CONSTITUTIONAL LAW

HND in LAW

Nivantha Sahan Satharasinghe

LB/11/05/18

CONSTITUTIONAL LAW

TABLE OF CONTENT

Task 01

I. Discuss the concept of constitutionalism with the support of the characteristics of the constitutionalism. (1.1)

II. Explain the different types of constitution and identify the advantages and disadvantages of them. (1.2)

III. Discuss in details the role of constitutional council in terms of bringing a new constitution after the general election 1970. (1.3)

1. Task 02

I. Write down the main objectives of the doctrine Separation of Power.(2.1)

II. Critically analyze how the doctrine of the separation of powers shall be addressed in making the new constitution (2.2)

III. Discuss the referendum concept with the support of the relevant Articles of the Sri Lanka Constitution 1978. (2.3)

IV. Comment on the independent of Judiciary in Sri Lanka and place your suggestions to bring it more effective operations. (2.4)

2. Task 03

I. Critically analyse how much the 18th Amendment to the Constitution restricted the executive powers of the president and comment on it.(3.1)

II. Discuss the Article 126 of the constitution 1978 in terms of exclusive powers of Supreme Court of Sri Lanka. (3.2)

III. Compare the application of the separation of power in the Sri Lanka constitution and United States constitution. (3.3)

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3. Task 04

I. What the checks and balance is? Support the Article 4 of the Constitution 1978. (4.1)

II. Illustrate the effects of the application of checks and balances between the organs of the government. (4.2)

III. Prepare your own proposals to reform the Constitution of Sri Lanka to achieve the objects of the check and balance of the

doctrine of the Separation of Powers. (4.3)

4. Task 05

I. Discuss the Article 11 of the constitution and discuss how the Supreme Court of Sri Lanka approached for giving justice. You are required to discuss with the two decided cases of the Supreme Court. (5.1)

II. Comment on the restrictions made by the Article 15 of the constitution of Sri Lanka and how these restrictions restrict the operation of fundamental rights. (5.2)

III. Select one of the cases determined by the Supreme Court of Sri Lanka in between 2005-2010 in term of Article 12 of the constitution and discuss how the Supreme Court has interpreted it to ensure the fundamental right guarantee by the Constitution. (5.3)

Bibliography

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Task 1

Scenario 1

……..The constitution is used to refer to a special document having a special legal sanctity in which some of the more important constitutional rules are set out. The constitution may be the subject of interpretation by the courts. Secondly the word "constitution" may also be used in a different sense, and may be used to refer to the laws, customs and conventions which define the composition and powers of the State, and regularize the relations of the various state organs to one another and to the private citizen. "Constitution" in this sense forms the body of statutes, law and conventions which pertain to a government'.

1.1 Discuss the concept of constitutionalism with the support of the characteristics of the constitutionalism (P1.1)

(Presentation)

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1.2 Explain the different types of constitution and identify the advantages and disadvantaged of them. (P1.2, M1.3)

Introduction

The term constitution comes from Latin, referring to issuing any important law, usually by the Roman emperor and later, the term was widely used in canon law to indicate certain relevant decisions, mainly from the Pope.1The Greek philosopher Aristotle described a constitution as creating the frame upon which the government and laws of a society are built:

“A constitution may be defined as an organization of offices in a state, by which the method of their distribution is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all its members is prescribed. Laws, as distinct from the frame of the constitution, are the rules by which the magistrates should exercise their powers, and should watch and check transgressors.”

Therefore the Constitution is the fundamental, underlying document which establishes the character of a government of a nation or state. It also defines; 2

the basic principles to which a society must conform by describing the organization of the government;

regulation, distribution, and limitations on the functions of different government departments;

prescription of the extent and manner of the exercise of its sovereign powers; and

set forth the rights of the individual and a government's responsibility to honor those rights.

Validity of a constitution does not rely on what it contains, but how the people in power practice it. Many constitutions restrict the scope of powers of public officials over the people. Constitutions are subject to constitutional rules and provisions and one can not violate them without punishment. Anyway many of those governments do not practice this true constitutionalism rules. Because of that they are called nominal constitutions. Those constitutions are more truly function as prescriptive documents, i.e. the Constitution of the United States. Anyhow a constitution protects general public by restricting abuse of powers of the government. A violation of rights by an official would be ultra vires because a constitutional right is a restriction on the powers of government, and therefore judicial review gives a legal justification for the forced cessation of such action. When court found an official act is unconstitutional, that act is considered null and void, and the nullification is ab initio.

Discussion

A fundamental classification of constitutions is;

1. codified constitutions; and

2. uncodified constitutions.

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A codified constitution is a constitution that is contained in a single document, which is the single source of constitutional law in a state. Most states in the world have codified constitutions and they are products of dramatic political change, such as a revolution. The most obvious advantage of codified constitution is they tend to be more coherent. Again they are more easily understood and simpler to read. However codified constitutions are relatively rigid. Countries which have codified constitutions normally give the constitution supremacy over ordinary statute law. This means if there arise a conflict between a legal statute and the codified constitution, all or part of the legal statute can be declared ultra vires by a court and struck down as unconstitutional. Normally these states follow an extraordinary procedure such as obtaining ⅔ majorities in legislature or the consent of people by a referendum process, to make a constitutional amendment. This makes obtaining a constitutional amendment more difficult than passing a simple law. The Constitution of India is the longest codified constitution in the world and constitution of USA is the shortest.

An uncodified constitution is a constitution that is not contained in a single document. It is consisting of several different sources, which may be written or unwritten. Only three countries New Zealand, Israel and the United Kingdom, have uncodified constitutions. They are the product of evolution of laws and conventions over centuries.

Again uncodified constitutions can be divided into two groups as;

1. written (formal) constitutions; and

2. unwritten constitutions.

Written constitutions are constitutions that are entirely written, which by definition includes every codified constitution. That mean every codified constitutions are written constitutions. However some constitutions are entirely written but, not entirely codified. I.e. Constitution of Commonwealth Australia is codified in a single document which is most of its fundamental political principles and regulations concerning the relationship between branches of government. But the Statute of Westminster and the Australia Act 1986 are statutes with constitutional significance means that Australia's constitution is not contained in a single constitutional document. Canadian constitution also shows similar example. The written Constitution is supreme because it has built with a strict separation of powers in it. It is deliver judgment upon and interpreted by Judges of the Courts.

Unwritten constitutions are not similar to uncodified constitution, because all modern democratic constitutions consist of some written sources, even if they have no different technical status than ordinary statutes. A constitution can be written but not codified. Codified would suggest written in one document. This means that a constitution that has a number of written sources is still written, but not codified. Uncodified constitutions such as England constitution which originated in the Westminster tradition include written sources. E.g. constitutional statutes enacted by the Parliament. Again it contains unwritten source such as constitutional conventions, observation of precedents, royal prerogatives, custom and traditions.

Constitutions concern different kinds of political organizations and different levels of social organization. They are found extensively in government, at;

1. supranational (e.g. European Union); 

2. national (e.g. Sri Lanka Constitution); and

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3. sub-national or provincial (e.g. Constitution of provincial authority) levels.

Constitutions also divided according to the sovereignty located in the state. There are three basic types of distribution of sovereignty;

1. Unitary constitutions - They recognizes that sovereignty resides only in the centre of the state. E.g. The UK constitution dictates that the sovereignty is ultimately contained at the centre. 

2. Federal constitutions - A federal constitution recognizes the division of sovereignty between the centre and provinces of the state. E.g. The Canadian Constitution is, dividing power between the federal government and the provinces.

3. Confederal constitutions - These constitutions are rare, and there is often dispute to whether so-called confederal states are actually federal. In a confederal constitution, sovereignty is located in provinces and only limited power is granted to the centre. E.g. Swiss Federal Constitution.

Entrenchment, whether the constitution is legally protected from modification without a procedure of constitutional amendment, is another fundamental feature that a constitution can divide into groups.

1. constitutions presence of entrenchment; and

2. constitutions lack of entrenchment.

