IN THE SUPREME COURT OF

THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an application to

determine whether the Bill titled:
“Twentieth Amendment to the
Constitution” or any part thereof is
inconsistent with the Constitution, in
terms of Article 121 of the
Constitution of Sri Lanka.

(1) Ruwan Laknath Jayakody

Arachchige Jayakody,
No. 19/3, Sulaiman Terrace,
Colombo 5.

(2) Kavindya Christopher Thomas,

No. 80, Station Road,
Udahamulla, Nugegoda.

(3) Silvester Mariya Chammika

Manoj Dilusha Kumar,
No. 36, Koswadiya, Mahawewa

PETITIONERS
SC (SD) No: …
Vs.

Hon. Attorney General

Attorney General‟s Department
Colombo 12

RESPONDENT

TO: HIS LORDSHIP THE CHIEF JUSTICE AND THEIR LORDSHIPS THE OTHER
HONOURABLE JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA

The Petition of the Petitioners above named appearing by their registered Attorney-at-Law
Manjula Balasuriya states as follows;

On this 28th day of September 2020,

1
(1) The Petitioners state that the 1st and 2nd Petitioners are journalists and the 3rd Petitioner is
employed in the Public sector. The Petitioners, being citizens of Sri Lanka, institute this
action under Article 121 of the Constitution on behalf of themselves and the People of the
Republic of Sri Lanka in the public interest.

(2) The Respondent is the Honourable Attorney General, sued herein as representing the
Government/State of Sri Lanka under Article 134(1) of the Constitution.

(3) The Petitioners state that the Bill titled „Twentieth Amendment to the Constitution‟ which
was published in Part II of the Gazette dated 28 th August 2020 was placed on the Order
Paper and/or was presented to the Parliament by the Government on 22nd September
2020.

A copy of the said Twentieth Amendment to the Constitution Bill published in English
language is annexed hereto, marked as „X’ and pleaded as part and parcel hereof.

(4) The Petitioners state that the said Twentieth Amendment to the Constitution Bill contains
proposed amendments/changes to the Constitution of Sri Lanka which would, inter alia,

(a) Reverse/repeal/amend provisions which place checks on the powers of the

President which was brought about by the Nineteenth Amendment to the
Constitution;

(b) Grant vast powers to the President over and above the powers vested in the
Executive Presidency under the original 1978 Constitution prior to the
Seventeenth Amendment;

(c) Directly impact upon the Petitioners‟ sovereignty in terms of Article 3 read
together with Articles 4(a), 4(c) and 4(d) by weakening/making defunct the
legislative powers of the Parliament, subordinating the Judiciary to the will of the
Executive, granting the Executive immunity on any fundamental rights violations
he may commit in the course of his tenure, and endangering constitutional
rights of the Petitioners by way of inter alia urgent bills;

(d) Weaken the sovereignty of the Petitioners in terms of Article 3 read together
with Article 4(e) in terms of their franchise which is the only power directly
exercisable by the Petitioners/People to exercise their sovereignty;

(e) Impact Articles 30(2), 62(1) and 62(2) of the Constitution, since the Judiciary
and the Election Commission is made subservient to the Executive and thereby
weaken and places in peril the franchise guaranteed under Article 3, read
together with Article 4(e) of the Constitution;

(f) Violate Petitioners‟ fundamental rights guaranteed under Article 12(1) and
Article 12(2) of the Constitution as the President cannot be held accountable for
Fundamental Rights violations in the course of anything he does in his capacity
as the President.

2
(5) The Petitioners understand that the proposed Twentieth Amendment to the Constitution
Bill and the provisions it has proposed to amend the Constitution are closely similar to
those in the Eighteenth Amendment to the Constitution Bill which was heard and
determined by this Court on 31st August 2010.

(6) The passage of the said Eighteenth Amendment Bill which became law on 9 th September
2010 resulted in a dark chapter for the Judiciary of Sri Lanka where unfettered powers
granted to the Executive resulted in the impeachment of a Chief Justice of this very Court,
which is the apex Court of the Republic.

