Panel of legal experts proposes legal reforms for Sri Lanka

Shyam Divan

Prashant Kumar

Upul Jayasuriya PC

Amongst the proposed reforms are the establishment of a Constitutional Court with powers to re-examine the laws that are in force

There shall be a Code of Conduct applicable to Judges of these three Courts

Restrictions brought to the freedom of expression will be withdrawn and a new bill will be presented

The much-needed legal reforms for a system change have been compiled by a panel of reputed legal experts in order to strengthen the present legal system in Sri Lanka. These reforms have been applauded by a group of local and foreign legal luminaries who visited Sri Lanka for the presentation of the reforms.
Senior Indian Advocate and President LAWASIA Shyam Divan, President Bar Association of India Prashant Kumar and President Commonwealth Law Association R.  Santhankrishnan are amongst those who commended these proposed reforms.

According to Upul Jayasuriya PC, who headed the panel that compiled the proposed legal reforms, if these modifications are not implemented, there is no way the country can go forward with a refined legal framework for the much needed system change.

“Opposition Leader Sajith Premadasa has shown a keen interest on these proposed legal reforms and he promised to name them in his upcoming election manifesto,” Jayasuriya PC said.
Jayasuriya PC is also planning to present these reforms to the leaders of the UNP, SLPP, NPP and also to the members of the Aragalaya who also campaigned for much-needed reforms.
 “Parties that really want to bring legal reforms to revive the ongoing legal system and implement change can adopt these proposals,” added Jayasuriya PC.

Amongst the proposed reforms are the establishment of a Constitutional Court with powers to re-examine the laws that are in force on the basis of post legislative analysis that deals primarily with constitutional issues and interpretations. 

Some of the other proposed reforms are: All appointments made to this Constitutional Court, the Supreme Court (SC), Court of Appeal (CA) and to the Judicial Service Commission, other than its Chairman, shall be made by the President on the recommendation of the Constitutional Council (CC).

 “In the recent past it has become apparent that such a court (Constitutional Court) would be necessary and must be manned by judges who have excelled in constitutional law to focus and improve their inputs in the field of constitutional interpretations,” Jayasuriya PC said.

If any allegation is levelled against any judge, they shall be inquired into by a panel consisting of three retired Judges of the Constitutional Court or the SC. Such a panel shall be appointed by the Speaker on the recommendation of the CC. Parliament shall, by law, provide for all matters including the procedure for the passing of such a resolution, the investigation and proof of the alleged misbehaviour or incapability and the right of such a Judge to appear and to be heard in person or by a representative. Here the panel determines that if the allegations of misbehaviour or incapacity contained in the resolution are not proved, the resolution shall lapse.

There shall be a Code of Conduct applicable to Judges of these three Courts. Allegations of serious breach of Code of Conduct with negative implications for the Judiciary’s independence, integrity or public trust shall be inquired into, by a panel consisting of three retired Judges of the Constitutional Court or the SC appointed by the President on the recommendation of the CC. The panel shall submit its report to the President and the CC for appropriate action. Such hearings shall be attended by lawyers with the exception of MPs in order to maintain the dignity of the judicial officers.

All judges of the SC and the CA shall be entitled to enjoy the same salary, facilities and benefits until death.
All judgements delivered by the court shall be complied immediately.

An independent Public Prosecutors office and Public Prosecutors (independent from the Attorney General) office shall be set up. By setting up an independent Public Prosecutor, it shall facilitate the crimes that take place within such area and will be dealt with expeditiously in an effective manner.
 “Appointing Public Prosecutors and Public Defenders would help to eliminate a large number of police atrocities and cell deaths that are rampant. The aggrieved party can present its grievances to the Public Defenders and seek justice through the Public Prosecutor,” Jayasuriya PC added. 

Restrictions brought to the freedom of expression will be withdrawn and a new bill will be presented. The online safety bill shall be withdrawn and a new Act has to be introduced in consultation with stakeholders addressing the actual dangers faced by women and children. Rights of the aggrieved parties and citizens to prosecute against false publications and defamatory speech have to be established; preserving the social democratic values of the people, under the Civil Procedure Code. 
Sufficient funds will be allocated to the Bribery Commission to recruit necessary experts in the relevant fields drawn from respective professional associations for consultation. The Commission will be given three months to investigate a complaint they receive.

CID investigations too should be concluded on the same basis and indictment should be filed in a similar manner within one year. Investigation carried out on the Easter Bomb attack should be started once again under the guidance of the same investigation team.

Meanwhile, those who were named as responsible for the country’s economic debacle by their Lordships of the SC in 2023, shall be prosecuted under the Public Property Act No 12 of 1982. Those who have been accused –Gotabaya Rajapaksa, Mahinda Rajapaksa, Basil Rajapaksa, Nivard Cabraal, Dr. P.B. Jayasundera, S.R. Attygalle, Dr. W.D. Laxman and Samantha Kumarasinghe have to serve a mandatory jail term of minimum one year and maximum 20 years and a fine of three times the value of the loss caused for making the Government of Sri Lanka lose the Tax revenue of Rs. 493 billion and the foreign reserves of US$ 7,780.08 million. In addition, action will be taken to recover the losses incurred as referred above.
All those who are holding assets that are unaccounted for, shall be frozen and confiscated after an investigation under the supervision of the judiciary.

Once the President relinquishes office, he shall not be entitled to contest elections to enter parliament. Former presidents or their spouses shall not be entitled for any retirement benefits including the pension. Siblings/ offspring of politicians will not be allowed to enter politics until a cooling off period (for a considerable time of period) of those who are already holding political office retire.

Only one official vehicle shall be allocated to the President, Prime Minister, Minister or an MP. All facilities given to MPs and Ministers should be taxed on a current valuation basis. No official vehicle or any facility given shall be be used by their families except upon payment as determined by the Chief Government Valuer.
Duty free permits shall not be given to MPs. However, in the extreme case – for the Judges, doctors and other professionals, the permits that are granted shall not be transferable for a period of five years.

The constitution should be amended suitably with a mandatory provision which states that those who cross over will lose their parliamentary seat immediately. 
 All persons at every level, be it politically elected or state officials, involved with unsolicited proposals in excess of one million US$ with no justification and project evaluation, will be charged under the Bribery and Corruption Law.

All those who are faulted by the SC for having violated fundamental rights, shall cease to hold Ministerial positions or government employment. If such person is a Minister or an MP, he shall be deprived of his civic rights.

None of the elected representatives nor any family member or a company in which they have substantial controlling interest directly or indirectly shall enter into any contract with the government.

Liquor licences shall be awarded through a transparent tender procedure once a year; except for those issued to clubs, hotels and restaurants.
Article 157 of the constitution will also be amended to protect all foreign investments by virtue of agreements entered in to with the BOI under section 16 or 17 of the BOI Law. Schedule B of the BOI Law will be expended to include UDA, Mahaweli Authority, all local government institutions, the CEB, Land Commissioner’s Department, Geological Surveys and Mines Bureau, Wildlife, Central Environmental Authority, Inland Revenue and Exchange Control laws by amending the new Acts have slipped away from Schedule B.

By this, the executive authorities that have been vested in these institutions shall be vested in BOI. If the approvals have not been granted within two weeks, the owners of such approvals will be shifted to the Board of Directors of the BOI. All government projects above one million US$ will be published through worldwide tenders on a transparent basis.
Banks will be inquired by law to do a valuation of a property prior to the Board decision of the auction. If the valuation of the Bank is not agreed upon by the borrower, he shall be entitled to do a second valuation by law. The correct value of the property shall be determined by the average. At the auction, the sale price shall be based on the value that was determined.