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Wednesday, May 29, 2024

SC Determination on 19th A: Six Paras that Require a Referendum

It was no doubt disappointment for the UNP-dominated Government that provisions the UNP sought to include in the Constitution were dismissed by the Supreme Court on the grounds that they require a referendum. The SC held that “permitting the Prime Minister to exercise Executive power in relation to the six paragraphs” dealing with the Executive “had to be struck down as being in excess of authority and violative of ” Article 3 of the Constitution”. This article says that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. The sovereignty includes the power of government, fundamental rights and the franchise.”

The six paragraphs referred to are:

The Prime Minister shall be the head of the Cabinet of Ministers (42 -3)
 The Prime Minister shall determine the number of Ministers of the Cabinet of Ministers, and the Ministries and the assignment of subjects and functions to such Ministers (43 – 1)
 The Prime Minister may at any time change the assignment of subjects and functions and recommend to the President changes in the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament.(43 – 3)
 The Prime Minister shall determine the subjects and functions which are to be assigned to Ministers appointed, and the Ministries, if any, which are to be in charge of, such Ministers. (44 – 2)
 The Prime Minister may at any time change any assignment made. (44 – 3)
 At the request of the Prime Minister, any Minister of the Cabinet of Ministers may by Notification published in the Gazette, delegate to any Minister who is not a member of the Cabinet of Ministers, any power or duty pertaining to any subject or function assigned to such Cabinet Minister, or any power or duty conferred or imposed on him or her by any written law, and it shall be lawful for such other Minister to exercise and perform any power or duty delegated notwithstanding anything to the contrary in the written law by which that power or duty is conferred or imposed on such Minister of the Cabinet of Ministers. (44 – 5)

Another clause which the SC held violates the Constitution is the appointment of a Competent Authority (Clause 26) to monitor state or private broadcasting networks that contravene regulations issued by the proposed Election Commission. This clause makes provision for the “takeover” of such ventures until the conclusion of an election. The SC held that “The Election Commission has been vested with untrammelled power and the eligibility and suitability of the members would be of paramount consideration in the public interest. There does not appear to be a mechanism where an aggrieved citizen could impugn and challenge an appointment of a Competent Authority that is not fitting. We are therefore of the view that the functions of the Competent Authority would directly affect and have a bearing on the franchise of the people and the process of selection of the representatives of people which has a direct nexus to the exercise of the sovereignty of the People.” Hence, the SC said that this Clause violates the Constitution and therefore has to be approved by a Referendum.

Objections were raised on that provision by stakeholders before 19A was presented to the SC, but the Government was in no mood to listen. Other provisions which the SC has said could be approved with a two thirds vote includes amendments relating to right to information, reducing the term of office of the President, placing a two-term limit on a person holding office as President, provision of an acting President, instances where Presidential immunity will not apply and provisions relating to the Independent Commissions (to be appointed based on the recommendations of the Constitutional Council).

Despite the Supreme Court ruling Premier Wickremesinghe was upbeat. “We will seek a mandate from the people, when we go for parliamentary elections, to set up a connstituent assembly to formulate a new Constitution. It will seek to replace the presidential system with a Prime Minister,” he told the Sunday Times. He is now sharing his time between official responsibilities and party headquarters Siri Kotha making preparations for the upcoming polls. This includes the appointment of party organisers, identifying prospective candidates and strengthening grassroots level organisations.


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