And a possible remedy for it from the U.S. Constitution

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The United States is increasingly being accused of exporting only belligerence, war, and destruction to the rest of the world, instead of more positive and pleasant things. For instance, conservative commentator Paul Craig Roberts, writing in Counterpunch magazine, has said, “US government officials routinely criticize other governments for being undemocratic and for violating human rights.  Yet, no other country except Israel sends bombs, missiles, and drones into sovereign countries to murder civilian populations.  The torture prisons of Abu Ghraib, Guantanamo, and CIA secret rendition sites are the contributions of the Bush/Obama regimes to human rights.”[1]  No doubt there is a great deal of truth in what he says.  As for me, being a Sri Lankan, I like to leave criticism of America to Americans.  My interest in America is simply this:  I want to know what aspect if any in the American system can be instructive or helpful in improving my own country.  Having lived in the United States for many years, I am convinced that there is at least one invaluable resource in that country, which can be of immense benefit to other countries, namely, the US Constitution, certain core principles of which Americans themselves seem to have forgotten. The purpose of this paper, therefore, is to highlight one such principle.

The present Sri Lanka Constitution was enacted in 1978, and is generally termed a “hybrid,” meaning that it combines elements from the British, French, and American systems.[2]  The British influence is on the structure and powers of Parliament.  The French influence in on the Executive Branch, i.e. a Strong Executive, and the American influence, purportedly, is with respect to separation of powers.  In my view, the problem with the “hybrid” is that what the Constitution-makers have really done is to replicate primarily the British system, characterized as it is by a “Supremacy of Parliament,” without also importing the traditional safeguards that accompany that concept and its application in England.

In other words, in Sri Lanka, as far as the making of laws, there really is no “check” on Parliament.  Such a situation, when combined with a Strong Executive deriving from the French tradition, is a recipe for disaster because if the Executive manages to bring the legislature under his sway, he can get any law passed, and thereby rule without any Constitutional or legal impediment.  This is where the American notion of “Separation of Powers” is supposed to come in.  The claim and perhaps also something of the intent, was to ameliorate the deficit with regard to the failure to import the British safeguards by substituting a separation of powers scheme akin to the American system.  But this, in fact, has not happened, and the American notion has been imported only in form and not in substance.  Thus, the “fatal flaw” in the Sri Lanka Constitution is its lack of a meaningful separation of powers i.e. a meaningful systems of checks and balances between the three branches of government, which leads to the legislature, and through that the Executive, having untrammeled powers.

Any Constitution worth its name has to impose controls on Government.  Therefore, it cannot be that Sri Lanka’s Constitution-makers failed to devise such controls.  So what has gone wrong, and why?  To find out, one would have to first understand the controls the Constitution-makers did create, or conceptualize, and then compare it with the controls in the two models on which they drew for inspiration—in this case, the British system, for “Supremacy of Parliament,” and the American system, for “Separation of Powers.”  One would then be able to isolate inadequacies and shortcomings in the “hybrid.”  So this is what this paper proposes to do.  The paper is comprised of four sections.  Section One briefly explains the provisions in the Constitution that create the problem.  Section Two is devoted to discussing the issue of “Separation of Powers,” and consists of four parts.  Parts 1-3 discuss the “rationales” underlying the systems of governance, respectively, of Sri Lanka, Great Britain, and the United States, with respect to “checks” on Government.  Part  4 consists of a brief comparative analysis of all three.

Section Three is devoted to discussing the recent 18th Amendment to the Constitution, enacted through the expedient of an “Urgent Bill.” In my view, this Amendment is as perfect an example as any of the practical consequences—indeed, the predictable end—of the flaw inherent in the Sri Lanka Constitution, and is therefore the best means possible to appreciate the sad state of affairs to which Sri Lanka has been reduced as a result of the aforementioned flaw.  In the course of this Section, I also propose to present an interesting argument against the 18th Amendment, one, to the best of my knowledge, that has never before been used.  It is now too late to be of any effect against the 18th Amendment itself due to restrictions placed by Article 80(3) of the Constitution.  Nevertheless, it is something valuable for Sri Lankans to have in hand, in case the government tries to resort to the same tactic again.  Finally, in Section Four, I discuss “solutions.”

