And a possible remedy for it from the U.S. Constitution
The above is another way of saying that if and when a public officer is tempted to exceed his powers, or in some other way to act inappropriately, his personal morality, allegiance to the Constitution, and sense of professionalism should prevent him from succumbing to that temptation. Thus, under the Sri Lanka Constitution, the basic rationale as to what would prevent a particular branch of government from exceeding its powers reduces to the personal morality and professionalism of the officers of that branch of government—i.e., the commitment of each officer to the view that he or she holds power only as a “custodian” for the People, and therefore is under obligation to do only what is “best” for the People. The important point, in other words, is that the “check” is an internal, rather than external, one.
I shall discuss, later, whether or not this is an efficacious or realistic way to ensure good governance. But let’s turn to the British and the American systems of governance.
Part 2: Great Britain
The British Constitution is very interesting in that, first, it is unwritten, and second, it is generally understood to be one that doesn’t have a separation of powers. C.F. Strong, an eminent British historian, puts it as follows: “The strangest thing about the emergence of this theory of separation of powers is that it was first propounded as the peculiar virtue in the stability of the British Constitution, of which it is absolutely untrue, and to which it does not in the least apply.”[9] Meanwhile, the great British Constitutionalist, Dicey, has observed that the British Constitution is based on two fundamental principles: “Supremacy of Parliament” on the one hand, and the “Rule of Law” on the other[10]—note that there is no mention at all there of “separation of powers”.
In my view, however, even though it is true that the British system lacks a strict or formal separation of powers, and consequently, is characterized by a “Supremacy of Parliament,” there are certain internal as well as external checks on Parliament to prevent it from ever having untrammeled power. There are, in fact, three such “checks.” Let’s consider each in turn.
First, the British Parliament itself is divided into three branches: The Executive, or the “Government,” the House of Commons, and the House of Lords. By historical convention, which in England has the effect of unshakeable law, each of these branches can impose certain important checks on the others. Two of the most important of these checks are on the House of Commons, given the extraordinary powers enjoyed by this branch relative to the others. They are the power of the Monarch to pick a Prime Minister and thereby give assent to a new majority in Parliament, and also the power to dissolve Parliament.
The second check is external and is also specifically aimed at the House of Commons. It comes from the very nature or form of British democracy. Normally, when we think of “democracy,” we have in mind a system where people choose “representatives,” who in turn carry on the government. The “representatives” are expected to share and reflect the interests and sentiments of the constituents who elect them, and to act in the legislature to further and advance those interests. In England, however, there is a fundamentally different concept in operation, but it is best to let to an Englishman explain it. We shall turn therefore to an essay by the Rt. Hon. L.S. Amery, a Member of Parliament for thirty four years, and later, a professor at Oxford. He explains the matter as follows:
What cannot work, as Mill himself admitted, and as Cromwell decided somewhat more forcibly before him, is government by an elected assembly or subject to continual direct dictation and interference by such an assembly. In any case that is not the kind of government under which we live ourselves. Our system is one of democracy, but of democracy by consent and not by delegation, of government of the people, for the people, with, but not by, the people.[11]
And again,
The British Constitution has never been one in which the active and originating element has been the voter, selecting a delegate to express his views in Parliament as well as, in his behalf, to select an administration conforming to those views. The starting-point and mainspring of action has always been the Government. It is the government which, in the name of the Crown, makes appointments and confers honors without consulting Parliament. It is the Government, in the name of the Crown, which summons Parliament. It is the Government which settles the program of Parliamentary business and directs and drives Parliament in order to secure that program. If Parliament fails to give sufficient support it is the Government, or an alternative Government, which, in the name of the Crown, dissolves Parliament.[12]
Thus, according to Amery, the British House of Commons doesn’t initiate legislation: it has the role only of giving, or withholding, assent to the proposals of the ‘Government.’ It is certainly a critical role, nevertheless, only a reactive rather than a pro-active one. The following remark of Amery is also important in this regard: “The two-party system is the necessary concomitant of a political tradition in which government as such is the first consideration, and in which the views and preferences of voters or of members of Parliament are continuously limited to the simple alternative of ‘for’ or ‘against.’”[13] If Amery is right, and there’s no reason to think he isn’t, it means that even if the House of Commons has extraordinary powers, there is very little chance that circumstances will arise where it will gain complete and untrammeled influence or ascendancy over the other branches.