Most written constitutions are entrenched. The US constitution is a codified one and it is an example of an entrenched constitution. An entrenched constitution requires more than the mere approval of the legislature for amend. It requires wider acceptance because the constitution is considered supreme law of the state and they recognize the difference between constitutional law and ordinary statutory law. E.g.US constitution has a supremacy clause. Ratification procedures of constitutional amendments vary from state to state. Federal states require the approval of a majority of provincial legislatures. But in other states a national referendum may be required. i.e. Australia.

But constitutions that are not entrenched, for example the UK constitution, no special procedure is required for modification. Because the constitution is not recognised with any higher legal status than ordinary statutes passing laws, whether they are written or unwritten, are passed on a simple majority in legislature. The amendment concept does not apply, as the constitution can be altered as easily in terms of procedure as any other law.

Conclusion

Constitutions can be divided into different type base on following criteria;

1. supranational national and sub-national  constitutions2. codified, non codified and confederal constitutions3. written and unwritten constitutions4. Unitary and Federal constitutions5. Constitutions presence of entrenchment and lack of entrenchment

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Reference

1. http://encyclopedia.thefreedictionary.com/constitution on 2012-05-052. http://legal-dictionary.thefreedictionary.com/constitution on 2012-05-05

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1.3 Discuss in details the role of constitutional council in terms of bringing a new constitution after the general election 1970.(p1.3)

(Time controlled Assessment)

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Task 2

Scenario 2

"The doctrine of the separation of power is that the same persons should not form part of more than one of three organs of government, one organs of the government should not control or interfere with the exercise of its functions, by another government should not control or interfere with the exercise of its functions by the another organ and one organ of government should not exercise the functions of another".

2.1 Write down the main objectives of the doctrine Separation of Power(P2.1)

(Class Activity)

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2.2 Critically analyze how the doctrine of the separation of powers shall be addressed in making the new constitution. (P2.2, M2.2, D1.3)

Introduction

The Trias Politica, doctrine of separation of powers, was first developed in Greek and Roman traditions concerning a model for the governance of a state.1 This theory especially consider on the distribution of the exercise of power which is an important principle of a democratic state organization. The main division of branches is executive, legislature, and judiciary. Under the doctrine of separation of powers “each branch has separate and independent powers and areas of responsibility so that no branch has more power than the other branches.” 2 Here no branch may act unilaterally on issues, but expected to obtain some form of agreement among branches.

French political philosopher Baron de Montesquieu introduced ‘Montesquieu's tripartite system’ which described division of political power among an executive, a legislature, and a judiciary and later he based this model on the British constitutional system. British constitution remarked a separation of powers among the monarch, Parliament, and the courts of law. The United Kingdom had a closely connected legislature and executive and it was further linked to the judiciary. Montesquieu specifically stated that "the independence of the judiciary has to be real and not apparent merely". Because judiciary is generally seen as the most important of powers among the other branches of a state and should be independent and unchecked.3

Executive, legislature and judicature must function parallel to each other, but should exist independently from each other. This meant that they must keep detached from each other. Each entity should have own prerogatives and domains of activity. Same time exercises a control or supervision over other branches. This doctrine of separation of powers provides a separate authority that makes it possible for the authorities to check each other's checks and balances. This path blocks any attempt at arbitrary power on the part of the executive or legislature.

There is another debate that defines separation of powers as “the Judiciary is independent and untouchable within the Judiciaries' sphere. In this view, separation of powers means that the Judiciary alone holds all powers relative to the Judicial function, and that the Legislative and Executive branches may not interfere in any aspect of the judicial branch.” 4

Discussion

There is a significant difference between the theory and the practical application of separation powers. Two models of the theory and practice of the separation of powers;

1. UK Westminster model- the views of Harrington, Locke, Blackstone and later Montesquieu contributed to the theory of separation of powers in England and represent this model.

2. US Presidential model- The view of Hamilton, Madison and Jay from their major

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works the federalist and particularly the views of Madison, contributed to this theory.

Some countries practice this by separating judicial power from the other two powers but not separate the legislative and executive powers due to the nature of Westminster system of responsible government. (Australian case Victorian Stevedoring and General Contracting Co Pty Ltd v Dignam 1931)

The doctrine separation of powers has applied in worldwide and the degree of separation of powers is varying from country to country and constitution to constitution. Under monarchism all three powers were exercised by the king. No one could argue against his decisions. They were final and conclusive. Recently dictatorial rulers such as Hitler and Mussolini who required a centric power to reach their goals kept most of powers under their supervision. Again some military governments are not much preferred to separate their powers. Even today few monarchical rulers have kept powers without division.

Before consider about application of this concept in a new constitution we must study its current applications in the existing constitutions deeply. Most of the democratic countries accept this concept have incorporated it in to their constitutions. Some countries have separated the powers completely. As an example Italy the powers has separated totally and the tree branches exercise their powers independently. But other countries such as New Zealand and Canada find only a little separation. Canada makes limited use of separation of powers in practice. New Zealand also practice the theory a little but through a series of constitutional safeguards. The Crown of New Zealand requires regular approval from the Parliament to carry out decisions. The judiciary can act independently. But executive may alter the legislation if they consider the judicial decisions do not reflect the government policy. Therefore it is clear that neither branch have the power to work according to their whims and fancies. New Zealand constitution is a very good example for incomplete separation of power.

The US and French Constitutions are good examples which were recognized the need to separate powers of Government widely. In the US the elected representatives in the Congress consisting of those in the House of Representatives and the Senate are responsible for all legislative functions, including oversight of Executive action. The President is elected separately by the electorate and together with a Cabinet selected outside of Congress is responsible for Executive functions including that of being the Commander-in-Chief. Under the French Constitution also a member of the executive cannot be a member Parliament.

The British Parliamentary system has two houses of the legislature. They are the upper house, the House of Lords and the lower house, the House of Commons. The House of Lords has traditionally consisted of the nobility of Britain. The House of Lords serves a judicial function as a court of final appeal until the Supreme Court established. But as a legislative body upper house is widely regarded as ineffectual party. It can delay passage of bills issued by the lower house, though it cannot veto them. The House of Commons consists of Members of Parliament elected from one of 646 electoral districts and the majority party in the House of Commons holds all of the power. The Prime Minister is a MP chosen by the majority and he heads the Cabinet. The judiciary has no power of review since Britain has no written constitution and no law can be unconstitutional. Therefore the separation of power in Britain is not clear and complete.

When Sri Lanka got political independence had a constitution that had evolved over many

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years of British rule. Even after the independence the British government had given a lot of thought towards our constitutional progress. The Colebrooke-Cameron proposal in 1828 which formed the base of Lanka's colonial constitutional framework was introduced the concept separation of powers between the Legislature, Executive and Judiciary for first time. Donoughmore reforms set in an Executive Committee system and ensured every legislator an effective executive role in government. The Soulbury proposals moved Sri Lanka into a Westminster style parliamentary system. The 1972 constitution changed the status of Sri Lanka from a nominal constitutional monarchy represented in the country by the Governor General to a republic which had a nominal head of state in the office of a non-executive President. Also, the right of appeal to the Privy Council in Britain was abolished and gave more respect to the judiciary. But the most of the provisions of the 1948 constitution remained unchanged. Under this constitution more executive powers were vested under the Prime Minister. In 1978 introduced the Executive Presidential system and under it the President was above the law and thus cannot be taken to court. Sri Lanka present constitution also considers separation of power among the executive, legislature and judiciary. Legislative and executive powers are two key features of the sovereignty of the People. According to Article 4;

“Sovereignty of the People shall be exercised and enjoyed in the following manner:-

a) the legislative powers of the People shall be exercised by Parliament, consisting of elected representatives of the People by the People at a Referendum”;

b) the executive powers of the People, including defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People;

c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members wherein the judicial power of the People may be exercised directly by Parliament according to law;

But this is not a complete separation of power but a partial separation and partial sharing of powers. According to this provision the legislative powers are to be exercised by a Parliament consisting of elected representatives of the People and the executive powers are to be exercised by a President separately elected by the People. This is a clear and unambiguous expression of the intent to separate the legislative and executive components of the sovereignty of the People. Though this provision reflects an image of a complete separation of power the other provisions of the 1978 constitution dissolve that image. The Article 44, 45 and 46 compromise the legislative and executive powers between the executive and legislature .The provisions of 44 (1) (a) (b) state:

“The President from time to time, in consultation with the Prime Minister, shall ...…determine the number of Ministers of the Cabinet of Ministers and the Ministries…and appoint from among the Members of Parliament, Ministers to be in charge of the Ministries so determined”.

