Constitutional Law

ATTORNEYS-AT-LAW PRELIMINARY YEAR EXAMINATION

COMPILATION – RIKAZ RIFFARD

ATTORNEY-AT-LAW, LLB (HONS) (LONDON)
CONTACT - 0776601016
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SUBJECT AREAS

1. CLASSIFICATION OF CONSTITUTIONS

2. RULE OF LAW

3. SOVEREIGNTY

4. FUNDAMENTAL RIGHTS

5. EXECUTIVE PRESIDENT AND IMMUNITY

6. SEPARATION OF POWERS

7. DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES

8. INDEPENDENCE OF THE JUDICIARY

9. SUPREMACY OF PARLIAMENT

10. CONSTITUTIONALISM

11. REFERENDUM

12. PROPORTIONAL REPRESENTATION

13. 13th AMENDMENT TO THE CONSTITUTION

14. 17TH AMENDMANT TO THE CONSTITUTION

15. 19TH AMENDMENT TO THE CONSTITUTION

16. 20TH AMENDMENT TO THE CONSTITUTION

17. OMBUDSMAN

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5. EXECUTIVE PRESIDENT & IMMUNITY

Article 35(1) – While any person holds office as President, no proceedings shall be instituted or continued
against him in any court or tribunal in respect of anything done or omitted to be done by him either in his
official or private capacity.

Mallikarachchi v Shiva Pasupathy, Attorney General – the principle upon which the President is
endowed with this immunity is based on the idea that, as in the case of the King of Great Britain, he can do
no wrong. The person is holding such a high office that should not be amenable to the jurisdiction of any
but the representatives of the people by whom he might be removed from office and that once he has ceased
to hold office, he may be held to account in an ordinary court of law. The immunity is given to the Executive
Head for the discharge of his functions.

Kumaranatunga v Jayakody – Article 35(1) gives a blanket immunity which is only limited by Article 35(3)
and the immunity supersedes provisions of ordinary statute law whenever the latter is in conflict with it.
Immunity must not extend to protect a Member of Parliament.

Public Trust Foundation v Attorney General – litigation could not proceed against the President which
requested a writ to make him appoint members to the Election Commission. Noted that immunity is given
to the President not just because it is an act done by the President but because he cannot be made a
respondent in a case.

Article 35(2) – Where provision is made by law limiting the time within which proceedings of any description
may be brought against any person, the period of time during which such person holds the office of President
shall not be taken into account in calculating any period of time prescribed by that law.

Article 35(3) – The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to
any proceedings in any court in relation to the exercise of any power pertaining to any subject or function
assigned to the President or remaining in his charge under paragraph (2) of Article 44 or to proceedings in
the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article
130 (a) relating to the election of the President or the validity of a referendum or to proceedings in the Court
of Appeal under Article 144 or in the Supreme Court, relating to the election of a Member of Parliament.
Provided that any such proceedings in relation to the exercise of any power pertaining to any such subject
or function shall be instituted against the Attorney-General.

Mallikarachchi v Shiva Pasupathy, Attorney General – Article 35(3) exhausts the instances which
proceedings may be instituted against the Attorney General in respect of the actions or omissions of the
President in the exercise of any powers pertaining to subject or functions assigned to the President or
remaining in his charge under that paragraph 2 of Article 44. It is only in respect of those acts or omissions
of the President that it is competent to proceed against the Attorney General.

Visuwalingam v Liyanage – though the President is immune from proceedings in Court, a party who
invokes the acts of the President in his support will bear the burden of demonstrating that the acts of the
President are warranted by law; the seal of the President by itself will not be sufficient to discharge that
burden.

Karunathilaka v Dissanayake – Article 35 does not prevent legal proceedings against the Prese=ident (a)
when he has left office and (b) other persons at any time. The immunity is a shield for the doer, not for the
act.

Senarath v Chandraratne, Commissioner of Excise – claim was for relief sought against officials and not
President so was allowed

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Senarath v Kumaratunga – declaration made that decisions made by Cabinet Ministers was of no effect
in law, right to the first respondent to occupy premises is of no force or avail in law and grant of land thereto
was also not lawful; former President was ordered to pay Rs. 100,000 as costs to the petitioners

Karunatilake v Commissioner of Elections – the election for 5 provincial councils was postponed
arbitrarily. This case could not be covered by section 35 immunity because there was a breach of Article 12
and 14 fundamental rights of the people.

Pre –Nineteenth Amendment Position (Article 35- Original 1972 Constitution)

- The original Article 35 (1) says that ‘while any person holds office as President, no proceedings shall
be instituted to continue against him in any court or Tribunal in respect of anything done or omitted
to be done by him, either in his official or private capacity.”

- This gives the President a broad protection as regards acts or omissions done by him or her
during his/her office.

- According to this unamended version. Regarding Article 35(3), it can be seen that the above
issue is only qualified by this, where Article 35 (3) provides for 3 instances where the President can
be sued indirectly by filing actions against the Attorney General. The procedural requirement here,
is that, if a president will not be directly named as the party of the caption of the case but it will be
the AttorneyGeneral who will be named as a party and the Attorney – General will appear on behalf
of the President.

- These 3 instances are.

(1) Where the President acts in the capacity of a Minister under Article 44 (2) | of the
Constitution
- In the original 1978 Constitution, (before the 19th amendment) the president could also take
up Ministers on his or herself and he/she could function in the capacity of a Minister while being the
President (any number of ministers)

- On this basis, in terms of Article 44(2) the President could be sued if he commits any acts or
omissions as a Minister. In such instances, a president is not protected by: Presidential Immunity”

(2) When there is an action under Article 129/Article 130 (a) relating to the election of the
President.
- These 2 instances are when there in an impeachment motion against the President Then the
Supreme Court can take action or hear the case regarding the president.

(3) When there is a challenge to the election in which the president was appointed as the
President.
- When there is a challenge regarding the election, then in that instance, the Supreme Court
can take an action against the President through the Attorney General.

Except these three instances, the Presidents is protected under Article 35 (1) prior to the 19th
Amendment.

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Mallikarahchci Vs. Shiva Pasupathi (AG) – 1985

Facts: The Petitioners were members of the political party, “Jathika Vimukthi Peramuna’’ and the particular
petitioner was an elected member of the District Development Council of Colombo, and he was functioning
as a member of this political party until 1983, at which point, the President banned/prevented the functioning
of this party, by the provisions of the Emergency Regulations made by him under the Public Security
Ordinance. (There is an instance where the President can make Emergency Regulations under this
Ordinance and through this, he stopped the functioning of this party.