(7) Therefore, the Petitioners urge Your Lordships' Court at the very outset to
review/consider/assess the Amendments/Changes proposed to the Constitution by the
said Bill titled „Twentieth Amendment to the Constitution‟,

(a) Not solely in terms of the black letter of the law but in the context of historical
events and theoretical underpinnings of Constitution, including its basic norm
(Grundnorm), the basic structure and the salient features that guarantee
democratic rights of the People;

(b) In terms of how similar provisions have operated in this country/State resulting
in the abuse of sovereign powers by the Executive, which powers, the people
of Sri Lanka comprising of all the members of the civil society including the
Petitioners, reposed on the Executive, in trust, to exercise on their behalf;

(c) And in terms of the founding principles of our democracy as laid out in the
Preamble to the Constitution of Sri Lanka:

“…..assuring to all Peoples FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL

HUMAN RIGHTS and the INDEPENDENCE OF THE JUDICIARY as the
intangible heritage that guarantees the dignity and well-being of succeeding
generations of the People of SRI LANKA…”

(8) The Petitioners state the following in the backdrop of historical lessons, and as members
of the civil society, respectfully urge this Court to recall how powerful Executives have
used their powers granted to them under the 1978 Constitution (which was further
consolidated by the 18th Amendment to the Constitution) to crush the freedom of
expression, dissent, workers‟ movements and democratic rights of the People in the past
and have had disdain for the lives of people who have demanded basic standards of
living.

3
EXECUTIVE USURPING POWERS OF THE LEGISLATURE/WEAKENING THE
LEGISLATURE AND MAKING IT SUBSERVIENT TO THE WILL OF THE EXECUTIVE

(9) The Petitioners state,

(a) The proposed Clause 14 of the Twentieth Amendment Bill repeals Article
70(1) of the Constitution which only allows the President to dissolve
Parliament before the expiration of four and a half years if two thirds of the
Members of Parliament pass a resolution requesting him to dissolve
Parliament;

(b) The proposed amendment in Clause 14 grants powers to the President to

dissolve a new Parliament (a) at any time after it is constituted consequent to
elections held after the expiration of the full term of the previous Parliament,
(b) at any time if the Parliament was instituted after General Elections held
after the dissolution of the previous Parliament by President upon the
rejection by Parliament of the Appropriation Bill for the second time, and (c)
one year after the General Elections consequent to which such Parliament
was instituted;

(c) This provision grants enormous powers to the Executive President to rule
without a Parliament even for an indefinite period of time, which undermines
and subjugates the sovereignty of the People in the exercise of their franchise,
and therefore is undemocratic and unconstitutional.

(d) In terms of the Article 148 of the Constitution, the Parliament is the sole
controller of public finance, and in the circumstances contemplated above,
where the President moves to dissolve and/or suspend the parliament, the
public finance would be under the sole control of untrammelled Executive
President, which is a usurpation of the powers of the legislature and is a grave
breach of People‟s sovereignty.

(e) Therefore, the proposed Clause 14 violates the Petitioners‟ rights entrenched
under Article 3 (read together with Article 4(a)) whereby the life and stability of
the Legislature are left to the will of the President;

(f) Further, the proposed Clause 14 violates the Petitioners‟ rights entrenched
under Article 3 [read together with Article 4(e)] whereby the franchise
exercised by the People in electing a new Parliament can be tampered with
and vitiated by the Executive President by dissolving it at will.

MAKING THE LEGISLATURE DEFUNCT

(10) The Petitioners state that the Twentieth Amendment Bill in its Clause 15 proposes a new
sub-Article to Article 78 of the Constitution, whereby it imposes an unprecedented
limitation to the legislative power of the Parliament of this democratic Republic and if

4
 enacted as part of the supreme law, this provision will prohibit the Parliament from
proposing any amendment to a bill which “deviates from the merits and principles of such
bill”. This amendment is reeking of bad faith of the ruling party‟s political interests, and
ensures that all laws proposed by a Government with a simple or absolute majority is
passed without any substantial change to the bill. This is a total limitation of the Legislative
power of the People and violates immutable republican principles of REPRESENTATIVE
DEMOCRACY, thereby infringing the sovereignty of the people to be exercised through
the Parliament.

