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

Even if we take an ordinary statement that has nothing to do with law, say, “The money for the picnic will be collected by the teachers through the parents and the student council,” what do we normally understand by those words?  We understand that the power to collect money for the picnic is with the teachers, but that the actual physical collection of the funds is to be done by the parents and the student council.  The latter two are to be the instruments of the former.

To return to the Sri Lanka Constitution, if the Constitution-makers wanted Parliament not to have a role in judicial power, they could have simply said so.  More important, if they wanted the courts to have the primary or lead-role in the matter, they could also have said so very clearly.  In the US Constitution, for instance, there’s absolutely no ambiguity.  It says, “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” (Article 3, Section 1).  So the writers of the Sri Lanka Constitution could have used some such unambiguous statement.  The fact is that they didn’t, which means that they intended the relationship to be exactly what they set out:  i.e., that it was to be exercised by Parliament through the courts.

Now, Sri Lanka’s Supreme Court, in interpreting this section, has tried to get over the difficulties entailed by the plain meaning of the words by trying to tie judicial power to the courts through the concept of “Sovereignty of the People,” to argue, in short, that the courts derive their authority directly from the Sovereignty of the People, and that it was never intended to subjugate or subsume the authority of the courts under that of Parliament.  This is quite understandable.  The court has had to make the best of a bad situation.  In my view, however, if the government were to bring a sustained challenge to the aforementioned trend in interpretation, the latter will not be able to stand for very long.  There is simply no way to get around the plain meaning of the words in the section.  Fortunately, such a challenge has not yet been brought, because the need or occasion for it has not arisen.  But what if the occasion were to arise in the future?  In that case, all Sri Lankans will be in serious trouble.

As with Article 80(3), then, Article 4(c) also places the courts in a most abject situation vis a vis the legislature.  As things stand now, and indeed as history and experience have shown, if the government manages to gain a 2/3 majority in Parliament, even temporarily, it can do almost anything, and once the Bill is passed, a citizen has absolutely no chance of challenging it.

Section Two:  “Separation of Powers”

In this Section I undertake a broad and general discussion of “Separation of Powers.”  As-mentioned at the start of this paper, before one tries to generate solutions or reforms to the problem in the Sri Lanka Constitution—and this “problem” clearly is the lack of a proper separation of powers—one has to first have a firm grasp of the controls Sri Lanka’s Constitution-makers did devise to affect “checks” on government.  One can then compare them with the controls in the British and American Systems, the two systems that inspired the Constitution-makers the most on the matters in question and isolate inadequacies and shortcomings.  This Section consists of four parts, in the first three of which I discuss the “rationales,” with respect to checks, underlying the systems of governance of Sri Lanka, Great Britain, and the United States.  Part 4 consists of a brief comparative analysis of all three.

Part 1:  Sri Lanka

One of the best and most extensive discussions in recent years of the rationale behind the Sri Lanka Constitution with regard to “checks,” including the general issue of separation of powers, is in the Supreme Court ruling in Re the Nineteenth Amendment to the Constitution.  It suffices for my purposes, therefore, to focus exclusively on this ruling.

The facts of the case are briefly as follows.  In 2002, a Bill was introduced which sought to amend certain provisions of the Constitution with respect to the appointment of the Prime Minister, the power of the President to dissolve Parliament, and other related matters.  The common element in all the proposed amendments was that they tended to derogate from, or diminish, executive power.  The intended Bill was therefore challenged in the courts, under Article 121 of the Constitution.  The court agreed with the contention of the petitioners, and said that the Bill did in fact derogate from and diminish the powers of the executive, and therefore, was illegitimate.  In the course of this argument the court commented on the rationale behind the Constitution, with respect to checks, as well as separation of powers generally.

There are a number of passages that are particularly important for my purposes, and it is necessary to quote them at length.  The passages are self-explanatory, and, by and large, make my argument for me.  The first passage deals with the court’s assessment of the basic structure of the Constitution:

The powers of government are separated, as in most Constitutions, but unique to our Constitution is the elaboration in Article 4(a), (b), and (c) which specifies that each organ of government shall exercise the power of the People attributed to that organ.  To make this point clearer, it should be noted that subparagraphs (a), (b) and (c) not only state that the legislative power is exercised by Parliament, executive power is exercised by the President, and judicial power by Parliament through courts, but also specifically state in each subparagraph that the legislative power “of the People” shall be exercised by Parliament, the executive power “of the People” shall be exercised by the President, and the judicial power “of the People” shall be exercised by Parliament through courts.  This specific reference to the power of the People in each subparagraph which relates to the three organs of government demonstrates that the power remains and continues to be reposed in the People who are sovereign, and its exercise by the particular organ of government being its custodian for the time being, is for the People.”[6]

The second series of passages deal with the court’s assessment of how the respective branches of government are supposed to relate to, and interact with, each other:

Therefore, shorn of all flourishes of constitutional law and political theory, on a plain reading of the relevant articles of the Constitution, it could be stated that any power that is attributed by the Constitution to one organ cannot be transferred to another organ of government or relinquished or removed from that organ or government, and any such transfer, relinquishment or removal would be an alienation of sovereignty inconsistent with Article 3 read with Article 4 of the Constitution.

It necessarily follows that the balance that has been struck between the organs of government in relation to the power that is attributed to each such organ, has to be maintained if the Constitution itself is to be sustained.[7]

The third and final series of passages deal with the issue of “checks and balances,” the very heart of any system of separation of powers:

The balance of power between the three organs of government, as in the case of other Constitutions based on a separation of powers is sustained by certain checks whereby power is attributed to one organ of government in relation to another.  The dissolution of Parliament and impeachment of the President are some of these powers which constitute checks incorporated in our Constitution.

Mr. H.L. DeSilva [President’s Counsel] submitted forcefully that they are “weapons” placed in the hands of each organ of government.  Such a description may be proper in the context of a general study of constitutional law, but would be totally inappropriate to our Constitutional setting, where sovereignty, as pointed out above, continues to be reposed in the People, and organs of government are only custodians for the time being, that exercise power for the People.  Sovereignty is thus a continuing reality, reposed in the People.

Therefore, executive power should not be identified with the President and personalized, and should be identified at all times as the power of the People.  Similarly, legislative power should not be identified with the Prime Minister or any party or group in Parliament and thereby given a partisan form or character.  These checks have not been included in the Constitution to resolve conflicts that may arise between the custodians of power, or for one to tame and vanquish the other.  Such use of power which constitutes a check, would be plainly an abuse of power totally antithetical to the fine balance that has been struck by the Constitution.

The power that constitutes a check, attributed to one organ of government in relation to another, has to be seen at all times exercised, where necessary, in trust for the People.  This is not a novel concept.  The basic premise of Public Law is that power is held in trust.[8]

The gist of all of the above-mentioned passages reduces to two points:  First, with respect to how the respective branches are supposed to relate to each other, what Sri Lanka’s constitution-makers strove for was a balance, i.e., they wanted to delineate or circumscribe the powers of each branch of government with as much exactitude as possible so as to contain each within its own sphere of action.  It was never intended for one branch to take a competitive or antagonistic stance to each other.  Second, and more important, in the lack of a “check” coming from other branches of government, the basic mechanism or rationale that was to keep the officers of one branch of government from trying to encroach on the powers held by officers in another branch was the “Public Trust Doctrine”—i.e., the view that governmental officers hold their power in “trust” for the People, and therefore must always act, not with their own interests and advantages in mind, but the interests and advantages of the People.