Article 44 is preceded by Articles 42 and 43 that state the President “shall be responsible to Parliament” and the Cabinet of Ministers shall be “collectively responsible and answerable to Parliament” respectively.

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These several provisions entail a conflict of interest of their roles as a member of parliament who exercising legislative powers of the People and a minister of cabinet who exercising executive powers of the People. This arise a contradiction with the need to be addressed if the sovereignty of the People is to be upheld. Therefore the Cabinet of Ministers will not be independent of Parliament. When the Cabinet is appointed from among Members of Parliament it is likely to impose an undue burden on them. They have to balance legislative responsibilities and functions of Parliament with their Executive duties and functions.

The Privy Council in Attorney-General for Australia v. The Queen case enunciated that:

"…. It is the departure from the principle of separation of powers in matters legislative and executive. They refer to this matter again lest it should be thought that in anything they have said in relation to the judicial power they intended to cast any doubt upon the line of authorities where the union of legislative and executive power has been considered. ….. other passages will be found which illustrate how different are the measures which have been and ought to be meted out to the union of legislative and executive powers on the one hand and the union of such powers and judicial power on the other……. that judicial power occupies a special place because of its special nature, and that there is a great cleavage between legislative and executive power on the one hand, and judicial power on the other….. British tradition that judicial functionaries are or should be free from any interference on the part of the Legislature or the Executive, and this has resulted in a special tendency to resist any serious encroachment upon the field of judicial action by agencies of the Executive Government.”

This shows clearly at least the independence of the judiciary and its role in judicial review of Government legislation and other actions needs to be constitutionally entrenched.

The doctrine of separation of powers is part of a simultaneous and constant interplay between the branches of government, legislative, executive and judicial. The greatest danger of abuse and excess will always lie with the executive arm not judges or legislatures. It is in the executive that lays the greatest potential in theory and in practice for the misuse of power and for its corruption.5 Judiciary is the least dangerous branch.6 Sri Lanka constitution has accumulated majority of powers in to the presidents arms. This may leads the malpractice and abuse of powers. The 18th Amendment eroded further the principle of separation of powers and empowers the office of the president to mightiest.

Particularly the structure and powers vested under executive require checks and balances. A balance of powers is to be struck within the ambits of executive and prevent misuse. An evolutionary progression toward the goal of limited executive can be achieved through the courts and their use of judicial power. This goal of limited executive can partly be achieved by the independence of the courts and the judiciary and in their constitutional role of judicial review.6 The two ends of the concept are complete separation of powers or complete concentration of powers. But the complete or absolute separation of powers would lead to anarchy or the complete or absolute concentration of power would lead to tyranny. Therefore the challenge of codifying a new constitution is finding of a middle point in-between these two ends. Further constitutional amendments of the separation of powers are necessary to further advance the modern doctrine of the separation of powers. The modern doctrine involves not only the old idea of prevention of tyranny but also the modern idea of advancement of civil rights.8

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Conclusion

Best practice of separation of power is dividing those between three branches up to certain extend but not completely. Extend of separate the powers of government among three branches up to that each branch checks the other two. Therefore one branch can prevent other two branches from ultra virace of their powers. There for the final solution would be the partial separation and partial sharing of powers9 with a system of strong checks and balances.10

Only the universal application of the rule of law and separation of power can ensure universal justice and the freedom of the general public. Laws cannot be selectively picked, contorted, and applied arbitrarily to suit the whims of the executive be it the President or any of his officials. Peace and self-respect of people can reign only when everybody respect the law.

Reference

1. http://nl.wikipedia.org/wiki/Trias_politica on 2012-05-12 2. http://en.wikipedia.org/wiki/Separation_of_powers on 2012-05-123. http://en.wikipedia.org/wiki/Separation_of_powers on 2012-05-124. http://en.wikipedia.org/wiki/

Separation_of_powers_under_the_United_States_Constitution on 2012-05-125. The Federalist, Madison 1788 , No. 516. The Federalist, Hamilton 1788 7. Montesquieu 17488. http://www.newcastle.edu.au/Resources/Schools/Newcastle%20Business%20School/

APSA/ANZPOL/Alvey-John-and-Ryan-Neal.pdf on9. Lumb 1983: 2410. Blackstone 188411. Vile 1967; Lumb 1983

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2.3 Discuss the referendum concept with the support of the relevant Articles of the Sri Lanka Constitution 1978(P2.3,M1.3,D3.5)

(Presentation)

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2.4 Comment on the independent of Judiciary in Sri Lanka and place your suggestions to bring it more effective operations. (P2.4, D2.5)

Introduction

Sri Lanka has agreed under Charter of United Nations to establish conditions which justice can be maintained to achieve international co-operation in promoting and encouraging respect for human rights and fundamental freedom without any discrimination. Equality before law, the presumption of innocence and the right to a fair and public hearing by a competent, independent and impartial court established by law are rights of people which are established by Universal Declaration of human Rights. International convention on civil and political rights guarantees the right to be tried without undue delay.

The member states of UN bound to be secure and promote the independence of the judiciary. Therefore the constitution of Sri Lanka stated that, the Parliament should exercise judicial power of people “through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law court.”1 The structure of court must be arranged to accomplish this valuable target. Because of the court is the only savior for them to the majority of oppressed people of the society. The concept of independence of the judiciary is about the unobstructed right of a person to expect and achieve justice. It is all about protecting human security and their rights.

Judiciary independence is keeping courts away from improper influence from the other branches of government, or from private or partisan interests. The independence of judiciary implies that continuing trial process without interference of a third party. Judiciary must decide matters before them impartially, on the basis of facts and in accordance with law, without any restrictions, improper influences, inducements, pressures, threat of interferences, direct or indirect, from any quarter or for any reason. 2

Courts shall have jurisdiction over all issues of a judicial nature. Again they must have exclusive authority to decide whether an issue submitted for its decision is within its ambit as defined by law. The court’s decision decisions must be final and exclusive and should not be subjected to revision by any other institution. This ensures that judicial proceedings are conducted fairly and that the rights of the parties are respected. Therefore it is the duty of the each state to provide adequate resources to enable the judiciary to properly perform its function.

Discussion

Independence of the judiciary is a direct result of the Doctrine of Separation of Powers in democratic and federalist states. There three distinct institutions; the Parliament, the Courts and the Executive is separate and mutually exclusive. According to this principle, no single person or body could be in more than one of these three areas. In particular, judicial and legislative functions are meticulously kept separate in a democratic State. Montesquieu, in particular as a standing danger for any government not already despotic, and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law. Montesquieu said: “where the power of judging joined with the legislative, the life and liberty

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of the subjects would be exposed to arbitrary control, for the judge would be the legislator”.3

The most important limb of the court system is the judge. The judge is an individual member of the human society and entitled to the rights of freedom of expression, belief, association and assembly etc. He would act as a human being and probably it is quite natural making common human errors. We cannot expect an extraordinary or superior character from him. But the most significant issue is that he must be an unbiased person. That’s what expects by the independence of judiciary.

Therefore issues such as independence, security, adequate remuneration, pension and the age of retirement shall be secured by the law. Disciplinary control, suspension and removal of the judge are important subjects come under the independence of judiciary. A charge made against a judge in his professional capacity shall be processed promptly and fairly under a competence procedure. The matter of dismissal shall be incapacity or misbehaviour that renders them unfit to discharge their duties. The standards of judicial conduct must establish properly and all disciplinary suspension or removals accord with them.