(11) The Petitioners state,

(a) Clause 16 of the proposed Amendment introduces Article 85(2) to the

Constitution whereby the President is empowered to submit to the People by
way of a referendum, a Bill which has been rejected by Parliament;

(b) This clause introduces extraordinary powers to the Executive whereby even
after the Parliament rejects a Bill, a Bill can be sent for approval to the People
by way of a referendum;

(c) While a referendum is a method of direct democracy so long as the People are
well educated about and acquainted with what they vote for, it is not a
mechanism for law making or for Constitution making which should otherwise
be done by the Parliament or by a Constituent Assembly. Placing before
People an ostensibly anti-democratic Bill which is already rejected by
Parliament for a vote is a miscarriage of democracy.

(d) A „yes‟ or „no‟ limitation in the referendum process makes it grossly unsuitable
for law making by popular People‟s vote.

(e) Therefore, submitting a Bill rejected by Parliament where it goes through

several stages of discussions, debates and amendments before passed into
law, to the people for approval, infringes upon Article 3 [read together with
Article 4(a)] whereby the Executive oversteps the legislature and its lawmaking
power;

(f) The proposed power of the Executive under Clause 16 also makes the
Parliament a defunct body, stripped off its powers to reject a Bill and therefore
infringes on Article 3 [(read together with Article 4(a)] of the Constitution.

5
REPEALING/AMENDING EXISTING PROVISIONS ENABLING THE PARTICIPATION OF
PEOPLE IN LAW MAKING

(12) The Petitioners state,

(a) By way of amendment proposed under Clause 15(1) of the Bill, the time
available for People to challenge bills in your Lordships' Court is drastically
reduced;

(b) Whereas the existing Article 78(1) enables a bill to be published in the Gazette
at least fourteen days before it is placed on the Order Paper, the proposed
Amendment reduces such time to a minimum of seven days before it is placed
on the Order Paper of Parliament‟;

(c) The reduction of time proposed by Clause 15(1) in fact reduces the time
period within which a Citizen is made aware of any proposed Bill, which may
be made law by the Legislature, and given substantial time to study and
engage with the lawmaking process;

(d) The reduction of such time depriving People of adequate time to be aware of
and challenge a bill in your Lordships‟ Court meets the demands of mala fides
of ruling Governments and makes room for such Government to pass
undemocratic laws, behind the backs of the People.

(13) The Petitioners state,

(a) Clause 27 of the proposed Amendment introduces Article 122 whereby the
Cabinet of Ministers can introduce to Parliament, Bills „urgent in the national
interest‟.

(b) The Constitution does not have provisions for urgent Bills.

(c) Between the period of 1978 to 2015, Article 122 of the Constitution as it
existed then, provided for „Bills urgent in the national interest‟.

(d) This provision had then been used to pass about 128 Parliamentary Acts on a
vast range of subjects which also included the administration of the State.

(e) In the past, the Parliament has enacted, bypassing public scrutiny, Urgent Bills
such as Universities Act, Motor Traffic Act, Passports Act, Parliament (Powers
& Privileges) Act, Parliamentary Pensions Act and Prevention of Terrorism
Act.

(f) The nature of „Urgent Bills‟ passed into laws thus far amply demonstrate that
this provision has only been misused to surpass citizens rights to challenge
legislation in Your Lordships' Court before it is enacted.

6
 (g) As Citizens do not have the right to challenge laws after it has come into
operation, shutting the only window available for citizens to challenge
proposed laws is curtailing the direct exercise of the sovereignty of the people
in lawmaking.

(h) Further, despite the proposed Article 122 not enabling the Cabinet to introduce
an Urgent Bill which will amend, repeal or replace the Constitution, there is no
restriction on introducing Bills which will override provisions of the Constitution.
This is an Executive-driven escape route to avoid public scrutiny for most
critical legislation to be hurried through against the People.

(i) The Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979 was
introduced as an Urgent Bill. The said Act contains provisions excluding the
Appellate Jurisdiction of the Superior Courts which was otherwise guaranteed
under the Constitution to all persons, and allows for confessions which
resulted in widespread torture and a violation of Article 11.

(j) The proposed Article 122 also sets a time period of 24 hours (unless the
President specifies more time not exceeding three days) for your Lordships'
Court to read an entire Bill and give its determination.