In this particular case, the Petitioner claimed that the President was acting in bad faith in this instance, to
ban this party and that he was just trying to eliminate the opposition and therefore this action of the President
banning this particular political party, affected the Fundamental Rights of the Petitioners Who were we were
challenging member of this party.

Essentially petitioners were challenging the emergency regulations that are made by the President and
stated that those Emergency Regulations violated the fundamental Rights of them.

HELD Sharvananda J. Stated that the case brought up by the Petitioners initially at the outset itself because,
Article, 35 protects The President. Him in actions such as this. As a preliminary objection it is by the Attorney
General on behalf of the President, where they argued that this case will be heard because the Presidents
commentary under article 35 (1) (3) on an article 35 three the court stated that article 35 in legal
[Link] here the court interprets article 35 (1) in a Broadway about the absolute immunity of the
president with regard to his acts or confessions both in his public and private capacities, unless his or her
actions fall within article 35 (3) in which case the petitioner or the aggrieved party can file a case before the
Supreme Court through the attorney general. however the courts held that in this particular instance where
the president has made emergency regulations banning a particular political party that action does not fall
within article 35 (3)the president was not acting as a minister in making emergency regulations he was
acting as the president (it was a presidential act not of a minister)and also it didn't relate to his impeachment
or his presidential election therefore article 35 (3) doesn't provide an exception for this particular action of
the president that was challenged by the petitioners. In this article 35 (1) protect him at this in this case the
courts interpreted article 35 (1) in broad terms saying though there is an absolute immunity while the
president is in office regarding acts or omissions that he commits in his official or private capacities

Karunathilaka V. Dayananda Dissanayake (Commissioner of Elections)

Facts: The Provincial Council Election in relating to the Provinces of Uva, North Central, Western and
Sabaragamuwa Provinces were supposed to the place and the election was scheduled to happen. However,
the Election Commissioner, Dayananda Dissanayake suspended the taking place of the voting by telegram
suddenly, without giving any reasons for his act. On the very next day, (August 4th, 1998), the President
issued a proclamation under Section 2 of the Public Security Ordinance declaring an emergency then the
President made Emergency Regulation which the effect of cancelling the date of these elections.

The particular action of the election commissioner was challenged here however in this instance the election
commissioner tried to rely on the president’s action of declaring an emergency regulations stating protected
by the immunity of the president Conversely in the case Karunathilaka V. Dayananda Dissanayake
(Commissioner of Elections) court didn't interpret their own role so limitedly when they saw the importance
of giving conferring immunity for the president but they limited it only to the presidential actions and

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interpreted article 35 in a narrow way in effect expanding or broadening the scope for the jurisdiction of the
courts this is the difference between the two interpretations given to
Article 35 in “Mallikarachchi” case and “Karunathikale” case and the significance of the “Karunathilake”
case is that, it gives a narrow interpretation to Article 35, and in effect interprets the jurisdiction of the courts
more broadly, and limit the application of Article 35 to only to the President or only when the doer of the
action is President, but doesn’t protect anyone else when they ready on a Presidential action to protect their
own unlawful acts.

Victor Ivan V. Sarath N. Silva

This is a case which challenged an appointment of a Chief Justice and is also argued on the basis of
“Karunathilake V. Dissanayake” stating that the respondent (Chief Justice) who was appointed by the
President unlawfully and therefore the Chief Justice cannot continue in office relying on that unlawful
presidential Act: Argument.
Held: Even though a person cannot rely on an unlawful act off the President to justify their own actions, a
person can benefit from a Presidential action and when a person is a beneficiary of a Presidential Action,
then that can be challenged. That presidential act is still protected by Article 35 and a beneficiary of such a
presidential act also is protected basically from Act. Therefore, Sarath N. Silva, (The Chief Justice) who was
a beneficiary of the Presidential Act of appointing the Chiefs Justice under Article 107 of the Constitution,
because he was only the beneficiary of that Presidential Act was not seen as relying on that presidential act
to justify his own actioms,Thus, in this case, Petitioner was still challenging the Presidential Act, and not
the act of another party because Sarath N. Silva here has only benefitted by a Presidential act and he hasn’t
done any act which is defending on the basis of Presidential Act. (Petitioner were claiming that the
President’s action of appointing the chief justice was unlawful

.
Sugathapala Mendis Vs. Chandrika Kumarathunge (Water’s Edge Case ) 2008 [with regard to what it
held in relation to “Presidential Immunity”] Held :
Thilakawardene J:
This is an affirmation of the Karunathilaka case. Once again, this is a narrow interpretation of Article 35 and
in this judgment, the Court states that the Immunity that protect the president who is in office from being
brought before the Courts, the protection is not a shield that continues always nut once the Presided is out
of the office, and for the actions that the president commits in the capacity of a Minister, as per Article 35
(1) then in those instances the President is not protected by this Immunity. Therefore, this case affirms the
narrow Interpretation or Article 35 that is given Karunathilaka V. Dissanayake and in this case the Court
stated that if Immunity is not interpreted narrowly but interpreted broadly as protecting all the actions of the
president indefinitely, then that means that the President is Above the Law, and that the President is above
the restrictions that are provided by the Law. Court further stated that such a Monarchial or dictatorial
position is a violation or undermining so Sovereignty Of people because it is in the people of Sri Lanka and
not vested in one person only. Secondly, it is said that it is a violation of the Rule of Law, because giving a
broad protection to a president means he is Above the Law and will not be restrained by the limits of the law
that means, President is above the Law. This is obviously a violation of Rule of Law.

This Is also supported by Article 35(2), when there’s a statute of limitation (for certain offences, actions
should be filed in front of the Courts within a period of time) Once this is passed, then a person can’t file
cases before the Court with regard the president, when the parties are calculating the presidential time limit
will not be counted this calculation as per Article 35(2), for any act, that is committed by the President for a
duration of those 5/10 years, no action can be instituted.

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Mallikarachchi V Shiva Pasupathi

Gives a broad interpretation to the presidential immunity stating that the president has absolute immunity
from a legal proceeding while he is in office, but in Gunathilake v Dayananda Dissanayake immunity is not
absolute and he doesn't continue forever also here courts refers to article 35 (2) Which mentions that if any
action that is filed after his term of office ends and also any statutes of limitations will not take into
consideration in this particular. In which he holds the office of presidency therefore it is very clear that the
immunity the discomfort to the president by article 35 not absolute and not perpetual in the sense that it is
not a form of just a temporary protection that is given only to the president while he is in office.

