Fundamental Rights And Fundamental Values
J R Jayewardene
Those who were instrumental in drafting the Sri Lanka constitution currently in force were keen to limit parliament’s powers. Mr. J R Jayewardene, who as Prime Minister chaired the Parliamentary Select Committee on the draft 1978 constitution, remarked at one of its hearings:
“We are practically a dictatorship today. There is nothing we cannot do in this House with a five-sixths majority. I am trying to avoid that”. [emphasis added]
This intention is made clear by not giving the Sri Lanka parliament the same powers as those of the English parliament. It is for this reason that the powers of government have been kept separate and the independence of the judiciary and fundamental rights have been guaranteed.
Parliament continues to remain a very powerful institution. It is responsible for enacting laws and also keeping the executive, including the presidency, under check and to hold it to account. Parliament has several arrows to its bow to carry out this task. Unfortunately, the executive has entangled itself with parliament to a degree such that parliament has been unable to carry out fully this important function. The close nexus between them has caused parliament to function for the benefit of the executive and allowed the executive to take refuge in parliament for its own advantage and to invoke the benefits of theories such as parliamentary sovereignty and the privileges of parliament.
Many years later, J R Jayewardene acknowledged in public the need for reform of the presidential powers, especially in three areas: (i) the term of office, which he suggested be reduced to four years, (ii) his responsibility to parliament, and (iii) and his immunity.
Professor G L Peiris, during his tenure as the Minister for Constitutional Affairs in the Chandrika Bandaranaikegovernment, highlighted the concentration of power in the executive president as a major weakness of the constitution. He also criticized the JR rationale that a strong executive unhampered by the whims of the parliament was needed to implement the economic and social policies of the government of the day. In Dr Peiris’ view a constitution “is not meant to be an instrument to facilitate a particular political or ideological objective, or indeed a facilitator of strong government. On the contrary, the primary function of a constitution, particularly in a modern third world where the State inevitably wields considerable discretionary power, is to create regularized restraint or checks and balances on the exercise of political power.”
In short, it is the function of the constitution to have in place mechanisms to deter abuse of power, and power is capable of being abused not only by a president but also by a parliament.
There are many features in the constitution that militate against the claim that parliament can do what it wants. Despite the concentration of executive power in the hands of a powerful president, the powers of government have been kept separate and the independence of the judiciary has been guaranteed.
On the other hand, there is both institutional and functional separation between the legislature – and the executive – on the one hand and the judiciary on the other. By comparison, although there is functional separation between parliament and the executive, the institutional separation between the two is less clear cut.
Without an independent judiciary to arbitrate on questions regarding the allocation of power, and to interpret its provisions, the system cannot work. Fundamental rights would become merely sanctimonious pronouncements in the absence of an independent judiciary to enforce them.
Those who argue in favour of a supreme parliament would like to see all authority vested in that body because it consists of elected representatives, regarding anything short as a denial of people’s sovereignty. In their view, judges have no right to review its actions because they are an unelected bunch without any right to question the actions of the elected representatives.
This is an argument based on the fallacious assumption that popular sovereignty is exercised only through one organ of the state. The argument that parliament’s powers ought not to be limited because its representatives have been elected is rooted neither in principle nor logic. It is contradicted by the constitution itself. It is the constitution that has provided that the judicial power of the people shall be exercised by unelected judges, and it is the constitution that has given the judges the authority to act as a check on elected representatives of the people as well as on executive and administrative action. If the price of liberty is eternal vigilance, then the judiciary is an essential means of exercising that vigilance.
If the principle that no organ of state shall have unlimited power is accepted, then it should not be difficult to accept the need for a mechanism to ensure that power is not exceeded. The judiciary exercises an aspect of sovereign power and is an instrument of the people in much the same way that the legislature is.
As stated in its Preamble, the constitution ratified “the immutable republican principles of representative democracy” and assured to all peoples freedom, equality, justice, fundamental rights and the independence of the judiciary”. It is inconceivable that a constitution designed to achieve the goals of a democratic socialist republic would have conferred unbridled power on its elected officials who happen to sit in parliament.
If the intention was to give elected representatives unlimited powers, then the constitution would not have enshrined fundamental rights and given the judiciary the duty to enforce them. Fundamental rights and an independent judiciary underpin the constitutional structure and they reflect fundamental values to be respected by government. These are essential for the Rule of Law to prevail. These are obligations that the people demanded of their representatives. The elected representatives who adopted the Constitution as “the supreme law” did so by acknowledging their obligations to the People, having assimilated these values into the constitution.
In conclusion, for a democratic system to work it is important to recognize that powers cannot be conferred on government without defined limits. The constitution envisions Sri Lanka as a welfare state. The State is expected to bring about a welfare state within the framework of the constitution, respecting the fundamental values enshrined in the constitution. These values have been entrenched in order to place them beyond the reach of temporary majorities produced at periodic elections.
*Dr. Reeza Hameed, a long-standing member of CRM, is an Attorney-at-Law with degrees from universities in Sri Lanka, the USA and UK. He assisted S. Nadesan QC in a number of historic constitutional and fundamental rights cases including the Pavidi Handa case, the Kalawana case, the Daily News Contempt case, and challenges to the banning of Aththa and the Saturday Review. When the editor of Aththa B.A. Siriwardene, and later Nadesan himself, were charged with breach of privilege of Parliament, Reeza was part of the defence team led by Senior Attorney HL de Silva. This article is circulated by CRM for its relevance to the wider discussion arising from the current attempt to impeach the Chief Justice.
