30 November, 2020

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Can The Legislature Declare All Automobiles To Be Rickshaws?

By Basil Fernando

Basil Fernando

The answer to that question is if the legislature can do whatever it likes, as it is becoming fashionable for some in Sri Lanka to say, it can also make such a declaration. The leader of the party that has the majority in parliament (even better if there is a two thirds majority), can order that his party members should vote to that effect and thus ensure that it will become the law.

The impact of the legislature making such a declaration can be twofold. It may merely be a name change. The automobiles will thereafter be called rickshaws. However, if besides a mere name change the legislature goes on to further stipulate that all the engines should be removed from automobiles and that, like rickshaws, they should be pulled by their operators, this would of course mean quite a radical change. If the legislature goes further and prescribes sanctions for those who would not abide by this new legislation, that would result in quite a lot of people ending up in jail or paying fines.

At the moment the attack on the judiciary is made on this basis that the legislature can do whatever it likes. Thus, the legislature can take over the functions of the Judicial Service Commission (JSC) and dictate what the JSC should or should not do. For example, it is the position of some ministers and spokesmen for the government that the secretary to the JSC should not have made a press release mentioning, among other things, the interference on the workings of the JSC and the independence the judiciary. They are also of the view that this particular secretary of the JSC should not have chosen for that post as, they claim, he is not senior enough to have been thus chosen. The government and the legislature have thus taken upon themselves the task of deciding who should hold which post in relation to the JSC and what is or is not appropriate for the JSC to do.

There was at one time the idea that there was something called the separation of powers. The functions of the judiciary under that doctrine are the functions that belong to the judiciary alone and to no one else. That exclusion included the legislature. However, by now, the view of the government seems to be that the legislature can do whatever it likes. This includes the idea that the legislature can do the functions of the judiciary also.

However, it would be unfair to say that this is entirely an original idea of this government. In fact, in 1972 the then coalition government put forward the idea of the supremacy of the parliament in place of the supremacy of the law. The original conception of the supremacy of the parliament meant that the king was no longer supreme but, like anyone else, is equal before the law. This simply meant that no one was above the law.

However, the 1978 Constitution quite simply declared that the executive president was above the law and no court could bring any suit against the president. Thus, the legislature did the very opposite of what parliament did at the origin of its power, which was to reduce everyone to be equal before the law.

President J.R. Jayewardene went on to say that the only thing that the president cannot do is to make a man into a woman and vice versa. This meant that president can, in fact, declare automobiles to be rickshaws if so wishes or anyone not to be what he or she was if the president so wishes.

That is exactly what was done to all who held public office. For example the Inspector General of Police was in charge of the police department and had command responsibility to run that institution. But with the creation of the executive president the IGP no long has that power and the politicians decide on the appointments, promotions, dismissals and disciplinary control of those who belong to the police force. Similarly, the Attorney General used to be the commander-in-chief of his department and was responsible for everything that went on in that department. But the AG’s post is now under the control of the president’s office and he must do what he is instructed to do. Giving independent legal opinions on the illegality or otherwise of the actions of the government is no longer his prerogative. This is also the case of all public institutions and that was all the debate about the 17th Amendment to the Constitution was. That debate was settled by the 18th Amendment, which virtually nullified the operation of the 17th Amendment. Now, automobiles are rickshaws, if one is to use that metaphor, and all these persons who held those officers now merely carry out the direct orders of the president.

There was one institution which was not completely under the president’s control and that was the judiciary. Of course there were all kinds of weakenings as compared to the position the judiciary held before the 1972 and 1978 Constitutions. The 1972 Constitution removed the power of judicial review and the 1978 Constitution placed the president above the law. Besides that there were many ways by which the appointments to the judiciary were made which interfered with the rules universally recognised as being essential for the independence of the judiciary.

Despite of such limitations the judiciary still had limited power to declare a proposed bill to be in conformity with the Constitution or not. Quite reasonably the judiciary used this power and declared the Divinegama Bill to be unconstitutional in its present form.

Now this has angered the president and the government and the debate is now as to whether the judiciary should have such power. Using the argument that the legislature can do whatever it likes, the argument is mooted that this power of limited review of a bill should also be removed. While all kinds of gimmicks are tried to present that view as a profoundly correct perspective on constitutional law, there are writers who always write whatever the government wants, like, for example, the quite notorious C.A. Chandraprema of the Divayina, who has concocted arguments to state that there is nosuch review power for the judges in India and also of the Supreme Court of the United States itself. He claims that from Jefferson to Clinton, all the presidents of the United States have stuck the Supreme Court’s head on a pole and suppressed it. The title he gives to the article is that India should be followed as a precedent on the issue of the Supreme Court.