Although the focus of this paper is Constitutional Law, and that also Constitutional Law of Sri Lanka, I believe it can nevertheless be relevant to a general audience, particularly one with interests in US foreign policy.  This is because the ideas raised here suggest certain new, or under-utilized, ways in which America and Americans can engage with the rest of the world, and vise versa, for the mutual benefit of both.   In my view, the types of core principles to be discussed here, if properly imported, can really help bring stability and peace to a lot of countries, particularly in the “Third World” and the “Second World”—countries precisely like Sri Lanka—whose perennial problems include, among other things, tendencies towards chaos and internal violence, especially based on ethnic, religious or linguistic differences.  Readers from different countries can apply ideas discussed here to contexts important and relevant to their own respective countries, if they detect similarities between the latter contexts and any of the matters raised with regard to Sri Lanka’s predicament.

Section One:  The Problem

As mentioned earlier, the fatal flaw in the Sri Lanka Constitution is its lack of a proper separation of powers.  Specifically, it makes the judicial branch utterly subservient to the legislative branch.  The relevant provisions of the Constitution are Articles 80(3), and 4(c).  I will take each in turn.

Article 80(3) is as follows:

Where a Bill becomes law upon the certificate of the President or Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.[3]

The provision is self-explanatory: once a Bill is passed, no one can do anything about it, even if the Bill turns out to be unjust or unreasonable.  Under Article 121 (1), however, the Supreme Court has a chance to review intended legislation.  But this is only for a short period of three weeks, and often the problem is that the full repercussions and ramifications of a piece of legislation are felt years after its enactment. We have to add to this a new wrinkle.  What happens if a piece of legislation is passed circumventing even the brief period of judicial review, by pushing it through, say, as an Urgent Bill? Then, even the tiny safeguard of Article 121 is lost.

To my knowledge, no other country that purports to have separation of powers in its system of governance has as drastic a provision nullifying the powers of the court vis a vis the legislature, as in the Sri Lanka Constitution. Under the US Constitution, for instance, a citizen can challenge the constitutionality of legislation at any time.  In England, meanwhile, the Judicial Branch is nothing less than a second source of law, and hence a co-equal to the legislature.

In my view, the only instance where one finds a blanket provision such as the one in the Sri Lanka Constitution is in the Apartheid-era South African Constitution.  There, in the 1950’s, in response to the courts’ reluctance to endorse some of the more egregious excesses of the nationalist legislature particularly in relation to the series of cases starting with the famous Ndlwana v. Hofemeyer, which dealt with the withdrawal of franchise rights of colored people, the Senate was forced to pass an Amendment to the Constitution.   The South African Amendment Act of 1956 said, in part,

No court of law shall be competent to inquire into or pronounce upon the validity of any law passed by Parliament other than a law which alters or repeals or purports to alter or repeal the provisions of sections 137 or 152 of the South Africa Act of 1909.[4]

Note that the first part of this provision is virtually identical to its Sri Lankan counterpart.  But the South African Senate, to its credit, did not emasculate the judiciary completely—i.e., it did not abrogate the entrenched provisions of the Constitution, sections 137 and 152—hence, the courts still retained a role, albeit a diminished one, in holding the legislature at bay.  The Sri Lanka Constitution, on the other hand, takes away every vestige of the courts’ power to review legislation.  The last part of 80(3) says, for instance, that courts will not pronounce or question legislation “on any ground whatsoever.”  In short, the Sri Lanka Constitution does even the Apartheid-era South African Constitution one better!  So that’s the position to which Sri Lanka’s courts have been reduced by virtue of Article 80(3).

I next turn briefly to Article 4(c), which reads as follows:

The judicial power of the People shall be exercised by Parliament through courts, tribunals, and other institutions created and established, or recognized, by the Constitution, or created and established by law, etc, etc.[5]

The operative words here are “by Parliament” and “through courts.”  Only one interpretation of this is possible if we go by the plain meaning of words.  “By Parliament” means that the writers of the Sri Lanka Constitution intended Parliament to be the primary agent in wielding judicial power; the courts were to be merely the instruments or tools that Parliament used to carry out that power.  In short, with respect to judicial power, the courts were meant to be completely subservient, indeed at the beck and call, of Parliament.