Sri Lanka constitution sited provisions for independence judiciary under separate sub topic. The articles from 107 to 111C are discussed about the independence of the judges. Article 107 consider about appointment and removal of judges of the Supreme Court and Court of Appeal. The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and Court of Appeal appointed by the President by warrant under his hand. Someone can argue that interference of the executive for appointment of judges may limit the independence of judiciary. It further says that every Judge shall hold office during good behaviour. This is good approach to give confidence and a safeguard for judges to carry out their duty freely. A judge can be removed by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament has been presented to the President for such removal on the ground of proved misbehavior or incapacity. But this provision has strictly restricted in the following articles. Again it says the age of retirement of Judges of the Supreme Court shall be sixty-five years and of Judges of the Court of Appeal shall be sixty-three years. According to the article 108 the salaries of the Judges of the Supreme Court and of the Court of Appeal shall be determined by Parliament and shall be charged on the Consolidated Fund. The salary payable to and the pension entitlement of, a Judge of the Supreme Court and a Judge of the Court of Appeal shall not be reduced, after his appointment. All these provisions regarding the judges certify the carrier path of the judges which lead the independence of the judges. The final outcome is an independence judiciary.

Article 110 strictly restricts the other duties or functions by Judges. A Judge of the Supreme Court or Court of Appeal may be required by the President of the Republic to perform or discharge any other appropriate duties or functions under any written law. No Judge of the Supreme Court or Court of Appeal shall perform any other office or accept any place of profit or emolument, except as authorized by the Constitution or by written law or with the written consent of the President. This provision is really important to make judge an unbound person. A judge must be an unbiased person to allege justice for common people.

Article 111establish the High Court of Sri Lanka. The Judges of the High Court shall on the recommendation of the Judicial Service Commission, be appointed by the President by warrant under his hand and such recommendation shall be made after consultation with the Attorney-General. They can be removable and be subject to the disciplinary control of the President on the recommendation of the Judicial Service Commission.

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The 18th Amendment to the constitution repealed the 17th Amendment that provided for the establishment of a Constitutional Council which afforded independent supervision over appointments to key public institutions, including the Judicial Services Commission, and established a Parliamentary Council. The members and chairman of Parliamentary Council are appointed by the president. It is also responsible for submitting observations to the President when appointing members to the Judicial Services Commission. Presidential control over the Parliamentary Council significantly reduces the possibility of independent scrutiny of appointments to the Judicial Services Commission. This is a bad practice of separation of power. The stronger executive limb weakens the independence of judiciary.

The proposed 19th Amendment to the constitution limits the term of the Chief Justice to five years and gives the president of Sri Lanka the authority to appoint the Secretary to the Judicial Services Commission. Providing judges with a permanent or long-term mandate maximize independence, as will public confidence in the judiciary. The appointment of the Secretary to the Judicial Services Commission, a key judicial institution, will make it vulnerable to political influence, perceived or otherwise. 4

Dr. Cooray says; “The independence and impartiality of the Judiciary is essential for the existence of a democratic system under the Rule of Law. This right cannot exist in any appreciable measure without freedom of meeting and of discussion. On the guarantee of these and other similar rights of the citizen depends the effectiveness by government of opinion. The extent to which these rights are safe at any time against executive encroachment and abuse rests on the proper administration of justice and an independent judiciary. The maintenance of the independence of the judges and of the quality of administration of justice requires that adequate provision is made in the law and the Constitution in order to ensure it” 5

The utmost outcome of the independent judiciary is it safeguards the Rule of Law. According to Dicey the rule of law comprises three elements. 6

1. “no one should be punished except for a distinct breach of the law as established in an ordinary legal manner before the ordinary courts of the state.” This emphasise that should not be any discretionary, arbitrary or prerogative powers of limitations vested in the executive.

2. “no man should be above the law and, indeed, every man should be subject to the ordinary law of the ordinary tribunals. This is a vital principle which gives the equality before the law. In generally law is blind and would not do any favour.

3. “constitutional principles resulted from judicial decisions rather than the principles of an overarching constitution, and that it is through judicial decisions that private individuals sought a determination of their rights."

The overall idea of the Dicey’s theory is that, “there should be no special laws which apply to the executive but not the ordinary citizen”.7

Conclusion

As discussed above it can be concluded that, independence of judiciary assures the rule of law. Judges play the most vital role in the adjudication procedure. Therefore in other words protecting the independence of judges, secures the Independence of judiciary. But too much of interference from executive decelerate the wheel of law.

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Reference

1. Article 4 of the 1978 Constitution2. Citation needed3. The Spirit of the Laws, vol. 1, trans. Thomas Nugent, ISBN-10: 0521369746, pp. 221-237

(as cited in http://history.hanover.edu/courses/excerpts/111monte.html)4. As cited by International Bar Association’s Human Rights Institute (IBAHRI)5. Constitutional and Administrative Law of Sri Lanka, Dr. Joseph A. L. Cooray, Hansa

Publishers, 19736. http://www.lawteacher.net/criminal-law/essays/united-kingdom-constitution.php

on 2012-05-077. ibid

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Task 3

3.1 Critically analyse how much the 18th Amendment to the Constitution restricted the executive powers of the president and comment on it (P3.1,M2.2,D1.3)

(Presentation)

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3.2 Discuss the Article 126 of the constitution 1978 in terms of exclusive powers of Supreme Court of Sri Lanka (P3.2)

(Class Activity)

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3.3 Compare the application of the separation of power in the Sri Lanka constitution and United States constitution (P3.1, M2.2, D1.3)

Introduction

Separation of powers is a political doctrine1. It was originated in the book of Montesquieu in "The Spirit of the Laws". In his writing he insists on for a constitutional government with three separate branches of government. Each of the three branches would have delineated powers to verify the exercising of powers of the other branches. Both Sri Lanka and United States constitutions contrive this concept in different intensity.

Discussion

The US Constitution has been ensured that there would be no absolute and unlimited power vested in any one branch of the state. Sri Lanka constitution also reflects to a degree the doctrine of separation powers.

Article 3 of Sri Lanka’s Constitution states: "In the Republic of Sri Lanka sovereignty is in the People and is inalienable". According to Article 4 Sovereignty of the People shall be exercised by Parliament, President of the Republic and the judicature in respect of legislative, executive and judicial powers. In United States Congress has the sole power to legislate and the executive power is vested, with exceptions and qualifications, in the President. Judicial power, the power to decide cases and controversies, is vested in the Supreme Court and inferior courts established by Congress.2 

In Sri Lanka the legislative powers are to be exercised by a Parliament consisting of elected representatives of the People and the executive powers are to be exercised by a President separately elected by the People, is a clear and unambiguous expression of the intent to separate the legislative and executive components of the sovereignty of the People. The Congress represents the legislative branch of the federal government of USA. "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."3

The US constitution further spell outs the legislative powers, which include:“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” 4

Sri Lanka constitution also enumerates Legislative power of parliament. “Parliament shall have power to make, laws, including laws having retrospective effect and repealing or amending any provision of the Constitution, or adding any provision to the Constitution.”5

It further states the limitations of legislative powers of parliament. “Parliament shall not make any law suspending the operation of the Constitution or any part thereof, or repealing the Constitution as a whole unless such law also enacts a new Constitution to replace it. 6 In same manner US constitution lists eight specific limits on congressional power. 7

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In US Under the non delegation doctrine, Congress may not delegate its lawmaking responsibilities to any other agency. In this vein, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a line-item veto to the President, by powers vested in the government by the Constitution.8 Our constitution also prevents delegation of legislative power. “Parliament shall not abdicate or in any manner alienate its legislative power, and shall not set up any authority with any legislative power.”9

This is a common approach by both constitutions to protect the authority of legislature and keep legislative power within one entity.

