Bar Association Proposals for The Constitution of The Republic

Full text of the letter the Bar Association of Sri Lanka
has sent to President Chandrika Bandaranaike Kumaratunga

We write to submit the following proposals to be considered for incorporation in the draft Constitution presented to Parliament on the 3rd August 2000.

1. Fundamental Rights

(a) The scope of the Fundamental Rights jurisdiction may be widened to include their infringement or imminent infrigement by judicial action and by private sector institutions.

(b) Article 11(2) of the draft Constitution may be enlarged to include discrimination on the grounds of age and disability.

(c) Article 30 (1) (c) of the 1997 draft may be included the new draft Constitution.

(d) A time limit of 3 months for filing of Fundamental Rights applications may be provided for, but the courts may be given discretion to extend the time limit for reasons to be recorded.

(e) As Sri Lanka has subscribed to International Conventions on Human Rights, a suitable provision may be made that the courts should pay due regard to the norms and standards set by those Conventions.

2. Independence of the Judiciary

(a) The Constitutional Council should be empowered and required to set out criteria in respect of the appointments of all judges of the Supreme Court and of the Court of Appeal including that of the Chief Justice and the same should be tabled in Parliament and approved.

(b) Transitional provisions should be embodied to guarantee the continuity in office of the Judges of the Supreme Court and of the Court of Appeal despite the repeal of the present Constitution and the enactment of a new Constitution.

(c) Judges of Superior Courts should be paid the same salary they draw at retirement, even during their retirement.

(d) Sitting Judges of the Supreme Court and of the Court of Appeal should not be obligated or requested by the Executive to perform any other function.

(e) Any inquiry prior to the proposed removal of a Chief Justice should be conducted by a Panel chaired by a retired Chief Justice of another Commonwealth country to be appointed by the Constitutional Council.

(f) Any inquiry prior to the proposed removal of other Judges of the Superior Courts should be conducted by a Panel of retired Supreme Court judges appointed by the Constitutional Council.

(g) The age of retirement for judges of the Supreme Court and the Court of Appeal should be 65 years subject to the following proviso:

(i) Provided howsoever in the case of all judges of the Supreme Court and the Court of Appeal, provision should be made for them to retire only on the 31st day of December of the year in which the respective judge attains the age of retirement so that there will be retirements, appointments and transfers only at the commencement of the year, except in exceptional cases, e.g.: vacancy occurring by the death of a sitting judge or any disability or resignation.

(ii) Similar provision may be made in respect of High Court Judges, District Judges, Magistrates, Primary Court Judges, etc.

We are making this proposal to eradicate any possible laws delays caused by the retirement and transfer of Judges in the course of a calendar year.

3. Judicial Review of Legislation

The provisions contained in the 1997 draft for review of Acts of Parliament should be retained on the basis that the Courts can review legislation within two years from the date of enactment and there should not be any further restriction in respect of that power of judicial review.

We wish to mention that the above proposals have been confined to the areas of special interest to the legal profession. Although we could not study the full text of the new draft Constitution as it was not available to us at the time of the preparation of our proposals, we have formulated these at extremely short notice, as the Bar Association of Sri Lanka considers it as its duty to invite the attention of Your Excellency and the Members of Parliament at least to these important matters. We are sending copies of this Memorandum to the Honourable Minister of Justice, Constitutional Affairs, Ethnic Affairs and National Integration, the Honourable the Leader of the Opposition and the leaders of the other political parties represented in Parliament, for their information and necessary action.

Yours truly,
Upali A. Gooneratne,
President