(k) This is not an adequate time period for the Judiciary to make an informed
decision on the nature of a Bill particularly in the context of the people being
excluded from making representations to Court on the Constitutionality of the
Bill;

(l) In the context of adequate provisions in the Constitution and the general law of
the Country already in existence empowering the President at his unfettered
discretion to call for a state of emergency, there is no necessity for introducing
Articles empowering the Executive to introduce „Urgent Bills‟.

(m) Therefore, the proposed Article 122 violates Articles 3 read together with
Articles 4(c), 4(d), and 4(e), Fundamental Rights guaranteed under Chapter III
and Article 30(2) and Article 62(2) of the Constitution.

A JUDICIARY APPOINTED AND CONSTITUTED BY THE EXECUTIVE

(14) The Petitioners state,

(a) Clause 6 of the proposed Bill, which replaces Chapter VIIA on the
Constitutional Council and introduces Article 41(A), empowers the President to
at his discretion appoint all Judges of the Supreme Court and Court of Appeal
including the Chief Justice and the President of the Court of Appeal.

(b) Clause 25 of the proposed Bill repeals Article 111D of the Constitution and
proposes a new Article 111D whereby the Judicial Service Commission will be

7
 appointed by the President, without the requirement of approval by an
overseeing authority such as Constitutional Council.

(c) Clause 26 proposes Article 111(E)(6) which grants absolute discretion to the
President to remove any member of the Judicial Service Commission.

(d) The existing Constitutional Provisions under Articles 111(1) and (2) empowers
the President to appoint and remove High Court Judges at the
recommendation of the Judicial Service Commission.

(e) The Judicial Service Commission is entrusted with appointing all other Judges.

(f) With the members of the Judicial Service Commission appointed exclusively
by the President and the composition of the two other Supreme Court Judges
forming the Judicial Service Commission left to the absolute and unchecked
discretion of the President, the Executive effectively controls the appointment,
promotion, transfer and disciplinary controls of the lower judicial system
through the Judicial Service Commission. Thereby, the Executive President
effectively controls the Judiciary.

(g) A clear conflict of interest arises where, if according to the principles of checks
and balances, the Judiciary is mandated under the Constitution to, on the one
hand, check the Executive, and on the other hand, is appointed by the very
Executive it is tasked to check on, hence being made a subservient arm of the
Executive.

(h) Independence of the Judiciary is one of the founding principles of our

democracy as set out in the Preamble, Articles 107 and 111C of the
Constitution.

(i) Hence, no Constitutional Provision should allow the Judiciary to become

subservient to the Executive.

(j) Therefore, Clause 6 and the proposed Article 41(A), Clause 25 and the
proposed new Article 111D and Clause 26 and the proposed new Article
111(E)(6) read individually and together violates Article 3 read together with
Articles 4(c), (d) and (e) and Article 1, Chapter III on Fundamental Rights,
Articles 30(2), 62(2), 41A, 107 and 111C of the Constitution.

ELECTION COMMISSION CONSTITUTED BY THE EXECUTIVE

(15) The Petitioners state,

(a) Under the proposed Chapter VIIA provided in Clause 6 of the proposed Bill
which introduces Article 41(A), the President has the sole discretion to appoint
the Election Commission consisting of three Commissioners.

8
(b) Clause 19 of the proposed Bill amends Articles 103(1) of the Constitution
whereby the President also appoints the Chairman of the Election Commission
at his discretion.

(c) Clause 19 of the proposed Bill amends Article 103(7) where the President at
his unfettered discretion can grant a member of the Commission leave for a
period of two months and within that period appoint another person to be a
temporary member of the Commission.

(d) The Executive powers in appointing and granting leave of the members of the
Election Commission is checked by the Constitutional Council in the existing
Constitution.

(e) Clause 21 of the proposed Bill repeals the existing Article 104(E) and replaces
it with a proposed Article 104(E) whereby the Election Commission is given
powers to appoint the Commissioner General of Elections. Unlike the existing
Article 104(E) whereby the Election Commission‟s appointment of the
Commissioner General of Election is subject to prior approval of the
Constitutional Council, in the proposed amendment, the Parliamentary Council
is not given any such similar powers.

