Centre for Policy Alternatives on 25 May, 2009

CPA CHALLENGES 18TH AND 19TH AMENDMENTS

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The
Centre for Policy Alternatives (CPA) has filed two petitions in
the Supreme Court of Sri Lanka challenging the constitutionality
of passing both the 18th and 19th Amendments to the Constitution
with a two-thirds majority vote in Parliament. The reasons for the
challenges are quite distinct from those of most of the other petitions.

CPA’s
opposition to the 18th Amendment is premised on its violation of
fundamental first principles of the rule of law. The Constitutional
Council which is a creature of the Constitution must be bound at
least by the chapter on fundamental rights contained in the Constitution.
While the Constitutional Council must have substantial freedom and
autonomy to exercise its important functions, CPA also believes
that the Supreme Court should have the discretion to review decisions
of the Council if they are in flagrant violation of fundamental
rights.

The
Centre for Policy Alternatives, unlike a number of other petitioners
challenging the 19th Amendment, welcomes a constitutional amendment
to remove the President’s power to dissolve Parliament. It also
believes that such an amendment does not require a referendum. However,
CPA strongly disapproves of the specific provisions in the 19th
Amendment that permit a President to dissolve Parliament if the
holder of the office of President and the party that has a majority
in Parliament are the same. The 19th Amendment is, therefore, not
based on the principle that an Parliament should exist free from
the whims and fancies of a powerful Executive President, but rather
is ad hoc, ad hominem and partisan.

Similarly
with respect to the freedom of conscience of Members of Parliament,
CPA believes that Article 99 (13) of the Constitution which has
helped entrench the spurious principle of “party democracy”
should be repealed. At the very least, the principled approach to
constitutional amendment would have required an amendment to permit
an MP to vote according to her/his conscience with respect to ALL
constitutional amendments. The 19th Amendment protects an MP who
defies the party line on only the 19th Amendment itself, from expulsion
from Parliament. Furthermore in a bizarre twist that undermines
freedom of association and the autonomy of political parties, the
19th Amendment even prevents a party from expelling an MP from the
party. Therefore, the misleadingly described “conscience clause”
is itself ad hoc, ad hominem and partisan in nature.

A
short amendment removing the President’s power to dissolve Parliament
and permitting MPs freedom of conscience would have been principle
based, compatible with constitutionalism and, therefore, justifiable.

M.
A. Sumanthiran assisted by Viran Corea and Renuka Senanayake will
represent CPA in the legal proceedings.


 

Rohan Edrisinha
Director – Legal