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22nd Amendment: Bid to restore checks and balances in lawmakers’ hands
View(s):By Yoshitha Perera
The Supreme Court has ruled that the bill submitted for the 22nd amendment to the Constitution can be passed with a two-thirds majority in Parliament and with some clauses requiring amendments.
A few clauses will require a special majority as well as a referendum, Speaker Mahinda Yapa Abeywardena informed Parliament on Tuesday.
The court recommended that the bill be passed by the special majority specified in Article 82(5) of the Constitution.
The bill aims to restore independent commissions and also trim some of the powers of the President. The bill consists of 31 clauses.
The submissions of the majority of the counsel appearing for the petitioners mainly relate to the provisions in clauses 2, 3, and 18.
Their argument was that some of the amendments sought to be affected by those clauses amount to an alienation or relinquishment of the executive power of the president.
Therefore, the court recommended that to avoid the violations of the provisions of Article 4(b) read together with Article 3, thus necessitating the amendments to be passed by the special majority of Parliament, and approved by people at a referendum.
The bill was challenged in the Supreme Court in terms of article 121 (1) of the Constitution. It elaborated the sovereignty of the people and its exercise, inalienability of sovereignty and the separation of powers, and the executive power of the people.
Clause 2 of the bill seeks to repeal Chapter VII A of the Constitution, which presently consists of Article 41A relating to the Parliamentary Council, and replace it with a new Chapter VII A titled ‘The Constitutional Council’ consisting of Articles 41A-41J, containing provisions relating to the reintroduction of the Constitutional Council.
Provisions relating to the Constitutional Council including a provision identical to the proposed Article 41A(6) was found in the 21st Amendment to the Constitution, the court noted.
“While the proposed amendment maintains the power of the president to make appointments to the Constitutional Council, only the power to make such nominations is given to the prime minister, leader of the opposition and other political parties represented in the Parliament,” the court explained.
It further explained that the mechanism put in place by the proposed Article 41B of obtaining recommendations of the Constitutional Council should not be seen as a one-way street where the president is compelled to accept the recommendations of the council.
“Even though the council comprises an appointee of the president, the ultimate decision with regard to the appointments of the chairman and members of the commissions, which forms part of the executive power of the president, must remain with the president,” the court ruled.
The submission of the Attorney General was that the composition of the council has been formulated in a manner that ensures wide representation, strengthens independence, enhances democratic values, and bears a rational nexus to the objective of establishing a Constitutional Council.
The court has also considered the context in which the above requirements have been specified and is of the view that the said provisions are not an infringement of Article 83 of the Constitution.
Several arguments and elaborations have been also directed by the court with regard to the bill’s Clause 3 that explains acting on the advice of the prime minister, the provisions related to the taking away the right of the President to remove the Prime Minister and the provisions related to the forming of national government.
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