Post 19th amendment position

This adds the proviso for Article 35 (1) to the effect that in addition states that provided that Nothing in this
paragraph shall be read and construed as restricting the rights of any person to make an application under
Article 126 against the attorney general if in respect of anything done or omitted to be done by the president
in his official capacity.

The particular proviso for article 35 (1) allows people to file actions against the president, when he violates
a fundamental right. Article 126 provides for the FR jurisdiction and how it will be exercised by the Supreme
court.

Thus, a person can file a fundamental rights petition under article 126 against the attorney general when a
president act or an omission violates the FR and the people when he acts in his official capacity.

This opens the door for many actions where the Petitioners can claim that their fundamental rights are
violated

Article 35 (3) still contains the qualification or exceptions to article 35(1) And it currently only refers to
impeachment actions and presidential elections and doesn't refer to article 44 (2) where the president acts
in the capacity of a minister because 44 (2) is no longer founded in the constitution as amended by the 19th
amendment.

In effect it became issue in the final months of last year when new president when appointing his cabinet
and the issue didn’t come before the courts. Thus, there’s no judgment as to discuss this particular issue
but the president has proceeded in the basis that this removal of article 44 (2) by the constitution means
that he cannot act in the capacity of minister thus the exception given article 35(3) is no longer there in the
amended article 35.

Sampanthan And Others [Link] General

Facts:In October 26th of 2018 the president who was there removed the incumbent Prime Minister from the
office and appointed a new Prime Minister all of a [Link] Prime Minister who had been removed from
office stated that he still remains the Prime Minister and refuse to move from his official residence and he
claimed that he is the Prime Minister.
in this effect Sri Lanka suddenly had two prime ministers stating that they are the legitimate prime ministers
of the country the Prime Minister who was removed stated that he enjoys the majority in the parliament and
therefore according to article 42(4) of the constitution the Prime Minister is the person who enjoys the
confidence of the parliament or who holds the majority of the parliament.

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so the 1st Prime Minister stated that he is the lawful Prime Minister of the country due to this reason he
also stated that according to the amended constitution the president no longer can remove the Prime
Minister when he wishes, which was possible under the original 1978 constitution. And the Prime Minister
continues in office so long as he enjoys the majority of the parliament this was in fact true because he did
have the majority of the parliament therefore what the president did was to prevent the 1st Prime Minister
in showing that he has the majority in the parliament thus prorogued the parliament which means to
temporarily suspend the proceedings of the parliament. And then the parliament continued in suspension
for about 2 weeks and then there was public protest international pressure to reconvene the parliament
during these two weeks.

The president and the 2nd Prime Minister seemed not being able to gather the required majority within these
two weeks and the president tried several attempts to reconvene the parliament without going for a vote to
ascertain which Prime Minister enjoyed the majority of the parliament but it was not to happen as the speaker
of the parliament insisted upon having a vote on who's the legitimate Prime Minister therefore on the
November 9th by a presidential proclamation the president decided to dissolve the parliament.

This particular proclamation of November 9th 2018 dissolved the parliament, so once again the president
was acting under his powers the Article [Link] problem at this point when the president dissolve the
parliament was that there are with several other articles in the constitution which also regulated and also
were related to this president's act of dissolving the parliament an one such article was article 70(1).

which stated re affairs that the president can summon prorogue and dissolve the parliament but that the
president cannot dissolve the parliament until the expiration of four and a half years from the date appointed
for its first meeting.

unless the parliament request the president to do so by two third majority as in which so by November 9
2018 that four years and six months has not exceeded therefore this was an issue weather this presidential
act of dissolving the parliament in violation of this particular section of the constitution. and then in the event
the petitioner is someone that filed the case before the Supreme Court stating that this presidential act
prematurely dissolving the parliament is a violation of their fundamental rights.

one of the issues that was there to be considered whether the president can be sued in this way according
to article 35 on the part of the immunity the court stated that Maalikaarachi V Shivapasupathi is no longer
relevant because absolute immunity that was there under article 35 prior to the 19th amendment has now
being changed.
Also court stated to the particular provision introduced by the 19th amendment and said that presidential
actions now can be challenged before the Supreme Court when they violate fundamental rights of the
petitioners and the petitioners also tried to make a distinction between the president's acts his excecutive
executive capacity and his capacity as the head of the state.(30)

one of the arguments of the respondents was that the president here in dissolving the parliament acting as
the head of the state because based on the British tradition where the summoning prorogue and the
dissolving of the parliaments are the ceremonial powers of the Queen exercises as the head of the [Link]
therefore executive cannot question for violating fundamental rights but it should be protected by article 35
(1) only executive actions of the presidents can be challenged for violating fundamental rights the actions
he commits as the head of the state.

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however the courts didn't agree with the position and the courts held that all the actions that the president
takes in his official capacity can be questioned for violation of fundamental rights according to the amended
article 35 (1) therefore the courts interpreted the jurisdiction of the courts in relation to violation of
fundamental
rights by presidential elections in a very bored manner in this particular case this case also cites
Karunathilake v Dayananda Disanayake presidential immunity and now the 19th amendment.

Duties Functions and the powers of the president

Article 33 lists out several key function that the president performs in his capacity specifically as the head
of the state.
There are specific duties and obligations given to the president by article 33 (1) which is self
explanatory. Apart from the powers duties and functions expressly conferred or imposed or assigned to the
president by the constitution or any other written Law the president also has powers according to article 33
(2).

There's another list of powers which mainly confer the president The power that generally exercised by the
head of the state, and in the British context or in a parliamentary tradition these powers are generally
exercised by the ceremonial head of the state in his or her capacity as the head of the state.

the initial 3 powers of the president given in article 33 (2) in relation to matters of parliaments and then there
are other powers relating to handling diplomatic relations, appointing president counsels, and keeping the
public seal of the Republic declaring war and peace and doing the other acts and things consistent with the
provisions in the constitution or written law as by international law customs or usage.

