One Country, One Law: BASL says Task Force would serve no useful purpose

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By Editor_1
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COLOMBO – The Bar Association of Sri Lanka (BASL) has come out strongly against the appointment of the Presidential Task Force for One Country, One Law, saying no useful purpose would be served by the creation and appointment of the Task Force, which it believes would usurp the functions of many institutions established under the Constitution and the law, including Parliament and the Ministry of Justice.

In a letter addressed to President Gotabaya Rajapaksa on Tuesday (2), the BASL deems the appointment of a Task Force to oversee the work of the Ministry of Justice as improper and outside the accepted framework for lawmaking, noting that “any alienation of what are proper functions of the duly elected legislators and proper legally mandated executive functionaries by relocating their functions elsewhere involves erosion of the Sovereignty of the People.”

The letter in full:

The Bar Association of Sri Lanka notes that Your Excellency has appointed a Presidential Task Force for One Country, One Law, by virtue of the powers vested under Article 33 of the Constitution.

The proclamation published in the Gazette under the hand of the Secretary to the President states that the appointments are being made focusing on the fact that administration of justice, its implementation and protection under the law should be fair by all as set out in the Constitution of the Democratic Socialist Republic of Sri Lanka. The proclamation notes that under fundamental rights that no citizen should be discriminated against in the eye of the law or meted out special treatment on grounds of nationality, religion, caste, or any other grounds. It further states that the implementation of the concept; ‘One Country, One Law’ within Sri Lanka is reflected as a methodology of ensuring nationally and internationally recognized humanitarian values and the fact that all citizens are treated alike in the eye of the law should be further ensured.

The Task Force is required to make a study of the implementation of the concept; ‘One Country, One Law’ within Sri Lanka and to prepare draft legislation for the said purpose and to study the draft legislation that has already been prepared by the Ministry of Justice in relation to this subject and their appropriateness and to submit proposals for any amendments thereto.

Your Excellency is no doubt aware that the preparation of draft legislation and the study of existing legislation are tasks of a serious nature involving several institutions of the State. Legislative power is one of the aspects of the sovereignty of the people.

The Constitution itself provides a framework for the legislative process which is supplemented by other laws and by the Standing Orders of Parliament. There already exist within the framework of the Constitution, the law and Standing Orders and adequate mechanisms for this purpose.

The Sectoral Oversight Committees of Parliament as well as Standing Committees and Select Committees which can be constituted as per the Standing Orders of Parliament, the Law Commission which is an institution established by law are among these mechanisms. In addition, during the last year the Ministry of Justice has appointed several committees to propose reforms to various laws.

Whilst the Sectoral Oversight Committees are chaired by members of the legislature, the Law Commission is presided over by a senior President’s Counsel. Many of the Committees appointed by the Minister of Justice consist of senior members of the legal profession and of senior academics. Some of these Committees are chaired by Judges of the Superior Courts.

Apart from these mechanisms, the Attorney General and his Department also plays a key role in the law-making process and is recognized by the Constitution. Given that the Department of the Attorney General too plays a key role in this process, questions arise of the role the Task Force will play vis-a-vis the Attorney General and his officers.

In these circumstances, the appointment of a Task Force to oversee the work of the Ministry of Justice is in view of the BASL improper and outside the accepted framework for lawmaking.  Any alienation of what are properly functions of the duly elected legislators and proper legally mandated executive functionaries by relocating their functions elsewhere involves erosion of the Sovereignty of the People.

The BASL further observes that the Task Force itself is not a representative body, given that it has no female representation nor representation from several ethnic groups and religious groups in the country. Serious doubts also exist as to the qualifications, expertise, and suitability of the Chairperson of the Task Force and of many of its members to engage in the functions described in the Gazette.

Whilst there is no doubt that the concepts of equality, fairness, non-discrimination, the protection of the law and nationally and internationally recognized humanitarian values are all laudable principles, it is doubtful if the process set out in the Gazette and the creation of the Task Force can make any meaningful contribution in upholding these values.

What is of utmost importance at present is that the State and the organs of the government including the Executive of which Your Excellency is the head, upholds the rule of law and moves to protect and safeguard the fundamental rights of the people as described in Article 4(d) of the Constitution. In fact, the best way to ensure the objectives set out in the proclamation are by upholding the rule of law and respecting the fundamental rights of the people.

In the past few months, the BASL which is committed to the Rule of Law has drawn the attention of Your Excellency and to the Government on several instances where the Rule of Law and the Fundamental Rights of the people have been violated. However, the BASL notes with regret that no remedial measures have been taken in this regard.

In the above circumstances the BASL is of the view that no useful purpose would be served by the creation and appointment of the aforesaid Task Force, which in view of the BASL would usurp the functions of many institutions established under the Constitution and the law, including Parliament and the Ministry of Justice.

-Saliya Peiris, PC (President BASL) and Rajeev Amarasuriya (Secretary BASL)

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