Writing in Sinhala C.A. Chandraprema seems to believe he can utter whatever falsehood he likes about India and the United States on the issue of the independence of the judiciary and their power of judicial review. What he perhaps does not know is that the power of judicial review in its pristine purity exists in both countries and is a very proud part of the legacy of constitutionalism in these countries, as well as in every other country which believes in the supremacy of the law. Some jurisdictions, such as France and Germany, have even created above the Supreme Court even higher courts such as the Constitutional Court of Germany and the Constitution Council of France to deal with the issue of the judicial power over the interpretation of the law.

As for India, the matter was quite clearly settled when Indira Ghandi, who like J.R. Jayewardene and Zia-ul-Haq of Pakistan wanted to be her country’s dictator, was clearly suppressed by the Indian Supreme Court. In the Keshavananda Barati case (Kesavanda Bharati vs State of Kerala And Anr on 24 April, 1973), the Supreme Court said further that the parliament under the constitution is not supreme, in that it cannot change the basic structure of the constitution. It also declared that, in certain circumstances, the amendment of fundamental rights would affect the basic structure and therefore would be void. It also overruled Golaknath and thus all the previous amendments which were held valid are now open to be reviewed. They can also be sustained on the ground that they do not affect the basic structure of the constitution or on the fact that they are reasonable restrictions on the fundamental rights in public interest. Both the cases, if seen closely, bear the same practical effects. What Golaknath said was that the Parliament cannot amend so as to take away the fundamental rights enshrined in Part III, whereas in Keshavananda, it was held that it cannot amend so as to affect the basic structure.

To quote from the judgment,
“316. The learned Attorney General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:

(1)Supremacy of the Constitution;
(2)Republican and Democratic form of government.
(3)Secular character of the Constitution;
(4)Separation of powers between the Legislature, the executive and the judiciary;
(5)Federal character of the Constitution.

317. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”

The source of confusion

The 1948 Constitution, which is also known as the Soulbury Constitution, had a basic structure. That basic structure was the same basic structure as of any democracy. The essential elements of a democracy, including the supremacy of law, the rule of law, the separation of powers and the independence of the judiciary, are part of that basic structure. Any amendment that affects this basic structure vitiates the constitution and therefore will destroy the very possibility of the state remaining a democracy. It was this basic structure that was changed by the 1972 and 1978 Constitutions. Unfortunately the Supreme Court then did not follow a course similar to that which the Indian Supreme Court followed in the statement of the doctrine of the basic structure. Had that happened, several parts of the 1972 and 1978 Constitutions would not have been allowed to be passed as law and Sri Lanka would not have been in the mess that it is in today.

The law cannot remain law if the parliament can do whatever it likes. As all human beings dealing with any kind of expression are bound by the rules of rationality, the parliaments are also bound by the rationality of the basic form of government, if that form of government is that of a democracy. The moment that rationality is abandoned, the entire legal structure is affected by irrationality. It is then that automobiles can be called rickshaws, when the judiciary is required to rubber stamp the decisions of the executive, and when the IGP’s, the AG’s and all other officers of the state lose all their independence and just become robots playing to the tune of the executive.

The present debate about the independence of the judiciary, the role of the JSC and all related issues, are the result of the failure to abide by a most fundamental notion, that a democracy has a basic structure which, when abandoned, ceases to be a democracy.

What today’s debate reflects is that the form of government envisaged in the 1978 Constitution is that of a dictatorship and not of a democracy. The dictator now demands the judiciary to submit to its will, and this is what the legislature carrying out the will of the dictator is expected to do to the judiciary and is trying to do.

The way out is a fundamental rejection of the 1978 Constitution and the reinstatement of the doctrine of the basic structure, as India has done. The structure of the government must conform to the basic structure of democracy and, within that framework, the legislature can only do what the basic structure allows it to do. The only path for the future in Sri Lanka is either to submit to a dictatorship or to achieve this fundamental reform to reinstate the basic structure of the Constitution as that of a Constitution of a democracy.

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    This would perhaps give the idea to MR to create a Constitutional Court over and above the Supreme Court and appoint his people.

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    Good Analysis Basil Fernando.

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    The 1978 Constitution became that of a dictatorship definitely after the 18th amendment. SC should have declared this amendment as unconstitutional as it alters the basic structure of the constitution. MOST OF THE PRESENT DAY PROBLEMS SYTEM FROM THE 18THAMENDMENTMAll the and was ruined by this amendment.

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    The 1978 Constitution became that of a dictatorship definitely after the 18th amendment. SC should have declared this amendment as unconstitutional as it alters the basic structure of the constitution. Most of the present day problems stem our of the 18th amendment.

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    What goes round must come round- Sri Lanka;The stage of rule by brute force.
    Will they also try to change the sex like “nalli cut” of neighbouring India?

