Parliamentary sovereignty: A restatement

This writer does not wish to touch on the Supreme Court judgment on the Divi Neguma Bill nor the recent statement issued by the Speaker of Parliament. This article tries to elucidate the various arguments put forth by the constitutional law experts and also on the meaning of parliamentary sovereignty and constitutional order in general.

 

Doctrine of parliamentary sovereignty

Sri Lanka has been under British colonial rule for more than 150 years and most of our thinking on political, legal, and parliamentary matters has been inspired by the British system of governance.

Since independence, the Parliament of Sri Lanka has been fashioned under the rules and regulations that governed the conduct of British Parliament. Parliamentary procedure and conventions were heavily inspired by the Sir Erskine May’s interpretation of parliamentary practice.

According to British Parliamentary tradition, the doctrine of parliamentary sovereignty is the cornerstone of the British Constitution. Britain does not have a written Constitution but is governed by statute laws and by Parliamentary conventions and precedents accumulated over the centuries.

The doctrine of parliamentary sovereignty holds that (i) parliament is the supreme law making body (ii) no parliament is bound by a predecessor, or bind a successor and (iii) no person can challenge the validity of an Act of Parliament as described by A.V. Dicey (1915) in his seminal work ‘Introduction to the Study of the Law of the Constitution’.

Sir Leslie Stephen said in his book ‘Science of Ethics’ (1882) that the British Parliament can pass any law whatsoever and that it could even pass a law ‘ordering the death of all blue-eyed babies’. Sir Ivor Jennings (1959) went a little further and said that British Parliament could pass legislation prohibiting smoking on the streets of Paris, France. This meant no French nationals would obey the British law but retuning British nationals could be prosecuted in UK. The British Parliament has all these legal rights but politically it is highly unlikely that it would pass such obnoxious and draconian legislation.

As Sir Leslie says: ‘If a legislature decided that all blue-eyed babies should be murdered, the preservation of blue-eyed babies would be illegal; but legislature must go mad before they could pass such a law, and subjects (the citizens) be idiotic before they could submit to it.’

British courts have no jurisdiction to challenge the validity of any laws passed by Parliament. There is a doctrine called ‘Enrolled bill rule’ under which once a bill has been passed and signed into law, the Judiciary assumes that all rules of procedure has been complied with by the Legislature.

All these meant to illustrate the supremacy of Parliamentary sovereignty in Britain. These views too have been interpreted in Sri Lanka in order to justify certain policies of the successive governments. However, political logic on the British systems changed entirely in 1972.

Judicial review

Sri Lanka (rather, Ceylon then) repudiated the British dominion by adopting a Republican Constitution and severed all links with British colonial rule. The written Constitution was adopted by a Constitutional Assembly and thereafter the Constitution was held to be the supreme law of the land. The supremacy of the Constitutional order thus came into being.

The 1972 Republican Constitution provided a special procedure for challenging the bills when placed in the Order Book. The concept that Parliament can pass any law under British system was diluted by the supremacy of the Constitutional order and the rights of citizens to challenge the bills and seek judicial intervention.

The then Constitutional Court had an onerous duty of interpreting the bills and to provide judicial decisions on whether bills are consistent or inconsistent with the provisions of the Constitution. The 1978 Constitution too provided a provision on judicial review of bills and this fell on the Supreme Court of Sri Lanka.

Judicial review underscores the importance of preserving supremacy of the Constitution, not really the supremacy of the Parliament. What it means is that doctrine of separation of powers requires that each branch will have to strictly observe the Constitutional requirements. There may be practical hiccups in construing meaning of particular words, but it would be futile to assume that a Constitution would provide every step a citizen or a public official should follow.

(For example, if the constitution says a petition should be addressed to the Chief Justice ‘clearly,’ this means that it has to be written on a white paper with black ink. One might argue that the dichotomy that is white writing on a black paper could also be used so long as the petition has been ‘written clearly’. It would be unreasonable to expect the Constitution to provide words given meaning to the technical issues. What is important is that each branch must prudently comply with the Constitutional requirement.)

Judicial review is meant to balance the excessive powers the Executive may exercise over the rights of citizens through its Parliamentary representations. If there is excessive Parliamentary power, the Executive tends to exploit the situation for its own advantage. The only remedy left is to seek judicial intervention by invoking the provisions of the Constitution.

The brave citizens who have country and the welfare of the people at heart are always at the forefront of defending the rights of citizens. On many occasions the citizens have won their rights. There has been an occasion where a Court of Appeal judgment given in favour of late Prime Minister Sirimavo Bandaranaike was annulled by an act of Parliament, which was widely seen as an act of revenge.

1978 Constitution

When the UNP came to power, it had a massive mandate from the people. Over 80% of the registered voters took part in the election and this was a record in our political history. It was a clear protest vote against the repressive measures and economic hardships people had to endure under the United Front Government’s short-sighted policies.

The UNP took advantage of the situation and adopted a new Constitution and got it passed with its steamroller majority in Parliament. There was very little people’s participation and it was widely believed to be a brainchild of late President J.R. Jayewardene.

The mandate the UNP received at the election, economic situation, and demands of the people at the time had to be met by the UNP Government expeditiously and it required full legislative power to turn the economy around, which had been stagnant for years. The UNP let loose the slogan ‘Let the robber barons come’ and opened the sluice gates of the stagnant economy for all and sundry. Everything was up for grab and capitalists had field days in Sri Lanka.

The Executive President is the Head of the Government and elected by people and commands absolute control over virtually everything. The power is centred on the Executive President. There has been criticism levelled at the arbitrary manner in which the Executive President exercises his prerogative. It is widely misinterpreted as being his personal motive.

As the Head of State, the Executive President exercises control over policy, hence it would be unfair to say that every action of the President is authoritative or arbitrary. He exercises power by virtue of the authority vested in the President by the Constitution. The fault lies at the Executive Presidential system and the manner in which the Constitution was drafted.

There have been abuses even under the 1972 Constitution and late Prime Minister Bandaranaike was stripped of her civic rights for seven years. No Constitution would guarantee the personal conduct of an Executive and checks and balances could be incorporated into the Constitution. The Parliament has the absolute control over public finance but the Constitution is silent over merits over the portfolio of finance being held by the President of Sri Lanka.

The Executive President with an absolute majority in the Parliament also undermines the ambit of the Constitution, however it could well be held in check by judicial review and wider public awareness of judicial intervention. The brave citizens have challenged Appropriation Bills on many occasions and the Supreme Court had given opinions in favour the petitioners.

Strong and stable government

It would also be pertinent to highlight the importance of having a strong and a stable government. The Executive Presidential system was able to maintain strong governments for years, however questionable the policies of such governments of the day. The most important event in Sri Lankan history was the defeat of terrorism and this was possible because of the Executive Presidential system, otherwise the incumbent Government would have fallen before the historic war victory was achieved. All credit must go to the political leadership for the war victory.

Look at Italy, a prosperous economic power, where it had produced 61 revolving-door governments since the end of World War II. The only feature we Sri Lankans witnessed during our 60 years post-independence era was the enrichment of politicians and their cronies and the ever-increasing cost of living with no remedy in sight.



(The writer is a freelance journalist and a political lobbying and government affairs consultant.)