The main thrust of the petitioners’ submissions last week against the 20th Amendment in the Supreme Court, was that repealing the 19th Amendment went counter to the sovereign rights of the people.
The following is straight reportage of some of the proceedings in that case. It’s fact and not analysis, as this is not the time to engage in any back and forth, as the Judges of the Supreme Court are deliberating on their determination, even as this is being written.
The Attorney General and Intervenient Petitioners such as Presidents’ Counsel Kushan de Alwis, Shavindra Fernando PC and this writer were of the view that the ‘sovereignty question’ could not arise, as the Amendment was essentially a reversal to the status quo ante.
The Attorney General lay most emphasis in the fact that the Amendment in fact enhances the sovereign rights of the people, and interestingly he cited the matter of the dissolution of Parliament, which was the subject of a notoriously vexed case in 2018, when the then President Maithripala Sirisena dissolved the House irrespective of the provisions of the 19th Amendment.
The AG cited the possibility of unstable governments, even though he said the actual situation that arose in 2018 which he alluded to was not his main submission. A dissolution of Parliament early in the term of office of an elected Legislature is a necessity that obviates the ill effects of hung parliaments and such, he submitted.
The counter submission of enhancement of Sovereignty was an interesting rejoinder, and earlier President’s Counsel Kushan de Alwis had alluded to something on similar lines when he made a full-throated case for the legitimacy of the 20th Amendment — which he said was the product of the sovereign people’s vote to repeal the 19th Amendment
This writer had submitted to the Supreme Court on the same matter, that early dissolution of Parliament was a common agenda power in parliamentary democracy, and was a sine qua non in parliamentary practice. The submissions were made on behalf of Intervenient Petitioner D. M. Dayaratne.
The following is an extract from my written submissions to Court in this regard:
‘In any event dissolving Parliament early is an accepted aspect of parliamentary tradition in most democracies — and this is called strategic dissolution of Parliament. The book Strategic Parliamentary Dissolution by Kaare Storm and Stephen Swindle testifies to these facts.’ Excerpt: An important agenda power in parliamentary democracies is the discretion over the dissolution of Parliament.
We argue that variation in constitutional rules and the political environment will systematically affect the frequency of early elections. We hypothesise that dissolution will be more frequent under single-party governments, when the Head of State plays an insignificant role, when neither Parliament nor the Cabinet can inhibit dissolution, when minority governments are in power, when the Head of State can dissolve unilaterally, and later in the constitutional term. Unquote.
EXCEPTION
‘Enhanced Sovereignty’ was a submission made by the Attorney General on more than one occasion, and it was adduced as a riposte in the most unexpected of situations,with reference to the sovereignty argument adduced by the Petitioners.
The argument was made by AG Dappula de Livera with regard to the issue of Urgent Bills which the Petitioners portrayed as impinging on the sovereign rights of the people, that such a provision for fast tracked legislation enhanced Sovereign rights as such Bills expedited legislation where necessary in matters that were of urgent national import.
He said that if anybody should take exception to such review of Urgent Bills it should be the Supreme Court that deliberates on such matters. However, he submitted that the Judges of the apex court had shown consistently that they were competent enough to pronounce on such Bills when the exigency arose.
The status quo ante aspect of the 20th Amendment was stressed also, but the Attorney General underscored that it’s the powers that belonged to the Executive that were alienated to the Constitutional Council in the first place.
He said that these powers had been bestowed upon the Executive when the 1978 Constitution was promulgated, and added that the executive powers that were given over to the Constitutional Council for appointment, etc. could not be exercised for instance, without the presidential nod of approval.If the President did not approve Constitutional Council appointments, there was nothing that these Councils could do about it, he submitted.
This writer made the following submissions earlier citing the case of the 2015 Supreme Court determination on the 19th Amendment:
So long as the President remains the Head of the the Executive, the exercise of his powers remains Supreme or sovereign in the executive field and others to whom such powers are given must derive the authority from the President or exercise the Executive power vested in the President as a delegate of the President. — as held by K . Sripavan CJ in determination, with the two other Judges agreeing.
Therefore, it was my submission to Court that what is the President’s can obviously be given back to him, as ‘what is his, is his.’ These were delegated powers and that had already been held incontrovertibly in a Supreme Court determination.
DUAL CITIZENSHIP
With regard to the provision for Dual Citizenship that is sought to be reintroduced to the Constitution, this writer in his submissions averred that:
With regard to Clauses that deal with permitting dual citizens to be elected to the legislature, again this is a reversal to the state quo ante.
Countries such as Germany, and even the United States allowed dual citizens to be members of the legislature. The well-known Senator Ted Cruz of Texas was a dual citizen of Canada while he was a member of the U.S. Senate.
A former German politician who was once tipped to succeed the current German Chancellor Angela Merkel is a dual citizen of Germany and the UK and a member of the German legislature. As such, it is clear that advanced polities do not consider so called divided loyalties that compromise national security, etc, on this matter.
If they can allow dual citizens involvement in their legislatures there’s no reason that we cannot do so without infringing the sovereign rights of the people. (Reference: https://www.abc.net.au/news/2017-12-06/fact-file-the-dual-citizenship-sc....)
The Attorney General submitted that the question of divided loyalties does not arise, as dual citizenship is conditional upon certain clearly delineated provisions, and could therefore always be withdrawn from the grantee.
Earlier, Gamini Marapana PC stated in his submissions that he has furnished Court with written submissions that have dealt with the processes by which the 19th Amendment came to be made into law.
This writer in separate submissions to Court stated that these processes of enactment, can be taken into account by Court particularly in reference to submissions made by the Petitioners with regard to the grundnorm etc stating that the 19th Amendment had created a new grundnorm vis-à-vis the Constitution.
UNORTHODOX
My submission was that the parliamentary process was not orthodox in the process of the passage of the 19th Amendment, and there was a situation in which a commandeered two-thirds majority was made use of — unlike the organic two-thirds majority that the people had granted this government with the express mandate of repealing the 19th Amendment Bill.
Besides, Committee stage amendments had been used in an unorthodox manner in enacting the 19th Amendment to ram through some rather illogical if not irrational clauses, as it later transpired.
In any event, the commandeered two-thirds majority of then could not be compared to the organic two-thirds majority given by the people, that obtains today.
The AG also alluded to the mandate and stated that the people are supreme and that therefore an Amendment that is backed by a people’s mandate cannot possibly impugn the sovereign rights of the people of the country.
He also stated that the Honourable Judges of the Court are called upon to decide on whether the 20th Amendment would trigger a Referendum in terms of Article 83 of the Constitution and this was the only consideration that called for a determination by Court.
The five judge Supreme Court Bench comprising Justices Jayantha Jayasuriya, Sisira de Abrew, Priyatha Jayewardene, Buwaneka Aluwihare and Vijitha Malalgoda will deliver its determination on the Bill in due course.