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    1978 Constitution became a dictatorship due to two reasons (1) Sarath N Silva’s illegal and perverted judgments (2) 18A being not rejected by the SC.

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    JR framed the 78 constitution so that the UNP could rule forever. However this came undone by the MP’s crossing over for various reasons.

    According to Article 99(13) of the Constitution as amended by the Fourteenth Amendment, when a Member of Parliament ceases to be a member of the political party or independent group on whose nomination paper he was elected, his seat shall fall vacant one month after he ceases to be a member of such party or group. The resulting vacancy is filled by the candidate of the same party or group who secured the next highest number of preference votes or, if the list is exhausted, by a member of the same party or group nominated by the party secretary or group leader.

    Article 99(13) lays down one exception to the above rule – if an MP who is expelled by his party or group challenges the validity of his expulsion in the Supreme Court, his seat will fall vacant only if and when the Supreme Court holds the expulsion to be valid.

    The term valid has been interpreted in various ways and upheld by the judiciary. Hence the basis of election to parliment has been undermined and politicians are being bought over and jumping from one party to another. Even if the preferential system is done away with this problem will remain and is a serious impediment to parlimentary democracy.

    Above are excerpts from an article appearing in the Sunday Islan of 2010 http://www.island.lk/2010/05/02/features15.html

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      Thank Sarath Nanda Silva for partial interpretations.

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    I would like to quote her my article which appeared in the DAILY Financial Times on 20th October 2012 http://WWW.FT.LK

    Parliamentary sovereignty: A restatement

    This writer does not wish to touch on the Supreme Court judgment on the Divi Neguma Bill nor the recent statement issued by the Speaker of Parliament. This article tries to elucidate the various arguments put forth by the constitutional law experts and also on the meaning of parliamentary sovereignty and constitutional order in general.

