Sri Lanka ex-justice minister moots bill to sweep aside constitutional council

Wednesday January 1, 2020

 – An ex-just minister has put forward a 22nd amendment to Sri Lanka’s constitution that will end powers of a constitutional council in appointing independent judges, the police chief and senior government officials and allow the president to hold defence and other ministries.

The 22 amendment to the constitution published in the government gazette, is promoted by legislator Wijedasa Rajapaksa as private member’s bill, who as justice minister of the last administration oversaw the enactment of the laws, which he is now seeking to overturn.

He is now backing the current administration.

Judges of the Supreme Court, Court of Appeal and members of the judicial services commission will be appointed by the President without approval from the constitutional council if the bill is passed by a two-thirds majority in parliament.

The 22nd amendment would also give the power to the President to appoint, The Attorney-General, The Auditor-General, The Inspector-General of Police after consulting with the Prime Minister.

The removal of such senior officers or members of the judicial services commission would not require the approval of the constitutional council under the proposed changes.

The parliament would be stripped of powers to determine the size of the cabinet in a national coalition government.

The in another 21st amendment to the constitution he sought to raise the bar for smaller parties to enter parliament by requiring them to get at 12.5 percent of the vote of an electoral district to be included.

The president would be allowed to hold the portfolios of defence and any other ministry.

Article 41 C in proposed 22nd amendment by Wijedasa Rajapaksa:

“41C. (1) The President shall appointed the Judge referred to in Part I of the Schedule to this Article after ascertaining the views of the Services Commission;

(2) The President shall appoint the officer referred to in Part II of the Schedule to this Article after ascertaining the views of the Prime Minister.”.

The provisions in the current Sri Lanka constitution are as follows:

41C. (1) No person shall be appointed by the President to any of the Offices specified in the Schedule to this Article, unless such appointment has been approved by the Council upon a recommendation made to the Council by the President.

(2) The provisions of paragraph (1) of this Article shall apply in respect of any person appointed to act for a period exceeding fourteen days, in any Office specified in the Schedule to this Article:

Provided that no person shall be appointed to act in any such office for successive periods not exceeding fourteen days, unless such acting appointment has been approved by the Council on a recommendation by the President.

(3) No person appointed to any Office specified in the Schedule to this Article or to act in any such Office, shall be removed from such Office except as provided for in the Constitution or in any law.

(4) In the discharge of its function relating to the appointment of Judges of the Supreme Court and the President and Judges of the Court of Appeal, the Council shall obtain the views of the Chief Justice.

SCHEDULE

PART I

(a) The Chief Justice and the Judges of the Supreme Court.
(b) The President and the Judges of the Court of Appeal.
(c) The Members of the Judicial Service Commission, other than the Chairman.

PART II

(a) The Attorney-General.
(b) The Auditor-General.
(c) The Inspector-General of Police.
(d) The Parliamentary Commissioner for Administration (Ombudsman).
(e) The Secretary-General of Parliament.

Article 43 (2)(a) in draft 22nd amendment to the constitution:

Article 43 of the Constitution shall appoint the officers referred by adding the following paragraph as (2)(a)immediately after sub – article (2) of that Article:—

“(a) The President shall hold the Ministry of Defence and any other Ministries.”.

The provisions in the current Sri Lanka constitutions is as follow:

43. (1) The President shall, in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers.

(2) The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined.

(3) The President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers and the continuity of its responsibility to Parliament

Article 46 in Wijedasa Rajapaksa’s 22nd amendment to the constitution:

4. Article 46 of the Constitution is hereby amended bydeleting the word “forty” and substituting of word “thirty”in sub paragraph (b) of the sub-article (1) of that Article.

5. Article 46 of the Constitution is hereby amended by repeal of sub-article (4) and (5) of that Article.

The provisions in the existing Sri Lanka constution are as follows:

46. (1) The total number of–
(a) Ministers of the Cabinet of Ministers shall not exceed thirty; and

(b) Ministers who are not members of the Cabinet of Ministers and Deputy Ministers shall not, in the aggregate, exceed forty.

(2) The Prime Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he –

(a) resigns his office by a writing under his hand addressed to the President; or

(b) ceases to be a Member of Parliament.

(3) A Minister of the Cabinet of Ministers, a Minister who is not a member of the Cabinet of Ministers and a Deputy Minister, shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution unless he–

(a) is removed from office under the hand of the President on the advice of the Prime Minister;

(b) resigns from office by a writing under his hand addressed to the President; or (c) ceases to be a Member of Parliament.

(4) Notwithstanding anything contained in paragraph (1) of this Article, where the recognized political party or the independent group which obtains highest number of seats in Parliament forms a National Government, the number of Ministers in the Cabinet of Ministers, the number of Ministers who are not Cabinet of Ministers and the number of Deputy Ministers shall be determined by Parliament.

(5) For the purpose of paragraph (4), National Government means, a Government formed by the recognized political party or the independent group which obtains the highest number of seats in Parliament together with the other recognized political parties or the independent groups.

Article 107 in draft 22nd amendment by Wijedasa Rajapaksa:

Article 107 of the Constitution is hereby amended bydeleting the words “subject to the approval of theconstitutional council” in sub-article (1) of that Article.

The existing provisions are as follows:

107. (1) The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and of the Court of Appeal shall, subject to the approval of the Constitutional Council, be appointed by the President by warrant under his hand.
Article 111 in draft 22nd amendment to the constitution:

7. Article 111E of the Constitution is hereby amendedby deleting the words “subject to the approval of theconstitutional council” in sub-article (6) of that Article.

The existing provisions are as follows:

111E. (1) The quorum for any meeting of the Commission shall be two members of the Commission.

(2) A Judge of the Supreme Court appointed as a member of the Commission shall, unless he earlier resigns his office or is removed therefrom as hereinafter provided or ceases to be a Judge of the Supreme Court, hold office for a period of three years from the date of his appointment, but shall be eligible for re-appointment.

(3) All decisions of the Commission shall be made by a majority of the members present, and in the event of an equality of votes, the Chairman of the meeting shall have a casting vote.

(4) The Commission shall have power to act notwithstanding any vacancy in its membership and no act or proceeding of the Commission shall be, or be deemed to be invalid by reason only of such vacancy or any defect in the appointment of a member.

(5) The President may grant to any member of the Commission leave from duties and may appoint subject to the approval of the Constitutional Council, a person qualified to be a member of the Commission to be a temporary member for the period of such leave.

(6) The President may, with the approval of the Constitutional Council, and for cause assigned, remove from office any member of the Commission. (Colombo/Jan01/2020)