22 September, 2020

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Fundamental Rights And Fundamental Values

By Reeza Hameed* –

J R Jayewardene

Those who were instrumental in drafting the Sri Lanka constitution currently in force were keen to limit parliament’s powers.  Mr. J R Jayewardene, who as Prime Minister chaired the Parliamentary Select Committee on the draft 1978 constitution, remarked at one of its hearings:

“We are practically a dictatorship today. There is nothing we cannot do in this House with a five-sixths majority. I am trying to avoid that”. [emphasis added]

This intention is made clear by not giving the Sri Lanka parliament the same powers as those of the English parliament. It is for this reason that the powers of government have been kept separate and the independence of the judiciary and fundamental rights have been guaranteed.

Parliament continues to remain a very powerful institution. It is responsible for enacting laws and also keeping the executive, including the presidency, under check and to hold it to account. Parliament has several arrows to its bow to carry out this task. Unfortunately, the executive has entangled itself with parliament to a degree such that parliament has been unable to carry out fully this important function. The close nexus between them has caused parliament to function for the benefit of the executive and allowed the executive to take refuge in parliament for its own advantage and to invoke the benefits of theories such as parliamentary sovereignty and the privileges of parliament.

Many years later, J R Jayewardene acknowledged in public the need for reform of the presidential powers, especially in three areas: (i) the term of office, which he suggested be reduced to four years, (ii) his responsibility to parliament, and (iii) and his immunity.

Professor G L Peiris, during his tenure as the Minister for Constitutional Affairs in the Chandrika Bandaranaike government, highlighted the concentration of power in the executive president as a major weakness of the constitution. He also criticized the JR rationale that a strong executive unhampered by the whims of the parliament was needed to implement the economic and social policies of the government of the day. In Dr Peiris’ view a constitution “is not meant to be an instrument to facilitate a particular political or ideological objective, or indeed a facilitator of strong government. On the contrary, the primary function of a constitution, particularly in a modern third world where the State inevitably wields considerable discretionary power, is to create regularized restraint or checks and balances on the exercise of political power.”

In short, it is the function of the constitution to have in place mechanisms to deter abuse of power, and power is capable of being abused not only by a president but also by a parliament.

There are many features in the constitution that militate against the claim that parliament can do what it wants. Despite the concentration of executive power in the hands of a powerful president, the powers of government have been kept separate and the independence of the judiciary has been guaranteed.

On the other hand, there is both institutional and functional separation between the legislature – and the executive – on the one hand and the judiciary on the other. By comparison, although there is functional separation between parliament and the executive, the institutional separation between the two is less clear cut.

Without an independent judiciary to arbitrate on questions regarding the allocation of power, and to interpret its provisions, the system cannot work. Fundamental rights would become merely sanctimonious pronouncements in the absence of an independent judiciary to enforce them.

Those who argue in favour of a supreme parliament would like to see all authority vested in that body because it consists of elected representatives, regarding anything short as a denial of people’s sovereignty. In their view, judges have no right to review its actions because they are an unelected bunch without any right to question the actions of the elected representatives.

This is an argument based on the fallacious assumption that popular sovereignty is exercised only through one organ of the state. The argument that parliament’s powers ought not to be limited because its representatives have been elected is rooted neither in principle nor logic. It is contradicted by the constitution itself. It is the constitution that has provided that the judicial power of the people shall be exercised by unelected judges, and it is the constitution that has given the judges the authority to act as a check on elected representatives of the people as well as on executive and administrative action. If the price of liberty is eternal vigilance, then the judiciary is an essential means of exercising that vigilance.

If the principle that no organ of state shall have unlimited power is accepted, then it should not be difficult to accept the need for a mechanism to ensure that power is not exceeded. The judiciary exercises an aspect of sovereign power and is an instrument of the people in much the same way that the legislature is.

As stated in its Preamble, the constitution ratified “the immutable republican principles of representative democracy” and assured to all peoples freedom, equality, justice, fundamental rights and the independence of the judiciary”. It is inconceivable that a constitution designed to achieve the goals of a democratic socialist republic would have conferred unbridled power on its elected officials who happen to sit in parliament.