Article II, Section 1 of the US constitution creates the executive branch of USA federal government, the presidency. In our constitution this has done under Article 4. In US there are two executive offices as the President and Vice President who serve identical four year terms. The constitution vests the executive power in the US President.  He becomes the Commander in Chief of the Army and Navy, Militia of several states when called into service by law.10 This situation is similar to the Sri Lanka, as constitution say;

“There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces.”11

US president has power to make treaties and appointments to office, "...with the Advice and Consent of the Senate…" receive Ambassadors and Public Ministers, and "...take care that the laws be faithfully executed".12 This also very similar where Sri Lanka president has vested with powers make treaties and appointments to office, sometimes under recommendation of parliamentary council and other independent commissions.13 The US president and Sri Lanka president may grant reprieves and pardons under vested constitutional powers.14 Both Sri Lanka presidents have some powers over the legislature. The US president has powers to reports on the state of the union; convene either house, or both houses, of Congress; and adjournment two houses of Congress to some future date.15

But Sri Lanka president have more powers than US president regarding the legislature. He can to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament; to preside at ceremonial sittings of Parliament; 16 summon Parliament for an earlier date; or even dissolve Parliament at his discretion. This shows too much of control over legislature by executive and has seriously underestimated their powers and independence. The US president as well as Sri Lanka president can be removed on impeachment for conviction of intentional violation of the Constitution, treason, bribery, or other high crimes and misdemeanors under any law, misconduct or corruption.17

In USA if the President is resigns, removed, unable to discharge the powers and duties of office or dies while in office the Vice President succeeds to the presidency. According to Sri Lanka constitution “If the office of President shall become vacant prior to the expiration of his term of office, Parliament shall elect as President one of its Members who is qualified to be elected to the office of President. Any person so succeeding to the office of President shall hold office only for the unexpired period of the term of office of the President vacating office” D.B. Wijethunga hold the presidency according to this provision, due to vacation of office by President Premadasa passed away.

Article III of US constitution establishes court system including the Supreme Court. It further describes the kinds of cases the courts take as original jurisdiction. The Congress can create lower courts and an appeals process and enacts law defining crimes and providing for

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punishment. For the ‘constitutional courts’ the judges are appointed by the US president with the consent and advice of the Senate. They hold their office during good behaviour. There are other types of courts which recgnise as ‘Legislative courts’ which not exercise the judicial power of the United States. In Sri Lanka Supreme Court, Court of Appeal, Provincial High Courts and High Courts are established under the provisions of the constitution and other courts are established by the parliamentary statutes, which under the power vested to the parliament by the constitution. Supreme Court established a precedent for judicial review, check both the executive branch and the legislative branch through judicial review, the power of the Court to examine federal legislation, executive agency rules and state laws, to decide their constitutionality, and to strike them down if found unconstitutional.18 Some of these powers have vested under the Supreme Court of Sri Lanka, but it is very weak when compare with the US Supreme Court.

Legislative power and executive power can be identified as main pillars of the sovereignty of the People. By separating these powers of the Government, the People are better protected from possible ultra virace of their elected representatives in either branch. The US and French Constitutions recognize the need to separate powers of Government. In the United States the elected representatives in the Congress consisting of those in the House of Representatives. The Senate is responsible for all legislative functions, including supervision of Executive action. The President who is elected separately by the electorate and the Cabinet selected outside of Congress is responsible for Executive functions including that of being the Commander-in-Chief. In the French Constitution too, a member of the executive cannot also be a member Parliament. Similarly, in Sri Lanka, the Parliament is responsible for legislative functions and the President is responsible for executive functions as required by Article 4 of Sri Lanka’s Constitution. But the consolidation of this separation requires the electing Cabinet of Ministers from outside the Parliament. However, this has not posed a problem because of Article 43, which manipulates the Cabinet of Ministers to be collectively responsible and answerable to Parliament.

In view of these provisions, Members of Parliament have overlapped with the Executive, when they hold the office of minister. A strict separation has not been the practice in Sri Lanka since the adoption of the 1978 Constitution due to its other provisions. The provisions that enabled the constitutional requirement for separation of legislative and executive powers to be compromised are contained in Article 44, 45 and 46.

The provisions of 44 (1) (a) (b) state: “The President from time to time, in consultation with the Prime Minister, shall ...…determine the number of Ministers of the Cabinet of Ministers and the Ministries…and appoint from among the Members of Parliament, Ministers to be in charge of the Ministries so determined". Article 44 is preceded by Articles 42 and 43 that state the President "shall be responsible to Parliament" and the Cabinet of Ministers shall be "collectively responsible and answerable to Parliament" respectively.

Would the accommodation of these several provisions entail a conflict of interest when a Member of Parliament charged with the primary task of exercising legislative powers of the People also becomes a member of the Cabinet of Ministers under the President, charged with exercising executive powers of the People and be "responsible and answerable to Parliament" in which he/she is an elected member all at the same time? There is no doubt that current arrangements have contradictions that need to be addressed if the sovereignty of the People is to be upheld. Therefore, these arrangements need to be re-visited in a manner that gives sovereignty of the People priority over other issues. For instance, the provisions as to how the Cabinet is constituted should be subordinate to those provisions

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that spell out the manner in which the sovereignty of the People is exercised.

If the sovereignty of the People is inalienable and it is to be exercised in the manner stated in Article 4 where the legislative and executive powers are to be separate, it must follow that the Executive branch consisting of the Cabinet of Ministers together with the President is structured in a manner that the People’s sovereignty is not compromised. Would not the stipulated separation be better fulfilled if the President and the Cabinet of Ministers are independent of Parliament? When the Cabinet is appointed from among Members of Parliament it is likely to impose an undue burden when Members of Parliament have to balance legislative responsibilities and functions of Parliament with their Executive duties and functions. Consequently, current arrangements have the potential to jeopardize the sovereignty of the People.

According to the US constitution the legislative, executive, and judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances. There are more characteristics which show Sri Lanka constitution seems equal to the US constitution. Sri Lanka has elected provincial councils that can enact statutes applicable within their provinces, and there are high courts, district courts, and magistrates courts in the provinces, as If the president believes that the provincial council cannot operate effectively, the president can take over the position of the governor and Parliament will act as the provincial council. The presidentially appointed governor can also refuse assent to the statutes passed by council, in which case the final decision rests with the Supreme Court. Hence ultimate provincial authority and power resides in the provincial executive, or presidentially appointed Governor. If the provincial councils are left to exercise power without interference, the system operates as a federation.

Conclusion

As discussed above the US and Si Lanka constitutions have some similar facts as well as differences. Both constitutions accept the principal of separation of powers. But the US constitution practices it more than Sri Lanka. A wide and clear separation can be observed under the US constitution. References

1.  http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution on 2012-05-10

2. http://legalservicesindia.com/article/print.php?art_id=483 on 2012-05-103. Article 1 section 1 of U S Constitution 4. Article I, Section 8 of U S Constitution 5. Article 75 of Sri Lanka Constitution 19786. Article 75 a, b of Sri Lanka Constitution 19787. Article I, Section 9 of U S Constitution 8. http://www.deniedbail.com/

separation_of_powers_under_the_united_states_constitution/encyclopedia.htm on 2012-05-10

9. Article 76 of Sri Lanka Constitution 197810. Article II (Section 2) of U S Constitution 11. Article 30 (1) of Sri Lanka Constitution 1978

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12. Article II (Section 3) of U S Constitution 13. 18th amendment to the Sri Lanka Constitution 197814. Article 2 of the US constitution and Article 34 of Sri Lanka constitution15. Article 3 of Sri Lanka Constitution 197816. Article 33 a of Sri Lanka Constitution 197817. Article IV of US constitution and Article 38 (2) Sri Lanka constitution18. http://en.wikipedia.org/wiki/United_States_Constitution on 2012-05-10

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Task 4

4.1 What the checks and balance is? Support the Article 4 of the Constitution 1978 (P4.1)

(Time controlled Assessment)

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4.2 Illustrate the effects of the application of checks and balances between the organs of the government (P4.2)

(Class Activity)

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3.4 Prepare your own proposals to reform the Constitution of Sri Lanka to achieve the objects of the check and balance of the doctrine of the Separation of Powers (P4, M3.1, D2.5)

Introduction

The constitution is the supreme and fundamental law of the country, must therefore be sufficiently flexible to enable various political opinions to be developed and implemented from time to time.  According to Bhagwathi, "constitution is an organic instrument defining and regulating the power structure and power relationship; it embodies the hopes and aspirations of the people; it projects certain values and it sets out certain objectives and goals."1

Laws need to be reviewed and revised not only to respond to the changing needs of society, but also to give new direction to the society. Constitutional reforms go to the core of what it means to be a democracy in the modern world.  Changes that are introduced to a constitution should be commenced after consultation and due deliberation. Also obtaining the will of the People for anticipated amendment, is an essential fact. Ascertaining the will of the People can be a complex and time consuming exercise, in a pluralistic society like Sri Lanka. When the People give their consent for such modification, they must be given due consideration for many factors which affecting them. Any change should not underrate the essential features of a democracy, such as the rule of law. Therefore it is very important promoting and preserving the transparency and accountability of the government through any constitutional reform. We must keep this point in our mind when we revise existing constitution of the country.

