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BASL writes to Prez, PM & Justice Minister on concerns over 21A

In letters addressed to the President Gotabaya Rajapaksa, Prime Minister Ranil Wickremesinghe and Justice Minister Dr. Wijeyadasa Rajapakshe, the Bar Association of Sri Lanka (BASL) has expressed concern that whilst the 21st Amendment will restore the provisions of the previous 19th Amendment to the Constitution as regards the Constitutional Council and the Independent Commissions, there are several vital provisions which were found in the 19th Amendment which are not incorporated into the draft 21st Amendment.

The BASL highlights that while the provisions of the 19th Amendment precluded the President from assigning to himself any subjects or functions, the 21st Amendment does not incorporate such a provision and as such the President will be able to continue to retain Ministries and assign to himself any subjects and functions and take over subjects and functions of any Minister. 

“The BASL is of the view that the 21st Amendment must include a provision amending Article 44(2) of the Constitution removing the power of the President to retain Ministries and assign to himself any subjects or functions. Such provision must be made operative as soon as the 21st Amendment is passed,” the Association stated.

In addition, the BASL observed that the President’s powers to prorogue and dissolve Parliament are left intact, in contrast to the 19th Amendment to the Constitution where the President could dissolve Parliament only after four and a half years following a Parliamentary election. The BASL is of the view that the provisions in the 19th Amendment relating to dissolution of Parliament should be restored.

It was recommended that the following matters which were contained in the BASL proposals be included in the 21st Amendment:

  1. A provision for the members of the Monetary Board to be appointed with the approval of the Constitutional Council (in addition to the Governor of the Central Bank);
  2. A provision for the appointments of the Secretaries to the Ministries, Governors of the Provinces, Ambassadors and Heads of Missions be done on the advice of the Prime Minister in consultation with the Cabinet of Ministers;
  3. A provision to require Presidential Pardons to be done according to the recommendation by a body established by law, appointed by the President on the recommendation of the Constitutional Council
  4. A provision to enhance the financial independence, transparency, and accountability of the Independent Commissions.

The BASL further recommends that the number of members of the Constitutional Council who are not Members of Parliament be increased from 3 to 5 and conversely the number of Members of Parliament on the Constitutional Council be reduced from 7 to 5 as was found in the 17th Amendment to the Constitution. This is consistent with the position taken by the BASL in 2015 when the 19th Amendment was enacted.

The BASL further called on the Government to ensure the early enactment of the 21st Amendment to the Constitution, as it is a necessary step towards achieving stability in Sri Lanka.