30 November, 2020

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Constitutional Supremacy Or Parliamentary Supremacy?

By Kamal Nissanka

Kamal Nissanka

When notices were sent to the Hon speaker, President and the members of the Select Committee impeaching Chief Justice by the registrar of courts, the Speaker and leader of opposition were vociferous about the notion of supremacy of Parliament and they seemed not to heed to the Supreme Court request/order to appear before   or submit objections on pending cases against them. They by now should know that only the President of the country under the constitution is immune to litigation. If the parliamentarians concerned had thought that they were also citizens of Sri Lanka as us, they would have readily   abide by the Supreme Court  directive  until the constitutional issue before the court is  finally determined.  Unfortunately Hon Speaker further  kept a step forward  and  related a speech delivered by Mr.Anura Bandaranaike , then Speaker of Parliament  in 2001 upholding the idea  of  parliamentary supremacy  when there was an  stay order against the Speaker.

Now if one goes to the root of the logic behind the speaker ‘s speech   one can understand that what the speaker believed was that parliamentary supremacy could not be infringed by any other outside body.  It is worthy at this stage to note that   belief of Parliamentary supremacy is a notion evolved in United Kingdom where there is no written constitution. In short Parliamentary supremacy can be defined as the power of parliament to make laws and unmake laws.  The duty or business of the courts is to follow the legislation already enacted by Parliament and then interpret, adjudicate, redress or punish.  Yet, though the courts do not make any legislation judgments of superior court are considered as binding law.

In the post independence period political-legal community followed a tradition to accept the notion of Parliamentary supremacy as experienced in United Kingdom.  Yet, although the Soulbury Constitution upheld the idea of parliamentary supremacy; it is interesting to note that Parliaments under the Soulbury Constitution also did not enjoy infinite supremacy to make laws as the constitution under Article 29(2) restricted to make legislation in some areas and subjects.

The 1972 constitution which had only one chamber was consciously framed on the basis of the notion of parliamentary supremacy. Accordingly, legislative power was vested in the National State Assembly, executive power in the National State Assembly through President and the cabinet , while judicial power by  National State Assembly through courts except in  parliamentary privileges. There was also a Constitutional Court to determine matters relating to constitutionality.

The 1978 constitution which lasted for over 30 years now is somewhat different from the two earlier constitutions.   The founders of the constitution have clearly deviated from the British tradition of constitutional theory. Prof.A.J. Wilson, former professor of Political Science, declared that the 1978 constitution had been extensively influenced by the present French Constitution.  The 1978 constitution took a quasi federal nature with introduction of 13th amendment and parliament lost some of its powers regarding some subjects and lost sole supremacy over legislation.

On the other hand this parliament does not have executive power as in the 1972 constitution. 1978 constitution explicitly says that executive power shall be exercised by ‘the president of the republic elected by the people “(not by parliament). So this is clear deviation from the British tradition of parliamentary supremacy.  True that ministers who are also said be in the executive branch are chosen from the parliament but they are subordinated to the president who can keep any ministry or department under him. They do not enjoy the prestige they had under the British tradition. The president through the cabinet can make the parliament his appendage and the dignity of the parliament is completely eroded, added by the PR system of electoral method which allowed all sorts of anti social elements to enter into parliament. Parliament is further devalued because the President can dissolve it after one year of an election.

The position of judiciary is made explicit under the 1978 constitution. According to the Article 118, the Supreme Court is the ‘highest and final court of record’ in the Republic. It has jurisdiction in respect of constitutional matters, for the protection of fundamental rights, consultative jurisdiction, and jurisdiction in election petitions including the election of President. It also has jurisdiction whether to determine a bill was consistent with the constitution. This jurisdiction can invoke by president or any other citizen.  Its determination is sought of regarding urgent bills which the cabinet thinks to pass    urgently for national interest concerns. It has jurisdiction to determine the validity of the expulsion of a member from a political party. It has role to play in the impeachment of a President of the Republic. Therefore it is very clear that the Supreme Court under the present constitution is a very powerful body that is endowed with important national responsibilities. Further the constitution has endorsed the idea of an independent judiciary.

