by Dr.Reeza Hameed
There is no basis in the Sri Lanka Constitution for the proposition that the Sri Lanka Parliament is sovereign. It is neither sovereign nor supreme.
Parliamentary sovereignty in England
The doctrine of parliamentary sovereignty has its roots in the legal theory developed by A V Dicey in relation to English constitutional law. It implied that there is no higher law to retrain Parliament from making- or unmaking- any law. It also implied that the Courts are obliged to give effect to the laws passed by Parliament.
In 1610, in the Bonham case, Lord Chief Justice Coke had this to say about parliament’s power to legislate without any limits: “In many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void, for when an Act of Parliament is against the common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.
Nowadays, the English Parliament has to legislate having regard to its obligations arising by virtue of its membership of the European Union. Directives enacted in Brussels may have direct application in England without the need for parliamentary intervention. The enactment of the European Convention on Human Rights has invested the judiciary with the power of judicial review over legislation.
In a case decided in 2005, the then House of Lords considered the relationship between the rule of law and parliamentary sovereignty, and suggested that the theory of parliamentary sovereignty has its limits and that Courts would contradict Parliament if it were to enact legislation contrary to the rule of law.
In a case decided not long ago, the Supreme Court noted that the control exercised by Parliament under the negative resolution procedure is incomplete and the oversight of the content of the rules laid before Parliament cannot be left entirely to Parliament. The Court said this in the context of a case in which it held that the refusal of leave to a foreign national was unlawful because it was based on requirements set out in a code of practice that had not been laid before Parliament. The code had been referred to but not included in the Immigration Rules which the Minister had laid before Parliament, thus depriving Parliament of an opportunity to scrutinize the specific rules in the code.
Some lawyers and jurists, including HWR Wade, have expressed the view that “sovereignty of parliament” is no more than a rule of statutory interpretation devised by the common law and that legislation passed by Parliament would command respect only to the extent allowed by the courts. According to Sir John Laws, a highly regarded judge and constitutional thinker, some fundamental rights recognized by the common law cannot be interfered with by legislation.
In England, given the absence of a single document called the Constitution, not all the basic principles of constitutional law are codified. Such is not the case in Sri Lanka.
The Sri Lanka Parliament
Sri Lanka has a written constitution in which the basic principles subject to which power has been delegated to Parliament have been set out. It is the constitution that is supreme and the People are sovereign. Parliament is neither sovereign nor supreme. This theory runs counter to the theory of separation of powers by which the powers of government are not fused in the hands of a single organ of a state but are kept separate. The rationale behind separation of powers is that keeping all the powers of government in a singe body is an invitation to tyranny and it would lead to powers being abused; their separation would retrain such abuse.
In Sri Lanka, there is a law higher than Parliament’s and that is the constitution.
The People of Sri Lanka distrust their politicians. They have not given Parliament unlimited powers; nor have they given its members the power to define for themselves the boundaries within which they shall exercise its powers. The Constitution has prescribed the limits for them and Parliament must function within those limits.
The First Republican Constitution of 1972 installed the National State Assembly as the supreme instrument of state power. Even in that constitution it was explicitly declared that sovereignty was in the People and was inalienable.
The framers of the 1978 Constitution moved away from that model and removed the supreme bit out of Parliament. Laws which come into conflict with certain basic provisions of the constitution can only be enacted with the consent of the People given at a referendum. Thus, Parliament’s occupation of the legislative field is not exclusive.
Apart from making laws, Parliament’s other principal function is to oversee the Executive and hold it to account. In reality, the Executive is deeply embedded in Parliament. Legislation is proposed and initiated by the Cabinet headed by the President and chosen by him, and presented to Parliament for its approval. The ministers double up as MPs and a large number of them hold ministerial portfolios, both within and outside Cabinet. It has enabled the Executive to hold the Parliament by the snaffle and virtually neutralize its constitutional function to hold the executive to account. It is impossible to describe Parliament as either sovereign or supreme.
Parliament has no role to play in the judicial sphere. The claim is sometimes made that Article 4 of the Constitution has invested Parliament with judicial power because it is stated there that ‘the judicial power of the People shall be exercised by Parliament through courts …” Article 4 is categorically states that judicial power ‘shall’ be exercised through the Courts and other tribunals created for that purpose. Parliament shall not exercise it directly. Parliament cannot invest itself with judicial power merely because it has the power to create institutions through which such power may be exercised. Parliament’s role is confined to the creation of Courts and other institutions for the proper administration of justice and the provision of resources for those institutions to carry out their functions. It does this as part of its other function, namely the allocation of financial resources. It does not mean that Parliament itself can exercise judicial power.
The sole exception to this inhibitory principle relates to matters affecting Parliament’s own privileges and immunities. Nevertheless, Courts have been exercising jurisdiction involving breaches of parliamentary privileges and contempt of parliament.
This theory essentially deals with the relationship between the Parliament and the law. Hence, if parliamentary sovereignty has any application at all, it should have relevance only to Parliament’s law making activity and to the finality of laws passed by parliament, and not in regards to any of its other functions. In particular, it cannot make any claim for sovereignty when acting through a select committee to enquire into the allegations against the Chief Justice. The enquiry does not relate to its law making function and it involves the exercise of judicial power for which it has no authority under the Constitution.
Not all actions of Parliament can attract force or finality. A resolution passed by Parliament has no application outside it. Courts can strike down rules and regulations framed by persons or bodies created by Parliament exercising power delegated to them by Parliament. Some measures passed by Parliament have no force outside it unless it has been approved by the People at a referendum. It would be absurd to ascribe sovereignty to what ministers might say inside Parliament. Even if a Bill has been approved at a referendum the President has to certify that it has been so approved by way of an endorsement in the prescribed form. Until then it does not become law.
Members do not get elevated to a special status because they are elected by the people as their representatives. The President, too, is elected by the people but that does not make him either sovereign or supreme.
The People have preferred to have their representatives chosen by them at elections held periodically because they want their representatives to be accountable to them. Elections also offer, in theory at least, an opportunity for the people –or a majority of them- to choose the candidates who, in their view, are most suitable to govern them. The process adopted by the people to choose their members to represent them in Parliament does not warrant the claim that Parliament is either sovereign or supreme.
At election time, candidates will make promises to voters in order to get their support. Those who drafted the Constitution did not want the judges to be engaged in a process which would require the judges to make promises in return for votes because it would compromise their ability to administer justice impartially and with independence. Instead they want their judges to be detached and function free from any outside pressure or interference, even from their elected representatives.
In Sri Lanka, it is the Constitution that is supreme and the People are sovereign. Parliament has an important role to play in the governance of the country but Parliament is not sovereign.