Speaker informs decision of SC on constitutional amendments

[TamilNet, Tuesday, 22 October 2002, 09:12 GMT]
The Speaker of the Sri Lanka's parliament Tuesday morning announced the decision of the Supreme Court on the eighteenth and nineteenth constitutional amendments tabled by the United National Front government.

The 27 page-decision of the Supreme Court in regarding the nineteenth amendment stated that it should be approved by two third majority in parliament and subjected to a referendum if it is to be passed in its original form except Clause 6. The Clause 6 on voting according to conscience should be removed as it amounted to a suspension of the Constitution. Hence this clause cannot be rectified even by a referendum.

The Clause 6 of the nineteenth amendment states that the parliamentary portfolios of the members who voted in favour of it will not be lost. The SC states in its decision that, " Clause 6 is against the law and the present constitution. This Clause should be removed from the amendment."

The SC further states in its decision that the power conferred on the President to dissolve parliament after one year of its existence should be amended. "Accordingly the one year period given to the President to dissolve parliament should be extended to three years. Two third majority is adequate to extend the period from one year to three years," the SC said.

The Supreme Court held that the eighteenth amendment, in its entirety, needs a two third majority and a referendum. The eighteenth amendment dealt with the immunity for members of the constitutional council.

Nine parliamentarians of the Sri Lanka Muslim Congress who are engaged in parliament boycott also did not attend Tuesday's sitting.

The conspicuous absentee in the house Tuesday was the Constitutional Affairs Minister Professor G.L.Peiris, parliamentary sources said.

Excerpts from SC decision are given below: -

” It is clear that according to the framework of our Constitution, the power of dissolution of Parliament is attributed to the President, as a check to sustain and preserve the balance of power that is struck by the Constitution. This power attributed to the President in broad terms in Article 70(1) is subject in its exercise to specifically defined situations as set out in provisos (a) to (c) referred above. Even in these situations, the final say in the matter of dissolution remains with the President. The only instance in which the dissolution of parliament is mandatory, is contained in proviso (d) in terms of which, if the Appropriation Bill (the Budget) has been rejected by Parliament and the President has not dissolved Parliament, when the next Appropriation Bill is also rejected, the President shall dissolve Parliament. This is a situation of a total breakdown of the government machinery, there being no money voted by parliament for the government to function. In such an event dissolution is essential and the Constitution removes the discretion lying in the President by requiring dissolution. As the Constitution now stands this is the only instance where Parliament could enforce dissolution by the President and that too through the oblique means of rejecting the Appropriation Bill twice. This demonstrates the manner in which the Constitution has carefully delineated the power of dissolution of Parliament. The People in whom the sovereignty is reposed have entrusted the organs of government, being the custodians the exercise of power, as delineated in the Constitution. It is in this context that we arrived at the conclusion that any transfer, relinquishment or removal of a power attributed to an organ of government would be inconsistent with Article 3 read with Article 4 of the Constitution.

Referring to the amendment suggested by the Attorney General that after the lapse of one year from a general election, the President shall not dissolve Parliament unless upon a resolution passed by not less than one half of the whole number of members of parliament, including those not present, the Supreme Court said in its decision, “ the amendment does not address the inconsistency with Articles 3 and 4, dealt within the preceding sections of this determination. We have stated clearly, on the basis of a comprehensive process of reasoning, that the dissolution of Parliament is a component of the executive power of the People, attributed to the President, to be exercised in trust for the and that it cannot be alienated in the sense of being transferred, relinquished or removed from where it lies in terms of Article 70(1) of the Constitution.

Referring to the argument that in past constitutional amendments that were alleged to have been dome with partisan objectives, the Supreme Court said, “ partisanship of one side cannot be pitted against partisanship of the other. In the process of enacting law, especially in amending or reforming the Constitution, the sharp edges of the divide should be blunted and we have to seek common ground, bearing upper most in mind the interests of the people who are sovereign.”

Referring to the Clause 6 of the 19th amendment relating to a parliamentarian voting according to his conscience on the sole issue of the President’s power to dissolve Parliament the Supreme Court held that “the Clause 6 of the bill has the effect of suspending the operation of a part of the Constitution and cannot be validly enacted by Parliament in view of the specific bar contained in Article 75 of the Constitution. This Clause cannot be rectified even by a referendum.

“Accordingly we hold that Clause 6 of the Bill has the effect of suspending the operation of a part of the Constitution and cannot be validly enacted by Parliament. The Clause 6 has to be deleted from Bill,” said the Supreme Court in its decision.