With just 15 days to go for the Sabaragamuwa, North Central and Eastern provinces to automatically stand dissolved, the coming week will be a make or break period for the yahapalana government. The 20th Amendment to the Constitution is to be taken up for debate on Wednesday.
The Supreme Court we believe has already conveyed its determination on the constitutionality of the proposed 20th Amendment to the Constitution. It was all over the social media that the SC had determined that the 20th A needed a referendum to be passed into law. No surprise in that.
In fact the surprise would have been if the SC had determined that no referendum was necessary to extend the terms of the PCs and to postpone elections. In any event the SC’s determination is to be announced in Parliament by the Speaker on Tuesday before the 20th Amendment is taken up on Wednesday for debate.
Since 20A had already been certified as a Bill to amend the Constitution, the role of the SC is to determine whether it needs to be approved at a referendum in addition to a two thirds majority in parliament. In this respect, the determination of the SC was a foregone conclusion.
The aim of the Amendment was firstly to extend the terms (without an election) of most of the provincial councils for periods ranging from two years to several months, and secondly, ipso facto, postponing the elections to these councils. The provincial councils are elected for a period of five years and according to Article 154E of the Constitution, they stand dissolved automatically on the day they complete five years from the first meeting of the provincial council. In such circumstances, it’s a near impossibility to extend the term of the PC or to postpone elections to a PC without impinging on entrenched Article 3 of the Constitution which guarantees the franchise.
To say that all the legal big guns had come out against 20A would be an understatement. This was the first time since 1975 that a proposal was made to extend the life of an elected body through legislative fiat. (Even though J.R.Jayewardene also postponed elections in the 1980s, he at least held a referendum and won it. Even if an election had been held he would have won that too, but not with the majority he got in 1977, so his postponement of elections was not simply to hold on to power but to retain the majority he got in 1977.) Many in the legal fraternity realized the importance of opposing the 20A. They would have realized that once we start going down this slippery slope of using legislative fiat to postpone elections, there is no telling where the country and the entire political system will end up. The first to file a petition in the SC against 20A was Prof. G.L.Peiris, himself a Professor of law.
Legal luminaries to the battlefront
He was represented by Romesh de Silva PC. Manohara de Silva PC appeared for Udaya Gammanpila who also petitioned the SC. They were among a dozen other petitioners. On the first day, Romesh de Silva spent four hours on his feet presenting his case against the 20A. In his submissions, de Silva made the following points on behalf of his client Prof. Peiris. According to Article 154E of the Constitution, the term of a provincial council is fixed at five years. The only two grounds for dissolution are laid out in 154B(8)(c) of the Constitution and Section 5A of the Provincial Councils Elections Act No 2 of 1988. Both these provisions are extremely stringent and the Governor can use his powers in very limited grounds. Under Section 5A of the Provincial Councils Elections Act No 2 of 1988, a PC will stand dissolved if more than one half of its membership disavows obedience to the constitution. Under Article 154B(8)(c) and (d) The Governor may dissolve the Provincial Council in accordance with the advice of the Chief Minister. In these circumstances de Silva stated that it is only in a set of narrow circumstances that an early dissolution can take place.
He stated that the clear structure of the Constitution is that a Provincial Council once constituted must run for five years. All voters vote on the basis that the Provincial Council operates for a period of five years. The consequences of the proposed 20th Amendment are such that the period of some of the Provincial Councils will be extended and Parliament will fix the date on which all the provincial councils shall stand dissolved regardless of when they were constituted. De Silva argued that the franchise of the People will be adversely affected in that the people’s right to vote after a period of five years will be affected. Furthermore, the Amendment has the effect of acting retrospectively, which affects the franchise already exercised.
Some PCs whose term will be extended will exercise executive and legislative powers for a period of time in respect of which they have not received the mandate of the People. In other words, they will govern without the consent of the people. The 20th Amendment Bill is therefore repugnant to Article 3 as it seeks to infringe and alienate the Sovereignty reposed in the People by violating fundamental rights and the franchise.
Manohara de Silva PC represented Udaya Gammanpila and he said the following in the course of his submissions: Although the declared primary objective is to have elections of all provincial councils on the same day, a careful examination of the provisions of this Bill reveal that it seeks to Amend Article 154E to extend the term of office of PCs. If the objective was only to have all elections on the same day the state could have achieved that objective without any opposition if the date of the election was advanced and not postponed. The Local Authorities elections have been postponed for almost two years without any prospect of the same being held. Therefore it appears that postponement of elections has now become a pattern of governance to deprive the people of the franchise.
The submissions made before the Supreme Court against the 20th Amendment all drew reference to previous judgments made by the SC regarding the application of Article 3 of the Constitution which guarantees the franchise of the people. Article 3 has been analyzed and reanalyzed so many times that it is now impossible to argue that the extension of the term of an elected body without an election and the postponement of an election will not impinge on the franchise. If there was any anxiety at all in the country that the SC may determine that a referendum was not necessary for the 20th Amendment to become law, that was entirely the result of the fact that the yahapalana government started their rule by terrorizing the Supreme Court by sacking a sitting chief justice with just a chit from the President’s office. Since the news coming down the grapevine indicates that the SC has stated that a referendum is necessary, one may say that the SC has not succumbed to the yahapalana terror.
