Thursday Dec 12, 2024
Thursday Dec 12, 2024
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Following is the Part 2 of 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, continued. Part 1 was published yesterday and available online at http://www.ft.lk/opinion/BASL-Committee-makes-observations-on-20th-Amendment-Part-I/14-706563
BASL Committee makes observations on 20th Amendment: Part I
9. Clause 11 of the Bill: Decisions of the Public Service Commission
9.1 According to the existing provisions, a public servant aggrieved by a decision of the Public Service Commission may appeal to the Administrative Appeals Tribunal created under Article 59 of the Constitution or by way of a Fundamental Rights Application under Article 126 of the Constitution.
9.2 The Bill does not repeal Article 59 of the Constitution which creates the Administrative Appeals Tribunal. However the proposed amendment in Clause 11, by amending Article 61A of the Constitution, confers finality to decisions of the Public Service Commission subject only to the Jurisdiction of the Supreme Court under Article 126 of the Constitution.
9.3. Thus the proposed amendment creates an anomalous situation as the Administrative Appeals Tribunal is in existence without Jurisdiction/ power to hear appeals against the decisions of the Public Service Commission. Thus Administrative Appeals Tribunal will be there without any function being assigned to. We are also of the view that if the only forum allowed for the public servants to challenge the decisions of the Public Service Commission is the Supreme Court, then the Supreme Court would be inundated with Fundamental Rights Applications filed by public servants regarding disciplinary matters, transfers and promotions adding to the laws delays in the Supreme Court.
9.4 Therefore the Committee is of the view that the existing Article 61A should not be amended and the proposed amendment to Article 61A cannot be supported.
10. Clause 12 of the Bill
For the reasons set out in 7 above, The Committee is of the view that proposed Article 61E should be amended to read as follows.
“The President shall appoint -
(a) the Heads of the Army, the Navy and the Air Force; and
(b) subject to the approval of the Parliamentary Council, the Attorney-General.”
11. Clause 13 of the Bill
For the reasons set out in 7 above, The Committee is of the view that proposed Articles 65(1) and 65(6) should be amended to read as follows.
“1. There shall be a Secretary-General of Parliament who shall be appointed by the President subject to the approval of the Constitutional Council and who shall hold the office during good behaviour.”
“6. Whenever the Secretary-General is unable to discharge the function of his office, the Speaker may appoint a person to act in place of the Secretary-General.”
12. Clause 14 of the Bill – Dissolution of Parliament
12.1 The legislative power of the people is exercised by Parliament. The Parliament is elected for a period of 5 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.
12.2 We propose that the President’s power to dissolve Parliament during the period specified in Article 62(2) should be limited to the following circumstances.
(a) Parliament by resolution requests the President to dissolve Parliament.
(b) The rejection by Parliament of the Appropriation Bill on two consecutive occasions.
(c) The rejection of the statement of Government policy on two consecutive occasions.
(d) Parliament passes a motion of no confidence in the Government.
12.3 We propose that the President shall be required to dissolve Parliament in the case of (b) above.1
13. Clause 15 of the Bill – Judicial review of Bills
13.1 Amendment proposed to Article 78(1)
Our Constitution does not contain judicial review of legislation. It is imperative for the rule of law that the Judiciary should be given sufficient time and assistance to determine whether a Bill is inconsistent with the Constitution and the required majority for its enactment including the need for a referendum. The proposed Article 78(1) reduces the period available for such scrutiny from 14 days to 7 days. We believe that the amendment is not conducive to the rule of law.
13.2 The new proposed Article 78(3)
The proposed Article 78(3) is salutary and should be supported.
13.3 We also propose that Article 80(3) be amended by the addition of the following words to the end of that sub-article.
“save and except on the ground that it is contrary to Article 78(3) and such amendment if included in the Bill would have required such Bill to be passed by two-thirds of the whole number of Members (including those not present) or such majority and approved by the People at a Referendum.“
14. Clause 17 of the Bill
14.1 Amendment proposed by Clause17 (1)
We believe that independence required for the rule of law must ensure that all members of the Commission set out in the schedules to Article 41A should not be qualified to be elected as a Member of Parliament.
14.2 Amendment proposed by Clause 17(4) – Taking away of the dual-citizenship disqualification
Article 91(d)(1)(xiii) of the Constitution debars a citizen who is also citizen of any other country from being qualified to be elected as a Member of Parliament . The Committee is of the view that the sovereignty of the people would be gravely affected by the Legislature including persons whose loyalty is not solely to Sri Lanka being elected as Members of Parliament. Indeed, a person who has acquired citizenship of another country almost always has sworn an oath of allegiance to that other country. The repeal of Article 91(d)(1)(xiii) of the Constitution would grant the right to the thousands if not hundreds of thousands of diaspora members of every community who have obtained citizenship in other countries in addition to the citizenship of Sri Lanka to contest an election to enter Parliament and influence the policies of the Government while being a citizen of a foreign country who has sworn allegiance to that country. So for example in Australia they would have sworn and oath in the following manner.
