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
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
(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
(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
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.
Upali A. Gooneratne,