(f) Further, the proposed Parliamentary Council does not have the power to bind
the Executive by its recommendations; the President has sole discretion to
appoint the Election Commission and change its composition when he so
desires for a period up to two months.

(g) The Petitioners state that the Election Commission appointed entirely by the
Executive will not function independently of the will of the Executive and
therefore the holding of elections can and will be biased in favour of the
political party of the Executive President.

(h) In addition, Clause 22 of the proposed Bill repeals Article 104GG of the
Constitution enabling anyone to violate a direction of the Election Commission
and not be penalized for it.

(i) Hence, the mala fides of the Government in the proposed Clause 22 is
apparent.

(j) Therefore, Petitioners submit that Clause 6, Clause 19, Clause 21 and Clause
22 are in violation of Article 3 read together with Article 4(e), Article 30(2) and
Article 62(2).

9
INSTITUTIONS UNDER THE PRESIDENT AND THE PRIME MINISTER AND COMPANIES
WITH MORE THAN 51% SHARES VESTED IN THE GOVERNMENT NOT TO BE AUDITED:
DENIAL OF TRANSPERENCY AND THE INSTITUTION OF CLOSED GOVERNMENT

(16) The Petitioners state,

(a) The said Twentieth Amendment Bill, under Clause 40, proposes to amend
Article 154 of the Constitution, which if enacted, while abolishing the
Constitutional Council and the Audit Service Commission, will also enable the
President with sole authority to appoint the Auditor General, thereby placing
the national auditing of the Government in jeopardy, and resulting in
politicization and bias towards the Executive and the President‟s political
affiliations.

(b) Further, the Bill, if enacted, will place the Office of the Secretary to the
President and the Office of the Secretary to the Prime Minister that oversee
Government institutions under the purview of the Executive President and the
Prime Minister immune from auditing.

(c) The amendment, if enacted, will also remove from the purview of the Auditor
General‟s auditing, the companies registered or deemed to be registered
under the Companies Act, No. 7 of 2007 in which the Government or a public
corporation or local authority holds fifty per centum or more of the shares of
that company including the accounts thereof. The Petitioners are well aware
and it is common knowledge that there are about 120 such companies - such
as the Airport & Aviation Services (Sri Lanka) (Pvt) Ltd, SriLankan Airlines Ltd,
Peoples Leasing PLC – that altogether have assets exceeding one trillion
Rupees and are being subjected to auditing by the Auditor General. Therefore,
the proposed Amendment prevents auditing of these companies, leading to
corruption, malpractices and financial irregularities that would even render key
State assets bankrupt.

(d) This arrangement proposed under Clause 40 of the Bill creates room for
closed Government, which lacks transparency and accountability. This is anti-
democratic and therefore unconstitutional.

EXECUTIVE PRESIDENT‟S IMMUNITY AGAINST FUNDAMENTAL RIGHTS APPLICATIONS

(17) The Petitioners state,

(a) Clause 5 of the proposed Amendment repeals Article 35 which held the
President accountable for Fundamental Rights violations in a Court of Law
whereby Petitioners could make the Attorney General a party to such action.

10
 (b) The proposed Amendment in repealing Article 35 grants immunity to the
President to commit Fundamental Rights violations without being held
accountable for it.

(c) The Petitioners state that the Fundamental Rights vested in the people only
have meaning if the same are enforceable against the Executive including the
primary repository of Executive power, the President.

(d) Clause 5 takes away what was already granted to the citizens under Article 35
and shrinks the ability of the people to hold the Executive President
accountable for his official actions.

(e) Therefore, Clause 5 of the Bill violates the Petitioners‟ sovereignty and
fundamental rights guaranteed under Article 3 with Article 4(d) and Articles
12(1), 12(2) and 17 of the Constitution.

REPLACING THE CONSTITUTIONAL COUNCIL WITH THE POWERLESS

PARLIAMENTARY COUNCIL DISMANTLES THE FOURTH PILLAR OF LIMITED
GOVERNMENT

(18) The Petitioners state,

(a) The Bill if enacted as law will replace the existing Constitutional Council
constituted in the provisions of Chapter VIIA of the Constitution with a
Parliamentary Council.

