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People's Sovereignty and Judicial Power

Sovereignty of the People is the primary source from which the Constitution derives its validity. Constitutional doctrines and concepts such as the separation of power and Constitutionalism therefore must be defined and interpreted to give effect to the concept of sovereign power of the people.

by S. Sarath Mathilal de Silva

( March 21, 2018, Colombo, Sri Lanka Guardian) The concept of sovereignty has a different connotation in the field of international law. When the term ‘sovereign’ is used by writers on international law, it describes the position of a State – whether a State is independent or whether it is subject to foreign domination. On the other hand the sovereignty’ in the municipal law involves a discussion of the extent of the law making powers of the main legislative authority.

The Independence Constitution was construed by the courts as conferring on the judiciary the power of judicial review, an aspect of judicial power of the constitutionality of legislation. Both the 1972 Constitution and the 1978 Constitution expressly precluded the judicial review of enacted legislation and limited it to judicial review of Parliamentary Bills within a limited period. The Constitution of 1978 by Article 3 proclaims that “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.

The 1978 Constitution provides essential links between the concept of sovereign power of the people as acknowledged in the preamble and Article 3 and the Judiciary by creating opportunities for the Supreme Court to supervise legislative and executive action which might be violative of that concept.

Judicial power

The judicial power is concerned with the ascertaining, declaration and enforcement of the rights and liabilities of the parties as they exist or are deemed to exist at the moment the proceedings are instituted.

Article 4 (c) of the Constitution enacts that: ‘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.’

With regard to judicial response to this provision against the background of Article 3 of the 1978 Constitution, at the outset, reference may be made to the determination of the Supreme Court with respect to the Prevention of Terrorism (Temporary Provisions) (Amendment) Bill. Clause 15A (1) of this Bill sought to empower the Minister to make order that a person be kept in the custody of any authority, which in effect meant that a person in judicial custody stood removed from such custody and placed under Ministerial custody. It was contended on behalf of the petitioner that this would permit the Minister to substitute his order of custody in place of the order of remand made by the High Court, in violation of Article 3 read with Article 4( c) of the Constitution. Upholding this submission, the Supreme Court determined that:

‘this constitutes an interference with a judicial order and is inconsistent with the provisions of Article 4(c) read with Article 3 of the Constitution, and must therefore be passed by a 2/3rd Majority and approval by the people at a Referendum as provided in Article 83 of the Constitution.’

This decision may be compared with the ruling handed down by the Supreme Court in respect of the National Housing (Amendment) Bill. This Bill sought to confer power on the Commissioner of National Housing to order payment of compensation for improvement effected by person to whom State land has been given by an instrument of disposition and where such instrument is cancelled. The Bill also provided for an appeal to the Minister from the said order of the Commissioner. Commenting on these proposed provisions Supreme Court held that they appear to confer on the Commissioner a judicial power to decide the quantum of compensation.

The remedy against such an order of the Commissioner was only a right of appeal to the Minister which the Supreme Court held to be a conferment of judicial power which is in consistent with the Constitution, and may be passed only by a special Majority as required by the provisions of paragraph (2) of Article 84. It will, however, cease to be inconsistent if it is amended by granting the appeal either to a Court of Law, to a tribunal or to an institution established by law, for example, a Board of Review may be constituted under this law for the purpose of deciding an appeal’.

Although the Court held that the powers sought to be conferred by the Bill on both the Commissioner and the Minister amounted to judicial power no reference was made to Article 3 which in other cases had been held to impinge on Article 4 of the Constitution. Apart from this the legislature itself does not appear to have acceded to the suggestion made by the Supreme Court to modify the Bill in bringing it to a form not inconsistent with Article 4(c). In the result Section 60(2) (a) (ii) and 60(2) (b) of the present National Housing (Amendment) Act has found its way to the statute book in total disregard of the ruling of the Supreme Court. Indeed, the lack of a procedural mechanism in the Constitution to ensure compliance with directions given or suggestions made by the Supreme Court, is a major drawback of our Constitution.

