The Need To Re-Interpret The Executive President’s Impunity Under Article 35(1)
Basil Fernando
The constitutional wisdom of a people is the last resort that the people have when they are faced with constitutional peril. It is an almost unanimous opinion in Sri Lanka that the country is faced with constitutional peril due to the 1978 Constitution.
The first attempt to deal with this problem was in 2001, when the 17thAmendment to the Constitution was almost unanimously agreed upon by almost all the members of the parliament.
This amendment also had the backing of the people. Although it was not a complete solution to the constitutional peril forced by the 1978 Constitution, it was a partial relief through the limitation of the powers of the Executive President. The office of the Executive President has wrapped itself around all the vital institutions of Sri Lanka like a python. The 17th Amendment was meant to give some relief out of that grift.
However, it was an inadequate approach. It was the inadequacy of that approach which led to its demise when the 18th Amendment to the Constitution was adopted and the absolute power of the Executive President reasserted itself with even greater strength.
What is important for the purpose of the present argument is that there was an overwhelming understanding that the 1978 Constitution has placed the system of governance in the country in peril and therefore there was a need to be rid of it.
Now that the grip of the Executive President has extended to making an attempt to destroy the independence of the judiciary as a whole, the peril the country is faced with is more obvious today than ever. At such times, there is reason to look again as to whether there are constitutional means to overcome this problem.
It appears that there are two approaches, both of which are constitutionally sound. What is required is, on the one hand, the wisdom and foresight to look into the problem and to gather the courage to muster sufficient consensus on reform.