The president is authorized or required the last section article 33 (2) H is a broad provision which allows the
president do any act in accordance with the constitution which a president is generally provided to do
necessarily as well as according to the international law. This gives the president a lot of power to act as
the head of the state and as the executive of the country.

this is once again a provision it's related to article 30 that the president of Sri Lanka acts both as the head
of the state and also the head of the executive, most of these provisions have been interpreted by the courts
as a result of president acts being questioned before the courts article 33 (2)G declaring war and peace that
still is protected by the immunity as per article 35 even though the first proviso allows to expand the
jurisdiction of the Supreme Court with regard to the president acts violates fundamental rights.

the second proviso protects the part with regard to the declaring war and peace apart from this provision
article 33 (2)(C) which was the main issue that that arose before the court in this particular case of
Sampanthan V Attorney General. Article 33 (2)(C) of the cannot be limited by article 71 other constitution
also the attorney general or the respondents in this case argued article 33 (2) C also read with article 62 (2)
which mentions unless the parliament is sooner dissolved which seems to imply that there are means
according to which the parliament can be sooner dissolved.

this an article 70 (5) where argument the respondent was that as long as the proclamation was made in
accordance with this article then the article 33 (2) (C) and article 62 (2) allows the president to dissolve the
parliament as he did and therefore his action is constitutional .also it was argued by the respondent that
some of the articles also stated that president will not always prevail according to the 1978 constitution and
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that the president has been given a superior position constitutionally which the courts must uphold in the
Judgement of Sampanthan V AG Court cited three of the ways the courts will interpret a statute they are:

1. a statute must give their ordinary meaning the provisions of the statutes
2. must be read harmoniously or must be read as a whole
3. when interpreting a statute some sections of the statute cannot be made relevant to according to the
interpretation

6. SEPARATION OF POWERS

The powers of a modern government are divided into the legislative, executive and judicial branches.

Montesquieu formulated the theory of separation of powers stating that:-

- Concentration of powers of government in one body will lead to the erosion of political
freedom and liberty
- Thus powers must be separated
- This leads to one controlling of the other

According to Dr. Cooray, separation of powers involves:-

(1) The same person not being part of more than one of the three branches
(2) One branch should not control or interfere with the exercise of the functions of another
(3) One organ of government should not exercise the functions of another

Owen Hood Philips stated that rigid separation with no overlapping or coordination would be a problem
and he favoured a check and balance system.

Wade and Phillips have equated separation of powers with independence of the judiciary.

Separation of Power under the Soulbury Constitution 1947

Queen v Liyanage – “if by separation of powers of functions of Government is meant a mutually exclusive
separation of powers, then there is no such separation of powers in our Constitution”

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Tuckers Ltd. v Ceylon Mercantile Union – the Ceylon (Constitution) Order in Council 1946 recognises
the principle of the separation of legislative, executive and judicial power

Legislature and the Executive

Composition
- Queen was the head of the executive
- Queen was part of the legislature
- Members of the Cabinet (executive) had to be members of the House of Representatives
(legislature)

Control or interference
- Parliament ultimately controlled the executive

Exercise of functions
- Weerasinghe v Samarasinghe – Objection that the emergency regulations are invalid since the
Constitution entrusts power to make laws to the Parliament and to nobody else. Held that Parliament
may delegate its power to the executive as it did in this case, even though there is nothing said about
it in the Constitution. Parliament is still in control of the executive even during the state of emergency
and there is nothing in the Public Security Ordinance to suggest that Parliament has abdicated its
authority

Judiciary and the Executive

Composition
Section 13(2)(b) – Judicial officer cannot be a member of the legislature and thus cannot be a member of
the executive

Control or interference
Section 52(2) – Every Judge of the Supreme Court shall hold office during good behaviour and shall not
be removable except by the Governor-General (executive) on an address of the Senate and the House of
Representatives (legislature).
Section 53(1) – There shall be a Judicial Service Commission which shall consist of the Chief Justice, who
shall be the Chairman, a Judge of the Supreme Court, and one other person who shall be, or shall have
been, a Judge of the Supreme Court. The members of the Commission, other than the Chairman, shall be
appointed by the Governor-General.
Queen v Liyanage – power of nomination conferred on a Minister is an interference with the exercise of
the judges of the strict judicial power of the State vested in them by virtue of their appointment and is
therefore ultra vires
The judiciary could control the executive by way of Prerogative Writs - a prerogative writ is a writ (official
order) directing the behaviour of another arm of government, such as an agency, official, or other court.
Sometimes executive had to act quasi-judicially but, as in Queen v Liyanage, exercise of judicial power by
the executive is invalid

Legislature and the Judiciary

Composition
Queen was the nominal head of both organs

Control or interference
- Judicial review of legislation

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- Both Houses of Parliament could request the Governor General to remove a judge of the Supreme
Court from office
- Salaries of the judges determined by Parliament but could not be reduced during the term
- Parliament could constitute courts but not appoint members to them

Exercise of each other’s functions

- Parliamentary Privileges
- Framing rules and orders of Court by Court

The separation of powers by the 1972 constitution

Article 3 - In the republic of Sri Lanka, sovereignty is in the people and is inalienable
Article 4 - The sovereignty of the people is exercised through a national state assembly of elected
representatives of the people
Article 5
The National State Assembly is the supreme instrument of state power
NSA exercises

(a) The legislative power of the people

(b) The executive power of the people including the deference of sri lanka through the
president and the cabinet of ministers
(c) The judicial power of the people through the courts

Associated Newspapers of Ceylon Ltd (Special provisions) Bill

The doctrine of separation of powers does not have any place in the 1972 constitution.

Legislature and Executive

Composition Executive
- President was the head
- Members of the cabinet had to be members of the NSA Legislature
- The president was not part of it

Control or Interference
Parliament controlled the Executive Dissolution of
parliament
- Defeat of the budget
- Passing of a no-confidence motion
- Defeat of the policy statement

Executive controlled the Legislature

- Bills are prepared by the cabinet
- Policy implementation and planning controlled by the executive

The exercise of Functions

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Article 45 (1)
- No delegation of principal law-making powers

Article 45 (3)
- Can confer subordinate legislation making power to any person/body Exception to 45 (1)

Article 45 (4)
- Delegation of power to the president to make laws relating to public security

Article 134 (1)

- The public security ordinance was deemed to have been enacted by the NSA The
president acts on the advice of the prime minister
Article 91
- The president is responsible to the NSA for the execution of his powers

The judiciary and the Executive Composition

Section 70 (1) (c)
- A judicial officer cannot be a member of the legislature and therefore the executive

Control or Interference of the Executive over the Judiciary

Section 122 – Appointment

- Judges of the Supreme court and Court of Appeal were appointed by the president