Finally, a third check on Parliament—and this one is on Parliament as a whole, not just on the Commons—is imposed by the courts. As-mentioned earlier, Dicey says that the British Constitution is based on two fundamental principles: “Supremacy of Parliament” on one hand, and the “Rule of Law” on the other. In England, however, the concept “Rule of Law” has a slightly different meaning than what it has in other countries, and this difference is very important.
Normally, if someone says that a particular country is governed by, or is characterized by, “The Rule of Law,” we understand that the law is supreme in that country and applies equally to everyone: in other words, no person enjoys any special privilege, or suffers any special disadvantage, not shared by his or her peers. Even the king and his ministers are subject to the same law. This is the sort of idea that, in other countries, is given concrete form in various Constitutional provisions—for instance, the 13th Amendment in the US Constitution, or Article 12 in the Sri Lanka Constitution. The British notion of the “Rule of Law” certainly includes this universal aspect, but it also includes certain other elements, coming from the unique manner of operation in that country of the Common Law. Let’s look at the matter in a little more detail.
What exactly is the Common Law, and how does it operate in England? First, the Common Law is judge-made law: the product of a centuries-long process of successive generations of English judges applying their knowledge, experience, and wisdom to solve the day to day legal problems that come before them. It is a sort of compendium or encapsulation of British institutions and history, being constantly renewed and perpetuated by application to the concrete present of each successive generation.
How does the Common Law operate in England? This is the crux of the matter. First, the Common Law is an entire second source of law, parallel to statute law. Yet, it is also a “residual law” in that it is the law of the land and applies to all matters except where it is restricted by statute law. The way this works in practice is as follows: when a matter comes before court, and there is an apparent conflict between what the statute says on the matter and what the Common Law says, judges will tend to give a certain presumption to the statute. This presumption, however, is not automatic, court may, on certain fundamental issues, decide to go against the statute. But more on this in a moment.
To return to the concept “Rule of Law,” the important point to note is that in England, “Rule of Law” really means “Rule of the Common Law.” So, the “check” it imposes on the legislature has two particular elements not found in countries where “Rule of Law” can be traced purely to Constitutional provisions. First, the status of the Common Law as the general law of the land means that the People are never cut of from having access to the courts to challenge legislation. A situation such as the one under the Sri Lanka Constitution, where Parliament, by legislation, excludes the courts from looking into certain matters, “for any reason whatsoever,” is unthinkable under the British system.
The second method of operation of the Common Law is more subtle. With respect to this matter, consider the following remark of Dicey’s: “The Rule of Law…may be used as a formulation for expressing the fact that with us the law of the Constitution, the rules which in foreign countries form part of a Constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts.”[14]
What does this mean? It means, in essence, that individual rights, as developed, confirmed, and recognized over the years under the Common Law comprise a sort of bedrock on which the concept “Rule of Law” rests. Legislation cannot take away those rights. Legislation may restrict those rights under certain circumstances, but never take them away. As-mentioned earlier, British judges will tend to give a presumption to legislation where the latter conflicts with the Common Law. But it is a presumption only: where a piece of legislation might impinge on and violate certain individual rights to a grievous extent, the British system leaves open the option, and indeed British judges are fully capable, of repudiating the legislation in question.
