Facts, Features & Fiction Behind The Proposed 20A

By Rusiripala Tennakoon –SEPTEMBER 4, 2020

Rusiripala Tennakoon

20th Amendment is a stale subject. But now it has become a much discussed hot topic. For many legislators in the Parliament it was a scapegoat. Having voted with both hands not the sound voting enunciated by the former speaker Karu J.) for the now much disputed 19A, they all rationalized their stand by projecting an impending further amendment which never saw the light of day. For the masterminds who hoodwinked them it was a great achievement though the outcome was an incredible state of affairs becoming too bizarre before long. The scenario we are witnessing currently is full of fantasies created by the weird and feverish imaginations. We are hence compelled to carefully examine this matter with a degree of selflessness and clarity.

History of 19A

The birth of 19A extends to the ‘Good Governance’ claim that was heavily canvassed during the 2015 January Presidential election. There were several unseen forces influencing the process unnoticed by many. Most of the sources of origin of such influence extended beyond our shores. The main being the Neo-Liberal precept that has been haunting behind the much canvassed regime change based on the volatile and elusive culture and environment created by the former Government. The most obvious necessitation was the elimination of the adversities caused by the 18th Amendment. The ostensible facade was the attributed safeguarding of the Democracy and establishment of Good Governance which by then had become a buzzword associated with aid grants and assistance towards development. The concepts went deep into areas commonly hailed by the democratic polity in their desire to protect and promote human and civil rights in a background of non-corrupt and accountable administration. 

Certain amendments in 18A made during ‘Rajapaksa regime’ contributed in a very big way to inculcate the ostensible democratization process advocated by the Good Governance regime such as the repeal of Article 31(2), viz. “no person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People”. There is no dispute that it was a totally unacceptable move to incorporate such a lamentable section into any modern constitution, according to any decent democratic norm. Hence it became essential to repeal it. But many other provisions introduced along with its repeal caused much consternation and confusion creating an impression that the opportunity to rectify it was misused in an indecent and immodest sense. Today’s confusion is the net result of this trickery deed.

Under Article 120, it is the Supreme Court that has the sole and exclusive jurisdiction to determine any question as to whether any bill or any provision thereof is inconsistent with the constitution. It is interesting to note how the Supreme Court viewed the Bill that was presented invoking the jurisdiction of the SC in terms of Article 121(1) for a determination in respect of the bill titled ‘An act to amend the constitution……… – 19th Amendment to the constitution’. The Supreme Court gave hearing to 13 petitioners and intervenient parties at the sittings held commencing 1st April 2015.The proposed 19th Amendment sought to amend the following;

1. Inclusion of a Right to Information

2. Reducing the term of office of the President

3. Limiting the number of terms a person can hold office as President to two terms

4. Provision for an acting President in the event of death/absence of the incumbent

5. Imposition of additional duties on the President

6. Effective numbering of Article 42 as Article 33A

7. The circumstances in which Presidential immunity will not apply

8. Period within which an election shall be held if an election is determined to be void

9. To introduce the Constitutional council again

10. Changes made to Chapter viii with regard to matters concerning the Executive, the Cabinet, Number of Ministers and their appointment

11. To reduce the Term of parliament

12. Provisions relating to prorogation of Parliament

13. The Jurisdiction of the SC relating to disciplinary actions against MPs

14. Removal of the provisions relating to urgent bills

15. Provisions relating to Independent Commissions

16. Special provisions applicable to incumbent President

According to Article 120(a) the only question which the SC may determine in a Bill presented to the SC is whether such Bill requires approval by the People at a Referendum under the provisions of Article 83. This Article specifically refer to the limitations of the powers of the parliament to amend, repeal or the replacement of or inconsistent with the provisions of Articles,1, 2, 3, 6, 7, 8, 9, 10 and 11 and any bill for the amendment or for the repeal and replacement of or which is inconsistent with the provisions in the constitution including any which would extend the term of office of the President or the duration of the Parliament. Such amendments shall become Law only if the number of votes cast in favour amounts to not less than two-thirds of the whole number of Members (including those not present),is approved by the People at a Referendum. Accordingly it would be seen that the mandated legislature to make constitutional amendments affecting Article 83 goes beyond the authority of the Parliament extending as a right of the People. This right is further elaborated in Article 4, which states, the sovereignty of the People shall be exercised and enjoyed in the following manner: 

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