This Article is written by Pavuthira Kannathas, a Second-Year law student of University of Colombo

Introduction

The mechanism behind states all over the world is expected to protect the sovereignty that is in the people therein.[1]. The state here includes the structure of the states, the actions, and interactions of its institutions, the people who are in the states, and the principles and mechanisms which run the state.[2]. The global world after the eighteenth century expanded its developments in many ways including laws and the concepts that regulate the states.[3]. New developments of all countries are adopted by other states on a scientific basis that advances its status internationally.[4]. Accordingly, states these days assign more and more new philosophical ideas, especially in the concept of ‘Constitutionalism’.

Elements of Constitutionalism

Constitutionalism is, in general, an amalgamation of ideas, attitudes, and patterns of behavior that lay down the foundation of the principles from which the bodies of government derive their authority[5]. It implies limits to the states and government powers by way of establishing the parameters within which the rights of people are predictably secured[6]. Considering the arrangements made to establish constitutionalism there are some elements as stated by Louis Henkin Constitutionalism. He states that Popular sovereignty, the supremacy of the Constitution and the Rule of Law, Political Democracy, Representative Limited Government, Separation of Power, Civilian Control of the Military force, Police governed by Law and Judicial Control, and An Independent Judiciary Conceptualizing authoritarian constitutionalism[7].

Organs of Government in Sri Lanka

Beyond these arrangements in the constitution, the supremacy of organs is often under argument i.e., which organ of the government is with supreme power rather than the other two. In Sri Lanka, for example, Article 4 of the Constitution states that, like many other countries, sovereignty is exercised and enjoyed by three organs – the legislative power, the executive power, and the judicial power – in addition to the Fundamental rights and the franchise.[8]. Apart from checks made by the other two organs, the executive presidential system in Sri Lanka among all other countries enjoys wider power by way of Chapter VII of the Constitution.[9]. However, it would be better to draw attention to legislative supremacy over judicial supremacy to give an effect to the supreme law, the Constitution.

Sovereignty of Parliament

People by way of their inalienable sovereign power delegated by the constitution select their representatives and through them, they make laws for them.[10]. People in a democratic country do not only have rights, they have the responsibility to participate in the political system that, in turn, protects their rights and freedoms.[11] , which leads that by way of selecting members of the parliament, the legislature itself contains supremacy.

“Nobody, including a court of law, may question the validity of an Act of Parliament. It is a fundamental constitutional principle that once a Bill has passed through its various stages of scrutiny in Parliament and has received Royal Assent, it is a valid Act of Parliament. Regardless of its subject matter, judges will uphold its validity”[12].

Role of the Judiciary in Interpreting Laws

Though this supremacy of parliament is checked by the judiciary in the concept of Judicial Review and it is balanced by other restrictions thereon[13]. No laws enacted under emergency regulation are subjected to judicial review and also it is described as a check on an independent judiciary.[14]. All above the battle of supremacy among these three organs, there are certain circumstances where the judiciary is also supported to protect the supremacy of the parliament different the doctrines of separation of power and, checks and balances.[15].

According to Maxwell interpreting the statutes by the judiciary is a safeguard to parliamentary supremacy.[16]. Cross also agrees with the thoughts of Maxwell on Statutory Interpretation.[17]. By way of interpreting laws made by parliament, the judiciary attempts to protect parliamentary supremacy. In Somawathie V. Weerasinghe and Others[18], for example, a wife complaining of infringement of the Fundamental Rights of her husband under Article 126 of the Constitution. The alleged infringement consists of unlawful arrest and detention of the husband and an assault inflicted on him by police officers when he was in police custody. Kulathunga, J. held that the wife has no locus standi to maintain the application for her husband, and Amerasinghe, J. leaves a path for interpreting the provision.[19].

It refers to the action of a court in trying to understand and explain the meaning of a piece of legislation. There are two units in statutory interpretation i.e., the statutory text and the intention of the Parliament[20]. However, these units are identified mainly by way of four rules: the Literal Rule, the Golden Rule, the Mischief Rule, and the Purposive Rule for fair justice.[21].

Based on the literal rule Amerasinghe, J interprets the provision established by Article 126 (2) of the Constitution of Sri Lanka, under the primary rule of statutory interpretation, as literal construction and it is also known as the first and elementary rule of construction. It assumes that the words and phrases of technical legislation are used in their technical meaning.[22].

In this Somawathie case, the applicant is neither based on the literal rule and therefore he concludes the wife has no locus standi to maintain the application for her husband whose fundamental rights were infringed. However, Kulathunga, J[23] Had a view of the purposive rule of statutory interpretation seeking the purpose of making the legislation. According to Lord Siman in Maunsell vs Olins[24] The first task of the court is to consider the knowledge of the draftsman and the objective he had.

Therefore, he expressed his view regarding the Next-of-Kin principle and held that there is no sufficient evidence for establishing unlawful detention where the fundamental rights of the deceased husband were infringed and, therefore, he also dismissed the application.[25].