Now, I realize that the above claim seemingly runs counter to the statement of Lord Reid, in the famous Madzimbamuto v. Lardner-Burke case, (1969 1AC 645) which is generally considered the definitive statement of the law on the issue in question. Lord Reid said,
It is often said that it would be unconstitutional for the UK Parliament to do certain things, meaning that the moral, political or other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did those things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do them, the courts could not hold the Act of Parliament invalid.[15]
It is not my intention to dispute with Lord Reid’s pronouncement. In my view, however, the pronouncement can be distinguished from my claim. My claim relates to instances where a legislative act blatantly violates the Common Law, and not merely where it offends, “moral, political or other things.” The Common Law is part of the law of England, and, as far I know, there is no precedent for the contention that where an Act of Parliament violates the Common Law, judges have to automatically and without question give assent to the former. So my overall point remains valid.
It was Yankee Dickey’s constitution that initiated this vicious cycle of undemocratic action by government after government. Again it was the British who issued these worthless papers to all of their colonies. It was them who called these papers constitution. Historically there has been no need for this island not rely on these worthless papers. The absolute monarchy governed according to Dasa Raja Dharma. This is also the period when there was no Magna Carta!
Well said, a dictatorial kingdom with fraudulent nepotism is getting created in sri lanka, while the masses are silent and celebrating triumphalism
Changes to the constitution of Sri Lanka are made to suit individuals and not necessarily the country. On 11 December 1969 the Privy Council ruled in favour of Kodeeswaran in the case of Kodeeswaran vs Attorney General. The Privy Council directed the Supreme Court to address the constitutional question of whether the Official Language Act of 1956 which made Sinhala the official language was in violation of Section 29 of the constitution, which prohibits discrimination. Dr Colvin R de Silva changed the constitution so that there will be “no more Kodeeswaran type challenges”. Can go on and on but a recent change needs mention. Till recently the constitutional requirement of two term limitation on the Office of President was removed. Why? Political interference with the judiciary is rampant. International Bar Association’s Human Rights Institute has raised concerns on this matter several times. Are the Police, armed forces, the Reserve Bank independent? The constitution will remain flawed if the rulers constantly transgress. Dharshan, have you read the Audrey Erskine Lindop’s book “The singer and not the song”?. Why did you waste so many words to intellectualize the weakness in the Lanka constitution?
Actually, you are wrong with regard to your comments about Kodeeswaran v. Attorney General. This case is famous because it highlighted a conflict between the Roman-Dutch Law and English Law in Sri Lanka. Kodeeswaran sued the Government for arrears in pay, and the Sri Lankan Supreme Court dismissed the action, saying that under English law a civil servant had no right to remuneration that could be enforced against the State. Kodeeswaran appealed to the Privy Council, claiming that Roman-Dutch law governed the issue, and that under R-D Law, an action against the State for arrears in pay was allowed. The Privy Council said that neither English Law nor R-D Law allowed for the type of action Kedeeswaran was bringing, but that the Sri Lankan courts, over the years, had recognized such an action. In other words, what the Privy Council said was that the Sri Lankan courts had developed, through interpretation, a body of laws, and that this was what constituted the “common law” of Sri Lanka. The Privy Council therefore held for Kodeeswaran.
The issue with regard to language policy was a secondary issue in this case, and the Privy Council emphatically refused to comment on it. Here’s what the Privy Council actually said: “There are more important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships would think it inappropriate to enter into any of these matters without the considered opinion of the Supreme Court of Ceylon thereon.” (Kodeeswaran v. Attorney General (1969) 72 NLR 337, pp. 347)
What any of this has to do with the thesis I have argued in this paper—which has to do with the “fatal flaw” in the present Sri Lanka Constitution (i.e., the 1978 Constitution) and how, in my view, a proper application of the American notion of separation of powers is the only way to remedy that flaw—I really don’t know. But since you appear to be a history buff, and have thought fit to mention Kodeeswaran, I thought I’d just point out the above. It might be a more productive use of your time for you to brush up on your own knowledge of Sri Lanka history and related matters, instead of worrying about how I, or anyone else, choose to “waste” our time.
