Sunday, January 6, 2013

by Kamal Nissanka

When notices were sent to the Hon speaker, President and the members of the Select Committee  impeaching  Chief  Justice  by  the  registrar  of  courts,  the  Speaker  and leader of opposition were vociferous about the notion of supremacy of Parliament and they seemed not to heed to the Supreme Court request/order to appear before or submit objections on pending cases against them. They by now should know that only the President of the country under the constitution is immune to litigation. If the parliamentarians concerned had thought that they were also citizens of Sri Lanka as us, they would have readily     abide by the Supreme Court   directive   until the constitutional issue before the court is   finally determined.   Unfortunately Hon Speaker further  kept a step forward  and  related a speech delivered by Mr.Anura Bandaranaike , then Speaker of Parliament   in 2001 upholding the idea   of parliamentary supremacy  when there was an  stay order against the Speaker.

Now if one goes to the root of the logic behind the speaker ‘s speech     one can understand that what the speaker believed was that parliamentary supremacy could not be infringed by any other outside body.   It is worthy at this stage to note that belief of Parliamentary supremacy is a notion evolved in United Kingdom where there is no written constitution. In short Parliamentary supremacy can be defined as the power of parliament to make laws and unmake laws.  The duty or business of the courts is to follow the legislation already enacted by Parliament and then interpret, adjudicate, redress or punish.   Yet, though the courts do not make any legislation judgments of superior court are considered as binding law.

In the post independence period political-legal community followed a tradition to accept the notion of Parliamentary supremacy as experienced in United Kingdom. Yet,   although   the   Soulbury   Constitution   upheld   the   idea   of   parliamentary supremacy; it is interesting to note that Parliaments under the Soulbury Constitution also did not enjoy infinite supremacy to make laws as the constitution under Article
29(2) restricted to make legislation in some areas and subjects.

The 1972 constitution which had only one chamber was consciously framed on the basis of the notion of parliamentary supremacy. Accordingly, legislative power was vested in the National State Assembly, executive power in the National State Assembly through President and the cabinet , while judicial power by  National State Assembly through courts except in   parliamentary privileges. There was also a Constitutional Court to determine matters relating to constitutionality.

The 1978 constitution which lasted for over 30 years now is somewhat different from the two earlier constitutions.   The founders of the constitution have clearly deviated from the British tradition of constitutional theory. Prof.A.J. Wilson, former professor of Political Science, declared that the 1978 constitution had been extensively influenced by the present French Constitution.   The 1978 constitution took a quasi federal nature with introduction of 13th amendment and parliament lost some of its powers regarding some subjects and lost sole supremacy over legislation.

On the other hand this parliament does not have executive power as in the 1972 constitution. 1978 constitution explicitly says that executive power shall be exercised by ‘the president of the republic elected by the people “(not by parliament). So this is clear deviation from the British tradition of parliamentary supremacy.   True that ministers  who  are  also  said  be  in  the  executive  branch  are  chosen  from  the parliament but they are subordinated to the president who can keep any ministry or department under him. They do not enjoy the prestige they had under the British tradition. The president through the cabinet can make the parliament his appendage and the dignity of the parliament is completely eroded, added by the PR system of electoral method which allowed all sorts of anti social elements to enter into parliament. Parliament is further devalued because the President can dissolve it after one year of an election.

The position of judiciary is made explicit under the 1978 constitution. According to the Article 118, the Supreme Court is the ‘highest and final court of record’ in the Republic. It has jurisdiction in respect of constitutional matters, for the protection of fundamental rights, consultative jurisdiction, and jurisdiction in election petitions including the election of President. It also has jurisdiction whether to determine a bill was consistent with the constitution. This jurisdiction can invoke by president or any other citizen.  Its determination is sought of regarding urgent bills which the cabinet thinks  to  pass         urgently  for  national  interest  concerns.  It  has  jurisdiction  to determine the validity of the expulsion of a member from a political party. It has role to play in the impeachment of a President of the Republic. Therefore it is very clear that the Supreme Court under the present constitution is a very powerful body that is endowed with important national responsibilities. Further the constitution has endorsed the idea of an independent judiciary.

Standing orders cannot be considered as law by any learned person in the legal profession. Under our legal system laws are legislation, decided cases, customs and may sometimes international covenants. Standing orders are procedural regulations. Further they cannot be formulated against the provisions of the constitution. Rules and regulations are there in various corporations, companies, societies to conduct their day to day activities. Can an outsider be brought to face trial on the basis of these regulations? Is that justice? Is that rule of law?

When there is matter before the Supreme Court to be decided, specially a matter of interpretation it is the sacred duty of all law abiding persons to obey its directives. Under our constitution people are sovereign and the constitution is supreme not the parliament.  This is what is called constitutionalism, a legal philosophy derived from the famous case in the United States of America, Marbury Vs Madison, 1 Cr. 137 (1803) decided by John Marshall ,CJ. The decision held that:

“Congress  did  not  have  the  power  to  add  to  the  original  jurisdiction  of  the Supreme Court; thus, the available remedy mandamus  ,was unconstitutional .More significantly , Marshall logically extracted the power of judicial review from the constitution by reasoning that the document was supreme and, therefore , the Supreme Court should invalidate legislative acts that ran contrary to it.”

In conclusion it could be said that the idea of parliamentary supremacy which both the Hon. Speaker and the Leader of the Opposition attempted to uphold in a holy manner is an outdated and obsolete political-legal concept which has no relevance in the present constitutional framework of Sri Lanka.

*Writer is the Secretary General of the Liberal Party of Sri Lanka,  Attorney-at-Law, BA (Hon), PgD(International Relations)

Courtesy: Colombo Telegrpah

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