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.” 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—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.
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.
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.’” 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.”
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.
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.