Intense focus on Supreme Court determination | Daily News


Intense focus on Supreme Court determination

President Gotabaya Rajapaksa
President Gotabaya Rajapaksa

Now that the Supreme Court (SC) has delivered its carefully considered judgement on the proposed 20th Amendment to the Constitution (20A), the Government keenly awaits the next Parliamentary session to move ahead with its debate.  

It is most likely that the country will have a President with rejuvenated powers by the end of this month. Speaker Mahinda Yapa Abeywardena will officially announce the Supreme Court’s decision when Parliament meets next week and then he will call a Party Leaders’ Meeting to revise Parliament’s agenda for that week to accommodate the debate of the 20A Bill.  

Political analysts observe that the Bill is likely to be done and dusted in no time as dilly dallying is clearly not the way of President Gotabaya Rajapaksa and the incumbent Government.  

According to the Government, the 20A will serve as a transitional amendment till a new Constitution is drawn up with broad consultation across the political spectrum.  

The shape of governance and institutional structure will undergo changes under the proposed Amendment. It will see the back of the 19th Amendment (19A) except for a few Clauses, thus reinstating the status quo that prevailed prior to 2015.  

It was the President’s assertion that he needs a free hand to deliver what the people expect from him, and that he would exercise his powers cautiously for the common good. His wish has been granted by way of the 20A, opening a rare window of opportunity for him to make his own leadership legacy by steering the country in the right direction with prudence and wise counsel. The people’s overwhelming mandate and the support of a two-thirds majority in Parliament have helped the President to stay focused on his mission.  

Legal battle ends

The Supreme Court five-judge bench headed by Chief Justice Jayantha Jayasuriya handed down a landmark determination on the constitutionality of the proposed 20A Bill to the Speaker and the President on Saturday. Although the formal announcement from the Speaker is yet to come, news of the Court ruling is now a matter of public knowledge after several news outlets published extensive details.  

According to these revelations, the Supreme Court in its well-articulated determination running to 61 pages, has summed up that certain clauses of the Bill, which relate to the President’s duties, his immunity from suit and his power to dissolve Parliament after one year, and a few other clauses are inconsistent with the Constitution in their present form.  

However, the Government has in any case announced that Committee Stage Amendments to the Bill as submitted to the Court by the Attorney General will be accommodated. Under those revisions to be made in the Third Reading, the President’s duty “to ensure the creation of proper conditions for the conduct of free and fair elections and referenda, on the advice of the Election Commission” will be restored, and the President will only be able to dissolve Parliament two-and-a-half years after Parliament first meets.  

Court verdict

The Government is likely to amend the Bill in line with the Court ruling. It could be seen that the salient features of the 20A are intact. Importantly, it has become clear that none of the Clauses in the Bill affects the “entrenched Articles” of the Constitution.  

According to the published parts of the determination, the SC has stated that “in view of the fact that the President who holds the People’s executive power in trust of the People, is the Head of the Cabinet of Ministers and the appointing authority of the Prime Minister, we are of the view that empowering the President to remove the Prime Minister and appoint a new Prime Minister who in his opinion commands the confidence of Parliament, does not infringe the Sovereignty of the People.”  

With reference to the President’s power to dissolve Parliament, the Court ruling states, “The power to dissolve Parliament is a legitimate right of the executive and operates as an effective check and balance between the two organs of the Government. A fair balancing of competing interests is of prime importance to ensure that the exercise of this Right would not infringe the Sovereignty of the People.”  

It has also been highlighted that companies with more than 50 percent stake held by the Government and the Offices of Secretaries to the President and the Prime Minister are still enlisted as “auditee entities” under the National Audit Act and therefore the Auditor General is not prevented from auditing them. In the end, it has been decided that many of the Clauses of the Bill are consistent with the provisions of the Constitution and can be passed with a special majority in Parliament.  

Awaiting Parliament’s nod

Despite the divergent opinions on the 20A, the Government is confident that it can muster the support of a two-thirds majority in the current 223-Member Parliament for the safe passage of the Bill. Two seats, allocated each to the United National Party (UNP) and the Ape Jana Bala Pakshaya (AJP), are still vacant in the Ninth Parliament due to infighting in the two parties. This could well be the first-ever Constitutional Amendment in the country’s history in the absence of the UNP in Parliament.  

The top-rung of the Government is optimistic that the Government Members will close ranks when the Bill is taken up in Parliament, and that those holding different opinions on certain clauses or aspects will return to the fold and strike a conciliatory note.  

As of now, several Government members including Wimal Weerawansa, Udaya Gammanpila, Vasudeva Nanayakkara, Gevindu Kumaratunga, Vidura Wickramanayake and Dr Wijeyadasa Rajapakshe have expressed their contention on certain provisions of the Bill. Constitutional Expert and Minister Prof G.L. Peiris said the various concerns of those Members would be addressed as much as possible at the Committee Stage Amendments.  

The Government Members advocating the 20A are keen to see the Bill through Parliament within this month and they are also hopeful of roping in a few Opposition MPs to support the Bill.  

The Opposition parties, on the other hand, have officially taken a stand against the Bill, but their objections are mostly limited to press conferences and press releases. At the same time, the resurgence of Coronavirus cases has further crippled their ability to organize protests. But one thing is certain – heated debates and exciting political developments can be expected in next week’s Parliament session as the 20A seeks Parliament’s nod.