack occurred when the President and Prime Minister were not properly functioning, he further added.

Jayawardena denied the facts that the new bill would prevent citizens from initiating fundamental rights jurisdiction against the President. He argued that the President’s arbitrary power had been challenged on a number of occasions even prior to introducing the 19th amendment to the constitution.

Jayawardena said the original constitution of 1978 did not have an institution called the Constitutional Council but it was introduced under the 19th amendment to the constitution. He said members of the Constitutional Council acted with affiliations to political parties rather than being independent. Mr. Jayawardena submitted to the court that the concept of Urgent Bill was included in the 1978 original constitution and 1972 first Republic Constitution.

“This provision was introduced on the basis of urgent necessities. There was an urgent necessity for enacting new laws following the Easter Sunday attack and Corona pandemic. It is not ousting or reducing the powers of the Supreme Court. It is reinstating the status quo that prevailed in the 1978 constitution,” Jayawardena said.

Expressing his views regarding the dual citizenship provision, Sanjeewa Jayawardena stated public representatives have to go before people and get elected and an issue will not arise in accordance with Article 26(1) of the constitution. President’s Counsel Kushan de Alwis appearing for intervention petitioner W.A.D. Weeratilleke told the Supreme Court that people have given mandate to the government to repeal the 19th Amendment during the last Presidential Election and it was affirmed during the August 5 General Election.

This Bill is not a motherless bill. It is a Bill endorsed by 6.9 million people on two occasions. Therefore, there is no necessity to go for a referendum. A special majority in Parliament is sufficient to become a law, Mr. Alwis said. Senior Counsel Rajpal Abeynayake appearing for Intervenient Petitioner D.M. Dayaratne told the Supreme Court that the 19th Amendment to the constitution was emerged as a result of personal interests of the leaders of the Yahapalanaya regime. He said Petitioners are attempting to make out that the 19th Amendment is sacrosanct and written in stone.Replying to a statement made by President’s Counsel Kanageswaran Kanagiswaran who appeared for one of the petitioners, Mr. Abeynayake informed court that there is no need for going to Nawarangahala where the 1972 first republic constitution was enacted, to repeal the 19th amendment. “19th amendment was made into law not by going to Nawarangahala. I would say Parliament was made into a Rangahala (theatre) through the provisions of 19th amendment to the constitution”, Abeynayake said.

Rajpal Abeynayake further said that the new bill would deal with the restoration of the power of the president to hold Ministerial portfolios including the Minister of Defence. Abeynayake stated that 19th amendment put the country in anarchy and it led to the Easter Sunday attack. He argued that there is no anything wrong in the 20th Amendment as it takes back the powers delegated to the Constitutional Council. He said through the 19th amendment President’s powers were delegated to the Constitutional Council.

Counsel Abeynayake further stated that the reinstatement of the presidential immunity on Fundamental Rights litigation was in order, as this was a mere

exemption and restriction curtailing Fundamental Rights litigation, and that there were many others similar restrictions, such as the constraint against invoking Fundamental Rights in matters that involve parliamentary privilege, etc. Counsel Abeynayake further stated that much was made of the pubic trust doctrine, but that economic rights were important in considerations involving justice. He said the Petitioners’ voiced the ‘Devo Vassatu Kalena’ invocation made at the promulgation of the Constitution, but ignored the fact that in modern Constitutionalism, justice involved economic justice, that was balanced with entitlement rights.

President’s Counsel Shavindra Fernando appearing for SLPP General Secretary Sagara Kariyawasam said the 20th amendment to the constitution has no new provisions which could refer for a referendum. No new provisions introduced through the 20th amendment. All provisions are within the constitution, which were part of the constitution, he said. Fernando further said that going for a referendum is a burden to the people since people have given a clear mandate against the 19th amendment to the Constitution.



Further hearing fixed for Monday

Lakmal Sooriyagoda

The Supreme Court yesterday fixed for Monday (05) further hearing into 39 Special Determination petitions filed challenging the constitutionality of the proposed 20th Amendment to the Constitution.

When the petitions took up for further hearing for the Attorney General commenced making his oral submissions and sought further time to elaborate his position regarding the 20th amendment to the constitution.

In his initial submissions, Attorney General Dappula de Livera informed the Court that the bill would restore certain provisions prevalent in the 1978 Constitution.

The Attorney General is to resume his oral submission next Monday as well.

Twenty intervenient petitioners including Minister Nimal Siripala de Silva, Minister Prof. G.L. Peiris, Minister Gamini Lokuge, Attorney Sagara Kariyawasam, Ven. Omare Kassapa Thera, W.A.D. Weeratilleke, M. Dayaratne and P.G.B. Abeyratne sought court’s permission to intervene into these Special Determination petitions.

The Supreme Court five-judge-bench comprised Chief Justice Jayantha Jayasuriya, Justices Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardena and Vijith K. Malalgoda. President’s Counsel Sanjeewa Jayawardena, Shavindra Fernando PC, Kushan de Alwis, Gamini Marapana PC, Navin Marapana PC, Senior Counsel Rajpal Abeynayake and Kaushalya Nawaratne appeared for the intervenient petitioners. Attorney General Dappula de Livera with Acting Solicitor General Sanjay Rajaratnam, Additional Solicitor General Indika Demuni de Silva, Additional Solicitor General Farzana Jameel appeared for the Attorney General.