Discussion

Sumanasiri have observed that, since the late 1980s, there has been a general consensus that the Second Republican Constitution enacted in 1978 and the State structure set up by it should be replaced by a new constitution based on a new set of principle that are more democratic and accommodative. 2 That point out that the existing constitution not much appreciated by the people of the country. According to this it just has taken only two years to understand that, this constitution has not drafted according to the will of the people, but to fit with the whims and fancies of the rulers at that time. He further emphasised that a legal foundation for a new State structure radically different from that which we have had since 1948 should be laid. 3

Most stressed week point of the existing constitution is extraordinary powers accumulated under the office of presidency. These provisions have weakened the other two branches of the government, the legislature and judicature and have questioned their independence existence. Therefore change of the executive system by reducing presidential powers, through introducing new checks and balances is a pressing demand. The executive president can make accountable to the parliament through constitutional amendment. According to idea of many scholars this can be done by reintroducing cabinet system headed by the Prime Minister positioning the office of executive Prime Minister. Asanga reports that the Prime Minister is in favour of the Israeli model of a directly elected Prime Minister to replace the Executive Presidency.4 But I myself preferred existing the executive presidency. But according to my point of view the extraordinary powers vested under the president office

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shall be cut off and make him more accountable to the parliament. The introduction of the Parliamentary Council instead of the Constitutional Council under the 18th amendment is not a satisfactory approach regarding this issue. It has stated that it is intent to establish the office of President accountable to the Parliament. But it contains no provision to promote accountability on the part of the President.

One of the major drawbacks regard the presidency in the present constitution is that there is no legal remedy which a citizen could resort to, when the Executive President acts against the Constitution or does not follow it. The only legal procedure available for pressures the exercise of President, is the power of the Parliament to bring in an impeachment motion against the President. Hence citizens can act only through their representatives in the Parliament. Going by the Constitutional provisions as regards impeachment, it has subjected under hard and fast rules which make it totally impossible. Therefore in my point is, impeachment procedure should make to less rigid. The requirement such as passing the resolution twice, by not less than two-thirds of the whole number of Members voting in its favour, is an unfair proviso, which include intently make it impossible. This gives more room to accused President to escape from impeachment procedure.

A new constitution should provide clearly laid out procedures that citizens can use when the Executive President violates or disregards the Constitution. In 1978, the executive granted it immunity from court proceedings. For this purpose the immunity is given to the president from suit should be amended.5 My argument is that the presidential powers should be subjected to the checks and balances of the Judicature. There should be no immunity on major governing issues for actions done by the President in an official capacity. Action should be able to carry out against the officer who implements such decisions of the Executive, in a proper environment and in case of voidable actions; personal action should be permitted.6 This indirectly empowers the hand of people to supervise the executive functions. We must not forget that the sovereignty power of people have delegated to the government under the social-contract theory. But still they have residue legislative power under Article 4 of the constitution, where they can use at a referendum.

The other issue related to the constitution is carrying out two simultaneous functions, the executive function and legislative functions by the Cabinet. Because of this most people allege that neither function carrying out properly. The ministers of cabinet are established under the CHAPTER VIII of the constitution. Ministers of cabinet built an unclear link between executive and legislature. The constitution state that “There shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic, which shall be collectively responsible and answerable to Parliament.”7 There are two key features can be identified here, collectively responsible and answerable to Parliament. This provision seems important because accountability of president to the parliament under present constitution has seriously bought down. Therefore no other way to satisfy the pressing request of interrelation of executive and legislature. But because of ministers’ duty and collective responsibility they cannot properly function as members of parliament. In a new constitution I suggested a accountable president to the parliament. Therefore I think the ministers should not act as the agents of president and can make as a part of legislature. By this can make them more independent and can act as supervisors of executive, while functioning as members of legislature.

Hence the public service established as a branch of executive under the CHAPTER IX of constitution, can play the supportive role to the president. Because of above reform the ministers are further not acting as a part of executive. They represent the parliament and

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only supervise the exercise of executive powers. This give a better chance to carry out check and balance regard the executive and legislature. Therefore the public service can reestablish much stronger and vest some powers under their offices, which currently exercise by the ministers. The offices in public service are qualified people and they are professional of their field. But ministers are politicians who represent the people and most probably not specialists in their scope. The current situation is ministers, not qualified specialists, make all the vital plans which determine the whole future of the nation. But the reality is they themselves launch their own political opinions and not acting in best interest of the country. According to my observations this is the major drawback which demotivates the development of the country. Therefore the ministers should not be the decisive factor, but the public service.

The next issue is regard giving the President almost absolute control over the Parliament, by the constitution. The power of executive to control the legislature must be decreased in a new constitution. The President can dissolve parliament at his discretion only subjecting a narrow limitations.8 These enactments make the Parliament a puppet. This sole and exclusive power condemns the doctrine of check and balance. Therefore I suggest two options here;

1. Prior to dissolve the parliament the president should obtain the consent of the parliament, or

2. He must refer the Supreme Court and get the consent of Supreme Court prior to dissolve the parliament.

The objective of check and balance is, establishing three independent branches exercising each power, and each branch keeping a neither higher, nor lower position than another branch. Therefore the above reform is a pressing request of the check and balance system.

Before propose a new model to the legislature it is worth to revise the constitutional background at independence of the country. Under the Soulbury Constitution, which operated till 1972 constitutional reform, there was a segregation of responsibility between the cabinet, the Parliament, and the judiciary. The Parliament consisted of two chambers for diversity and checks and balances. The cabinet has structured according to the British Parliamentary tradition. Members of the two houses of legislature had maintained greater respect for diversity in Parliament and some differentiation of functions existed. This more balanced structure was overturned by the 1972 revolutionary constitution, which declared the legislature to be the supreme mechanism of state power. Therefore according to many constitutionalists, setting up a second chamber again, would be a better option. This is practiced in House of Lords and House of Commons in United Kingdom; Congress and Senate in United States; and Lokh Sabha and Raj Sabha in India with few differences. But the methodology for selecting in relation to the nomination procedure would make the future senate somewhat similar to the Senate in the Soulbury Constitution. Therefore have an elected senate rather than a nominated one would prevent the stepping back to the colonial tradition. Sumanasiri Liyanage proposes a senate consisting of 45 members, elected by the elected members of the nine Provincial Councils and the bi-cameral legislature thus consists of 225 members.9

Independence of Members of Parliament is highly questioned under the political party agendas. All Members of Parliament should be independence of Members and free to debate and vote. All must sit in Parliament according to his/her conscience, independent of the party policies. Again the disciplinary control of MPs should be limited to matters outside Parliamentary Debates. Therefore I suggest judicial involvement regard this matter should be more consistent.10

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A new constitution must concede more powers to the judiciary and produce more checks over the powers of executive and legislature. Therefore the control of executive over the judicature must bring down. Selection of judges must be done by the independent body while giving highest priority to the integrity of persons being considered. Appointment of judges should be made without delay once a vacancy arises. Judges should not be subjected to administrative control by the Executive. This should not deprive the relevant authority of its lawful powers to remove or otherwise deal with judges in the event of malpractices, misbehaviour etc. Appropriate changes should be introduced while guaranteeing traditional safeguards that ensure that the Independence of the Judiciary is protected. Senior most judges should be appointed to the Judicial Services Commission and essentially it must act as an independent body. There should be a constitutional provision to remove members of the Judicial Services Commission in the event of proved misbehaviour. While guaranteeing independence and integrity of judiciary, certain checks should be laid down against possible arbitrary actions by the Judicial Services Commission.

