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

The external checks on Parliament under the British Constitution cannot be replicated so easily, and they certainly have not been reproduced in the Sri Lankan system.  For instance, if we consider the two versions of “democracy” that Amery discussed—i.e. democracy by “consent” and democracy by “delegation”—there is no question that what Sri Lanka has is democracy by “delegation,” and it is impossible to think of a set of circumstances where the Sri Lankans would switch to the other version, or, for that matter, whether it would be wise, given the particular circumstances of this country, to make such a switch.

The same is true with respect to the Common Law.  True, part of Sri Lanka’s law is also based on the Common Law, but the Common Law by no means operates in Sri Lanka in the same way as it does in England.  For instance, the Common Law is not a residual law as it is in England.  The Common Law is also not a source of law.  In Sri Lanka, there is one and only one source of law, and that is legislation.

Just as important, on the subject of individual rights, in Sri Lanka individual rights derive from, and are ultimately based on, the Constitution, i.e., in fundamental rights, and not, as in England, in the Common Law.  This fatally undercuts the salutary effect the Common Law can have not only in allowing the People access to the courts on any issue whatsoever, but also in acting as an indirect control on the very process of law-making, by reminding lawmakers that the legislation they pass will have the effect, in one way or another, of restricting the common law, and hence, due to the antiquity, prestige and credibility of the latter, to tread as carefully as possible.

So, to repeat, none of these “safeguards” exist in Sri Lanka.  In this country, “Supremacy of Parliament” literally means absolute and untrammeled “Supremacy.”

To turn to the American system, as we have seen, that is precisely the system that has been rejected by Sri Lanka’s Constitution-makers.  The essence of the American system is the relationship of competitiveness and rivalry it sets up between the three branches of government.  It’s the tension created by this rivalry that is supposed to affect the “checks” on each branch.  In contrast, Sri Lanka’s Constitution-makers have sought to create a perfect “balance” or equilibrium between the three branches, leaving the “checks,” if there are to be any, to come largely from within each branch, by way of the Public Trust Doctrine.

The only remaining question, then, is whether The Public Trust Doctrine, by itself, is an efficacious way to ensure good governance.  In my view, a clear and unambiguous answer can be given to this question:  the Public Trust Doctrine is not an efficacious way to ensure good governance.  The Public Trust Doctrine can certainly be effective in any situation where laws have already been framed, and the doctrine is applied to persons in authority acting under those laws, but it cannot be effective against the law-makers themselves, at the point where they are generating the laws.

This is for two very good reasons.  First, any politician (i.e. lawmaker) can claim, on any given piece of legislation, that the policy he or she is following benefits the public, and it is virtually impossible to disprove the claim.  This is because, in political argument, as opposed to legal argument, it can always be shown, with regard to any given policy, that there is some benefit accruing to some segment of the populace.  So, a politician can always claim that in supporting the policy in question he or she is only following his or her obligations under the Public Trust Doctrine.

Second, a politician may genuinely believe that the policy he or she pursues is beneficial to the public, while at the same time recognizing, and conceding, that it also has certain deleterious effects on the public.  In such a case, how can one argue that the politician in question is violating the Public Trust Doctrine?  He or she is, after all, pursuing what he or she feels to be the right and proper policy.  In both these situations, the Public Trust Doctrine cannot be of any help as a preventive mechanism:  the politicians in question will pass the laws they want and then use the Public Trust Doctrine to either justify or rationalize it.

The only recourse open to the public is to vote the law-makers out at the next election.  But even this is not really a solution to the problem, because the public still has to suffer the consequences of the laws that were passed out of the impugned policy, at least until the next election.  And this is exactly what James Madison also pointed out in the famous quote cited earlier:  “A dependence on the people is, no doubt, the primary control on government, but experience has taught mankind the necessity of auxiliary precautions.”  Separation of powers is that “auxiliary precaution,” and it is precisely the precaution the Sri Lanka Constitution does not have.

