Saturday, 28 September 2002  
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Govt. - LTTE Ceasefire Agreement

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Sunday Observer

Budusarana On-line Edition

CPA challenges 18th and 19th amendments

The Centre for Policy Alternatives (CPA) has filed two petitions in the Supreme Court of Sri Lanka challenging the constitutionality of passing both the 18th and 19th amendments to the Constitution with a two-thirds majority vote in Parliament.

The reasons for the challenges are quite distinct from those of most of the other petitions, the CPA said yesterday.

CPA's opposition to the 18th Amendment is premised on its violation of fundamental first principles of the rule of law. The Constitutional Council which is a creature of the Constitution must be bound at least by the chapter on fundamental rights contained in the Constitution.

While the Constitutional Council must have substantial freedom and autonomy to exercise its important functions, CPA also believes that the Supreme Court should have the discretion to review decisions of the Council if they are in flagrant violation of fundamental rights.

The Centre for Policy Alternatives, unlike a number of other petitioners challenging the 19th Amendment, welcomes a constitutional amendment to remove the President's power to dissolve Parliament. It also believes that such an amendment does not require a referendum. However, CPA strongly disapproves of the specific provisions in the 19th Amendment that permit a President to dissolve Parliament if the holder of the office of President and the party that has a majority in Parliament are the same.

The 19th Amendment is, therefore, not based on the principle that a Parliament should exist free from the whims and fancies of a powerful Executive President, but rather is ad hoc, ad hominem and partisan.

Similarly with respect to the freedom of conscience of Members of Parliament, CPA believes that Article 99 (13) of the Constitution which has helped entrench the spurious principle of "party democracy" should be repealed.

At the very least, the principled approach to constitutional amendment would have required an amendment to permit an MP to vote according to her/his conscience with respect to all constitutional amendments.

The 19th Amendment protects an MP who defies the party line on only the 19th Amendment itself, from expulsion from Parliament.

Furthermore in a bizarre twist that undermines freedom of association and the autonomy of political parties, the 19th Amendment even prevents a party from expelling an MP from the party. Therefore, the misleadingly described "conscience clause" is itself ad hoc, ad hominem and partisan in nature.

A short amendment removing the President's power to dissolve Parliament and permitting MPs freedom of conscience would have been principle based, compatible with constitutionalism and, therefore, justifiable.

M. A. Sumanthiran assisted by Viran Corea and Renuka Senanayake will represent CPA in the legal proceedings. 

HNB-Pathum Udanaya2002

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