“From this time forward, I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect,
and whose laws I will uphold and obey.” (emphasis added)
14.3 Those diaspora members who are citizens of Norway would have taken the following oath.
“As a citizen of Norway I pledge loyalty to my country Norway and the Norwegian society, and I support democracy and human rights and will respect the laws of the country.” (emphasis added)
14.4 Those diaspora members who are citizens of the United Kingdom would have taken the following oath.
“I will give my loyalty to the United Kingdom and respect its rights and freedoms. I will uphold its democratic values. I will observe its laws faithfully and fulfil my duties and obligations as a British citizen.” (emphasis added)
14.5 Those diaspora members who are citizens of Switzerland would have taken the following oath.
“I swear or I solemnly promise: to be loyal to the Republic and the canton of Geneva as to the Swiss Confederation; to scrupulously observe the constitution and the laws; to respect the traditions, to justify my adhesion to the community of Geneva by my actions and behaviour; and to contribute with all my power to keeping it free and prosperous.” (emphasis added)
14.6 Those diaspora members who are citizens of the United States of America would have taken the following oath.
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform non-combatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.” (emphasis added)
14.7 To permit a person who is also a citizen of another country to be elected to Parliament is not only a surrender of sovereignty but is contrary to national interest and indeed a threat to security of the nation.
14.8 We are firmly of the view that Article 91(1)(d)(xiii) should not be repealed.
15. Clause 19 of the Bill
15.1 For the reasons set out in 7 above, The Committee is of the view that the proposed Article 103(1) should be amended as follows.
“There shall be an Election Commission (in this Chapter referred to as the “Commission”) consisting of three members appointed by the President subject to the approval of the Parliamentary Council from amongst persons who have distinguished themselves in any profession or in the fields of administration or education. The President on the recommendation of the Parliamentary Council shall appoint one member as its Chairman.”
15.2 For the reasons set out in 7 above, The Committee is of the view that the proposed Article 103(7) should not be amended.
16. Clause 20 of the Bill
16.1 In order to ensure that there is no ambiguity as to the scope of Article 104B The Committee is of the view that proposed Article 104B(4a) should be amended by the inclusion of the following words at the end of that Article.
“unless such guideline is required for the purposes set out in Article 104B(a).
16.2 The Committee is of the view that the media should be regulated by the normal law and should not be controlled during an election. An exception can be legitimately carved out for State media which is funded by the State and should act fairly at all times. For this reason, The Committee is of the view that Article 104B(5)(b) should not be repealed.
17. Clause 22 of the Bill
The Committee is of the view that Article 104GG is necessary for the sovereignty of the people and to ensure a free and fair election. The Committee is of the view that Article 104GG should be retained.
18. Clause 23 of the Bill
The Committee is of the view that for the reasons set out in 7 above, proposed Article 107(1) in Clause 23 of the Bill should be amended to read as follows.
“The Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and the Court of Appeal shall be appointed by the President by Warrant under his hand subject to approval of the Parliamentary Council.”
19. Clause 24 of the Bill
While acting appointments as Chief Justice and President of the Court of Appeal under proposed Article 109(1) would be limited to sitting Judges of the Supreme Court and Court of Appeal respectively, the proposed Article 109(2) empowers the appointment of an Acting Judge to the Supreme Court or the Court of Appeal. The Committee is of the view that for the reasons set out in 7 above, proposed Article 109(2) in Clause 24 of the Bill should be amended to read as follows.
“If any Judge of the Supreme Court or of the Court of Appeal is temporarily unable to exercise, perform and discharge the powers, duties and functions of his office, by reason of illness, absence from Sri Lanka or any other cause, the President may, subject to the approval of the Parliamentary Council, appoint another Judge to act as a Judge of the Supreme Court or Court of Appeal, during such period.”
20. Clause 25 of the Bill
For the reasons set out in Clause 7 above and to ensure the independence of the Judiciary, the Committee is of the view that proposed Article 111D(1) be amended to read as follows.
“There shall be a Judicial Service Commission (in this Chapter referred to as the ‘Commission’) consisting of the Chief Justice and the two most senior Judges of the Supreme Court appointed by the President. Provided that where the Chief Justice and the two most senior Judges of the Supreme Court are Judges who have not had any judicial experience serving as a Judge of a Court of First Instance, the Commission shall consist of the Chief Justice, the senior most Judge of the Supreme Court and the next most senior Judge of such Court, who has had experience as a Judge of a Court of First Instance.”
21. Clause 26 of the Bill
For the reasons set out in Clause 7 above and to ensure the independence of the Judiciary, the Committee is of the view that proposed Article 111E(6) be amended to read as follows.
