Certain provisions in 20A inimical to rule of law, separation of powers and sovereignty of people – BASL

A special committee, appointed by the Bar Association of Sri Lanka to study the proposed 20th Amendment to the Constitution and submit a report, is of the view some of the provisions therein are inimical to the rule of law, the administration of justice and the sovereignty of people.

The committee appointed on Sept 14, consisted of LMK Arulanandan PC (chairman), MM Zuhair PC, Prasantha Lal De Alwis PC, Nihal Jayawardene PC, Nalin Ladduwahetty PC, Maithri Wickremesinghe PC, Uditha Egalahewa PC, Mohan Weerakoon PC, ST Jayatunga PC, Priyal Wijeweera PC, Maurapada Gunawansha PC, Jagath Wickramanayaka PC and Shantha Jayawardana (Convenor).

The committee has observed, in its report, that the President being the repository of substantial powers under the Constitution should be held accountable for the exercise of those powers in accordance with the Constitution.

Referring to the Clause 5 of the Bill about the imunity of the President, the BASL committee says no person is above the law and granting absolute immunity from suit contrary to all known principles of the rule of law.

The committee has said it is inimical to the rule of law that the President should have control over the appointment of members of the Financial Commission and the Auditor General.The BASL committee says the appointment of the Attorney General should be made by the President subject to the approval of Parliamentary Council to ensure that the legislature and the executive provide necessary checks and balances relating to the appointment concerned.

About the proposed Parliamentary Council, which is to replace the existing Constitutionl Council, the BALSL committe has said: “The BASL 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 are not answerable to an organ of the State.”

The committee opines that it is imperative that the Executive should not have control of the appointment of judges or the members to the Judicial Service Commission. “Indeed, if there is one arm of government that should have control it is Parliament and not the president.”

The BASL is of the view that the President should not have absolute control over the judges of the Supreme Court and the Court of Appeal. It says these appointments should be made by the President subject to the approval of the Parliamentary Committee.

The BASL says the President as the repository of the executive, power should be able to exercise executive power as a minister of the cabinet.

The BASL says the act of vesting in the President unfettered power to dissolve Parliament is contrary to rule of law, the separation of powers and the sovereignty of people. “The legislative power of the people is exercised by Parliament. The Parliament is elected for a period of five years by the people. The legislature, the executive and the judiciary are co-equal organs of Government. The President as the head of the executive being granted the unfettered power to dissolve parliament at his whim albeit after one year but before the term of office of parliament has expired is contrary to the rule of law and the separation of powers. It is contrary to the sovereignty of the people.”