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Following are the observations of the BASL Committee appointed to study and submit views on the proposed 20th
Amendment to the Constitution, as well as further amendments required to the Constitution, to facilitate addressing laws,
delays, and other related matters affecting the administration of justice.
1. Introduction
1.1 The Bar Association of Sri Lanka (BASL) by letter dated 9 September 2020 under the hand of its President and of its Secretary addressed to Nihal Jayamanne PC informed him that a Special Committee of 15 persons of the BASL had been appointed by the Management Committee of the BASL to study the draft of the 20th Amendment of the Constitution and submit views on the same on an urgent basis to be tabled before the Executive Committee of the BASL and the Bar Council in order to be forwarded to the relevant authorities.
1.2 The letter indicated that Nihal Jayamanne, PC was invited to chair the Committee and that the other members of the Committee were Ikram Mohamed, PC, M.M. Zuhair, PC, L.M.K. Arulanandam, PC, Prasantha Lal De Alwis, PC, Nihal Jayawardene, PC, Nalin Ladduwahetty, PC, Maithri Wickremesinghe, PC, Uditha Egalahewa, PC, Anura Meddegoda, PC, Mohan Weerakoon, PC, S.T. Jayanaga, PC, Priyal Wijayaweera, PC, Maurapada Gunawansha, PC, Ravi Algama and Shantha Jayawardena (Convenor).
1.3 The Committee was requested to submit its observations by 18 September 2020. The members of the Committee were informed of their appointment by the Convener of the Committee on 11 September 2020 and copies of the letter dated 9 September 2020 were received by the members of the Committee on 14 September 2020.
1.4 Nihal Jayamanne, PC declined the invitation to chair the Committee and also to participate in the Committee. Ikram Mohamed, PC, Anura Meddegoda PC and Ravi Algama also declined to be in the Committee. Jagath Wickramanayaka PC was subsequently appointed to the Committee by the BASL.
1.5 The Committee unanimously elected at its first meeting held on 14 September 2020, L.M.K. Arulanandam PC as the Chairman of the Committee.
1.6 The Committee met on 14 September 2020 and 17 September 2020. The members present at each meeting of the Committee are set out in the Annexure 2, to these observations.
1.7 The Committee was constrained by the short time limit within which its views were required to be submitted and requests that it be excused for any shortcomings in the observations. The committee also decided that members of the committee may submit their views in writing in order to consider the same, in formulating the views of the committee. Accordingly, S.T. Jayanaga, PC, M.M. Zuhair, PC, L.M.K. Arulanandam, PC and Maithri Wickremesinghe, PC submitted their views in writing.
1.8 The Committee proceeded on the basis that the “draft of the 20th Amendment to the Constitution” on which its observations were requested by letter dated 9 September 2020 was the “Twentieth Amendment to the Constitution a Bill to amend the Constitution of the Democratic Socialist Republic of Sri Lanka” published in the Gazette of the Democratic Socialist Republic of Sri Lanka Part II of August 28, 2020 Supplement issued on 02.09.2020 (the “Bill”).
1.9 The Committee noted that the BASL has been formed inter alia to extend co-operation and support towards the maintenance of the honour and independence of the Judiciary of Sri Lanka, consider matters of national importance relating to the rule of law and administration of justice and if need be to make representations thereon to the Government and/or any other relevant authority and taking any further steps in respect thereof including filing of actions or intervening in actions in Courts of Justice.
1.10 The Committee in preparing its observations on the Bill was mindful of the obligations of BASL in terms of its Constitution and in particular to act in support of maintaining the independence of judiciary of Sri Lanka and to support the rule of law and the administration of justice. The Committee proceeded on the basis that it is fundamental to the rule of law that the Legislature, the Executive and the Judiciary are coequal branches of Government and that no one branch of Government is superior to the other. The Committee was of the view that the provisions of the Bill that strengthen the rule of law and the administration of justice should be supported by the BASL and conversely any provisions that weaken the rule of law or the administration of justice should be opposed by the BASL.
1.11 In respect of a few provisions of the Bill, there were dissenting views expressed by some members of the committee. Such dissenting views are incorporated in Annexure 1.
2. Clause 2 of the Bill
The Amendment sought to be introduced by Clause 2 clarifies that the ability of a President to call for an election before the expiry of his first term of office is related to the second term. It is an amendment that can be supported.
3. Clause 3 of the Bill: Duties of the President
3.1 Clause 3 of the Bill repeals Article 33 of the Constitution. Article 33(1) sought to be repealed by Clause 2 imposed inter alia a duty on the President to ensure the Constitution is respected and upheld. It is the view of the Committee that the rule of law necessarily requires the President, conferred with wide ranging powers under the Constitution should have the duty to uphold the Constitution. The Committee is of the view that repealing such a provision is detrimental to the rule of law. Article 33(1) also imposed three other duties which are equally necessary for a country governed by the rule of law.
