By Dr Reeza Hameed –
There is no basis in the Sri Lanka Constitution for the view that is currently being propagated that the Sri Lanka Parliament is sovereign. It is neither sovereign nor supreme.
Parliamentary sovereignty in England
The doctrine of parliamentary sovereignty has its roots in the legal theory developed by A.V. Dicey in relation to English constitutional law. In a Scottish case it was described as ‘a distinctively English principle which has no counterpart in Scottish constitutional law’. The doctrine of sovereignty implies that there is no higher law to restrain Parliament from making – or unmaking- any law. It also implies that the Courts are obliged to give effect to the laws passed by Parliament.
In the Bonham case (1610), Lord Chief Justice Coke had this to say about Parliament’s power to legislate without any limits: “In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void, for when an Act of Parliament is against the common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.
In Jackson v the Attorney General, the then House of Lords considered the relationship between the rule of law and parliamentary sovereignty, and it was suggested by some of the Law Lords that the theory of parliamentary sovereignty has its limits and that Courts would contradict Parliament if it were to enact legislation contrary to the rule of law. In Jackson, Lord Steyn said:
“The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.”
In the same case, Lord Hope spoke of the supremacy of the law and said:
“[T]he courts shall disregard as unauthorised and void the acts of any organ of government, whether legislative or administrative, which exceed the limits of the power that organ derives from the law. In its modern form, now reinforced by the European Convention on Human Rights and the enactment by Parliament of the Human Rights Act 1998, this principle protects the individual from arbitrary government. The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. The fact that your Lordships have been willing to hear this appeal and to give judgment upon it is another indication that the courts have a part to play in defining the limits of Parliament’s legislative sovereignty” (emphasis added).
In a recently decided case, Lord Hope noted that the oversight of the content of the rules laid before Parliament cannot be left entirely to Parliament. Lord Steyn, in a lecture he gave after his retirement, once again affirmed his belief that the constitution has evolved to a point where the Court will not allow the government to tamper with the fundamental principles of constitutional democracy, such as the role of the ordinary courts, the rule of law, and other such fundamentals.
In England there is no single document into which all the constitutional laws have been codified, and moreover many of them remain unwritten. Such is not the case in Sri Lanka.
The Sri Lanka Parliament
Sri Lanka has a written constitution in which the basic principles subject to which power has been delegated to Parliament have been set out. It is the constitution that is supreme and the People are sovereign. Parliament is neither sovereign nor supreme.
The theory of parliamentary sovereignty is at odds with the principle of separation of powers, which is the foundation on which the edifice of government has been built. It is also at odds with the Rule of Law. Accordingly, the powers of government are not fused in the hands of a single organ of the state but are kept separate. The rationale behind their separation is that reposing all the powers of government in a single body is an invitation to tyranny and would lead to powers being abused; separation would check their abuse.
In Sri Lanka, there is a law higher than Parliament’s and it is the Constitution.
The People of Sri Lanka distrust their politicians. They have not given Parliament unlimited powers; nor have they given its members the power to define for themselves the boundaries within which they shall exercise its powers. The Constitution has prescribed the limits for them and Parliament must function within those limits.
The First Republican Constitution of 1972 installed the National State Assembly as the supreme instrument of state power. Even in that constitution it was explicitly declared that sovereignty was in the People and was inalienable.
The framers of the 1978 Constitution moved away from that model and removed the supreme bit out of Parliament. Laws which come into conflict with certain basic provisions of the constitution can only be enacted with the consent of the People given at a referendum. Thus, Parliament’s occupation of the legislative field is not exclusive.
Apart from making laws, Parliament’s other principal function is to oversee the Executive and hold it to account. In reality, the Executive is deeply embedded in Parliament. Legislation is proposed and initiated by the Cabinet headed by the President and chosen by him, and presented to Parliament for its approval. The Ministers double up as MPs and a large number of them hold ministerial portfolios, both within and outside Cabinet. It has enabled the Executive to hold the Parliament by the snaffle and virtually neutralize its constitutional function to hold the executive to account. It is impossible to describe Parliament as either sovereign or supreme.
Parliament has no role to play in the judicial sphere. The claim is sometimes made that Article 4 of the Constitution has invested Parliament with judicial power because it is stated there that “the judicial power of the People shall be exercised by Parliament through courts …” Article 4 categorically states that judicial power ‘shall’ be exercised through the Courts and other tribunals created for that purpose. Parliament shall not exercise it directly. Parliament cannot invest itself with judicial power merely because it has the power to create institutions through which such power may be exercised. Parliament’s role is confined to the creation of Courts and other institutions for the proper administration of justice and the provision of resources for those institutions to carry out their functions. It does this as part of its other function, namely the allocation of financial resources. It does not mean that Parliament itself can exercise judicial power.
The sole exception to this inhibitory principle relates to matters affecting Parliament’s own privileges and immunities. Nevertheless, Courts have been exercising jurisdiction involving breaches of parliamentary privileges and contempt of parliament.
The theory of parliamentary sovereignty essentially deals with the relationship between the Parliament and the law. Hence, if parliamentary sovereignty has any application at all, it should have relevance only to Parliament’s law-making activity and to the finality of laws passed by parliament, but not in regard to any of its other functions. In particular, it cannot make any claim for sovereignty when acting through a select committee to enquire into the allegations against the Chief Justice. The enquiry does not relate to its law-making function and it involves the exercise of judicial power for which it has no authority under the Constitution.
Not all actions of Parliament can attract force or finality. A resolution passed by Parliament has no application outside it. Courts can strike down rules and regulations framed by persons or bodies created by Parliament exercising power delegated to them by Parliament. Some measures passed by Parliament have no force outside it unless they have been approved by the People at a referendum. It would be absurd to ascribe sovereignty to what Ministers might say inside Parliament. Even if a Bill has been approved at a referendum the President has to certify that it has been so approved by way of an endorsement in the prescribed form. Until then it does not become law.
Members of Parliament do not get elevated to a special status because people have elected them as their representatives. The President, too, is elected by the people but that does not make him either sovereign or supreme.
The People have preferred to have their representatives chosen by them at elections held periodically because they want their representatives to be accountable to them. Elections also offer, in theory at least, an opportunity for the people – or a majority of them – to choose the candidates who, in their view, are most suitable to govern them. The process adopted by the people to choose their members to represent them in Parliament does not warrant the claim that Parliament is either sovereign or supreme.
At election time, candidates will make promises to voters in order to get their support. Those who drafted the Constitution did not want the judges to be engaged in a process which would require the judges to make promises in return for votes because it would compromise their ability to administer justice impartially and with independence. Instead, they want their judges to be detached and function free from any outside pressure or interference, even from their elected representatives.
In Sri Lanka, it is the Constitution that is supreme and the People are sovereign. Parliament has an important role to play in the governance of the country but Parliament is neither sovereign nor supreme.
 See Macormick v Lord Advocate 1953 SC 396
  4 All ER 1253 House of Lords.
 Lord Steyn, at para 102 of the judgement.
 At para 107 of the judgement.
 R (on the application of Alvi) v Secretary of State for the Home Department  4 All ER 1041 Supreme Court.
 Lord Hope, at para 38 of the judgement.