The power of the judiciary to review the constitutionality and suitability of laws has abolished under the present constitution. The present constitution has given narrow access to the judicial review in Bill form. In my point of view all laws should be subject to judicial review, not only in relation to unconstitutionality but also the objective and fairness. This must be considered as a priority in order to ensure accountability of the entire legislative process. If provisions relating to Urgent Bills are to be retained, those Bills need to be made available to the public, at least upon request. Because of this provision has taken as a grant by the government to avoid judicial review and public alert. All actions of central government as well as provincial governments should be subject to and judicial review as well as public scrutiny.

Conclusion

Outstanding weak point regarding Sri Lanka constitution is mighty executive president. Political observers argue this can lead even up to a dictatorship. The executive has vested powers lied within wide range and it cause adverse effects on the other two limbs of the government. Other major weak point is less checks and balance power of judiciary. It can do nothing or very little to control the two branches. Therefore the constitution must revise and amend to make it more balanced in power.

Reference

1. http://www.island.lk/2010/05/04/features8.html on 2012-05-202. Reformist Perspective on Constitutional Change, Sumanasiri Liyanage3. ibid4. Who can dissolve Parliament during the first year of its life?, 2002/08/17, Asanga

Welikala5. Article 35 of 1978 Constitution6. http://www.tisrilanka.org/?p=175 on 2012-05-207. Article 43(1) of 1978 Constitution8. Article 70(3) of 1978 Constitution9. Five Proposals for Constitutional Reform, 5 May 2010, Sumanasiri Liyanage10. http://www.tisrilanka.org/?p=175 on 2012-05-20

Task 5

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5.1 Discuss the Article 11 of the constitution and discuss how the Supreme Court of Sri Lanka approached for giving justice. You are required to discuss with the two decided cases of the Supreme Court (P 5.1)

Introduction

Article 11 enunciates about the freedom from torture. According to this provision “no person shall be subjected to torture cruel, inhuman or degrading treatment or punishment.” The police are the major group of executive which directly dealt with the civil people. They are granted a wide range of powers and given authority apply the minimum powers over suspects.

Discussion

In the case of Ratnapala v. Dharmasiri, Headquarters Inspector, Ratnapura and others (1993) the police had assaulted and brutally tortured the petitioner over a period of three weeks while he was in police custody. The injuries suffered by the petitioner were irreparable, particularly in view of the fact that one of his lungs had to be surgically removed. The petitioner, Ratnapala applied for infringement of fundamental rights.

In the circumstances, conceded that in view of the medical evidence cannot refute the allegation that the petitioner was assaulted whilst in police custody, and the infringement of the petitioner's rights under Article 11 is established. But the respondent’s counsel  argued that the evidence is insufficient to fix personal responsibility on any police officer. This leaves us with only two questions namely;

1. whether personal responsibility of the respondents has been established sufficiently; and

2. the relief to which the petitioner is entitled. In the consideration of these questions, the court referred to the relevant medical evidence appearing in the reports.

Per Kulatunga, J.

“So it seems to me that despite so many decisions, torture at police stations continues unabated, in utter contempt of fundamental rights guaranteed by the Constitution. In granting relief this Court must necessarily have regard to this development”.

The judge granted the petitioner a declaration that his rights under Article 11 of the Constitution have been infringed by executive or administrative action. The court upholds personal responsibility of the police officers who was directly participated for torture. Also held the responsibility of superior officers for acts of subordinate officers for deliberately encourage, tolerate and acquiesce in the acts of torture and inhuman treatment inflicted on the petitioner.

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In the case Lucas Appuhamy v. Maturta and others (1994), the petitioner applied for violation of fundamental rights guaranteed under Articles 11 and 13 (1) of the Constitution. There were sufficient grounds for suspecting that a cognizable offence had been committed by the petitioner and his arrest without a warrant was in accordance with procedure prescribed by the Code of Criminal Procedure. The medical evidence of the injuries found on the petitioner was consistent with the version of the Police that they had been sustained in the process of the use of reasonable force in making the arrest. Therefore the court held that it cannot be said that a violation of his rights under Article 11 of the Constitution has been established.

AMERASINGHE, J In his view stated, “the petitioner has simply sustained certain injuries in the process of the use of reasonable force in making the arrest and he has failed to establish that his rights under Article 11 of the Constitution were violated. For the reasons explained in my judgment, I declare that there has been no violation of Article 13(1) or 11 of the Constitution and therefore dismiss the application.”

Gamlath v. Neville Silva and others (1991) is a very good case example to show how police misuse the executive powers. Here the arrest of petitioner was based purely on the subjective satisfaction of the Police Officer. According to law the information on which the arrest is based must be credible by the application of the objective test.  Here the petitioner was arrested regarding a lost water pump belonged to a wife of a senior Police Officer and the initial information which led to the arrest was given by a subordinate police officer. But the information itself did not touch the petitioner. The medical report confirmed that the petitioner had been severely assaulted when in Police custody and subjected to torture or cruel, inhuman or degrading treatment. This is further supported by the affidavits of witnesses and the prompt statements of the petitioner. Therefore the application for infringement of fundamental rights guaranteed by Articles 11 and 13(1) of the Constitution upheld.

Nihal Sri Ameresekere enunciates in his article ‘Interference with the Judiciary? ’ that; “If governance of a country is to be solely and exclusively depended on such ‘dicta’ of in Article 11 and it alone, then how can there be space and room, for punishment for offences under the Penal Code and several other Statutes, or the ongoing offensive against terrorism ? Basic tenets of development of civilized societies, have been on the foundation, that good conduct of those, who conform to expectations of society are recognized and rewarded, whilst those, who do wrong or act in bad conduct antithetic to the expectations of society are reprimanded and punished, naturally causing pain of mind and humiliation for such acts, that society deem to be unacceptable.” 2

The exercise and enjoyment of rights and freedoms lay down in Article 11, is inseparable from the performance of duties and obligations, as stipulated in Article 28 of the Constitution. It includes the obligation on every person defend the Constitution , foster national unity , work conscientiously in his chosen occupation , respect the rights and freedoms of others , protect public property and protect nature. Therefore the rights and freedoms in Article 11 of the Constitution should be considered with the duties and obligations on their part to be performed by every person in Sri Lanka under Article 28 of the Constitution. In such circumstances if a person knowingly violated an obligation imposed by one Article of the Constitution one can he seek refuge under another Article of the Constitution for enjoying such freedoms? Fairly that should not be. That’s why the people who violate the duties of their part must be punished with limiting the freedom they enjoy by themselves.

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Conclusion

Finally it can be concluded that the article 11 of the constitution protect one of the most valuable right, the freedom from torture. The government cannot act inhuman on the any person even if he a criminal, without following the proper court procedure to punish him. This provision provides the safeguard to general public by ensuring their freedom.

Reference

1. Article 112. http://www.consultants21.com/pdf/4.MEDIAEXPOSESINTHEPUBLICINTEREST/5_-

_Exercise_of_Judicial_Power_....pdf on 2012-05-23

5.2 Comment on the restrictions made by the Article 15 of the

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constitution of Sri Lanka and how these restrictions restrict the operation of fundamental rights (P5.2)

Introduction

Article 15 discusses the restrictions on fundamental rights. The fundamental rights itself not a perpetual entitlement of people.

(1) The exercise and operation of the fundamental rights declared and recognized by Articles 13 (5) and 13 (6) shall be subject only to such restrictions as may be prescribed by law in the interests of national security. For the purposes of this paragraph “law " includes regulations made under the law for the time being relating to public security.

(2) The exercise and operation of the fundamental right declared and recognized by Article 14 (1) (a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to parliamentary privilege, contempt of court, defamation or incitement to an offence.

(3) The exercise and operation of the fundamental right declared and recognized by Article 14(1) (b) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony.

(4) The exercise and operation of the fundamental right declared and recognized by Article 14 (1) (c) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or national economy.