A typical writing of a true Sri Lankan. Blame the west blame the US blame everybody for all wrong doings of Sri Lankan. The problem in Sri Lanka is not constitution law or agreements etc. It is the culture of showing no respect to law and order human values human rights and any thing that is human. You can rewrite the constitution a thousand times as you have done so many times, but as long as you dont have the basic human culture and nature to abide by the constitution and law and order nothing will work.
All the constitutions and acts that has been in existence is Sri Lanka is sufficient enough to safeguard all the thousands of life that has been lost and thousands who are in jails without any charges for many years. What is the point in changing or lecturing about constitution. It is an attempt to mislead the world by buying time.
This paper is written by a Sinhalese (which are the ethnic group in conflict with Tamils). The writers opinion resonates similarly to many nationalist Sinhalese living in Sri Lanka.
A neutral stand would have taken into consideration that Tamils lived in the north and east separate from the culturally/ethnically/religiously differing Sinhalese community since before the British colonialism took place.
In fact the north and east of Sri Lanka was majority Tamils. Since Sri Lanka’s independence which resulted in unification of Sri Lanka, Tamils became minorities in their own land. Any sort of majority based rule democracy would never let Tamils express their way of living their life because they will always be outvoted by the majority Sinhalese.
Thus the unitary constitution of Sri Lanka fails due to the fact that Tamils having been a nation with a distinct culture, language, economy and territory, cannot express their democratic voice in Sri Lanka’s faulty system.
In fact, there has been documentation of various anti-Tamil laws that couldn’t be over turned because of this majority system such as the Sinhala only act, University standardization act which kept fewer Tamils into Universities, etc.
As well, many genocidal acts against Tamils have occurred by the Sri Lankan army which is almost exclusively Sinhalese. THese include the 1980’s anti-Tamil riots as well as the 2009 Mullivyaikal genocide in which atleast 40,000 to 140,000 Tamils were massacred by the military.
In such a situation, Sri Lanka’s unitary constitution would fail no matter how much its amended because Tamils will be treated unequally.
I would like to correct the author on a point in which they say that, ” Sri Lanka is today embarked on a great project of reconciliation and “mending of fences,” particularly with its Tamil community, after three decades of civil war. ” THIS point is totally inaccurate. Whats happening now, as Washington Post has articulated clearly, is the building of SInhala buddhist statues in areas where TAmils live and no SInhalese live. WHats also happening is a systematic colonization of Tamil lands with SInhalese settlers using the Sri Lankan army. This is the reality. And the reality is that Tamils in Sri Lanka protest against this tyranny despite the huge military instalments and Sinhala soldiers in areas of Tamil majority population. Some say this is done to make Tamils a minority within their own traditional homeland.
Regards,
Natasha Simmons
University of Waterloo
You obviously write with conviction and sincerity, and I have to respect that. But there are so many mistakes in your argument that I really don’t know where to start. I can’t spend too much time on this, but let’s take just one example. Take your passage: “In fact, there has been documentation of various anti-Tamil laws that couldn’t be overturned because of this majority system such as the Sinhala Only Act, University Standardization act which kept fewer Tamils into Universities, etc.” Let’s say, for a moment, that those “acts” were “anti-Tamil.” So, your argument is that they never could be overturned because the Sinhalese majority would always veto such attempts. Right? Okay, what happened to these “acts?”
Sinhala Only Act (1956): Completely abolished by 1978. Tamil was made a “National Language” in 1978 and given parity of status with Sinhalese as an Official Language in 1987.
Standardization (1974): Scrapped in 1978, four years after its introduction.
We can go down the list if you want, but you’ve mentioned only these two.
In a similar manner, almost all the statements you make in your other paragraphs contain serious errors. All I can say is, since you’re already in a university, please do some research and better inform yourself.