Standing orders cannot be considered as law by any learned person in the legal profession. Under our legal system laws are legislation, decided cases, customs and may sometimes international covenants. Standing orders are procedural regulations. Further they cannot be formulated against the provisions of the constitution. Rules and regulations are there in various corporations, companies, societies to conduct their day to day activities. Can an outsider be brought to face trial on the basis of these regulations? Is that justice? Is that rule of law?

When there is matter before the Supreme Court to be decided, specially a matter of interpretation it is the sacred duty of all law abiding persons to obey its directives. Under our constitution people are sovereign and the constitution is supreme not the parliament.  This is what is called constitutionalism, a legal philosophy derived from the famous case in the United States of America, Marbury Vs Madison, 1 Cr. 137 (1803) decided by John Marshall ,CJ. The decision held that:

“Congress did not have the power to add to the original jurisdiction of the Supreme Court; thus, the available remedy mandamus  ,was unconstitutional .More significantly , Marshall logically extracted the power of judicial review from the constitution by reasoning that the document was supreme and, therefore , the Supreme Court should invalidate legislative acts that ran contrary to it.”

In conclusion it could be said that the idea of parliamentary supremacy which both the Hon. Speaker and the Leader of the Opposition attempted to uphold in a holy manner is an outdated and obsolete political-legal concept which has no relevance in the present constitutional framework of Sri Lanka.

*Writer is the Secretary General of the Liberal Party of Sri Lanka,  Attorney-at-Law, BA (Hon), PgD(International Relations)

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Latest comments

  • 1
    0

    So the Liberal Party (how many members by the way?) want us to go by the he “famous case in the United States of America, Marbury Vs Madison, 1 Cr. 137 (1803) decided by John Marshall ,CJ”?

    Why does a US precedent be used to resolve a problem in our country. Do you automatically assume that we come within that jurisdiction?

    Please discard “Liberalism” the false tag of the philosophy that underpinned colonialism and impreialism. Stick to some thing like Jainism, Buddhism, Hinduism. Though they come from the East, they are the most sophisticated philosophies in existence. Read Schopenhauer.
    Cleanse your mind of the garbage that has filled over the years. Tell Rajiv too.

  • 0
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    Yes, Mr. Nissanka, it is nothing but common sense that if you have a general idea about the separation of powers under the Constitution that to say Parliament is supreme is a fallacy. You have quoted chapter and verse to prove this point and we are beholden to you for your analysis. People are the fount of judicial power, not the Parliament. Parliament could say that it is supreme if at least it has delegated the judicial power it constitutionally holds to the judiciary. According to the Constitution, people’s judicial power has been vested in Parliament for the exercise of this power through the courts and tribunals recognized by the law. Article 4 clearly says that Parliament can directly exercises the judicial power vested in it only in relation to its privileges etc. This shows Parliament has to act only as an intermediary between the people and the judiciary. Therefore, it is quite clear- one need not be a Constitutional expert to understand- that that people are supreme, not the Parliament!

  • 0
    1

    All Ideologists, Bulls

    Where is exiting people’s supremacy in Sri Lanka. Everything are in the paper only . You all are like idiots. See the end results . Power and bribes, corruption.

  • 0
    0

    The issue of the supremacy of the Legislature has once again cropped up withe the Impeachment motion brought against the CJ.The three arms of the State, the Judiciary, Legislature and the Executive are supposed to play equally important roles and not bickering with each other as to which is supreme.The drama being played today as to the supremacy of the Parliament is a childs play.A parliament brought to power by bribing the voters,a parliament full of foul mouth liers, rapists and bribe takers cannot be treated as supreme.The supremacy of parliament should be displayed by the gentlemanly behavior of the Learned.We are yet to see that today.

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