Section 124 – Appointment

- Cabinet upon the recommendation of the Judicial Service Advisory Board

Section 125
- Members other than the chairman of the Judicial Service Advisory Board were appointed by the
president

Section 122 – Removal

- Removal of Supreme court and Court of Appeal Judges by the President upon address to the NSA

Section 127 – Removal

- Removal of other judges by the Judicial Service Disciplinary Board Control or Interference of the
Judiciary over the Executive

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Prerogative writs
- Section 22 of the interpretation ordinance
Exercise by the executive and the Judiciary of each other’s functions
Exercise of judicial power by the Executive is invalid
Sometimes the members of the Executive had to act quasi-judicially
Legislature and the Judiciary
Composition
Section 70 (1) (c)
- A judicial officer could not be a member of the legislature No situation is similar to the one under
the soulbury constitution. Control or interference
- No judicial review of legislation
- Salaries of judges were determined by the parliament but could not be reduced during term
- Parliament could constitute courts but could not appoint members to such courts Exercise of each
other’s functions
- Parliamentary privileges
- Framing of rules and order of court by court

Separation of Powers under the 1978 Constitution

Constitutional structure set out in Articles 3 and 4

Re Nineteenth Amendment to the Constitution – the exercise of the sovereignty of the People can only be
perceived in the context of the separation of powers as contained in Article 4 an other connected provisions
of the Constitution, by the respective organs of government

Legislature and the Executive

Composition -
President is the executive
Article 66(c) – the President cannot be part of the legislature

Exercise of functions -
Article 76(1) – Parliament cannot alienate its legislative power
Article 76(2) – It shall not be a contravention of the provisions of paragraph (1) of this Article for
Parliament to make, in any law relating to public security, provision empowering the President to make
emergency regulations in accordance with such law.
Article 76(3) - It shall not be a contravention of the provisions of paragraph (1) of this Article for
Parliament to make any law containing any provision empowering any person or body to make
subordinate legislation for prescribed purposes
Article 155(1) - The Public Security Ordinance as amended and in force immediately prior to the
commencement of the Constitution shall be deemed to be a law enacted by Parliament.
There is a functional separation of powers but in view of Articles 76(2), 76(3) read with 155(2) the
separation is not strict

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Yasapala v Minister for Education – President’s power to make emergency regulations is coextensive
with that of Parliament except with the limitation of period to which such regulations can operate. Constitution
enables Parliament to exercise control check by requiring the President’s proclamation to be approved by
a Parliamentary resolution.

Powers of the President

Article 33 – make public policy statement, preside at ceremonies, receive ambassadors, appoint PCs,
appoint Cabinet Ministers, Chief Justice and Supreme Court Justices and declare war and peace
Article 32(3) – attend Parliament once in 3 months
Article 34 – pardon or reduce sentences of convicts
Article 70(1) – summon and discontinue Parliament
Article 80(2) – where Bill is approved by referendum of the People, President must certify that it is so
approved
Article 85 – President must submit Bills requiring referendum to pass for such referendum by the People
Article 122(1)(b) –require the special determination of the Supreme Court as to whether the Bill or any
provision thereof is inconsistent with the Constitution.

Control or Interference
Executive has control over the Legislature - Article 70(1) , Article 32(3) , Article 80(2) , Article 85 ,
Article 122(1)(b)
Bills are prepared by the Cabinet
Policy implementation and planning controlled by the President
There is wide control exercised by the executive over the legislature

Judiciary and the Executive

Composition
- Judicial officer cannot be the President

Control or Interference
- Article 107 – appointment and removal of Supreme Court and Court of
Appeal judges by the President (removal only be order of President on address
of Parliament)
- Article 111 – appointment of High Court judges
- Article 34 – Presidential pardons
- Judiciary can control the executive by issuing prerogative writs
- Judiciary has fundamental rights jurisdiction (Article 35 applied only to the
President)
- Executive branch is subject to extensive control by the judiciary - Judiciary
is generally free from control of the executive

Legislature and the Judiciary

Composition
- Article 91(1)(d)(i) – judicial officer cannot be a member of Parliament

Control or Interference
- Article 116(1) renumbered as 111C – no officer of the judiciary will be
subjected to any direction of any other body or person
- Article 170 – “judicial officer”, *[other than in Article 111M], means any
person who holds office as –

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(a) a Judge of the Supreme Court or a Judge of the Court of Appeal;

(b) any Judge of the High Court or any Judge, presiding officer or
member of any other Court of First Instance, tribunal or institution created
and established for the administration of Justice or for the adjudication of
any labour or other dispute but does not include a person who performs
arbitral functions or a public officer whose principal duty or duties is or are
not the performance of functions of a judicial nature.
- Parliament can address the President to remove a Supreme Court or Court
of Appeal judge and can declare the salaries of such judges
- Article 80(3) – Where a Bill becomes law upon the certificate of the
President or the Speaker, as the case may be being endorsed thereon, no court
or tribunal shall inquire into, pronounce upon or in any manner call in question,
the validity of such Act on any ground whatsoever.

Exercise of each other’s functions

- Parliamentary privileges
- Article 136 – framing rules and orders of Supreme Court
- Premachandra v Montague Jayawickrama – Although Article 4(c) vests
judicial power in Parliament there is a functional separation of powers inasmuch
as judicial power can only be exercised by courts and other judicial tribunals
subject only to one exception in regard to Parliamentary privilege
- The legislature and judiciary generally have independence from control from
each other

[Link] MANNING REFORMS OF 1924.

 Legislative council – 37 unofficial members and 13 official members.

• No drastic changes as to the previous governing structure. It was comparatively. Less
expanded the number of unofficial, maintained the officials where some of them are a part of
legislation.
• Majority is the local communities.
• Governor and his officers were still appointed by the British authorities. They
maintained relating tight control over the legislative council.
• Seemed like the locals were getting power. But in reality, the continuation of the
governors' power is there (British)

 Separation of the seat of power from the responsibility.

• continued polarization of the Society along communal and linguistic lines.
• appointed partly by geographical changes and partly by communal/linguistic lines.
• these further entrenched the polarization of the society among command lined to the
local communities remain divided so that the locals won't challenge the authorities.

2. DONOGHMORE REFORMS

1) Abolition of communal representation.

2) Extension of franchise.
3) Introduction of the State council, consisting of 61 members.
4) The Executive Committee System.