(b) One of the primary functions of the Constitutional Council was to check the
President on the appointments he made to Commissions established by the
Constitution and other enactments, the bodies which should be independent of
any influence by the Executive.

(c) Therefore, the Constitutional Council was granted powers to „recommend‟

persons to such Commissions [Article 41B(3), Article 41C] and the President is
bound by those recommendations when he makes his final appointments.

(d) Under the proposed Clause 6, the Parliamentary Council has little powers to
check the Executive in making his appointments. The Parliamentary Council is
given powers only to send „observations‟ to the President on his choice of
appointment to Commissions such as the Election Commission, the Public
Service Commission, the Human Rights Commission and the Judicial Service
Commission amongst several such other Commissions set out in Part I and
Part II of Schedule II to the proposed Article 41(A), and persons set out under
Schedule 1 to the said proposed Article which includes the Chief Justice, the
Auditor General and the Attorney General amongst others.

11
 (e) Further, proposed Clause 6 read with existing Article 41B(5) also empowers
the President, to „remove‟ appointed persons from their offices when there are
no enacted legislations prescribing the method of their removal.

(f) The President is not required to obtain „prior approval‟ from the Parliamentary
Council as was required of him under the existing Article 41B(5) where the
President was bound by the „prior approval‟ of the Constitutional Council
before he could remove such a Chairman or a Member of a Commission or
any person appointed under the existing Article 41B(1) and Article 41(C)(1).

(g) Independence of Commissions as vital as the Judicial Service Commission,

the Election Commission and the Auditor General‟s Department will be
severely hampered if the Executive, whom these bodies are appointed to
check, himself makes appointments to these bodies.

(h) On the face of Clause 6, there is a conflict of interest which amounts to the
violation of the Petitioners‟ and citizen‟s rights under Article 3 read together
with Articles 4 (c), (d) and (e), Fundamental Rights under Articles 10, 11,
12(1), 12(2), 13, 14and 14A, and Article 30(2) and Article 62(2) of the
Constitution;

(i) The Petitioners state that by abolishing the Constitutional Council and
reinstalling a powerless Parliamentary Council, the proposed changes of the
Twentieth Amendment Bill dismantle the fourth pillar of Government limited by
the Constitution, which is the mechanism of independent Commissions –
significantly the Judicial Service Commission, the National Audit Commission,
the Police Commission, the Right to Information Commission, the Human
Rights Commission and Commission to Investigate Allegations of Bribery or
Corruption - subjecting the same to the whims and fancies of the Executive
Presidency, depriving their essential characteristics of independence, integrity
and transparency, as vital organs for checks and balances of the
Government. This is anti-democratic and unconstitutional.

USURPATION OF POWERS OF THE CABINET AND THE MAKING OF A PRESIDENTIAL

DICTATORSHIP: THE IMPACT ON „DEMOCRATIC‟ SRI LANKA:

(19) The Petitioners state,

(a) Clause 7 of the proposed Amendment repeals the entirety of Chapter VIII of
the current Constitution which deals with provisions pertaining to the Cabinet
of Ministers, its composition, powers and tenure.

(b) In its place, it replaces it with a new Chapter VIII.

12
 (c) The proposed amendments to Chapter VIII of the Constitution removes the
limitations on the maximum numbers of Ministers, Non-Cabinet Ministers and
Deputy Ministers which the President at his discretion can appoint as the
Cabinet and further gives unfettered powers to remove any Minister, Non-
Cabinet Minister or Deputy Minister he appoints at any time the President so
desires. This will lead to patronage distribution in the form of ministerial
appointments; co-opt opposition Members of Parliament and the consequent
evisceration of political dissent.

(d) This concentration of powers consequently could reach to such an extent that
the President will be empowered, under the proposed new Article 48, to take
over the entire functions of the Cabinet including the position of the Prime
Minister and run a Government singlehandedly after the dissolution of
Parliament.

(e) Considering the Your Lordship Court‟s recent decision which effectively
concluded that holding the General Elections more than three months after the
dissolution of Parliament is not being unconstitutional, this would result in a
situation where the entire Country will be administered by one person as long
as he desires without even a functioning Parliament.