In any event, this paper is not about the Tamils and the Sinhalese. I am trying to raise certain large issues in Constitutional Law, and how Sri Lankans, in my view, can learn certain things from the Americans. Now, whether that is the case or not, and why not, is open to debate. I am hoping that at some point, some of the people making comments, including of course you, will address those larger issues.
Sorry to nudge in. Any citizens ought to be able to look up to the government of the day to do no wrong which affect their basic rights at any time.In the “Kodeeswaran” case one has to sart with the judgement issued by judge O.L.De Kretzer in the Distict courts which held with his contention that he is entitled to his annual increments as he was an “old entrant”, meaning he joined prior to the Sinhala only Act of 1956. Treasury Circulars issued therafter regularised that decision.
Some of the Acts may have been rectified in part on paper only. The Constitution of 1978 may have regualarised what was alredy in the 1976 constitution about 3 languages -English, Sinhala and Tamil- but only after much human blood was spilt in between! Even then Tamil as a language of administration between the government and the people is still dead! It is one thing to put provisions into constitutions and quite another at implementation! It is not serious, in other words. Governments are not supposed to cheat! In other words, when, oh when, will there be serious good governance?!
Sri Lankan constitution was to give absolute powers to the president (has always been and will be a Sinhalese) marginalise the ethnic-minorities to the extent of destroying their cultural and linguistic identities without being challenged in courts. The president also has powers, which no UK or US practises to dissolve the local bodies including Provincial Councils or Chief Ministers at any time without being challenged.
Dharshan, is Zimbabwe facing a problem with the constitution or is it Mugabe? In early forties, was the constitution of Germany the problem? “It is the singer and not the song”. The title of your article implies that if the flaws in SL constitution are fixed, then Lankans will live happily ever after. We can fix the flaws till the cows come home but SL will remain in the critical group of the Failed States Index. Does this worry you? Do the IBAHRI reports on SL worry you? Did the assassination of two JVPers in Hambantota worry you? My quote on Kodeeswaran vs Attorney General was taken from Privy Council judgement. I was present at a meeting when Colvin R de Silva (after modifying the SL constitution) said “No more Kodeeswaran challenge”. By the way a renowned SL Librarian once said that one must search in the book section for information on the constitution of most countries but for SL look in the periodical section.
The article is a commendable one. It analyses in great detail the flaws in the SL constitution. It reminds readers of the facts that there r more than 1 community living in the island & the fact that all the major religions r practiced.It refers to the American constitution & points out the separation of powers between the 3 arms of the Govt.
In my reactions in the past on SL’s political matters I have been refering to the comendable separation of powers in the USA constitution and the way India is keeping together its over 1.21 billion people w/out serious political problems in its 28 states without the centre infringing on the powers of the many states & the freedom of the people on Language & religion tho they made HINDI as the official language & religion Secular.
Ours is a small island of 20m people. The Sinhala speaking majority & the Tamil speaking TAMILS & Muslims. All major religions r practiced & there is ehnic harmony. But the Singala political leaders want to make SL a Budhist & Singala speaking State. In fact it gives pride of place to Singala & Budhism in its const.
Constitutions of the many countries in the world are secular. National flags r also neutral unlike the SL flag which shows a ferocios lion with a sword pointing at 2 stripes said to refer to the minority Tamils & Muslims in a threatening manner-Senator Nadesan refered to it as the work of uncivilised people.
What more can one say of this FLAWED const?
To start with I am not a lawyer, still less a constitutional lawyer. Yet I enjoyed reading your paper becasue I know pretty well the political, social and economic situatiuon of the differnt peoples that have inhabited the country for generations. Any meaningful constitution as you rightly emphasise should give intent of law and in fact for ALL the citizens of the country to be justly governed and be treated equal before the law. This has clearly not been the case due to dismal failure of governance and equally failure of the law enforcing agencies to implement the law deu to supreme political.To sidetrack the real issues and get into the type of constitution or its finer details will be purely esoteric and bound to not bear the fruits of all the labour expended in making the case.