If the intention was to give elected representatives unlimited powers, then the constitution would not have enshrined fundamental rights and given the judiciary the duty to enforce them. Fundamental rights and an independent judiciary underpin the constitutional structure and they reflect fundamental values to be respected by government. These are essential for the Rule of Law to prevail. These are obligations that the people demanded of their representatives. The elected representatives who adopted the Constitution as “the supreme law” did so by acknowledging their obligations to the People, having assimilated these values into the constitution.

In conclusion, for a democratic system to work it is important to recognize that powers cannot be conferred on government without defined limits. The constitution envisions Sri Lanka as a welfare state. The State is expected to bring about a welfare state within the framework of the constitution, respecting the fundamental values enshrined in the constitution. These values have been entrenched in order to place them beyond the reach of temporary majorities produced at periodic elections.

*Dr. Reeza Hameed, a long-standing member of CRM, is an Attorney-at-Law with degrees from universities in Sri Lanka, the USA and UK. He assisted S. Nadesan QC in a number of historic constitutional and fundamental rights cases including the Pavidi Handa case, the Kalawana case, the Daily News Contempt case, and challenges to the banning of Aththa and the Saturday Review. When the editor of Aththa B.A. Siriwardene, and later Nadesan himself, were charged with breach of privilege of Parliament, Reeza was part of the defence team led by Senior Attorney HL de Silva. This article is circulated by CRM for its relevance to the wider discussion arising from the current attempt to impeach the Chief Justice.

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    We have heard too much legal analysis of the meaning of supremacy of the parliament and not enough substantive analysis from social scientists. Academics and social and political analysts need to make the distinction between FORMAL or legal supremacy and SUBSTANTIVE supremacy of institutions. For the latter or substantive supremacy of any institution ethical and non-corrupt behaviour is necessary and the masses should be educated about this.
    A parliament full of corrupt thugs and morons is not and cannot be supreme whatever the formal law says – and contrary to Rajapakse’s and Ranil Wickramasinghe’s claims. Substantive supremacy is the equivalent of natural justice or common law. It is more FUNDAMENTAL than formal or legal supremacy enshrined in any Constitution.
    It is hence that the time has come to IMPEACH MAHINDA RAJAPAKSE and his corrupt brothers and sons who are looting the public wealth and impoverishing the people of Sri Lanka
    The Rajapakse brothers have also sought to being great harm and disrepute to the sovereign people of Sri Lanka through blatant lies and by running a Kangaroo Court in the parliament and seeking to ruin and corrupt the judiciary by offering bribes and high posts to the CJ’s husband and causing the legislature to operate a Kangaroo court.
    MAHINDA RAJAPAKSE MUST BE HELD ACCOUNTABLE AND IMPEACHED. It is to be hoped that the best legal minds like Mr Elmore Perera, Kanag Iswaran, Neelakandan, Romesh De Silva etc will be able to draft the IMPEACHMENT MOTION against Mahinda Rajapakse to free Lanka of the “curse of Kuveni” *Kuveinige Sapaya in Sinhala that is today manifest in the from of the Rajapakse family that is a scourge on the whole country..

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      Indeed, substantive rather than formal principles are very necessary and appeals to substantive reason, such as notions of natural justice, may be used to challenge and over throw formal law and processes (like the PSC Kangaroo Court) which are contrary to natural justice, as the landmark ruling of January 3, 2013 has done, and thereby set a precedent to challenge the impunity of the executive..

      When the corruption of the executive mounts to hideous proportions substantive principles may be invoked to challenge the impunity of the executive through the courts, I believe..