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[Link] of Communal representation

2. Extension of franchise.
Under Donoghmore reforms we received the universal adult franchise. Above 21 years a person
can vote. Earlier he depended upon education and property. This came from the local itself
though. But the Donoghmore committee saw that providing universal franchise because every
person will have a voice.

3. Introduction of the State Council, consisting of 61 members.

Legislative Council which started from Colebrook – Cameron, changed its name for State Council.
61 members are voted by everyone in the country. Executive created through the committee
system. They were based on 7 themes. Ex: agriculture etc.
4. The Executive Committee System
This was made to provoke decision making. Donoghmore was an attempt to reverse or to change
the harmful effects that were created up until them from the divided policy and to encourage the Sri
Lankan people to take part in governance in the basis of 'Consensus'.

References:
• The Evolution of Constitutional Governance in Sri Lanka. (2nd edition) by Lakshman
Amerasinghe.
• Constitutional Government is Sri Lanka (1976-1977) – L.J.M. Cooray.
• This was still a British creation but for an independent Sri Lanka where the British withdrew
the hold they had over the country.

[Link] OF POWERS UNDER THE SOULBURY CONSITUTION.

Composition

1) The Legislative and the Executive

- The Queen was recognized constitutionally as the head of the executive and she was
also a part of the legislature, but it was not significant in terms of practicality since the Queen
was considered as a nominal head.

- The legislative had two houses namely.

1. The Senate
2. The representatives

Then senate was abolished later on and the Sri Lankan parliament became unicameralism
there was no separation of power in concern with the executive and the legislation

- The executive sat in the legislature and was accountable to the legislature and there
was a fusion of power.

2) The Executive and the Judiciary

- The final process of appeal was done by the Privy Council which was a part of the
British executive structure.
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- Even though, it was a part of the executive the judgments were passed by impartial
and unbiased judges.
- This separation was protected even though there was a subtle look.

3) The Legislative and the Judiciary

- The Queen was a part of the legislature and she was the head of the Judiciary as well but
there was no damage done since the Queen was a nominal head and was not significant in
practical aspects.

Reading Case Law

1. Facts
2. Procedural Pasture – the Level of the Court
3. Ruling
4. Rationale

The Bribery Commissioner V Ranasinghe

- There was an amendment to the Section 48 of the Bribery Act, through the Bribery
Amendment Act No. 40 of 1958.
- This introduced a Bribery Tribunal which was a tribunal to be composed of three
members selected from a panel of 15 people, will be appointed by the Governor General of
the advice of the Minister of Justice. The Governor General was the nominal head of the state
in place of the Queen of England.
- The challenge made before the Courts was that the current method of appointing the
members to be Bribery Tribunal by the executive instead of the judicial services commission
which consisted of Supreme Court Judges and retired judges.
- The Privy Council held that the provision of power to the executive to make this
appointment instead of the Judicial Services commission was a violation of the separation of
powers.
- The Privy Council stated that the Judicial members are not limited to the members of
the Court and Judges. It extends to any member that is appointed to a certain tribunal or an
office whose powers involved judicial functions.
- This bribery tribunal could engage in trial of any person who was prosecuted for
bribery and had the power to hear, try and determine the guilt or the innocence of any person
prosecuted before them on the basis of Bribery.
- Therefore, they had all the powers of the Judiciary and their actions are of a Judicial
nature and so it was held this appointment should be made by the Judiciary and not the
executive.
- This case emphasizes on the need to maintain compositional separation of powers
under the Soulbury Constitution.

Function
1) The Legislature and the Executive

There is no strong separation of powers between the legislature and the executive due to the
parliamentarian system introduced by the Soulbury Constitution. Even at the parliamentary level
the executive was involved closely with the process of making laws because the cabinet of

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ministers (executive) sat within the legislature itself. They took an active part in drafting legislation
unlike in the United States where the executive has no business taking part in the natures of the
legislature.

- The executive can implement rules in order to support the statutes drafted by the
legislature.
ex: the prisons ordinance provides the minister the power to make regulations on behalf of
the prisons.
- While these may not be legislation, they compose a part of the law-making power of
the legislature itself.
- The executive is also given to power to make emergency regulations when than is an
urgent need for such regulations.
- An element of cooperation and sharing of power is seen that is essential for the
concept of separation of power to create a functional system of Governance.
- The legislative can always act as a check where they will retain the superiority of the
legislative power.

2) The executive and the Judiciary.

- In certain instances, the judiciary is also required for the enforcement of the executive
functions.
ex: District Judges engaging in the supervision and administration of the testate of the
deceased people and assisting in winding up from companies which contain elements of
administrative and executive functions.
- The Supreme Court judges who are members of the Judicial Service Commission
also engage in Administrative functions in order to maintain the judicial branch itself.
- The executive will also sometimes engage in Quazi – Judicial functions where they
would have to assess the evidence before them in a certain manner and take binding
decisions. ex: A customs officer determining whether customs violations has taken place
and imposing a fire on the matter.
- There is a need for sharing and cooperation of power in order to ensure smooth
governance. However, if this exceeds a certain limit then it may be considered as a violation
of separation of powers.

3) the legislature and judiciary

- The legislature and judiciary maintain a stricter separation of powers.

However, the legislature may engage in judicial activities.
Ex: The hearing for an impeachment of a judge while this didn't take place under the
Soulbery Constitution it took place under the 1978 Constitution.

- The judiciary will not make laws however there may be certain instances of judicial
creation of legislature. However, it is to be done with great sensitivity since it would encroach
the functions of the legislature.

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- The judiciary will still have the power to decide the laws that govern them such as the
rules of the Supreme Court.

Weerasinghe V. Samarasinghe

- The petitioner was applying for a writ of Habeas Corpus.

- A writ of Habeas Corpus allows the court to bring before the court any person who is
allegedly taken into custody by the state without due process or sufficient of the Law.
- The writ was to bring to the Court the third respondent who was taken into custody
by the permanent secretary to the Ministry of Defense under the power vested to him by the
Emergency provisions put forward by the Governor General under Section 5 of the Public
Security Ordinance.

- The issue before the Court was that the ''Public Security Ordinance" which provides
for the Governor General to make emergency regulations is invalid because it allows the
executive to encroach on the functions of the legislatives in violations of separation of powers.

- The constitutionality of the ''Public Security Ordinance" was challenged in this case.

