Avatar Centre for Policy Alternatives on 23 September, 2020

The Centre for Policy Alternatives vs. The Attorney General [SC. SD. 03 /2020] in re the Twentieth Amendment to the Constitution [2020]

Categories: All DocumentsPublic Interest LitigationPublic Interest Litigation submissions
 

23rd September 2020, A Bill titled ‘The Twentieth Amendment to the Constitution’ (the Bill) was placed on the Order Paper of Parliament on 22nd of September 2020. The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu filed a Petition in the Supreme Court today (23rd September 2020) in terms of Articles 120 and 121 of the Constitution, stating that the Bill can only be passed in Parliament with a special majority (2/3rds of the Members of Parliament) and with the approval of the people at a referendum.

Below are some of the main clauses CPA has challenged through its Petition;

  • Clause 5 of the Bill, which attempts to take away the right of citizens to challenge official acts and/or omissions of the President by way of Fundamental Rights Applications. This would remove the only effective check and balance on the holder of the office of President during his tenure of office.
  • Clauses 7 and 17 of the Bill, which seek to increase the powers of the President in the appointment of all categories of Ministers, the removal of such Ministers as well as the Prime Minister, and in the dissolution of Parliament. This could result in the President having full control over Parliament and derogating from the role of Parliament as a check on the President.
  • Clauses 27 and 28 of the Bill, which aim to introduce a procedure for passing ‘Urgent Bills’, bypassing the opportunity for Citizens to challenge the Constitutionality of these Bills. This limited “pre-enactment review”, contained in Article 121 of the Constitution, is the only opportunity citizens have, to canvass the constitutional validity of a Bill / Act enacted by Parliament.
  • Clause 6 of the Bill, which attempts to abolish the Constitutional Council, and replace it with a system under which the President has unfettered discretion to make appointments to key positions. The Constitutional Council, which was constitutionally mandated to endeavour to make its decisions “unanimously”, provides a pluralistic and consultative approach to appoint individuals to key institutions, which are required to function independent of the Executive.
  • Clauses 6, 19, 20, 21 and 22 of the Bill, which will impact the effectiveness and independence of the Elections Commission. The amendment would denude the ability of the Elections Commission to conduct a “free and fair election”.

CPA argues that several provisions including those mentioned above cannot be passed with only a 2/3 majority of the total number of Members of Parliament, but also needs to be approved by the people at a Referendum, as they violate several entrenched provisions mentioned Article 83 of the Constitution. In particular, CPA argues that these provisions derogate the Sovereignty of the People, which has been guaranteed under Article 3 of the Constitution.

CPA has previously raised concerns regarding the Bill, as it rolls back many of the democratic reforms introduced by the Nineteenth Amendment in 2015, and as it creates an all-powerful Executive President, with minimum checks and balances.

The full petition filed by CPA, as well as the written submission filed on 2 October and further written submissions in response to Arguments made by the Attorney General on 10 October can be viewed here.