Considering the case analyzed there is a question that arises whether the letters of the Constitution interpreted in the view of theories forwarded by Maxwell and Cross by courts always maintain justice.

Application of Common Law

It should be noticed here the difference between American constitutionalism and Commonwealth constitutionalism concerns the endurance of the British tradition of legislative supremacy in Commonwealth constitutional settings[26]. Sri Lanka follows Commonwealth constitutionalism followed by the British where an unwritten constitution is existed. However, in very recent years Sri Lankan judiciary has applied the principles of American constitutionalism by adopting the thoughts of G.E.Devenish[27] and some others.

Constitutional Supremacy

The parliamentary supremacy discussed above in the interpretational perspective leads to the question of the position of the Constitution as a supreme law of the state. The rationale behind this is that the supreme law made by parliament gives sovereignty to the people to elect its members and also it is interpreted by the judiciary by ways of common law interpretational rules.[28]. Balancing the supremacy of parliament and the supremacy of the constitution based on interpreting the constitution adopted by the judiciary at present[29].

Constitutional Interpretation

“It is clear that the meaning of ‘unreasonable’ cannot be determined by recourse to a dictionary, nor for that matter, by reference to the rules of statutory construction. The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and easily repealed. A constitution, by contrast, is drafted with an eye to the future. … Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political, and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind”.[30]

Analyzing AG v Sampanthan[31]

In Sri Lanka, the president, according to Article 70 of the Constitution to be read with paragraph (2) (c), of Article 33 and paragraph (2) of Article 62 and in pursuance of the provisions of section 10 of the Parliamentary Elections Act, No. 01 of 1981, published a proclamation- dissolve Parliament and summon the new Parliament to meet. The period of four and half years specified in the proviso to Article 70 (1) had not passed when the Proclamation was issued. Therefore, the Petitioner states that the purported dissolution of Parliament was inter alia a violation of the express prohibition contained in the Constitution contained in the proviso to Article 70 (1) and an unconstitutional attack on Parliament. The Respondent stated that the provisions inter alia of Articles 62 (2), 33 (2) (c), 70 (3) Proviso (ii) and 70 (5) and Articles 3 and 4 of the Constitution and the doctrine of separation of powers, render the said dissolution per se legitimate and valid in law.

In this case the court, i.e., the judiciary attempted to be away with the traditional rules to the interpretation and, to establish the justice the common law is followed.

According to Mutuweeran Vs. The State[32] Highlighted by the courts here a duty is imposed upon the Supreme Court to protect fundamental rights and ensure their vindication, and also Ranasinghe J stated in Edirisuriya Vs. Navaratnam[33] That, “A solemn and sacred duty has been imposed by the Constitution upon the Court, as the highest Court of the Republic, to safeguard the fundamental rights which have been assured to the citizens of the Republic as part of their intangible heritage. It, therefore, behaves this Court to see that the full and free exercise of such rights is not impeded by any flimsy and unrealistic considerations.” Further, in Sugathapala Mendis Vs. Chandrika Kumaratunga[34] Tilakawardane J stated as follows.

“Furthermore, being a creature of the Constitution, the President's powers in effecting action of the Government or state officers is also necessarily limited to effecting action by them that accords with 38 the Constitution.” At p 373, she held that “…no single position or office created by the Constitution has unlimited power and the Constitution itself circumscribes the scope and ambit of even the power vested with any President who sits as the head of this country.”

As mentioned in the above para, the Supreme Court in this case led to the interpretation for the summation instituted by the Attorney General citing that the dissolution of Parliament by the President does not constitute “executive or administrative action” falling within the purview of Article 126 of the Constitution and, therefore, is covered by the immunity granted by Article 35 (1) of the Constitution. Before the 19th Amendment, Article 35 (1) conferred a blanket immunity 35 upon a President [so long as he holds office] from being sued in respect of any act or omission done by him in his official capacity qua President or in his private capacity and later, after the 19th amendment to the Constitution provided that nothing shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity.” Accordingly, the proviso to Article 35 (1) entitles any person who complains that an act or omission by the President in his official capacity has violated a fundamental right of that person to institute a fundamental rights application under and in terms of Article 126 of the Constitution against the Hon. Attorney General and seek a determination by the Supreme Court about his complaint[35].

Here, the intention of the legislation is valued by the Judiciary for the protection of the fundamental rights of citizens which emphasizes constitutional interpretation.

According to Bindra, as discussed in this case, the remedy for the legislature that may be done with the mistakes of draftsmen is to amend it. The legislature is presumed not to have made a mistake even if there is some defect in the language used by the legislature, it is not for the court to add to or amend the language or by construction make up deficiencies that are left in the Act.

Conclusion

This is also a landmark case that delivered judgment to save the fundamental right breached by the executive by way of constitutional interpretation that has taken a move from traditional interpretation Maxwell. Cranes. Cross, Devenish, Lloyd, and Harris are some other scholars who support the constitutional interpretation that would also be seen as ‘Constitutional Supremacy’.

