Reflections on the Constitution -- Part 3

by Basil Fernando

The Constitution Places the Executive President above the Courts


(October 08, Colombo, Sri Lanka Guardian) This picture shows the executive president sitting above the Supreme Court Complex. The Supreme Court is the highest court but the post of the executive president is above it. Article 35 of the Constitution specifically places him outside the jurisdiction of the courts. The 18th Amendment to the Constitution gives the president the power of selection of judges to the highest courts with no procedural limitations.

The logic of the 1978 Constitution is that courts are a lesser institution to the executive president. There is no getting away from this logic. The separation of powers doctrine, which gives equal status to the executive, legislature and judiciary, has not been part of the law of Sri Lanka, since 1978. Instead, there is a hierarchy in which the judiciary is a lower institution to the executive president, who is chief of the executive.

Therefore, there is no surprise in the fact that the courts in Sri Lanka, have been treated as an institution of lesser importance ever since.

The Rule of law cannot operate meaningfully under this constitution.