(f) Contrary to the prohibition in the Constitution, if the said Bill is enacted, the
President will be empowered to retain any Ministry with him, including the
Ministries of Defense and Public Administration, thereby undermining the
powers of the Cabinet of Ministers, whose number is yet again decided by the
President himself, and this power arrangement makes room for the absolute
concentration of Executive powers with one man or woman elected as the
President.

(g) The Petitioners state that this would pave the way for a Presidential
dictatorship increasingly reliant on the military and counter-posed against the
working people‟s struggles. This is therefore inherently anti-democratic.

(h) The Petitioners plead that the proposed Article 48 in the Bill is therefore in
violation of Articles 1, 3, 4(a),4(c), 4(d) and 4(e) of the Constitution, as the
consequent concentration of power in one person for a long period of time will
directly impact and distort the constitutional democratic character of the Sri
Lankan State.

(20) The Petitioners further state that the Constitutional changes/amendments proposed by the
Twentieth Amendment Bill severally and/or cumulatively are unconstitutional, and the Bill
as a whole is unconstitutional, in as much as the said changes/amendments,

(a) undermine and dismantle the rule of law;

(b) undermine the separation of powers and dismantle liberal democracy's

institutional checks and balances;

13
(c) Undermine the independence of the Judiciary;

(d) Undermine fundamental rights, liberties and freedoms, and the franchise (by
limiting the lifespan and role of the legislature) of the People, and
Republicanism, thereby, infringing upon the sovereignty of the People;

(e) Cumulatively, such changes undermine the basic features of liberal

constitutionalism;

(f) Being primarily anti-democratic, render the legitimacy of democratic

governance in abeyance;

(g) The changes alienate the sovereignty of the People in the exercise of their
powers of Government, fundamental rights and the franchise by concentrating
all powers with an authoritarian Executive Presidency, which is
unconstitutional;

(h) The proposed Bill is a tool of de-democratization, a reversal of and

undermines democratic gains of the People of this State and therefore is
retrogressive. A constitutional change is not expected to be backsliding and
retrogressive by its People;

(i) Significant changes proposed, which had been earlier included in the
Eighteenth Amendment, were once rejected by the People of this State as
unconstitutional, and therefore cannot ascend as constitutional once again;

(j) The proposed Executive structure will be in breach of international human

rights obligations;

(k) Lack legitimacy and the quality of democracy. Undermine People's long
acquired right to democracy, which is part of the basic structure of the
Constitution based on liberal values and democratic constitutionalism;

(l) Leadto authoritarianism and impunity, and not to the stability of a participatory,
pluralist and inclusive democracy;

(m) The changes proposed demonstrate bad faith, as they are intended to
consolidate the power of an all powerful Executive against the interests of the
People;

14
(n) The proposed changes to the Constitution are tainted with mala fides that are
designed to promote the political vision and ideology of the political party in
power;

(o) Is aimed at facilitating the convenience of the Executive, rather than the
empowerment of the People, as their primary motivation or rationale.

(p) The Bill represents a comprehensive rejection of the principle of de-

politicization of institutional accountability.

(q) Will render the Prime Minister and the Cabinet subordinate to the President
rather than as coeval Executive actors, switch Sri Lanka‟s constitutional
regime-type from a premier-Presidential one back to a President-
Parliamentary model, where the Prime Minister and Cabinet will no longer be
responsible solely to the Parliament, but jointly to both the President and the
Parliament. This is a structural overhaul of the Constitution of this democratic
Republic, detrimental to the merits of constitutional democracy guaranteeing
limited Government.

(r) The Bill is an attempt to exploit a popular majoritarian vote to advance an anti-
democratic Constitution, without People's consensus.

(s) The Bill is an attempt to exploit popular majoritarian vote to advance an

authoritarian regime with dictatorial powers.

(t) Goes against the principle of the supremacy of the Constitution, which implies
the supremacy of the basic structure of the Constitution that guarantees
limited Government, human dignity and the rights of the People;

(u) Envisages no responsive, accountable and transparent governance, which are

basic features of a quality democracy.