    Doctrine of parliamentary sovereignty
    Sri Lanka has been under British colonial rule for more than 150 years and most of our thinking on political, legal, and parliamentary matters has been inspired by the British system of governance.
    Since independence, the Parliament of Sri Lanka has been fashioned under the rules and regulations that governed the conduct of British Parliament. Parliamentary procedure and conventions were heavily inspired by the Sir Erskine May’s interpretation of parliamentary practice.
    According to British Parliamentary tradition, the doctrine of parliamentary sovereignty is the cornerstone of the British Constitution. Britain does not have a written Constitution but is governed by statute laws and by Parliamentary conventions and precedents accumulated over the centuries.
    The doctrine of parliamentary sovereignty holds that (i) parliament is the supreme law making body (ii) no parliament is bound by a predecessor, or bind a successor and (iii) no person can challenge the validity of an Act of Parliament as described by A.V. Dicey (1915) in his seminal work ‘Introduction to the Study of the Law of the Constitution’.
    Sir Leslie Stephen said in his book ‘Science of Ethics’ (1882) that the British Parliament can pass any law whatsoever and that it could even pass a law ‘ordering the death of all blue-eyed babies’. Sir Ivor Jennings (1959) went a little further and said that British Parliament could pass legislation prohibiting smoking on the streets of Paris, France. This meant no French nationals would obey the British law but retuning British nationals could be prosecuted in UK. The British Parliament has all these legal rights but politically it is highly unlikely that it would pass such obnoxious and draconian legislation.
    As Sir Leslie says: ‘If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislature must go mad before they could pass such a law, and subjects (the citizens) be idiotic before they could submit to it.’
    British courts have no jurisdiction to challenge the validity of any laws passed by Parliament. There is a doctrine called ‘Enrolled bill rule’ under which once a bill has been passed and signed into law, the Judiciary assumes that all rules of procedure has been complied with by the Legislature.
    All these meant to illustrate the supremacy of Parliamentary sovereignty in Britain. These views too have been interpreted in Sri Lanka in order to justify certain policies of the successive governments. However, political logic on the British systems changed entirely in 1972.
    Judicial review
    Sri Lanka (rather, Ceylon then) repudiated the British dominion by adopting a Republican Constitution and severed all links with British colonial rule. The written Constitution was adopted by a Constitutional Assembly and thereafter the Constitution was held to be the supreme law of the land. The supremacy of the Constitutional order thus came into being.
    The 1972 Republican Constitution provided a special procedure for challenging the bills when placed in the Order Book. The concept that Parliament can pass any law under British system was diluted by the supremacy of the Constitutional order and the rights of citizens to challenge the bills and seek judicial intervention.
    The then Constitutional Court had an onerous duty of interpreting the bills and to provide judicial decisions on whether bills are consistent or inconsistent with the provisions of the Constitution. The 1978 Constitution too provided a provision on judicial review of bills and this fell on the Supreme Court of Sri Lanka.
    Judicial review underscores the importance of preserving supremacy of the Constitution, not really the supremacy of the Parliament. What it means is that doctrine of separation of powers requires that each branch will have to strictly observe the Constitutional requirements. There may be practical hiccups in construing meaning of particular words, but it would be futile to assume that a Constitution would provide every step a citizen or a public official should follow.
    (For example, if the constitution says a petition should be addressed to the Chief Justice ‘clearly,’ this means that it has to be written on a white paper with black ink. One might argue that the dichotomy that is white writing on a black paper could also be used so long as the petition has been ‘written clearly’. It would be unreasonable to expect the Constitution to provide words given meaning to the technical issues. What is important is that each branch must prudently comply with the Constitutional requirement.)
    Judicial review is meant to balance the excessive powers the Executive may exercise over the rights of citizens through its Parliamentary representations. If there is excessive Parliamentary power, the Executive tends to exploit the situation for its own advantage. The only remedy left is to seek judicial intervention by invoking the provisions of the Constitution.
    The brave citizens who have country and the welfare of the people at heart are always at the forefront of defending the rights of citizens. On many occasions the citizens have won their rights. There has been an occasion where a Court of Appeal judgment given in favour of late Prime Minister Sirimavo Bandaranaike was annulled by an act of Parliament, which was widely seen as an act of revenge.
    1978 Constitution
    When the UNP came to power, it had a massive mandate from the people. Over 80% of the registered voters took part in the election and this was a record in our political history. It was a clear protest vote against the repressive measures and economic hardships people had to endure under the United Front Government’s short-sighted policies.
    The UNP took advantage of the situation and adopted a new Constitution and got it passed with its steamroller majority in Parliament. There was very little people’s participation and it was widely believed to be a brainchild of late President J.R. Jayewardene.
    The mandate the UNP received at the election, economic situation, and demands of the people at the time had to be met by the UNP Government expeditiously and it required full legislative power to turn the economy around, which had been stagnant for years. The UNP let loose the slogan ‘Let the robber barons come’ and opened the sluice gates of the stagnant economy for all and sundry. Everything was up for grab and capitalists had field days in Sri Lanka.
    The Executive President is the Head of the Government and elected by people and commands absolute control over virtually everything. The power is centred on the Executive President. There has been criticism levelled at the arbitrary manner in which the Executive President exercises his prerogative. It is widely misinterpreted as being his personal motive.
    As the Head of State, the Executive President exercises control over policy, hence it would be unfair to say that every action of the President is authoritative or arbitrary. He exercises power by virtue of the authority vested in the President by the Constitution. The fault lies at the Executive Presidential system and the manner in which the Constitution was drafted.
    There have been abuses even under the 1972 Constitution and late Prime Minister Bandaranaike was stripped of her civic rights for seven years. No Constitution would guarantee the personal conduct of an Executive and checks and balances could be incorporated into the Constitution. The Parliament has the absolute control over public finance but the Constitution is silent over merits over the portfolio of finance being held by the President of Sri Lanka.
    The Executive President with an absolute majority in the Parliament also undermines the ambit of the Constitution, however it could well be held in check by judicial review and wider public awareness of judicial intervention. The brave citizens have challenged Appropriation Bills on many occasions and the Supreme Court had given opinions in favour the petitioners.
    Strong and stable government
    It would also be pertinent to highlight the importance of having a strong and a stable government. The Executive Presidential system was able to maintain strong governments for years, however questionable the policies of such governments of the day. The most important event in Sri Lankan history was the defeat of terrorism and this was possible because of the Executive Presidential system, otherwise the incumbent Government would have fallen before the historic war victory was achieved. All credit must go to the political leadership for the war victory.
    Look at Italy, a prosperous economic power, where it had produced 61 revolving-door governments since the end of World War II. The only feature we Sri Lankans witnessed during our 60 years post-independence era was the enrichment of politicians and their cronies and the ever-increasing cost of living with no remedy in sight.
    (The writer is a freelance journalist and a political lobbying and government affairs consultant.)

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      SRINATH the dreaded lobbyist;): for your kind information Britain has always had a constitution and it’s on “one page” for a very valid reason (less is more; he who knows best knows how little he knows) unlike the American republican constitution which runs into volumes.
      Language and literature are 2 dimensional therefore the possibilities of interpretation are immense and that’s why we call the ones who change the law as brilliant and they generally know Greek and Latin the forerunners to English to do that. Therefore the more one writes the more one becomes prone to interpretation.
      It was Joseph Story, who said: “The Constitution has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, the people.” Therefore a S.L. Constitution which excludes judicial review of constitutional amendments is unconstitutional.

      A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference. If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. Thomas Jefferson

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