Transferring Executive Powers to PM: referendum required-SC

Published : 9:02 am  April 10, 2015 | No comments so far |  | 

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Speaker Chamal Rajapaksa communicated the Supreme Court determination to the House, and Prime Minister Ranil Wickremesinghe agreed to amend the constitutional bill accordingly to avoid a referendum.

The bill was challenged in the Supreme Court in terms of Article 121 (1) of the Constitution. The Court has determined that the paragraph 42(3), 43(3) , 44(2), 44(3), and 44 (5) in Clause 11 , and paragraph 104 B (5)(c) in Clause 26 require the approval of the people at a referendum in terms of the provisions of Article 83 of the Constitution.

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In this case, paragraph 42(3) says that the Prime Minister shall be the head of the Cabinet of Ministers. According to paragraph 43(1) , the Prime Minister determines the number of Cabinet Ministers and the assignment of subjects. The paragraph 43(3) says that the Prime Minister may at any time change the subjects and functions of the Cabinet. Under paragraph  44(2) , the Prime Minister shall determine the subjects to be assigned to ministers.

The Court, in determination, says Clause 11 deals with the executive – the Cabinet of Ministers.
“In the absence of any delegated authority from the President, if the Prime Minister seeks to exercise the powers referred to in the aforesaid Clause, then the Prime Minister would be exercising such powers which are reposed by the people to be exercised by the executive namely the President and not by the Prime Minister.”

Besides, paragraph 104B (5) (C) in clause which provides for the appointment of a competent authority to monitor the state and private telecasting and broadcasting authorities in case they violate regulations stipulated by  the Election Commission during election times.

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The Counsel, who appeared in this regard, has argued against the vesting of the Election Commission with such powers to take over private media organisations would be prejudicial to the purpose of providing balanced and multi perspective news and views.
Also, Counsel Faiz Musthapa and Sanjeewa Jayawardane have argued that the Clause had not set out qualifications for the person to be appointed as the Competent Authority.

The Court has held the view that the functions of the Competent Authority would directly affect and have a bearing on the franchise of the people in the election of their representatives. Therefore, the Court says, it has to be approved by the people at a referendum.

Prime Minister Ranil Wickremesinghe told Parliament that the government would do away with the Clauses of the 19th Amendment required to be approved by people at a referendum , so that it could be passed only with a two- thirds majority in the House.
He said these clauses were involved in the powers to be transferred after the term of the present President. Also, he said the amendments could be incorporated during the committee stage, and that it did not warrant the redrafting of the bill .

He said there were enough instances in the British parliamentary system where amendments were incorporated during the committee stage making a total overhaul of the original version.
He said the government brought this as a regular bill giving ample time for those concerned to go to the Supreme Court which gave its determination.

“We did not bring this as an urgent bill,” he said. He said the official of the Attorney General’s Department would be present during the debate for the MPs to seek further clarification if necessary.

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