A Bill titled ‘The Twentieth Amendment to the Constitution’ (the Bill) was placed on the Order Paper of Parliament on 23^rd August 2017. The Centre for Policy Alternatives (CPA) and its Executive Director filed a Petition on 28^th August 2017 in the Supreme Court, stating that the Bill can only be passed in Parliament with a special majority (two thirds of the Members of Parliament) and with the approval of the people at a referendum.

CPA first argued that the Bill fails to comply with a mandatory procedural requirement for constitutional amendments. Article 154G(2) of the Constitution requires any amendments to the devolution framework established by the Thirteenth Amendment to be referred by the President to every Provincial Council for the expression of their views before being placed on the Order Paper of Parliament. This procedure was not followed in this case. The importance of this requirement is that it enables Provincial Councils to express their views on a Constitutional Amendment Bill, and to give the government an opportunity to accommodate those views before a final Bill is presented to Parliament.

Second, CPA argued that the Bill violates the Constitution’s Article 3, which affirms the sovereignty of the people and recognizes that the franchise is a part of that sovereignty. After the Thirteenth Amendment introduced devolution, this includes the right of citizens in the nine Provinces to elect a Provincial Council of their choice. The Bill negatively affects the people’s franchise because it transfers to Parliament the power of a Provincial Council to decide when that Council should be dissolved. As a result, it delays the opportunity of citizens in Provinces whose Provincial Council terms end before the “specified date” in the Bill, to vote for a new Provincial Council until then. Equally, the mandate citizens have given to Provincial Councils whose terms end after the “specified date” in the Bill is cut short by the Bill.

The Supreme Court in its determination did not hold with CPA’s argument relating to Article 154(G)(2), however, it did accept the position that it is mandatory for the President to refer such bills to Provincial Councils prior to being placed on the order paper of Parliament. Furthermore the Court determined that the postponement of elections envisaged in the Bill violated Articles 3 and 4 of the Constitution (sovereignty of the People) and as such it was required to be passed by a referendum.

The Centre for Policy Alternatives (CPA) and its Executive Director filed a Fundamental Rights application challenging the appointment of Field Marshal Sarath Fonseka to fill the vacancy created by the death of Mr. M. K. A. D. S. Gunawardana, as a Member of Parliament elected under Article 99A of the Constitution (the National List).

In accordance with Article 99A of the Constitution, CPA’s position was that a person is only entitled to be nominated to fill such a vacancy if their name was included in the district nomination papers or national list submitted by the relevant political party. Field Marshal Sarath Fonseka’s name was not included in the “national list” submitted to the Election Commission by the United National Party, or in any nomination paper submitted with respect to any Electoral District by the United National Party in the 2015 Parliamentary election.

In its Petition, CPA stated that if the appointment of a person as a Member of Parliament is contrary to the provisions of the Constitution, is a violation of several rights guaranteed under the Constitution, in particular the franchise, which is part of the sovereignty of the people. Furthermore, CPA argued that any attempt to interpret legislation in a manner contrary to the provisions of the Constitution would imperil the supremacy of the Constitution, which is a cornerstone of constitutional democracy.

Over the past two decades, CPA has filed several Public Interest Litigation cases relating to the franchise, and in particular, the right to vote. The judgments deriving from these cases have recognized the right to vote as a fundamental right and highlighted the importance of protecting it. CPA has on two previous occasions challenged attempts to appoint to Parliament and to Provincial Councils, individuals whose names were included in the nomination papers submitted for the respective elections.

The matter was taken up by the Supreme Court on May 24^th 2016. The Court stated that Article 99(A) of the Constitution does not extend to cover a situation where the seat of a National List member has fallen vacant and the provisions contained in section 64(5) of the Parliamentary Elections Act No.1 of 1981 with regards to filling vacancies would apply. Therefore, the Court refused to grant leave to proceed with the case.

Sanjeewa Sudath Perera and two other persons filed a Petition dated 26^th February 2016 in the Supreme Court challenging the decision to sing the National Anthem of Sri Lanka in Tamil at the official Independence Day celebrations in 2016. The Petitioners argued that singing the Anthem in Tamil was contradictory to Articles 7 and 12 of the Sri Lankan Constitution, which relate to the National Anthem and the rights to equality and non-discrimination, respectively.

On March 4^th 2016, the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu filed an Intervention-Petition, which argued that singing the National Anthem in Tamil was Constitutional. This intervention Petition first referenced Articles 18 and 19 of the Constitution, which state that Sinhala and Tamil are the official and national languages of Sri Lanka. Furthermore unlike subordinate legislation such as acts of Parliament, the Constitution contains no provision, which stipulates that the Sinhala text shall prevail over the Tamil text.  As such the words and music of the National Anthem in the Tamil language are constitutionally recognized by Article 7 read with the Third Schedule of the Tamil version of the Constitution of Sri Lanka.

The intervention Petition further referenced Article 12 of the Constitution, claiming that a declaration that the National Anthem should be sung only in Sinhalese would be a direct violation of Article 12, which in turn would be a violation of the fundamental rights of Tamil-speaking citizens. CPA also supported two additional Intervention-Petitions that supported the constitutionality of singing the National Anthem in Tamil.

The Supreme Court took up the case on the 18^th of November 2016, discussing whether the Petitioners made a strong enough case for considering the Petition in the Court. During the discussions, the Deputy Solicitor General (DSG) also referenced Articles 18 and 19 of the constitution recognizing both Sinhala and Tamil as the official and national languages of Sri Lanka, and that the singing of the Anthem in Tamil was not in violation of the Constitution. The court therefore decided that the Petitioners had not disclosed a case to be considered, and subsequently their case was dismissed.

On December 11^th 2015, a Bill titled “Penal Code (Amendment) Bill” was placed on the Order Paper of Parliament for the purpose of amending the Penal Code (Chapter 19). The Centre for Policy Alternatives and its Executive Director Dr. Paikiasothy Saravanamuttu filed a Petition on the 17^th of December 2015, challenging the constitutionality of the sole substantive clause in said bill.

In its Petition, the CPA argued that Clause 2 of the Bill violates Articles 10, 14(1)(a), and 12(1) of the Constitution, that specifically deal with freedom of thought, conscience, and religion; freedom of speech and expression including publication; and equal protection of the law, respectively.

On December 18^th 2015, the matter was taken up by the Supreme Court, which was subsequently informed by the Attorney General that the Government had decided not to proceed with the present Bill. The Supreme Court is to send a formal communication to the President and to the Speaker of Parliament, in accordance with Article 121(3) of the Constitution.

For further information, see:

• Joint civil society statement on amendment to Penal Code criminalizing hate speech
• Constitutional and Legal Framework Governing Religious Freedom and Related Issues