BASL says 20A's presidential immunity clause an affront to Rule of Law

No person should be above the law and to grant absolute immunity to the President as proposed under the 20th Amendment to the Constitution runs contrary to all known principles of the Rule of Law, the Committee appointed by the Bar Association of Sri Lanka (BASL) to study the 20th Amendment has observed in its report.

In its observations on Clause 5 of the Bill, which deals with Immunity of the President, the Committee notes that the President in particular being the repository of substantial powers under the Constitution should be held accountable for the exercise of those powers in accordance with the Constitution.

“No person is above the law and to grant absolute immunity from suit is contrary to all known principles of the Rule of Law. If the public do not have access to remedy a grievance against the unlawful exercise of powers by all powerful President the only remedy will be to take arms against the State,” the report states.

Moreover, the President is not exempted from the obligations to respect, secure and advance fundamental rights. As such, depriving the citizens of a remedy when the President violates fundamental rights is inimical to the Rule of Law. “Nevertheless, we are mindful that certain powers of the President should not be justiciable and a suitable exception should be carved out,” it further asserts.

The Committee has also firmly opposed the amendment proposed to remove the restriction imposed on dual citizens to qualify to contest election.

“To permit a person who is also a citizen of another country to be elected to Parliament is not only a surrender of sovereignty but is contrary to national interest and indeed a threat to security of the nation,” the report warns.

The BASL Committee, however, states the President should be vested with the power to appoint the Chief Justice, the President of the Court of Appeal and every other Judge of the Supreme Court and the Court of Appeal, provided the appointments are subject to approval of the “Parliamentary Council” comprised of MPs proposed under 20A. It has also recommended that appointment of the Attorney General, the Auditor General and the Secretary General of Parliament should be made by the President nominating the name of individual to the Parliamentary Council, and for the appointment to be made by the President subject to the approval of the Parliamentary Council.

The BASL had earlier appointed a Special Committee of 15 persons to study the draft 20A and submit its recommendations. Nihal Jayamanne PC was initially invited to the Committee, but declined the invitation to chair or participate in the Committee. L.M.K. Arulanandam PC was then appointed as the chairman of the Committee.

Several other members, namely Ikram Mohamed PC, Anura Meddegoda PC and Ravi Algama also declined to be in the Committee.

The report was placed before the Bar Council of the BASL on yesterday (26) for consideration.