20A before SC

* 19A adopted without referendum; 20A seeking to replace it needs only 2/3 – lawyers for ministers

By Chitra Weerarathne

Media freedom should be safeguarded in the future. The 19th Amendment protected media freedom. New laws should not obstruct it, Sanjeewa Jayawardene, President’s Counsel yesterday told the Supreme Court.

President’s Counsel Jayawardene appeared for two petitioners. The matter before the Court is the constitutionality of the Bill in reference to Articles 120, 121 of the Constitution.

In Sri Lanka the people were supreme. Unlike in India, where the Constitution was supreme, the counsel argued.

The state media was an instrument of the state unlike the private media, he said.

“The Election Commission is duty bound to hold a free and fair election.”

The State cannot issue guideline on private media, on the time to be allocated to different candidates. In the 19th Amendment Bill, According to the Section 26, the chairmen of the state and private media were made duty bound to comply with guidelines declared as regards, the Counsel said.

In the 19th Amendment Bill, when the people exercised franchise, under clause 4(c), they have to make an intelligent choice. “The state media is controlled. Then the private media could provide information to the reader.”

The media was linked to the exercise of franchise. The private media could help the people select candidates within the scope of truthful publicity, the counsel said. A licence under Rupavahini Corporation Act is needed to publish/ broadcast. But false publicity is not allowed. But it a dangerous to have to be controlled strictly by the state.

“In the 19th Amendment there is no interference in media freedom even in respect of state controlled media,” counsel Sanjeewa Jayawardene said.

Article 4(c) and Article (10) were violated by the 20th Amendment. The 19th Amendment did not violate media freedom. It should be maintained likewise in the future as well, he stressed.

Intervenient petitions were taken for hearing. There were seven of them among them was one by Professor G.L. Peiris, the present Minister of Education and Minister Nimal Siripala de Silva.

President’s Counsel, Gamini Marapana PC, supported the application by Professor G. L. Peiris.

The 17th Amendment was amended by the 19th Amendment because it violated franchise. It was not approved by the people at a referendum. Similarly, all the provisions of the 19th Amendment which is to be amended by the 20th need not be presented to the people at a referendum.

Amendment introduced by a special majority need not necessarily be placed before the people at a referendum to be enacted, he argued.

Chapter (12) of the Constitution explains that certain Amendments could be dealt with without a referendum.

“The provision of our constitution are amendable, according to the 13th Amendment. There need not be a referendum. The Indian Constitution was different to our constitution. A provision in the constitution could be amended by court and Parliament, without a referendum.

“19th Amendment was determined by the Supreme Court. It did not go before the people,” counsel argued.

“It is illogical to say that to remove that amendment you should go before the people.”

Counsel said that former President Maithripala Sirisena had said in public that the 19th Amendment had taken power from the President and that had made the government weak. This has been referred to following the Easter Sunday bomb blasts. The President and the Prime Minister had been pulling in different directions.”

Because of the 19th Amendment the President, who is the commander-in-chief could not be the Defence Minister, the Counsel pointed out.

In several aspects, the President from 1978 Constitution up to 2015 enjoyed greater authority over the Parliament than in France.

Now it may referred back to the 1978 situation with a two-thirds majority in Parliament. In this country there is provision to repeal the entire Constitution unlike in India.

The bench comprised the Chief Justice Jayantha Jayasuriya, Justice Buwanaka Aluwihara Justice, Sisira De Abrew, Justice Priyantha Jayawardene and Justice Vijith K. Malalgoda.

The Attorney General, Dappula De Livera PC, appeared for the state.