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        The solution to the “chaotic situation” that has arisen as a result of the mala fide and dastardly impeachment of the Chief Justice is to turn the tables and IMPEACH MAHINDA RAJAPAKSE and CHAMNAL RAJAPAKSE. They must be held ACCOUNTABLE for lying and deceiving the SOVEREIGN PEOPLE of Sri Lanka and running a Kangaroo Court in Parliament and bringing disrepute to the judiciary and legislature.
        Mahinda Rajapakse has RUN AMOK, inebriated with power, and has sought with his family to destroy governance institutions and democracy in Sri Lanka and MUST BE HELD ACCOUNTABLE for the disrepute brought to the judiciary, the legislative and executive office and thereby the county and SOVEREIGN PEOPLE OF LANKA – this is a moral argument which has a legal base.
        Of course, in the context things must get worse in order to get better. The hideous oozing sore that the Rajapakse family represent in Sri Lanka today has to be removed, cauterized and the country sanitized for Lanka to recover from the damage done by 7 years of Rajapakse’s mis-governance – almost as bad as 30 years of war. This wiil not happen easily given Gota the white van Goon’s militarization of the county in order to secure the Rajapakse DICTATORSHIP.. but surely it will happen once the LANKA SPRING gets rolling in 2013!

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    The nation is in this plight as academics,civil society as a whole and more particularly the lawyers were in deep slumber.None woke up when the MEDAMULANA thug crept in for the second time after a good job done in eliminating terrorism planted the former security officer brother to guard the Parliament to prevent any impeachment and planting another known as Mr ten percent with no academic attainments as MINISTER ECONOMIC AFFAIRS and entrusting 70 % of the Budget while he held the purse strings.Then he had the other to ensure that the armed forces and Police will not stage a coup de tat.
    NOW THE NATION HAS SEEN THE LONG TERM GAME PLAN TO CONTROL THE JUDICIARY.
    Its time now to sustain the same pressure to abandon the Presidency and get back to the earlier system with checks and balances. The immediate need is to ABANDON THE 18TH AMENDMENT AND GET TO THE 17TH.
    The parasites whom he purchased will not want to loose what they have and continue to serve as S.L Gunasekera a man rare with integrity written all the way in his dememanour in public life said RAJATHUMANI WE WILL JUMP WHEN YOU TELL US NOMINATE THE HEIGHT. SUCH ARE THE SHAMELESS CLOWNS WHICH INCLUDES THE OLD GUARD.

    Do not get back to sleep fight to a finish

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    Rather than going into a long winded discussion and as to what the constitution should be and what it shouldnot it would be better to pick a model which is successfully in operation and replicate. There are so many good and established models of democratic governance in the west. Pick a suitable model and fine tune it to adapt to our own culture and sensitivities without tinkering with the power structures.
    No need to reinvent the wheel.

    All these home made brews have really messed up our constitution, education system, public service etc. We think we are the hub of this and that everything under the sun. The rest of the world is progressing while we become hubris.

    Hubris denotes overconfidence, pride and arrogance; it is often associated with a lack of humility, though not always with the lack of knowledge. It is also referred to as “pride that blinds”, as it often causes one accused of hubris to act in foolish ways that belie common sense. In other words, the modern definition may be thought of as, “that pride that comes just before the fall”.

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    This constitution could be amended using the so called majority of the parliament. That is what is happening now. Dictators are eager to grab the power and they can influence the parliament get the thing done. Ex. 18th amend.

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    I knew from the beginning that RW is a double …

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy
    http://colombotelegraph.com/comments-policy/

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    My only concern is come 10th January and with UPFA majority in the parliament, President MR has a possibility of winning the CJ impeachment with a simple majority.

    If that happens….what kind of actions both MR and the CJ will take…….

    I am pretty sure while MR is waiting impatiently to kick CJ out….where it will be a big blow to all of us who are looking for our justice through CJ…… Madam CJ will try to hold onto her position as she has promissed before, and this situation could lead into violance.

    1)IF MR use srtong arm method and use violant methods, which Mervin Silva, Wimal Weerawansa, Basil Rajapakse have already mentioned and try to chase CJ and occupy SC building……….what steps the opposition, trade unions, clergy, professional body, FUTA and we the citizen could do to save CJ and the Supreme Court……….

    2)Can we ask for UN, CW, US, EU and other Asian countries to come to our help……….

    3) Is the recent very high payroll increase given to Police is a part of the GOSL plan to suppress any peoples protests and even use arms to kill people during any demonstrations supporting CJ……..

    4)Have the opposition parties discussed this situation with the International Community, human rights groups and the local Diplomatic community…….

