20A Grave Threat To Sri Lanka’s Sovereignty: Counsels For SJB Petitioners

Counsels who appeared for three petitioners from the Samagi Jana Balawegaya stated this morning that the proposed 20th Amendment to the Constitution would gravely undermine the sovereignty of Sri Lanka and could not be passed with a two-thirds majority in Parliament.

The Supeme Court conducted hearings of the petitions filed against the 20th Amendment to the Constitution for the second consecutive day. Chief Justice Jayantha Jayasuriya said yesterday that the court intended to conclude submissions of all petitioners by Friday.

Rasika, Mayantha and Lihini

Making submissions for Samagi Jana Balawegaya’s Rasika Jayakody, Counsel Gehan Gunatilleke drew attention to Clause 17 of proposed Bill. “Holding citizenship of any other country typically entails pledging allegiance to a Sovereign other than the people of SriLanka,” he said.

Gunatilleke added. “A committee appointed by the Bar Association recently released a report on 20A Bill, which reproduced some of the citizenship oaths: Two examples are as follows

Section 42 of the British Nationality Act of 1981, as amended (para 26):

I, [name], swear by Almighty God that, on becoming a British citizen, I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law.

The oath of citizenship according to Section 337(a) of the Immigration and Nationality Act of the United States of 1952:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen

The sovereignty in the case of Sri Lanka would be the People of Sri Lanka – so any person taking the US citizenship oath would be renouncing all fidelity to the People of Sri Lanka

These oaths impose a legal duty on the said person to safeguard the interests of that country notwithstanding holding any public office in Sri Lanka, and in some cases to renounce fidelity to the People of Sri Lanka.

The question is whether a person who makes such an oath—for example an oath of allegiance to the Queen of England—should ask wield legislative and executive power of the People of Sri Lanka”. “These oaths impose a legal duty on the said person to safeguard the interests of that country notwithstanding holding any public office in Sri Lanka – in some cases to renounce fidelity to the People.”

Gunatilleke concluded that if enacted, Clause 17 of the draft 20th Amendment would be inconsistent with Article 1, 3, 4 of Constitution. “The clause would therefore require approval by the People at a Referendum in terms of Article 83,” he said.

Making submissions for Samagi Jana Balawegaya’s Lihini Fernando, Counsel Viran Corea said no government can remove constitutional provisions and weaken effectiveness of checks and balances by 2/3 majority alone.

“If checks and balances are removed abuses will result in weakening Sovereignty of the People,” he said.

He also said attempting to give “unsigned document that no one knows who authored”, without re-Gazetting, that promises sweeping changes, undermines ability of court to properly scrutinise implications.

“The constitutional provision given for the court to suggest any amendment that may make a Bill consistent is intended only to make recommendations in considering the Bill itself, and should not be allowed to be a provision that negates the ability to canvass constitutionality – the first counsel wasn’t even given half an hour to look at it. All this reeks of bad faith that shouldn’t be tolerated.

“Court should not accept and pronounce on so-called proposed constitutional amendments.”

Farman Cassim PC, appearing for MP Mayantha Dissanayake drew the court’s attention to Clause 14 of the Proposed amendment which aspires to dissolve the parliament after 2 and ½ years of being appointed.

He said, “It is abundantly clear that the authors of this bill are setting the stage for classic case of skullduggery, and thereby clean the coffers of the treasury by way of siphoning out billions of Dollars through state owned enterprises.

The context of this action is that by clause 32 to 39 the audit commission is removed, by clause 54 the bribery commission is removed, by clause 55 the National Procurement Commission is removed and to have the Auditor General appointed by the President as well as the chairman and members of other remaining commissions appointed by the President will only leave to a Mihin Lanka kind of high way robbery. And all this will take place without citizenry having recourse to Your Lordships’ Court by Clause 05 of the Proposed amendment by Presidential immunity being introduced.

“It is respectfully submitted, that in the course of six years during 1999- 2005, there were three general elections and two presidential elections at the expense of the public funds. It is respectfully submitted that these unnecessary expenses due to whims and fancies of the executive will be reintroduced if the proposed clause 14 is passed. Also, I concur submissions made by the President Counsel and other Counsel, who presided me. I specifically concur and associate myself with the submissions made by Mr. Kanag-Isvaran PC, in as much as the Bill named “The 20th Amendment to the Constitution” violates the basic percepts of Constitutional law and thus cannot be even put to a referendum by the people and Your Lordships’ court should strike down the Bill. ”

Counsel Suren Fernando who appeared for Samagi Jana Balawegaya General Secretary Ranjith Madduma Bandara explained yesterday as to how the proposed 20th Amendment to the Constitution sought to violate the basic tenets of the Constitution.