(v) Whereas the Constitution is meant to protect the People from the class which
exercises political power and empower the People vis-a-vis the rulers and
therefore the Constitution is conceived as the guarantee of protection of the
People against all arbitrary action on the part of the Executive as well as the
other branches of Government, the proposed Constitutional changes fail to
meet these demands of constitutional democracy;

(w) The raison d‟être for a Constitution is to act as a check on and guard against
majoritarianism, which is another word for mob rule and the sanctification of
the rule by the majority. The concentration of power on the President in order
to function as a ruler of the majority in detriment to the interests of minority

15
 communities, could easily decelerate into a tyranny of the majority leaving no
room for the very foundations of liberal constitutionalism. The Bill thus
entrenches majoritarianism and fails to be counter-majoritarian.

(21) The Petitioners further state that whatever be the proposed piece of legislation that is to
be put to the People for vote at a referendum, the same should be one that adheres to
democratic principles, and it cannot be fundamentally anti-democratic. People cannot be
asked to vote to elect a dictator, or to commit a genocide upon a minority community or
self-immolation by way of referendums. What is put to the People to vote should be
progressive and advance the furtherance of quality democracy. People exercising their
sovereign powers do not wish their long enjoyed rights to be abrogated by a Government
they elect for themselves. It is your Lordships‟ Court, as the apex Court of this Republic,
that should prevent such miscarriage of democracy taking place through anti-democratic
legislation.

(22) Thus and otherwise, the Petitioners respectfully reiterate,

(a) The provisions of the said Twentieth Amendment to the Constitution Bill are
inconsistent with the provisions of the Constitution including those that are
entrenched and provisions guaranteeing fundamental rights, and the Bill does
not meet the best standards of democratic Constitution making;

(b) Read as a whole, the Bill, if enacted, places in peril the fundamental
democratic, sovereign, independent, republican nature of the Sri Lankan State
which respects the principles of representative democracy and assures to all
people, freedom, equality, justice, fundamental human rights and the
independence of the Judiciary.

(23) The Petitioners respectfully reserve the right to submit to your Lordships‟ Court any other
and further facts, documents and instances of unconstitutionality with the proposed
changes/amendments in the said Twentieth Amendment to the Constitution Bill and
through their Counsel to refer to any other clauses of the said Bill that may become
relevant in the course of the hearing of this Petition.

(24) The Petitioners have not previously invoked the jurisdiction of Your Lordships‟ Court in
respect of the said Bill.

(25) Affidavit of the Petitioners is appended hereto in support of the several averments
contained herein.

(26) The Petitioners have taken steps to deliver a copy of this Petition and Affidavit to the
Speaker of the Parliament in terms of Article 121(1) of the Constitution.

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WHEREFORE the Petitioners respectfully pray that Your Lordships‟ Court be pleased to:

a) Determine that any one or more of the provisions of the said Bill (“X”) is/are inconsistent
with the provisions of the Constitution and require to be passed by the special majority
required under the provisions of paragraph (2) of Article 84; and/or

b) Determine that any one or more of the provisions of the said Bill (“X”) is/are inconsistent
with the provisions of the Constitution and require to be passed by the special majority
and approved by the people at a Referendum by virtue of the provisions of Article 83; or

c) Determine that any one or more of the provisions of the said Bill (“X”) is/are inconsistent
with the fundamental democratic, sovereign, independent, republican nature of the Sri
Lankan State which respects the principles of representative democracy and assures to
all people, freedom, equality, justice, fundamental human rights and the independence
of the Judiciary and, therefore, is/are unsuitable/inappropriate to be put to the People to
be approved at a Referendum; and/or

d) Determine that the provisions of the said Bill (“X”) read severally and together as a
whole, alter and place in peril the fundamental democratic, sovereign, independent,
republican nature of the Sri Lankan State, which respects the principles of representative
democracy and assures to all people, freedom, equality, justice, fundamental human
rights and the independence of the Judiciary and, therefore, are unsuitable/inappropriate
to be put to the People to be approved at a Referendum; and

e) Make such other and further Orders that Your Lordships‟ Court deems meet.

Attorney at Law for the Petitioners

Settled by:

Kaushalya Sendanayaka Arachchi, LL.B(Hons)(London),

Swasthika Arulingam,

Sanjaya Wilson Jayasekera, LL.B, LL.M,

Attorneys-at-Law

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