    5)Could opposition parties request to IMF regarding any GOSL 1 Billion US Dollar loan request, to tie up with the abolition of CJ impeachment and to publish Parliament MP’s income and expense reports……

    6)Is the opposition parties could give additional protection to CJ…her family…JSC…SC and the supreme court building, files and documents etc….if GOSL plans violent suppression to grab Judiciary power…..

    7)Are there any protection for public planned by opposition parties to safeguard public in case GOSL use forces to suppress Citizens who stand by CJ…….

    8) I smell foul air in the horizon and do not wish for another 1971, 1983 or 1989 type of violent situation again and be vigilant and prepare for any eventuality is the best remedy.

    I would like if anybody including opposition parties could answer these questions.

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    NOW WHAT WE HAVE TO DO IS, “APE MINISSUNWA KOHOMA HARI, SHAPE KERALA, GOO GAHALA, MAALIGAWEN MATTY KETATA DHAAMU

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    Members of Parliament can be characterized as “people who are electable yet pliable”. Nowhere do we look for people of integrity and strong values. Traits that are in you and cannot be legislated.

    What can be legislated is the process of nomination, building strong checks and balances to ensure that MPs are held in check.

    Further a process to recall a MP if he is found unfit for the position should to be put in place. Bring back the provision for a by-election and we have reasonable control of the legislature.

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    This is the man – JR who paved the way for undemocratic ruling in country. By introducing 78 constitution they open up the ways the uneducated ones to get elected to the parliament and make it a Mannig market.

    Every president got elected after JR was unable to abolish the EP. Today the man in power though is claimed to have 2/3 mandate in parliament is behaving the worst sofar. For the fools that make the majority of the country – as every right thinking would feel it – the incumbent is the leader for no reasons sometimes, but for his term brought the war end militarily. No matter he let the country to an anarchy, no matter people^s assets and monies have brutally been abused saying something palatable – he is trying to make the country an another Pakistan, Myanmar OR Northa korea in southe asian region.
    We had once been a nation that respect one another, today, it seems no such values are respected by people – under the guidance of the idiotic henchmen that help ruling the country. President should be impeached – professionals of the country should stany by with the law professionals in toppling the current rule for the sake of all folks who wait to see uncorrupted rule for the island.

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    Although a nominal entity in the constitution, the ordinary citizens of Sri Lanka have never been regarded as supreme by any group of national leaders, arbitrators or representatives and never will be.

    It is presently convenient and expedient to draw on various clauses that would state such a thing, but there has always been a pecking order (hierarchy) that prevailed, and the lowly masses were always left to the last, and certainly not “supreme”.

    I see a struggle for supremacy between several groups of vested interests who wish to preserve the status quo, even if at the expense of the public.

    Sri Lanka will have to mature a great deal before it can seriously consider enfranchising the common man on the street, contitutionally or without…

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      Mr.Pethiyagoda is right and I would go back to quote from Professor KM De Silva’s book -“Universal franchise 1931-1981 The Sri Lankan Experience. On page 5 qote” As regards the Sri Lankan representatives, however, the practice developed of sending petitons to the governor recomaending individuals for nominnation. Not that this had much effect, for the nomination to the Sinhalese and Tamil seats was so often made from among the members of the same families. This was despite the sporadic demands that nominated unofficial representation give way to the elective principle.”
      Mr. J.A Jayawardena was nursing his hunger for power for thirty years and realized it by becoming president. His distaste and hate for Tamils was very obvious, and many folks around him observed this.
      Since our Independence in 1948, political power has grown amongst the selected few and privilaged, new rich who’ whose pretense to nationalism was hypocritical, since all their children were sent abroad for their education.So it is a struggle as written by Mr. Pethiyagoda for those with vested interest,who are now openly fighting to preserve the “status quo” and robbing the people of Sri Lanka blind.

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    We readers are very like to know as laymen, about the comment published in Sunday Observer by Rtd. CJ. Sarath N Silva about validity of recent decision of the Supreme Court, that the SC Dicision is incomplete and SC could interpret ONLY gazatted entacted LAWS. Is this the same as his earlier ORDER regarding Helping Hambanthota Case ….?

    Leading Lawyer PLEASE enlighten the Country.

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    What are the fundamentalvalues values

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