3.2 Clause 3 of the Bill introduced a new Article 33 which retained the provisions of Article 33(2) of the Constitution without the reference to the duties imposed on the President. The Committee is of the view that deleting the word ‘duties’ is not conducive to the rule of law.
3.3 The Committee is of the view that Clause 3 of the Bill should be deleted.
4. Clause 4 of the Bill: The President’s responsibility to Parliament
4.1 Clause 4 of the Bill proposes to repeal Article 33A of the Constitution which made the President responsible to the Parliament. We observe that however Article 42 proposed in the Bill under Clause 4 makes the President responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions.
4.2 In the circumstances The Committee is of the view that there is nothing obnoxious in the amendment proposed by Clause 4 subject to our comments relating to Clause 5 of the Bill below.
5. Clause 5 of the Bill: Immunity of the President
5.1 Clause 5 of the Bill deletes Article 35 of the Constitution and introduces in its place a new Article 35. The Committee is of the view that no person should be above the law. The President in particular being the repository of substantial powers under the Constitution should be held accountable for the exercise of those powers in accordance with the Constitution. No person is above the law and to grant absolute immunity from suit is contrary to all known principles of the rule of law. If the public do not have access to remedy a grievance against the unlawful exercise of powers by an all-powerful President the only remedy will be to take arms against the State.
5.2 Moreover, Article 4(d) of the Constitution specifically provides that the sovereignty of the people shall be enjoyed by the people inter alia by the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all organs of the Government. Needless to say the President is not exempted from the obligations to respect, secure and advance fundamental rights. Depriving the citizens of a remedy when the President violates fundamental rights is inimical to the rule of law. Nevertheless, we are mindful that certain powers of the President should not be justiciable and a suitable exception should be carved out.
5.3 The Committee is of the view that Clause 5 of the Bill should be substituted with the following.
“Article 35 of the Constitution is hereby amended by deleting the second proviso to Article 35(1) and substituting the following in place thereof.
‘Provided further that the Supreme Court shall have no jurisdiction to pronounce upon the exercise the power of the President under Articles 33(2)(a), 33(2)(b), 33(2)(d), 33(2)(e) and 33(2)(g).’ ”
6. Clause 6 of the Bill: Parliamentary Council
6.1 Clause 6 repeals Chapter VII A of the Constitution relating to the Constitutional Council and introduces a new Chapter VII A consisting of Article 41A, providing for a Parliamentary Council.
(A) Composition of the Parliamentary Council
6.2 The Committee is of the view that the composition of the Parliamentary Council proposed by Clause 6 of the Bill is more conducive to the rule of law than the composition of the Constitutional Council contained in Article 41A of the Constitution. The inclusion in the Constitutional Council of persons who are not elected by the people is contrary to the sovereignty of the people and not conducive to the rule of law. The committee noted that non-elected members of the present Constitutional Council is not answerable to an organ of the State1.
(B) Appointments to the Public Service Commission, the National Police Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption and the appointment of the Parliamentary Commissioner for Administration (Ombudsman)
6.3 The Committee is of the view that the Public Service Commission, the National Police Commission, the Human Rights Commission, the Commission to Investigate Allegations of Bribery or Corruption and the appointment of the Parliamentary Commissioner for Administration (Ombudsman) are part of the executive and the method of appointment proposed by Clause 6 of the Bill cannot be objected to.
(C) Appointments to the Superior Courts and the Judicial Service Commission
6.4 The separation of powers on which the Constitution is based and the coequal arms of Government necessarily requires that no one arm of Government should have control over the composition of another arm of Government. Article 4 of the Constitution provides that the judicial power of the people shall be exercised by Parliament through courts, tribunals and institutions created and established or recognized by the Constitution, or created and established by law. In these circumstances, it is imperative that the Executive should not have control over the appointment of Judges or the Judicial Service Commission. Indeed, if there is one arm of Government that should have control, it is Parliament and not the President.
6.5 The Committee is of the view that as regards the appointment of Judges of the Supreme Court and the Court of Appeal the President should not have absolute control over the appointments. The Committee is of the view that the appointment should be made by the President nominating an individual to the Parliamentary Council and the appointment being made by the President subject to the approval of the Parliamentary Council. This ensures that the Legislature and the Executive provides the necessary checks and balances relating to the appointment to the Judiciary and the Judicial Service Commission.
(D) Appointments to the Elections Commission
6.6 Needless to say the sovereignty of the people which is inalienable includes the power of franchise. The franchise is exercisable by the people at the election of the President and of the Members of Parliament and at a referendum.
6.7 The Elections Commission is fundamental in ensuring that the inalienable sovereignty of the people is not affected in any way. The Elections Commission is responsible for the conduct of the election of the President. It is inimical to the rule of law that the President should have control over the appointment of members of the Elections Commission which conducts its own election.