The Proscribing of Liberation Tigers of Tamil Eelam and Others similar Organizations (Amendment) Bill, sought to extend the period of operation of the parent statute by a further year. Section 7 of the parent law conferred on the Minister the power to forfeit to the State of moneys, securities or credits and movable or immovable property of the proscribed organisations in the hands of any person. The Supreme Court held that: ‘the power to make such an order of forfeiture is, in our view, the exercise of judicial power……. Section 7 is therefore in conflict with Article 4(1) ( c) of the Constitution, which sets out that the judicial power of the people should be exercised by Courts, Tribunals ……We, therefore, determine that the Bill under consideration by us is inconsistent with the Constitution and requires to be passed by a Special majority’. Another important constitutional determination involved is the State Lands (Recovery of Possession) Amendment Bill. The parent Act had provided for a ‘quit notice’ to be served on a person who in the opinion of the competent authority contemplated by the Act was found to be in unauthorized possession or occupation of any State land. The proposed Bill provided inter alia that ‘No person shall be entitled to any hearing or to make any representation in respect of (such) a notice’. Responding to this clause the Supreme Court ruled that it ‘appears to us to be inconsistent with Article 4 (c) of the Constitution in that it seeks to oust the exercise by the Court of the judicial power of the People……’

Singharasa case

The petitioner in Singharasa v the Attorney-General (2006), had been indicted for trial before the High Court under Emergency Regulations and the Prevention of Terrorism (Temporary Provisions) Act, under charges, inter alia, for having conspired to overthrow the lawfully elected government.

After conviction by the High Court, his appeal to the Court of Appeal being dismissed (subject to a reduction in the sentence), an application for special leave to appeal to the Supreme Court was also refused.

Thereafter, the Petitioner sought to have the said order / judgment of the Supreme Court revised and / or reviewed and to have the said conviction and sentence set aside on the basis of, and pursuant to, the findings of the Human Right Committee in Geneva established under the International Covenant on Civil and Political Rights (ICCPR) to which the President as Head of State had acceded to and had made a declaration inter alia recognizing the competence of the Human Right Committee to receive and consider communications from individuals subject to the jurisdiction of the Democratic Socialist Republic of Sri Lanka.

Referring to the distinction between the Monistic and Dualist theories and holding that Sri Lanka fell into the latter category and drawing attention to the exercise of (governmental) executive power of the President to enter into treaties in terms of Article 33(1) which is subject ‘to the mutations thereto in the context of sovereignty as laid down in Articles 3, 4 and 33(f) of the Constitution’.

The Chief Justice held that the President, not being the repository of plenary executive power as in the case of the Crown in the UK, nor the repository of the legislative power of the people as decreed in Article 3 read with Article 4(a) and 75 (which lay down the law making power) exemplified by Article 76(1) as well which reveals the scope and content of the President’s power to exercise legislative power (and there being no material showing that the President had any authority from Parliament, post or prior to making the impugned declaration, the President’s accession to the Optional Protocol in 1988 and the Declaration made was inconsistent with the provisions of the Constitution and was therefore ultra vires.

Human Rights Committee at Geneva

With regard to the President’s accession to the said Optional Protocol as Head of State and Government, the Court held that, the President’s said actions were also ‘a purported conferment of a judicial power on the Human Rights Committee at Geneva to vindicate a public law right of an individual within the Republic and (is) inconsistent with the provisions of Article 3 read with Articles 4 (c) and 105(1) of the Constitution’. It is here not intended to assess the Supreme Court ruling in the context of International Law.

Whatever the observations may be that have been made in that context with regard to its consequences and effect, it cannot be disputed that, the petitioner in the case was seeking to have his conviction set aside or to secure a retrial on the basis of the findings of the Human Right Committee at Geneva referable to the President’s said accession and declaration, after his conviction had been confirmed by the apex Court of Sri Lanka.

Undoubtedly this is a situation brought about by the purported exercise of executive power by the President, which power is also reposited in the people, but without reference to the people at least through the conduit of the people’s legislative power vested in Parliament, with or without necessity for a referendum. It is submitted with respect that, whatever bearing that ruling may have on International Law, the said Supreme Court’s ruling must rank as a bench mark in upholding the concept of sovereign power of the people as contained and entrenched in Article 3 of the 1978 Constitution of Sri Lanka.

Sovereignty of the People is the primary source from which the Constitution derives its validity. Constitutional doctrines and concepts such as the separation of power and Constitutionalism therefore must be defined and interpreted to give effect to the concept of sovereign power of the people.

The whole structure of the Constitution is founded on Article 3. Article 4 of the Constitution is complementary. Consequently, in the event of a conflict or an apparent conflict between the two articles, Article 3 must necessarily prevail, for the ultimate source of power is the people.

Section 3 of the first Republican (1972) Constitution merely acknowledged the concept of sovereign power of the people linking it to the political mandate theory. In contrast, Article 3 of the present Constitution has been given entrenched status. Consequently, it is not only necessary but also imperative to look beyond the mere letter of the Constitutional document in as much as its spirit is not confined to that document.

(The writer is a retired Professor in Law, University of Sri Jayewardenepura)

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