When the legislative and executive powers are united in the same person or in the same body or magistrates there can be no liberty. Again there is no liberty if the judicial power is not liberated from legislative and executive powers .Where it is joined with legislative power, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined with executive power the judge might behave with violence and oppression. – Montesquieu L’Espirit des Lois (1748)
Mahinda Chinthana-Towards a new Sri Lanka –Victory for Sri Lanka the policy statement issued before the Presidential election of 2005 stated thus:
‘With the consensus of all, I expect to present a Constitution that will propose the abolition if the Executive Presidency and to provide solution to other issues confronting the country. In the interim I propose to present a constitutional amendment through which the Executive President will be made answerable to the parliament by virtue of holding such office.’
Undoubtedly the Constitution is the supreme law of the land which has to be obeyed by all citizens without exception. The Doctrine of Separation of Powers was clearly spelt out in the words of Montesquieu, who is considered the father of that doctrine in the statement set out at the outset of the present article. The idea originated in the philosophy of Aristotle in his treatise The Politics. Plato in his celebrated work ‘The Republic’ analyzed the difference between a democracy and a tyranny. Undue concentration of power in one individual is not beneficial for the smooth functioning of a state as it would undoubtedly lead to tyranny in the final analysis. As Lord Acton said ‘Power corrupts and absolute power corrupts absolutely’
Sri Lanka has been ruled under the present Second Republican Constitution of 1978 for three and a half decades, the Eighteenth Amendment being passed in 2010.A Nineteenth Amendment is said to be in the offing granting more power to the parliament and the Executive Presidency thus reducing the independence of the judiciary. In the words of Montesquieu ‘Again there is no liberty if the judicial power is not liberated from legislative and executive powers.’ Thus it is evident that the liberty of our people is at stake unless some meaningful steps are taken by His Excellency the President as stated in Mahinda Chinthana quoted above to present a new constitution abolishing the Executive Presidency and providing for a system of checks and balances between the three arms of the government, the Legislature, the Executive and the Judiciary, thereby asserting the independence of the judiciary thus ensuring good governance and fair administration in Sri Lanka. The Speaker Hon.Chamal Rajapakse has also spoken about the need for a new Constitution.
This article attempts to provide some thoughts for a Third Republican Constitution for Sri Lanka. As Sri Lanka comprises of a multiethnic, multicultural and multi-religious society in order to achieve unity among people of all races and creeds in Sri Lanka the new constitution must avoid provisions that may grant undue advantages to the majority community but be conscious of the needs of all races and creeds providing equal opportunities to all Sri Lankans to live in peace and harmony with each other. As Lord Buddha advocated the concept of re-incarnation or re-birth in Buddhist Philosophical teachings the majority community should realize that there is nothing to prevent its members being reborn in this land as members of a minority race. The great teachings of the Buddha exhorted that one should realize that individual identity is a fallacy. Thus it is advisable to grant equal rights to all citizens in a new constitutional arrangement thereby ensuring communal harmony and obviating ethnic conflict of any form whatsoever.
Hon. Sirimavo Bandaranaike in her speech delivered at the dinner to inaugurate the series of seminars on Constitutional Reform for Sri Lanka held as far back as 27th November 1987 conducted by The Council for a Liberal Democracy stated thus: ‘….the Constitution of a country is not to be treated lightly as just another law or mere scrap of paper. It is a sacred trust not to be quibbled away by clever arguments or words. It embodies certain principles which must never be disrespected. It is a trust in which if you undermine the principles and ignore the trust you break all the tendons and cords that bind society together.’ Advocating the abolition of the Executive Presidency that great lady, a former Prime Minister of Sri Lanka and the first lady Prime Minister in the world in her wisdom further stated: ‘In the Constitution the President is the de facto Government. The Courts have no jurisdiction over him. When the judiciary has no jurisdiction over this kind of executive, justice and freedom are really at a standstill….I hope to appeal as our party’s candidate at the next Presidential Election to restore Parliamentary Democracy in this island as when I first entered politics in 1960 and when our government was defeated in 1977….This country is safest in the hands of its people. A single person or group however well-intentioned is not a substitute for that broad good sense of the people acting together and through their elected representatives of Parliament who are answerable to them and who ask for a renewal of their mandate through periodically held General Elections….We have to build a different Constitution where Parliament is supreme with only the sovereign people above it.’
It is also advisable that Sri Lanka returns to the bi-cameral system of Government that prevailed in the past by having an upper house or a Senate. If a bill that has been passed by the lower house or the Parliament fails to secure a 2/3rds majority vote in the Senate it shall not become law. This would prevent the hasty rushing through of legislation by suspending standing orders without sufficient time being granted to discuss important pieces of legislation that affects the stability and the well being of the nation and thus liberate legislators from the authoritarian party discipline that enforces servility, stultifies original thinking and thus deviates from the basic tenets of parliamentary democracy. The Senate shall comprise of mature, well educated respectable national minded gentlemen and ladies of the highest caliber and be a representative body of all races and creeds of our people. The senators should be statesmen, As Sir Ivor Jennings stated a statesman is a selfless person who only thinks of the future prosperity and the well-being of the nation whereas a politician is a selfish person who only thinks of how to come to power at the next election and ensure his own personal well being.
Discussing the independence of the judiciary under the present Constitution Mr.H.L.De Silva PC in his speech titled ‘The Role of the Judiciary in the Protection of Constitutional Rights’ stated: ‘Considering the fact that the present Constitution confers on the Supreme Court the power to determine vitally important questions affecting both Parliament as well as the President, there is no warrant for relegating the Supreme Court to an inferior position. Apart from the special and exclusive jurisdiction granted to the court to determine the constitutionality of Bills and infringement of fundamental rights, it has the power to report on other virtually important matters, whether or not the President himself has violated the Constitution or whether the office of the President has become vacant by reason of the matters stated in Article 38(1),whether or not a member of Parliament has been duly elected, whether or not he has been validly expelled from his own political party and so on. In all such matters the courts act independently of Parliament and it is meaningless to consider such powers being exercised by Parliament through courts.’ The independence of the judiciary should be further strengthened by the envisaged third Republican Constitution for Sri Lanka if the liberty of our people is to be safeguarded. Mr.De Silva very aptly further stated :’When the Judges themselves show indecision and do not show evidence of any consistent attitude the Judiciary becomes vulnerable to either open attacks or insidious pressures that erode judicial independence. This must surely lead to an undermining of the very foundation of the Rule of Law upon which the whole democratic edifice is constructed.’ The stark reality revealed by these words stated by Mr.De Silva on 28th August 1988 (a quarter of a century ago) when he was the President of the Bar Association of Sri Lanka at the Seminar on Constitutional Reform conducted by The Council for a Liberal Democracy would strike the reader in considering the events that took place during the impeachment process of the Chief Justice Dr.S.A.Bandaranayake. Let the people of Sri Lanka collectively and meticulously construct a Third Republican Constitution for our country safeguarding the democratic edifice that Sri Lanka has painstakingly built over the years lest the whole edifice comes crumbling down destroying the very foundations of Rule of Law thereby bringing misery and instability to our people in our precious motherland, the beautiful pearl of the Indian Ocean.
*Lakshman I.Keerthisinghe LLB, LLM. MPhil, Attorney-ay-Law