6.8 The Committee is of the view that the appointment to the Elections Commission should be made by the President nominating the names of individuals to the Parliamentary Council and the appointment being made by the President subject to the approval of the Parliamentary Council. This ensures that the Legislature and the Executive provides the necessary checks and balances relating to the appointment to the Elections Commission.
(E) The appointment of members of the Finance Commission and the appointment of the Auditor General
6.9 The control of public finance by Parliament is fundamental to representative democracy. This is also enshrined in Article 148. The Finance Commission and the Auditor-General are necessary and essential to ensure Parliamentary control of finance. The Government inter alia allocates funds on the recommendation of the Finance Commission. The Auditor-General ensures that the funds are utilised according to law. To grant the President control over these appointments would diminish Parliamentary control over finance. It is inimical to the rule of law that the President should have control over the appointment of members of the Finance Commission and the Auditor-General.
6.10 The Committee is of the view that the appointment to the Finance Commission and the appointment of the Auditor General should be made by the President nominating the names of individuals to the Parliamentary Council and the appointment being made by the President subject to the approval of the Parliamentary Council. This ensures that the Legislature and the Executive provides the necessary checks and balances relating to these appointments.
(F) The appointment of the Secretary-General of Parliament
6.11 The Secretary-General of Parliament is the head of the Parliamentary staff. He performs critical functions in support of the Legislature. The control of appointment of the Secretary-General by the President is inimical to the rule of law. The Committee is of the view that the appointment of the Secretary-General of Parliament should be made by the President nominating the name of an individual to the Parliamentary Council and the appointment being made by the President subject to the approval of the Parliamentary Council. This ensures that the Legislature and the Executive provides the necessary checks and balances relating to this appointment an important appointment in Parliament through which the Legislature operates.
(G) The appointment of the Attorney-General
6.12 The Attorney General is conferred wide-ranging powers under the Constitution. It is necessary for the rule of law that one organ of Government should not have control over the office of the Attorney-General through the appointment of the Attorney General. It is our view that the appointment of the Attorney-General should be made by the President nominating the name of individual to the Parliamentary Council and the appointment being made by the President subject to the approval of the Parliamentary Council. This ensures that the Legislature and the Executive provides the necessary checks and balances relating to the appointment of the Attorney General.
(H) Proposed Article 41A(10) in Clause 6 of the Bill: Removal of members of commissions and persons holding high office
6.13 The Committee is of the view that proposed Article 41A(10) in Clause 6 of the Bill should be amended to read as follows.
“No person appointed to be the Chairman or member of a Commission referred to in Schedule I of this Article or any of the persons appointed to the offices referred to in Part I and Part II of Schedule II of this Article shall be removed, otherwise than in the manner provided for in the Constitution or in any law enacted for such purpose. Where no such provision is made, such person may be removed by the President for cause stated.”
7. Clause 7 of the Bill: The Executive
7.1 Clause 7 of the Bill repeals the entirety of Chapter VIII of the Constitution consisting of Articles 42 to 53 of the Constitution and substitutes new proposed Articles 42 to 53.
7.2 Proposed Articles 44(1), 45(1) and 46(1)
Proposed Articles 44(1), 45(1) and 46(1) make a fundamental change relating to the appointment of Members of the Cabinet. While Articles 43(2), 44(1) and 45(1) required the President to appoint Members of the Cabinet, Ministers not in the Cabinet and Deputy Ministers on the advice of the Prime Minister, proposed Articles 44(1), 45(1) and 46(1) remove the requirement to act on advice and introduce a requirement of consultation with the Prime Minister where he considers such consultation to be necessary. It also enables the President to assign to himself any subject or function and remain in charge of subject or function not assigned to a Minister.
7.3 The executive power of the people is exercised by the President elected by the people. Each organ of Government exercises coequal power. The President as the repository of executive power should be able to exercise executive power as a Minister of the Cabinet and similarly should not be required to act on the advice of the Prime Minister who enjoys that position as a Member of the Legislature in selecting which of the members of Parliament should form part of the Executive and members of the Cabinet, non-Cabinet Ministers and Deputy Ministers.
7.4 The Committee is of the view that the amendment introduced by proposed Articles 41(1), 42(2) and 43(2) is not a matter that can be objected to, by the BASL, in view of the imbalance of power of the President and the Prime Minister under the existing provisions. We also note that as the President is elected by the people at a Presidential Election, there is justification for the President being conferred with executive powers.
8. Clause 8 of the Bill
8.1. Amendment proposed to the Article 54(2) of the Constitution
The Committee is of the view that the removal of a member of the Public Service Commission by the President should be for cause and accordingly the amendment proposed to Article 54(2) should be amended to read as follows.
“by the substitution, in paragraph (4) of that Article, for the words ‘by the President with the approval of the Parliamentary Council or is convicted’, of the words ‘by the President for cause stated or is convicted’ ”.
(To be continued tomorrow)
Footnote
1 See the dissenting view of L.M.K.Arulanandam, PC
