The existence of an independent judiciary in a democratic political system is an essential precondition for the survival of democracy. The sovereign power of a democracy lies with the people. It is a responsibility of the Courts not to permit laws and enactments that reduces that power.
At a time when a new draft Constitution is under discussion the Government seeks an immediate change in the electoral system, not for the public good, but because the Government needs a system that might help it to win the coming election. This is not an action set in motion after discussion with the other parties and arriving at an agreement with them, but with the sole aim of the Government’s advantage.
A Constitutional amendment effected with such an aim will weaken and distort the sovereign power of the people. Even the appointment of the Panel of Judges to inquire into this Constitutional Amendment was done in a manner that raised serious doubt in the mind of at least myself who was interested in the matter. Prior to this, every constitutional amendment that had any bearing on the sovereignty of the people according to my recollection was considered before a Panel of Senior-most Judges. For instance, the seven-person panel of judges that inquired into the First Amendment to the Constitution of ‘78 included Chief Justice Neville Samarakoon and Judges W.T. Samarawickrama who was the Second in seniority, V.T. Thamotherain who was the Third in seniority, I.M. Ismail who was the Fourth and R.S. Wanasundera who was the Seventh in seniority.
The Third Amendment too was considered by a panel consisting of the Chief Justice and seven senior judges in order of their seniority.
However, in selecting judges to inquire into the 17th Amendment, it is clear that the principle of seniority has been done away with. Judges Mark Fernando, Dr. A.R.B. Amerasinghe and Ranjith Dheeraratne are now considered the most eminent authorities in the Supreme Court on Constitutional Law. One begs an answer to why none of them had been included in the panel of judges inquiring into the 17th Amendment. Or is it none of our business?
The electoral system and the right to vote are included in sovereignty. The system of proportional representation served to make the sovereignty of the people more systematic and to heighten it. Introducing an electoral system that distorts the sovereignty of the people rather than heightening it, is against the accepted principles of a Constitution.
At the Presidential Election of 1999 the JVP received 3,44,173 votes. If it had been a Parliamentary Election held under the system of proportional representation, that party could have got 6 seats. But according to the new system proposed under the 17th Amendment, the number of seats that party could get drops to zero. The number of votes that the parties belonging to and supportive of the PA got was 4,3,12,557.
If it had been a Parliamentary Election, the number of seats that all those parties could have got is 115. Under the system now proposed, the PA and the parties allied to it, could get 130 seats on the electorate basis, 55 seats on the district basis and 17 seats on the national list, and thus, 298 seats altogether. Such a system which could cause such massive distortion of the sovereignty of the people cannot be a just one.