In other words, what is suggested is also a serious and critical analyses of past constitutions, not just from 1978, which incidentally has created far more confusion and real chaos, but from 1948 at the dawn of independence of the first constitution, onwards to the endless gerrymandring with constitutions resulting in social upheavals and even mass crimes against innocent civilians of all communities.
What does all this say for the constitution makers? Pitifully not much. The grim reality is that many politicians themselves who make constitutions in SL are not educated enough either in constitution making or in the political sciences or have their own agendas that the sort of refined constitutions of the British or American models do not fit the local realm in reality. Even if it is difficult to envision voter education on constitution making at least the elected ought to be prepared for the important tasks through familiarisation and discussion processes.
Frankly I agree with your view that a new constitution is a real need based importantly on the bitter experiences and sufferings of the peoples of all races and religions ansd which must be brought to bear in any emergent background new constitution making.
In my view the first constitution of 1948 was a consensual one while the one of 1972 was the most divisive and paved the way for the dictatorial Presidential type cosntitution which according to teh founder, the late JR Jayewardene, can even “make a man out of a woman and woman out of man” (his own words)! Is this what the peoples
need? It is no wonder an elected PM was sacked in 2005 by then Presdient by a gazette notification issued overnight without any reason being advanced! That single incident advanced the zany nature of that constituion in that the PM holds office at the will and pleasure of the President alone! The creation of the 18th Amendment sounds similar in paving the way for a dictatorship like in Libya, Iraq and Egypt. No wonder there are calls for an Arab Spring!
The so-called unitary constitution is not suited to the social and economic needs of the country nor its constituent peoples, be it the Sinhala people of the South, nor Of the Kandyan hills nor the Tamil/Sinhala speaking peoples of the north and east. The Sinhala Only Act had brought about a remarkable identity crisis and ensuing social tensions but it is the order of the day. Along with this is the recognition for enhancng local development which calls for a highly decentralised political set up much like in the USA but on a smaller scale, of course, where the real drivers will be locally elected Provincial Administrations accountable to their voters.
If the US had the British form of a parliamentary system then President Obama would have lost his position when his party lost during the last mid term elections.
the US constitution has been shredded by this administration:
-amendment 4: the right to privacy has been made into a joke by the US NSA spy network.
-Amendment 10 which clearly states the limitations of the Central government is now obsolete as the powers of Washington have greatly increased.
-In the body of the Constitution an accused has the right to face his accuser. that is now a joke as machines routinely issue traffic tickets to cars. The driver has no choice in the matter and cannot contest it in court. He certainly cannot face his accuser.
-In the body of the Constitution and essential to the US government is the “checks and balances” brought up in this article. President Obama has Gone.. out…his… way to violate this. He has used the Executive office to veto bills supported by the house and senate. threatens to do so for the remaining 2 years and above all used “Executive Orders” to pass laws that are well beyond the limits of that office and more in the manner of a Dictator. I do not use that term lightly.
-President Obama has gone on a crusade to render Amendment 2 of the Constitution null and void. the right for Americans to bear arms.
Outside of these Constitutional violations President Obama has
-compromised on the integrity of the nation with his ‘open borders policy’ allowing millions of illegal immigrants enter the US and by his “Dream act” to give citizenship to millions of other illegal immigrants already in the US.
-It is inherent in the US form of governance for the President to the Congress to pass laws that DO NOT EFFECT THEM but effect those who elected them. Obama care is a health care horror that we have to bear.
– President Obama and his administration makes speeches about “global warming” and passes bills to raise our utility bills. including encouraging the US citizen to “conserve” while he is accompanied by a 45 car limousine. That also includes the first lady. they do not abide by the laws or dictates they intend the electorate to follow. Then what is the difference between the US form of Democracy and a Monarchy?