The Supreme Court yesterday commenced hearing of Nine petitions filed challenging the 22nd Amendment to the Constitution Bill that certain clauses of it are unconstitutional. The petitions were taken up before a Supreme Court Bench comprising Chief Justice Jayantha Jayasuriya and Justices Buwaneka Aluwihare, Arjuna Obeysekara.
When the petitions were taken up before the Supreme Court yesterday, President’s Counsel Manohara de Silva, Attorneys V.K Choksey, Peiris and Nagananda Kodithuwakku appearing for the petitioners made lengthy submissions.
Petitioner Attorney-at-Law Nagananda Kodithuwakku appearing for the petition which was filed by him made submissions and said that the composition of the proposed legislative assembly is problematic and it has been proposed to appoint seven members from within the parliament and three from outside and it will have a harmful effect on the independence of the judiciary and it will directly violate the constitution. All the ten members to be appointed for that should be appointed from outside the parliament and thus the independence of the judiciary is 100 percent protected and the appointments, promotions, transfers, etc. of judges should be done by independent persons. He pointed out that the appointment of judges by the executive violates the independence of the judiciary and is a complete violation of the Constitution.
He also pointed out that Article 28 of the proposed 22nd Constitutional Amendment is against the Constitution and pointed out that the ability of politicians to return to the position after committing any offense while in office should be removed.
When President’s Counsel Manohara de Silva appeared for Lieutenant Kernel A.S. Amarasekara making submission over the petition Chief Justice Jayantha Jayasuriya raised a question that how the President’s executive power is being deprived by stating that the appointment of the cabinet should be done according to the instructions of the Prime Minister according to the proposed 22nd constitutional amendment?
The Chief Justice also stated that most of the clauses included in this bill have been brought to the attention of the court in the 17th and 19th constitutional amendments.
President’s Counsel Manohara de Silva said that the 19th constitutional amendment has confirmed that the executive power of the people of this country belongs to the President and that power cannot be curtailed. He emphasized that although certain restrictions can be placed on that power, it cannot affect his final decisions.
The President’s counsel pointed out that the powers of the President have been reduced by the article 44 of the bill and it is against the constitution, he pointed out that according to that constitution the president has been made to act according to the instructions of the Prime Minister.
Also, the provision that the appointment of ministers as well as the appointment of Deputy Ministers should be made on the advice of the Prime Minister, the President’s counsel stated that the President has been deprived of acting according to his independent discretion.
Accordingly, he pointed out that the relevant appointments must be made on the advice of the Prime Minister and the advice of the Prime Minister must be taken.
However, according to the existing Constitution, the President has the ability to decide whether or not to take the Prime Minister’s advice, but he pointed out that this is not the case here. The President’s counsel stated that it is a violation of the power of the President.
He said that the court has the responsibility to examine whether the constitution is against the constitution and the court has the ability to propose alternative amendments when such a constitution is unconstitutional but it is not a mandatory matter.
According to the 4th provision of the Constitution, the executive power of the people is vested in the President. In the exercise of that executive power, there is a need to act on someone else’s wishes and this is questionable, he added.
The petitions Will be taken up again today for further consideration.
The petitions were filed by Attorney-at-Law Nuwan Ballanthudawa, a member of the Central Board of the Patriotic National Front, Dr. Gunadasa Amarasekera, Vinivida Foundation General Secretary Nagananda Kodithuwakku, Lieutenant Kernel A.S. Amarasekara, R.M.W.T.B Rathnayake, H.S Kumara, H.D.J. Kulathunga, S.M.K Devinda and D.B Dahanayake.
The petitions have cited the Attorney General as a Respondent.
The petitions say that the 22nd Amendment to the Constitution Bill was published in the Gazette on August 02.
The petitioners challenge that certain clauses of the 22nd Amendment Bill of the Constitution which has been submitted to the Parliament on August 10 are unconstitutional. In order for the clauses included in this bill to become a law, the petitions have requested that it be passed by the people in a referendum with a two-thirds majority in the parliament. The petitions have pointed out that the proposed provisions are not in accordance with the provisions of the Constitution. Therefore, the petitioners seek from the court to proceed on these petitions and express its opinion on the constitutionality of the clauses included in the relevant bill.
Such a bill should be challenged before the court within seven days after its inclusion in the parliamentary order paper. Accordingly these petitions have been filed.
Tuesday, August 23, 2022 – 01:00