NMSJ Proposals for a New Constitution – Part III

by Jayampathy Wickramaratne, President’s Counsel

(Continued from Tuesday)

Judiciary

Highlights of the proposals made by the National Movement for Social Justice (NMSJ) on the judiciary are the establishment of a Constitutional Court, a consultative process in appointing judges to the higher judiciary, inquiries into allegations against judges of the higher judiciary to be taken out of Parliament and the Court of Appeal to sit in the provinces as well and also exercise an original fundamental rights jurisdiction.

All appointments to the Supreme Court and Court of Appeal shall be subject to approval by the Constitutional Council as under the Nineteenth Amendment. In recommending persons for appointment as Judges of the Supreme Court and the Court of Appeal, the President shall take into consideration the views of the Chief Justice, Minister of Justice, Attorney-General and a panel of three senior President’s Counsel, nominated by the Chief Justice after ascertaining the views of the Bar Association of Sri Lanka.

The NMSJ has proposed a Constitutional Court, consisting of seven Judges, who shall be appointed by the President on the recommendation of the Constitutional Council. The Judges shall be chosen from among persons who have distinguished themselves in the judiciary, the legal profession or legal education with specialised knowledge of constitutional law. They shall be appointed for a term of five years and shall not be eligible for reappointment. All seven Judges shall sit as the Court. Where any matter which falls within the jurisdiction of the Constitutional Court arises in any case before any court, such matter shall be referred to the Constitutional Court.

The proposed jurisdiction of the Constitutional Court is as follows: interpretation of the Constitution, judicial review of acts and provincial statutes, disputes between the Centre and Provincial Councils and between Provincial Councils, breaches of privileges of Parliament and review of its judgments.

The Court of Appeal shall conduct its sittings in each Province. It shall have an original fundamental and language rights jurisdiction. An appeal shall lie to the Supreme Court with leave from the Court of Appeal or special leave from the Supreme Court.

Allegations of misbehaviour or incapacity contained in a resolution in Parliament for the presentation of an address for the removal of a Judge of the Constitutional Court, Supreme Court or Court of Appeal shall be inquired into by a panel consisting of three retired Judges of such courts appointed by the President on the recommendation of the Constitutional Council. Parliament shall by law provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehaviour or incapacity and the right of such Judge to appear and to be heard in person or by a representative.

Office of Attorney-General and Office of Public Prosecutor

The role of the Attorney-General has been the subject of much discussion in recent times. The NMSJ proposes that the Office of Attorney-General shall be an independent entity. It has also proposed that an independent Office of Public Prosecutor be set up by law. The Attorney-General and the Chief Public Prosecutor shall be appointed subject to the approval of the Constitutional Council.

Fundamental Rights

The NMSJ has proposed that the chapter on fundamental rights be improved to include rights that are universally recognised.

The right to life, which was included in the 1972 Constitution but excluded from the 1978 Constitution, shall be recognised. While the scope of civil and political rights should be broadened, social and economic rights, cultural rights, rights of women, children, the aged and the disabled, as well as environmental rights shall be recognised as judicially enforceable rights. The draft proposed by the sub-committee on fundamental rights of the Constitutional Assembly chaired by MP Mahinda Samarasinghe in 2016 could be the basis for the new chapter on fundamental rights.

The NMSJ’s proposals for a broader fundamental rights chapter accord with modern constitution-making. Approximately 70% of the constitutions in the world contain at least one explicitly justiciable economic and social right, and about 25% have ten or more such rights. Clearly, the modern trend is not to limit fundamental rights to civil and political rights but to include more economic and social rights. South Africa gave the lead in recognising social, economic, cultural rights as well as children’s and women’s rights and environmental rights in its Constitution. This was followed by progressive and innovative Bills of Rights in many countries, including countries that have liberated themselves from authoritarian rule or internal conflict. These include Kenya and least developed countries such as East Timor and Nepal. Modern Latin American constitutions have included more justiciable economic and social rights than in any other region of the world.

The NMSJ has proposed that public interest litigation be expressly recognised. There shall be no time limit for filing applications so that applications filed within a reasonable time could be entertained.

All existing law shall be read subject to the Constitution, including the chapter on fundamental rights. Post-enactment judicial review of laws and statutes would be permitted. Accordingly, the Constitutional Court shall have sole and exclusive jurisdiction and power to declare that a law or provincial statute or any provision thereof that is inconsistent with any provision of the Constitution is invalid to the extent of the inconsistency. Where it considers just and equitable to do so, the Court may limit the retrospective effect of a declaration of invalidity or suspend a declaration of invalidity for Parliament or a Provincial Council to make the law or statute cease to be inconsistent with the Constitution within a stipulated period.

Language

The NMSJ’s proposal on language is to declare Sinhala and Tamil as official languages and to recognise English as the link language.