There is nothing sacred about the 19th Amendment - Counsel Abeynayake and Alwis | Daily News

There is nothing sacred about the 19th Amendment - Counsel Abeynayake and Alwis

The Supreme Court complex in Colombo 12.
The Supreme Court complex in Colombo 12.

Making submissions after those made by Gamini Marapana President’s Counsel on behalf of Intervenient Petitioner G.L.Peiris, Counsels Rajpal Abeynayake, Kushan de Alwis, Kaushlya Navaratne and others submitted to Court that there is absolutely no case for a Referendum to be held for the passage of the 20th Amendment to the Constitution. Mr. Marapana’s submissions have already been widely reported in local media.

The Counsel were appearing for Intervenient Petitioners before the five judge Supreme Court Bench making determination on the 20thAmendment.

Counsel Abeynayake said that it beggars belief that the petitioners now purport to say that the Amendment cannot be touched, or words to that effect, when it was brought about in certain unorthodox ways, with questionable Committee stage Amendments.

He added that the Constitution indicates that the process of lawmaking cannot be questioned, but stated that his submission was that there was no challenge of the process. It was merely a matter of a repeal and replacement of an Amendment, and therefore the Supreme Court can take heed of the manner in which the 19thAmendment was enacted.

The Petitioners are attempting to make out that the 19th Amendment is sacrosanct and written in stone, but the circumstances in which the this Amendment was introduced were such that the ‘Parliament was made into a Ranga Hala’ (theatre) as opposed to Navarangahala’ said Counsel Rajpal Abeynayake for intervenient petitioner D.M.Dayaratne.

The five judge Bench comprised of Chief Justice Jayantha Jayasuriya, and Justices Buwaneka Aluwihare, Priyantha Jayawardene, Sisira de Abrew, and Vijitha Malalgoda.

Earlier, President’s Counsel K. Kanag-Isvaran had submitted that a Constituent assembly was necessary to change the structure of the Constitution.

Abeynayake submitted that various unorthodox methods were resorted to, to ram through the 19th Amendment, and in any event a commandeered two-thirds majority was used. This was as opposed to an organic two-thirds majority that obtained at the recent general election.

Counsel Abeynayake further submitted that the powers of the president were inalienable, and that they were delegated , and that this was held in the Supreme Court judgement on the 20th Amendment. He said that what were alienated to the Legislature or other bodies therefore were the president’s powers and have to be taken back by him, and that this does not trigger a Referendum - as it has nothing to do with the concepts of sovereignty of the entrenched Clauses of the Constitution. These are mere delegated powers that are given back to the president, he said.

The delegated nature of these powers were decided in a Supreme Court determination on the 19th Amendment, said Abeynayake citing a Supreme Court compilation on Parliamentary judgements. Justices Sripavan, Dep and Chandra Ekanayaka clearly held in this case that , ‘so long as the President remains the Head of the Executive, the exercise of his powers remain supreme or sovereign in the executive field and others to whom to such power is given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President. The President must be in a position to monitor or to give directions to others who derive ‘authority from the President in relation to the exercise of his Executive power. Failure to do so would lead to a prejudicial impact on the sovereignty of the People.’

He further said 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.

He also submitted that the two-thirds majority had been cast aside peremptorily by the petitioners’ counsel, whereas an unassailable two-thirds majority is given not to rest on its laurels but to make use of it to carry out the mandate, which was to get rid of the 19th Amendment. Earlier, Rauff Hakeem, ex-Minister appearing in person had submitted that the government is using an unassailable two-thirds majority to curtail people’s rights.

Lead Counsel for the intervening petitioners Kushan de Alwis said that the politics of these issues are hard to ignore and have to be viewed in the context that one family was being persecuted from the time the 19th Amendment was conceptualized.

Counsel Abeynayake further stated that much was made of the pubic trust doctrine, but that economic rights were important in considerations involving broader service of 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 Tilak Marapana had earlier submitted that constitutional Amendments that did not require a Referendum for their passage in the first place, do not require a referendum for their passage now, and stated that this position is only logical. He said that a Supreme Court has already held this position in the determination of a five judge Bench in 2000, in judgement on the 17th Amendment to the Constitution.

Alluding to the submission made by President’s Counsel Kanag-Isvaran for one of the Petitioners, that if what he referred to as progressive legislation could be overturned there could be legislation replacing current law that could in the future deprive the minorities of the right to franchise, Counsel Abeynayake stated that there is no relevance, as anything that is repealed in the 19th Amendment to the Constitution could not be remotely compared to disenfranchising the minorities of the right to vote, or anything similar to that.

Counsel Kushan de Alwis submitted that certain powers were necessitated by the need for rapid development promised by President Gotabaya Rajapaksa, for which a very clear and unequivocal mandate had already been granted.