To summarize, Sri Lanka’s Constitution-makers have failed to impose the natural safeguards that come with the concept “Supremacy of Parliament,” safeguards implicit in the British system.  They have also rejected a separation of powers system, which can affect the necessary safeguards.  Instead, they have settled for a mechanism—i.e. the Public Trust Doctrine—which is entirely inadequate to the task.  It need hardly be mentioned, meanwhile, that the Public Trust Doctrine is nowhere mentioned in the Constitution itself:  it is something the court has been obliged to invoke and impose on the Constitution, because otherwise, there really is no control at all on a run-away legislature!  So that, in short, is the system bequeathed Sri Lanka by its Constitution-makers.

Section Three:  18th Amendment

I hope I have so far made clear at least the theoretical dimensions of the flaw in the Sri Lanka Constitution.  But to truly appreciate the magnitude of this flaw, one has to see it in terms of its practical consequences.   In my view, no discussion of the flaw in question is complete without also a discussion of this practical side of things.  So, I take up the matter now, and turn to the recent 18th Amendment to the Constitution.  As I indicated earlier, in my view, this Amendment is as perfect as example as any of the practical consequences of the aforementioned flaw in the Sri Lanka Constitution.

This Section is divided into two Parts.  In Part 1, I pursue the question of what exactly is “wrong” with the 18th Amendment.  In Part 2, I consider an argument that, in my view, constitutes a decisive rebuttal to the Amendment.  This argument, to the best of my knowledge, has never been used before. Though it is now too late to be of any use against the Amendment itself, owing to the restrictions imposed by 80(3), I feel it is worthwhile for Sri Lankans to have in hand just in case the government resorts to a similar tactic again.

Part 1:  What exactly is wrong with the 18th Amendment?

The 18th Amendment was enacted in September 2010.  It was actually a package of Amendments, with clauses intended to repeal, not one, but an entire series of provisions in the Constitution.  The most famous of these clauses was the one which sought to repeal Presidential term-limits.  Another important clause sought to repeal the 17th Amendment.  The 17th Amendment established the Constitutional Council, a mechanism to check the power and discretion of the President to make certain important appointments, such as the Police Commissioner, and the Elections Commissioner.

The controversy with the Amendment is that the Government, instead of moving it according to the regular procedure for Constitutional Amendments set down in the Constitution itself—i.e., Article 82 and its subsections—adopted a novel tactic and filed it under a provision dedicated to “Urgent Bills.”  The regular procedure allows a period of at least three weeks where the Amendment can be debated and discussed, and also reviewed by the Supreme Court, to see if there are inconsistencies with existing provisions in the Constitution.[18]  Under the “Urgent Bills” provision, the Supreme Court gets only a maximum of three days to give a determination.[19]

The “Urgent Bills” provision was clearly intended to give the President and the Cabinet leeway in pushing through certain Bills which they might feel were in the  national interest and therefore needed to be passed quickly, but which, for whatever reason, were getting held up in Parliament.[20]  A Bill dealing with some urgent economic measure or other, in my view, is the sort of thing that this provision was intended to cover.  The “Urgent Bills” provision, however, doesn’t explicitly prohibit filing a Constitutional Amendment under it.  So, in effect, what the Government did was exploit this loophole.  The main “problem” with the Amendment, then, is that technically, it is perfectly commensurate with the “letter” of the law.  Yet if we look at it from the point of view of what can be called the “spirit” of the law—i.e., general concerns having to do with justice, fairness, and well-established practices and institutions of democracy—it is a travesty.  So, let’s look at this matter in a little more detail.

There are two ways to illustrate the incongruity between the 18th Amendment’s compliance, on the one hand, with the “letter” of the law, and, on the other hand, its clash with the “spirit” of the law.  The first is to briefly review the general arguments that were leveled against it.  The second is to look at the more specific arguments put forth at the hearing before the Supreme Court.  We shall do both.  For the first, it is convenient to turn to the speech given by Mr. Sumanthiran, President’s Counsel and Member of Parliament, at the Parliamentary debate just prior to the vote on the Bill.  It captures quite well the arguments that were being leveled against the Amendment by the general public at the time, plus, it has a technical argument that is interesting in its own right.

Mr. Sumanthiran, in his speech, presented three basic objections to the Amendment:  first, on grounds of principle; second, on the substantive question as to what if anything was “urgent” about this particular Bill; and finally, on a technical argument with respect to two clauses in the Amendment, having to do with proposed changes to the Provincial Public Service Commission and the Provincial Police Service Commission, which, in his view, clashed with Article 154.  Let’s consider each in turn.