Sri Lanka: Parliament should reject Government’s move to repeal and replace 19th Amendment to the Constitution

The Sri Lankan parliament should reject the Sri Lankan Government’s efforts to amend the country’s constitution to provide unfettered powers to the President while encroaching on the powers of the legislature and infringing upon the independence of the judiciary, said the ICJ today.

“The proposed 20th Amendment, which bestows an already powerful executive president with additional powers with no effective checks on him, essentially placing him above the law,” said Sam Zarifi, ICJ’s Secretary General. “These amendments would tilt the balance of State power heavily on the side of the executive and in particular on a single person.”

The proposed 20th Amendment to the Constitution bill rolls back most of the reforms brought about by the 19th Amendment to the Constitution, the passage of which the UN Human Rights Council welcomed as “promoting democratic governance and oversight of key institutions”.

The 19th amendment, adopted in 2015, had imposed certain limits to the Executive President’s authority and powers, including in respect of terms of the office of President, the capacity to dissolve Parliament and to fast-track legislation. It also removed the blanket immunity the President enjoyed from legal proceedings. Critically, it had established a Constitutional Council which restrained the President’s discretion in appointing key governmental actors including in the judiciary, the Attorney General and the Inspector General of Police.

The ICJ notes that the 20th amendment appears to reproduce much of the regressive features of the old 18th amendment, which the 19th amendment had been brought about to correct.

“Sri Lanka’s Executive branch has a poor record of respecting human rights and the rule of law, and the 19th Amendment was an effort to impose the checks and balances necessary for the rule of law,” said Sam Zarifi. “The constitutional changes being proposed would take the country back to the dark days of Executive impunity.”

“We are particularly concerned that these changes would undermine the independence of the judiciary, as the President would have unfettered discretion to appoint the superior judiciary, including the Chief Justice, the President and Judges of the Court of the Appeal, and to control the Judicial Service Commission,” said Sam Zarifi.

The JSC is the body entrusted with the power to appoint, promote, transfer exercise disciplinary control and dismiss judicial officers of the subordinate courts. The changes would also grant the President the power to nominate members of the Judicial Service Commission (JSC) other than its Chairman which is ex officio, the Chief Justice.

The UN Basic Principles on the Independence of the Judiciary states that “Any method of judicial selection shall safeguard against judicial appointments for improper motives.”

Under international standards and recommendations of the UN Special Rapporteur on the Independence of the Judiciary, appointments to the judiciary should not be vested solely with the executive.

A judicial appointment process which gives the President full discretion would inevitably result in the significant erosion of the independence and impartiality of the Sri Lankan judiciary.

Moreover, several checks placed on the President’s powers by the 19th Amendment have also been removed while giving him greater legal immunity. The President would also be granted sole power to appoint the cabinet, assign to himself any cabinet portfolio and been given unfettered discretion in relation to the appointment and dismissal of the Prime Minister. The President would also retain the power to dissolve the Parliament within one year.

Contact

For questions and clarifications: Osama Motiwala, Communications Officer – osama.motiwala(a)icj.org

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