“The President may for cause stated and subject to approval of the Parliamentary Council remove from office any member of the Commission.”
22. Clause 27 of the Bill – Urgent Bills
The Committee is of the view that the proposed Article 122 is inimical to the rule of law administration of justice and the sovereignty of the people. Particularly in circumstances where judicial review of legislation is not available it would lead the way to tyranny.2
23. Clause 31 of the Bill
23.1 The control of public finance by Parliament is fundamental to representative democracy. This is also enshrined in Article 148. The Auditor-General is necessary and essential to ensure Parliamentary control of finance. The Auditor-General ensures that the funds are utilised according to law. To grant the President control over his appointment would diminish Parliamentary control over finance. It is inimical to the rule of law that the President should have control over the appointment of the Auditor-General. The Committee is of the view that the appointment of the Auditor General should be made by the President nominating a name of an individual to the Parliamentary Council and 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. It also ensures that the Executive that spends the money allocated by Parliament is not in sole control of the auditing of such activity.
23.2 For these reasons The Committee is of the view that proposed Article 153(1) and proposed Article 153(4) be amended as follows.
“(1) There shall be an Auditor-General who shall be a qualified Auditor, and subject to the approval of the Parliamentary Council, be appointed by the President and shall hold office during good behaviour.”
“(4) Whenever the Auditor-General is unable to discharge functions of his office, the President may, subject to the approval of the Constitutional Council, appoint a person to act in the place of the Auditor-General.”
24. Clause 32 to Clause 39 of the Bill
For the reasons set out in 23 above, The Committee is of the view that the abolition of the Audit Service Commission is contrary to national interest the rule of law and the sovereignty of the people. The Committee is of the view that Article 153A to 153H of the Constitution should not be repealed.
25. Clause 40 of the Bill
25.1 Proposed Articles 154(1), (2), (3)
For the reasons set out in 23 above, The Committee is of the view that proposed Articles 154(1) should be amended to read as follows.3
“The Auditor-General shall audit all departments of the Government, the Office of the Secretary to the President, the Office of the Secretary to the Prime Minister, the Offices of the Cabinet of Ministers, the Judicial Services Commission, the Public Service Commission, the Provincial Public Service Commissions, the Parliamentary Council, the Commissions referred to in the Schedule to Article 41B, the Parliamentary Commissioner for Administration, the Secretary-General of Parliament, local authorities, public corporations, business and other undertakings vested in the Government under any written law and any company registered or deemed to be registered under the Companies Act, No. 7 of 2007 in which the Government or a public corporation or local authority holds fifty per centum or more of the shares of that company including the accounts thereof if such company which is not listed on any Stock Exchange recognized by the Securities and Exchange Commission of Sri Lanka.”
25.2 In view of the amendment to proposed Article 154(1) The Committee is of the view that no amendment should be made to Article 154(2) and (3).
25.3 Repeal of Article 154(9)
Article 154(9) required the Auditor General to be a member of the Institute of Chartered Accountants of Sri Lanka, or of any other Institute established by law, possesses a certificate to practise as an Accountant issued by the Council of such Institute. Needless to say, removing this requirement is contrary to the rule of law and the sovereignty of the people.
25.4 The Committee is of the view that Article 154(9) should not be repealed.
26. Clause 41 of the Bill
For the reasons set out in 7 above, The Committee is of the view that proposed Article 154R(1)(c) should be amended as follows.
“three other members appointed by the President subject to the approval of the Parliamentary Council, to represent the three major communities, each of whom shall be a person who has distinguished himself or held high office, in the field of finance, law, administration, business or learning.”
27. Clause 42 of the Bill
The Committee is of the view that proposed Article 155A(4) set out in Clause 42(2) be amended by the inclusion of the words “for cause stated” between the words “by the President” and “, or is convicted”.
28. Clause 45 of the Bill
The amendment proposed to Article 155F intends to decriminalise any interference or influencing of a police officer to whom the National Police Commission has delegated its powers. The Committee is of the view that the proposed amendment is inimical to the rule of law.
29. Clause 54 of the Bill
Clause 54 of the Bill repeals the provision relating to the constitutional status of the Commission to Investigate Allegations of Bribery or Corruption. The Committee is of the view that the repeal of these provisions is inimical to the rule of law.
30. Clause 55 of the Bill
Clause 55 of the Bill repeals the provision relating to the National Procurement Commission. The Committee is of the view that the repeal of these provisions is inimical to the rule of law.
(Concluded.)
Footnotes
1 See the dissenting view of Nihal Jayawardena PC, Uditha Egalahewa PC and Mohan Weerakoon PC
2 See the dissenting view of Nihal Jayawardena PC, Uditha Egalahewa PC and Mohan Weerakoon PC
3 See the dissenting view of Nihal Jayawardena PC, Uditha Egalahewa PC and Mohan Weerakoon PC