(5) The exercise and operation of the fundamental right declared and recognized by Article 14 (1) (g) shall be subject to such restrictions as may be prescribed by law in the interests of national economy or in relation to-

(a) the professional, technical, academic, financial and other qualifications necessary for practicing any profession or carrying on any occupation, trade, business or enterprise, and the licensing and disciplinary control of the person entitled to such fundamental right, and

(b) the carrying on by the State, a State agency or a public corporation of any trade, business, industry, service or enterprise whether to the exclusion, complete or partial, of citizens or otherwise.

(6) The exercise and operation of the fundamental right declared and recognized by Article 14 (1) (h) shall be subject to such restrictions as may be prescribed by law in the interests of national economy.

(7) The exercise and operation of all the fundamental rights declared and recognized by Articles 12, 13 (1), 13 (2) and 14 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general Existing written law and unwritten law to continue in force. Remedy for the

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infringement of fundamental rights by executive action. Welfare of a democratic society. For the purposes of this paragraph “law " includes regulations made under the law for the time being relating to public security.

(8) The exercise and operation of the fundamental rights declared and recognized by Articles 12 (1), 13 and 14 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interests of the proper discharge of their duties and the maintenance of discipline among them.

Discussion

The 1978 constitution has stated limitations of exercise and enjoyment of fundamental rights under this Article. They are national security, interests of racial and religious harmony, parliamentary privilege, contempt of court, defamation or incitement to an offence, national economy, national security, public order and the protection of public health or morality, securing due recognition and respect for the rights and freedoms of others and general Existing written law and unwritten law to continue in force. The restricted Fundamental Rights and their causes for restrictions are summarized in table 5.1.

Cause for restriction Restricted Fundamental Rights

national security 13 (5) / 13 (6) / 12 / 13 (1) / 13 (2) and 14

racial and religious harmony 14 (1) (a) / 14 (1) (b) and 14 (1) (c)

parliamentary privilege 14 (1) (a)

contempt of court 14 (1) (a)

defamation or incitement to an offence 14 (1) (a)

national economy 14 (1) (c) / 14 (1) (g) and 14 (1) (h)

qualifications necessary for practicing any profession

14 (1) (g)

public order and the protection of public health or morality

12, 13 (1) / 13 (2) and 14

securing due recognition and respect for the rights and freedoms of others

12, 13 (1) / 13 (2) and 14

meeting the just requirements of the general existing written law and unwritten law to continue in force

12, 13 (1) / 13 (2) and 14

members of the Armed Forces, Police Force and other Forces

12 (1) / 13 and 14

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Table 5.1

According to these provisions article 12 of the constitution is subjected to limitations because of national security, public order and the protection of public health or morality, securing due recognition and to respect for the rights and freedoms of others and meeting the just requirements of the general existing written law and unwritten law to continue in force. Article 12 consider about the right to equality. National security is an odd topic which can be applied as a justification for many limitations. There is no doubt that national security should be given a sufficient amount of priority. But this commission should not be misused by the authority.

Article 12 (1), 13 and 14 are specially restrict to the members of the Armed Forces, Police Force and other Forces. They are the people charged with the maintenance of public order; therefore the fundamental rights of them can be restricted in the interests of the proper discharge of their duties and the maintenance of discipline among them. Article 13 emphasizes the Freedom from arbitrary arrest, detention and punishment and prohibition of retroactive penal legislation while article 14 states the Freedom of speech, assembly, association, occupation and movement. Accordingly article 12 (1) says all persons are equal before the law and are entitled to the equal protection of the law. But when all these rights dealt with the forces may have to be restricted in certain circumstances.

The freedom of speech and expression including publication 1 is the right which has restricted most. National security, racial and religious harmony, parliamentary privilege, contempt of court, defamation or incitement to an offence, public order and the protection of public health or morality, securing due recognition and respect for the rights and freedoms of others, meeting the just requirements of the general existing written law and unwritten law to continue in force and to members of the Forces in required conditions. The freedom of speech and expression including publication directly dealt with the public media. The media protect the information right of people. The government is always alleged as they restrict the media as to suppress their oppositions. The article 15 has backed-up the rulers to keep media silent. Because of so many restrictions the government has so many excuses to conceal their anti media protest campaign. It is very reasonable raising a question, though the Article 14 (1) (a) is given the right to speak, whether someone can exercise and enjoy freedom of speech and expression actually, under these wide restrictions.

The freedom of association 2 is subjected to such restrictions as may be prescribed by law in the interests of racial and religious harmony or national economy.

The exercise and operation of the fundamental rights declared and recognized by Articles 14 (1) (g), the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise, subject to restrictions interests of national economy. It further allows restricting of these fundamental rights of a person entitled to such fundamental right of the professional, technical, academic, financial and other qualifications necessary for practicing any profession or carrying on any occupation, trade, business or enterprise, and the licensing and disciplinary control of them.3 Articles 15 (5) (b) says rights of citizens or otherwise of the carrying on by the State, a State agency or a public corporation of any trade, business, industry, service or enterprise whether to the exclusion, complete or partial. This provision entails the view of proper person must engage in the proper occupation. Right for occupation cannot be given equally though the freedom of occupation is given equally to every citizen. No one can be occupied as a doctor unless he holds academic and practical qualification to do so. Therefore this limitation can be justified

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in the light of the qualifications require for various occupations.

Inter alia the whole article 14 is subjected to restrictions; the national security interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of the general Existing written law and unwritten law to continue in force. Article 14 enunciates most valuable rights which are given only for citizen. According to my point of view this restrictions are too wide and any authority can defraud these rights if they intent to do so. Therefore the citizens may decline from bad to worse if the power goes to a wrong hand.

The Articles 13 (1) and 13 (2) are other rights suppress a lot by the constitutional provisions. According to Articles 13 (1) no person shall be arrested except according to procedure established by law and any person arrested shall be informed of the reason for his arrest. Articles 13 (2) limits the right of every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law.

Conclusion

No one can exercise and operate all fundamental rights declared and recognized in the constitution, equally to all. Therefore there must be a provision in each constitution to establish the limitations under different circumstances. But wide range of restrictions can make fundamental rights null and void.

Reference

1. Article 14 (1) (a) of the 1978 Constitution2. Article 14 (1) (c) of the 1978 Constitution3. Article 15 (5) (a) of the 1978 Constitution

5.3 Select one of the cases determined by the Supreme Court of Sri Lanka in between 2005-2010 in term of Article 12 of

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the constitution and discuss how the Supreme Court has interpreted it to ensure the fundamental right guarantee by the Constitution (P5.3,M3.1,D3.5)

(Presentation)

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Bibliography

Referred books

1. The Constitution of Democratic Socialist Republic of Sri Lanka with an Index of cases of Fundamental Rights and International treaties on human rights, N.M. Reyaz, ISBN 955-9879-0-1

2. Constitutional Government in Sri Lanka 1796-1977, L.M. Cooray, ISBN 9789553. Judges & Environmental Law, A Handbook for the Sri Lankan Judiciary, Environmental

Foundation Limited

Referred Web sites

1. http://www.judcom.nsw.gov.au2. http://en.wikipedia.org3. http://sixthformlaw.info4. http://www.lawteacher.net5. http://en.wikipedia.org/wiki/Law6. http://www.tisrilanka.org7. http://www.thefreedictionary.com8. http://www.proconservative.net9. http://lcbackerblog.blogspot.com10. http://www.srilankaguardian.org

Referred Articles

1. Interference with the Judiciary?, Exercise of Judicial Power of the People & Litigation in the Public Interest, Nihal Sri Ameresekere

2. REPORT ON THE INDEPENDENCE OF THE JUDICIAL SYSTEM, PART I: THE INDEPENDENCE OF JUDGES, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, Strasbourg, 16 March 2010

3. REPORT ON EUROPEAN STANDARDS AS REGARDS THE INDEPENDENCE OF THE JUDICIAL SYSTEM. PART II – THE PROSECUTION SERVICE, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW, Strasbourg, 3 January 2011

4. The 1972 Constitution in Retrospect, Jayampathy Wickramaratne5. Sri Lanka’s constitution and separation of powers, Neville Ladduwahetty6. SRI LANKA’S JUDICIARY: POLITICISED COURTS, COMPROMISED RIGHTS, Asia

Report N°172 – 30 June 2009

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