- Held: The Public Security Ordinance does not affect the separation of function powers
the executive and the legislative on the basis that the legislature is allowed to delegate its
power to make laws to other branches as long as they don't abandon their legal authority and
control over the authority to which they have delegated power completely given that they
don’t convert the executive to a parallel legislative.

- Emergency regulations are to be approved every month after they have been invoked
by the executive and the failure to so will result in its lapse so this can be considered as a
form of continuous legislative scrutiny by over the powers it has delegated to the executive.

- In terms of political consideration if the executive manages to achieve a higher

percentage of the parliament then it may affect the separation of functional powers due to the
fact that the executive is easily able to obtain approval for his actions from a majority of the
parliament.

Liyanage V. The Queen

- There was a coup in 27th of January 1962 to oust the Prime Minister but the
Masterminds were taken into custody before they could take action.
- The Legislature made two laws with this regard.
1. Criminal Law Special Provisions – Act No. 01 of 1962.
2. Criminal Law Act No. 31 of 1982.
- These were focused on the trial and punishment of those who were guilty of this
offence to overthrow the government.

- These legislatives were meant to be retrospective in which they decided to change

the mode of trial, method of arrest, detention and interrogation and admissibility of evidence.

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- They brought down the procedural protections entitled to the defendants and
increased their sentences that certain evidence such as confessions to the Police is
admissible where they are not, under general circumstances.

- The accused were found guilty. However, they argued that these legislations are a
clear violation to the separation of powers. \

- The Privy Council held that if these kinds of legislations are upheld, it would present
a potential for the legislature to accept the judiciary despite the reason to do so.

- The legislature had exercised the Judicial function since they passed a judicial
judgment in making a stick legislation targeting these defendants, the judiciary had no other
choice but to find these people guilty and sentence them for punishment.

This is a land-mark case where the concept of separation of powers had been violated
between the legislature and the judiciary.

[Link] CONSTITUTION OF SRI LANKA 1972

- This is also known as the ''First Republican Constitution".

- Even though Sri Lanka was granted their freedom in 1948, there were still links of
certain constitutional aspects to the United Kingdom.

Principle of Constitutional Autochthony

- The constitution of a country has the force of Law as is considered as the Supreme
by the Law due to its native authority in the territory.

- This is due to the fact that it was enacted by local authorities as opposed to being
authorized and enacted by the United Kingdom.

Elements of the Principle of Autochthony

- "Autochthony" means deriving authority from the century itself without foreign
affiliations.

1. Autonomy

- The capacity that the people of the country enjoy making decisions on their behalf
throughout their lives without being under the influence of another party with regard to making
decisions.

- Even though there are procedural restrictions with regard to making certain decisions,
ex:
become a lawyer, those restrictions are in place to protect standards.

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- There are no substantives restrictions that limit a certain person from becoming a
lawyer based on their gender or physical ability or disability.

- The principle of autonomy can be summarized as the freedom of choice of the people
to decide on their governance.

2. Self-sufficiency

- The people should not only have the freedom but also the capacity and the means to
exercise their freedom of choice through self-sufficiency.

- The capacity to implement the model of governance that they chose for themselves
through their freedom of choice.
- The mere freedom of choice is not sufficient and the capacity to implement the choice
should be available as well.

3. Break-away from the Past.

- The notion that the country will not be bound by the aspects that it earlier used to.

- In the Sri Lankan context, this referred to the abolishment of all ties to the Queen as
well as revoking the power of appeal of the Privy Council and also changing the name of the
country from " Ceylon " to " Sri Lanka"

- The above facts are evidence of breaking away from the limits of the colonizer which
was there even under the Soulbury Constitution.

Origin of the Principle of Autochthony

- This is a Greek principle that originates from the Athens City used in Ancient Greece.

- It was a deviation from the Greek word (Autochtaai) which meant grown from their
own land.

- It was used by the city state of Athens as a symbol of patriotism since it was state
made of people who were only born in that state were the population of other states
comprised of mostly immigrants.

- Through the use of this principle, the Athenians used to enforce their superiority since
they were the natures of the land due to the fact that the immigrants were becoming wealthier
and more influential.

- This principle was used by the states who were gaining independence in the 20th
century to assert their right to draft and implement their own models of constitutional
governance, free from the influence of their colonizers.

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Danger posed by this concept towards Constitutionalism

- The people using their constituent power to enact a legal device for the purpose of regulating
the state as well as upholding their fundamental rights can be defined as " Constitutionalism
"

- A danger is posed when the concept of Autochthony is used to obtain superiority by a certain
set of people as the Athenians did.

- While this concept is used to highlight the importance of listening to obtain superiority by a
certain set of people as the Athenians did. While this concept is used to highlight the
importance of listening to the locals of a country. And to divide the people depending on the
time period in which they decided to take up residence in that country.

- The positive aspect of this concept is to influence the highlighting of the opinions of the locals
so that their concerns are given priority. However, this concept raises the question as to which
who the true natives of the country are.

- This concept of '' autochthony" can be mutated so that a certain group of people are to be given
superiority over the others. This is in violation of the concept of constitutionalism since under
constitutionalism people are not given superiority with reference to them being home grown
and everyone is treated equally while their fundamental rights are upheld.

Principle of Autochthony in the 1972 Constitution

- The principle of Autochthony in the 1972 Constitution can be seen in 2 ways,

-
1. Procedure of enacting the 1972 Constitution
This process brings out the principle of autochthony because this Constitution was drafted
through the extra-legal procedure. A constitution can be introduced in 2 ways.

(i) Through the legal procedure

This is done by following the procedure set out in the previous constitution, namely the
Soulbury Constitution.

(ii) Through the extra-legal procedure

This is done by not following what is legally provided for in the previous constitution but to do
something beyond the legal scope of any such previous constitution.

It is a political act taken up to draft a constitution through a constitution revolution where the
country does not follow the rules and procedures set so far but to start from a new point
completely based on a novel political reality.

An election promise was made by the United Front Coalition (SLFP + Lanka Sama Samaja
Party + Communist Party) in 1970 that they will start a new constitution, making Sri Lanka a
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free,souvegnity and independent republic protecting the ideals of a socialist democracy,

fundamental rights and the freedom of citizens.

After they won the election, the new constitution was drafted by the Ministry of constitution
affairs which was headed by Dr. Colvin R. De Silva

In July 1970, the members of the house of representatives were invited to sit in this constituent
assembly to draft the new constitution

In order to emphasize that this is an extra-legal procedure, they had their session of the
constitutional Assembly in Navarangahara rather than the Parliament.

