Sri Lanka: newly adopted 20th Amendment to the Constitution is blow to the rule of law

The ICJ today condemned the adoption of amendments to the Sri Lankan Constitution, which serve to expand the powers of the President, while encroaching on the powers of the parliament and courts.

The 20th Amendment to the Constitution was passed into law on 22 October, with 156 of the 225 parliamentarians voting in favour of the amendment, after a mere two-day debate, overruling the Opposition’s request for at least four days of deliberation.

The ICJ noted that the Amendment undoes most of the reforms brought about by the 19th Amendment adopted only in 2015. Critically, it introduces judicial appointment procedures which are incompatible with principles of the justice by reintroducing the Parliamentary Council, consisting only of political actors.

That body serves to merely advise the President, regarding appointments to the judiciary and other key public institutions.

The 20th amendment gives the President sole and unfettered discretion to appoint all judges of the superior courts. Under international standards, appointments to the judiciary should not be vested solely with the executive.

Given the gravity of the constitutional changes, the ICJ expressed regret that the Government had suspended Standing Order 50 (2), which requires every bill to be referred to the relevant Sectoral Oversight Committee for consideration prior to being debated in parliament.

“It is appalling that Constitutional amendments with such far reaching consequences on the constitutional governance of the country were rushed through in such haste, especially at a time Sri Lanka battles with its largest COVID-19 outbreak to date,” said Ian Seiderman, ICJ’s Legal and Policy Director.

The ICJ welcomes the alteration made to some of the problematic provisions of the 20th Amendment Bill during Committee Stage, particularly in relation to presidential immunity and the time period within which the president can dissolve Parliament.

The ICJ nonetheless is particularly concerned with the decision of the Minister of Justice to introduce entirely new provisions at Committee Stage, particularly in relation to the increase of the number superior court judges. The Supreme Court Bench will be increased from 11 to 17 and Court of Appeal from 12 to 20. These substantive amendments were not part of the gazetted 20th Amendment bill, the provisions of which were challenged before the Supreme Court by as many as 39 petitioners.

“While an increased number of judges may reduce court delays and expedite the judicial process, introducing substantive amendments such as this at Committee Stage is problematic at multiple levels,” Seiderman added.

“Sneaking in substantial changes at the last stage of the legislative process where there is no opportunity for public comment or judicial review is not consistent with democratic processes under the rule of law.”