Failure to ensure participation

The ministry of constitutional affairs governed the constitutional drafting process and the political party
in power was also highly involved in the process.
This failed to include the participation of members of members of opposing political parties to the
government. It is an important aspect that all the people in the country are affected by this constitution
and they should be allowed to participate in the constitutional drafting process through their political
representatives. The political party in power dominated the constitution making process and it has led to
the argument that certain sets of people in the county were neglected and not represented.
There was minimal opportunity given to the people to directly be involved in the constitution making
process and the only way they could do so through the members of parliament that they have elected by
themselves. It was important to provide an opportunity to all political parties in the constitution making
process and due to the failure to do so, it was a failure to reach a consensus.

7. DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL

DUTIES

Article 27(1)
“DPSP shall guide the parliament, the president and the cabinet of ministers in the enactment of laws and
the governance of SL for the establishment of a just and free society”
When it should be used-Enactment of a law
Governance of SL

Can’t make laws by adhering to DPSP, first introduced under the 1972 constitution.
Article 29
• The provisions of this chapter do not confer or impose any legal right or obligation and are not
enforceable in any court or tribunal
• No question of inconsistency with such provisions shall be raised in any court or tribunal
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• However, this was challenged in Senevirathne V UGC

Held-Both the legislature and the executive must respect and follow the directive principles. These
provisions are part and parcel of the constitution. The courts must take due recognition of them.

Article 28-Fundamental Duties

“The exercise and enjoyment of rights and freedom is inseparable from the performance of duties and
obligations”
With rights comes duties and obligations
According to Article 28 it is the duty of every person in SL
• To uphold and defend the constitution of SL
• To further the national interest and foster national unity
• To work conscientiously in his chosen occupation
• Preserve and protect public property and combat the misuse and waste of public property
• To respect the rights and freedom of others
• To protect nature and conserve it’s riches

According to article 29 the above principles and policies and FD are not legal rights and not enforceable
under a court of law.

Vadivelu V OIC Sithambarampuram

• The plaintiff was restricted of his freedom of movement Held-The courts referred to Article 27(12)

“The state shall recognize and protect the family as the basic unit of the society”
• While it is true that the DPSP do not impose any legal rights and obligations and are not
questionable in any court of law does not mean that the judiciary is bound to ignore them
• Courts of SL like Indian courts are empowered to interpret the legislation in the light of these DP as
when Parliament makes law they are guided by these principles.
• The courts have recognized fundamental duties in the same light as FR. Even though FD cannot
be enforced they are still important so courts have used chapter 3 to interpret Fundamental Duties
more broadly and efficiently.
• FD is a wide area which can provide the basis of public interest litigation
• DPSP were first announced in the 1972 constitution

8. INDEPENDENCE OF THE JUDICIARY

Independence of the judiciary can be defined as the legal environment which enables the judges to
discharge the functions and duties without fear or favour and the principle that the judiciary should not be
influenced, controlled or intervened by the executive or the legislature.

The two main features of an independent judiciary are that:-

1. The judiciary should be able to work without being intervened by the executive or the legislature
2. Judges should be free to give decision freely

In Toronto v York Corporation, Atkin J pointed out the 3 pillars of the Temple of Justice which are
necessary to preserve judicial independence:-
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(i) Appointment of judges at the Superior Courts by the Governor-General

(ii) No removal of judges during the time of holding office with good behaviour
(iii) Salaries of the judges fixed during the term of office and cannot be reduced

Later, in Senadhira v the Bribery Commission, Sansoni J added a fourth pillar,

(iv) Existence of a body of superior judges to appoint and control minor judges

The Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders
adopted 20 Basic Principles on the Independence of the Judiciary which, inter alia, incorporate the
above.

Soulbury Constitution
Section 52(1)
“The Chief Justice, Puisne Judges of the Supreme Court and the Commissioners of Assize shall be
appointed by the Governor –General”

Section 55(1)
“The appointment, transfer, dismissal and disciplinary control of judicial officers is hereby vested in the
judicial Service Commission.”

1972 Constitution
Section 122
Judges of the Superior Courts; Appointed by the President on the advice of the Prime Minister or an
authorized Minister.
 They shall hold office during Good behaviour Removed by the President after an address of
the National State Assembly. Salaries of Judges charged on the Consolidated Fund.

Judges of other courts are established under the Courts Ordinance, Presidents appointed under the Rural
Courts Ordinance and Judges of Courts which may be created and established by the National State
Assembly.

Section 124 - Appointment, transfer, dismissal and disciplinary control of judges and other state
officers’ administering Justice.

1978 Constitution
Article 4(c) – sole and exclusive power to the judiciary to hear and determine issues related to law and
the Parliament has the power to exercise judicial power related to Parliamentary powers and privileges

A select committee of the Parliament was appointed to determine issues relating to the impeachment of
Neville Samarkoon CJ. This committee argues that it had the power to interpret the Constitution but the
sole power to interpret the Constitution is with the Supreme Court. This exercise of judicial power by the
Parliament interfered with the independence of the judiciary (the first aspect of independence of the
judiciary is removed)

Article 116 renumbered as 111C – no officer of the judiciary will be subjected to any direction of any
other body or person

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Felta Dias Bandaranayake & Fousi – Judge Colin Cormi was inquired against in Parliament and
recognised as a judge against the State for protesting against a judgement of the Parliamentary
Commission (the second aspect of independence of the judiciary is removed)

Article 107(1) – the Chief Justice, the President of the Court of Appeal, every other judge of the Supreme
Court and Court of Appeal are appointed by the President (this corresponds with the first pillar)

Article 107(2) – every judge shall hold office during good behaviour and shall not be removed except by
an order of the President (this corresponds with the second pillar)

Article 108 – the salaries of the judges of the Supreme Court and the Court of Appeal shall be determined
by the Parliament and shall be charged on the Consolidated Fund (this corresponds with the third pillar)

Article 105(3) – the superior courts shall have the power to punish any person for contempt of the court

Article 91 – no person in the judiciary shall be elected as a member of the Parliament

Queen v Liyanage – legislature cannot invade the domain of the judiciary for pronouncing judgement and
legislature cannot reverse a judicial decision with retroactive effect Therefore independence of the
judiciary is maintained by:-
- Appointment by the President so no one can influence the
appointments
- Cannot be removed on trivial grounds and can judge freely
- They are paid adequately and not succumb to bribes

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