When comes to the role of judges in constitutional interpretation, in British the legislation plays a supreme role rather than judges. However, in practice, as mentioned above there are many countries like Sri Lanka following Common law also known as judge-made law. However, RDL has stopped its evolution at a point in time but not the common law. Common law is being developed by the judges from time to time. According to the evolution or development of law, many judgments that are decided according to the law are also overruled by later judgments. According to the above analysis, the new developments and approaches are noticeable in Constitutional interpretation that challenges the supremacy of legislation.

References

1. The Constitution, 1978

2. Barnett. H, Understanding Public Law (1st edn, Routledge-Cavendish 2010).

3. Ehrlich.L, ‘Comparative Public Law and the Fundamentals of Its Study’ (Columbia Law Review Association, Inc. 1921) Vol.21, 625

4. Elliott.M and Feldman.D, The Cambridge Companion to Public Law (1st edn, Cambridge University Press 2015) 1

5. Langan. P.St.J., Maxwell on the Interpretation of Statutes (12th edn, N.M. Tripathi Private Ltd 1976) 28

6. Sampanthan v Attorney General SC(FR) 315-361/2018, SC Minutes 13 December 2018

7. Cross.S.R, Statutory Interpretation ( 3rd edn, Butterworths 1987) 21

8. Somawathie v Weerasinghe (1990) 2 Sri L.R. 121

9. Maunsell vs Olins (1975) AC 373

10. Sugathapala Mendis Vs. Chandrika Kumaratunga [2008 2 SLR 339 at p. 374]

11. Dicey A.V, 'Relation Between Parliamentary Sovereignty and the Rule of Law' (Linkspringercom, 1979) <https://link.springer.com/chapter/10.1007/978-1-349-17968-8_14> accessed 07 September 2024

12. All Answers ltd, 'Critical Analysis of the Literal, Golden, and Mischief Rules' (Lawteacher.net, July 2023) <https://www.lawteacher.net/free-law-essays/administrative-law/critical-analysis-of-the-literal-golden-and-mischief-rule-law-essay.php?vref=1> accessed 07 September 2024

13. All Answers ltd, 'Principle of the Separation of Powers' (Lawteacher.net, July 2023) <https://www.lawteacher.net/free-law-essays/constitutional-law/principle-of-the-separation-of-powers-constitutional-law-essay.php?vref=1> accessed 07 September 2024

14. Devenish, G.E, 'Interpretation of Statutes: By G E Devenish [Cape Town: Juta & Co1992 lvii + 298 pp ISBN 0-7021-2754-X]' (Wwwcambridgeorg, 17 January 2008) <https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/abs/interpretation-of-statutes-by-g-e-devenish-cape-town-juta-co1992-lvii-298-pp-isbn-070212754x/6C2670348596AE95644DA6F6C96ECA00> accessed 07 September 2024

15. Ribeiro.G.D.A, 'What is constitutional interpretation?' [2022] Vol 20 (No 3) Oxford University Press and New York University School of Law 1130–1161

16. Romeo. G, 'The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition' (Wwwcambridgeorg, 28 August 2020) <https://www.cambridge.org/core/journals/german-law-journal/article/conceptualization-of-constitutional-supremacy-global-discourse-and-legal-tradition/6C4866DC3A13EBBAC4AB0DB22D517D2F> accessed 07 September 2024

17. Mwaikusa. J.T, 'From parliamentary supremacy to judicial review: Relations between parliament and the judiciary in Tanzania' (Wwwun-ilibraryorg, April 2013) <https://www.un-ilibrary.org/content/books/9789210552851c008> accessed 07 September 2024

18. 'Principles of Democracy ' (Wwwprinciplesofdemocracyorg,) <https://www.principlesofdemocracy.org/what > accessed 07 September 2024

19. 'Statutory exclusion of Judicial Review of Administrative Action: Court’s approach' (Archives1dailynewslk, 19 January 2021) <https://archives1.dailynews.lk/2021/01/19/features/239157/statutory-exclusion-judicial-review-administrative-action-court%E2%80%99s> accessed 07 September 2024

20. Corrigan.T, 'Constitutionalism & its features' (Jstor, 01 February 2016) <https://www.jstor.org/stable/resrep25994.8?searchText=&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dconstitutionalism&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&searchKey=&refreqid=fastly-default%3Af595a7b7742e0086076bf7732634d1cd > accessed 07 September 2024

21. Lawjure, 'Constitutionalism & its features' (Lawjure, 17 March 2021) <https://www.lawjure.com/constitutionalism-its-features/ > accessed 07 September 2024

22. 'The Legislative Power of Parliament' (Wwwparliamentlk, 23 April 2018) <https://www.parliament.lk/en/how-parliament-works/the-legislative-power-of-parliament> accessed 07 September 2024

[1] The Constitution, A. 3

[2] Mark Elliott and David Feldman, The Cambridge Companion to Public Law (1st edn, Cambridge University Press 2015) 1

[3] Hilaire Barnett, Understanding Public Law (1st edn, Routledge-Cavendish 2010) 266.

[4] Ludwik Ehrlich, ‘Comparative Public Law and the Fundamentals of Its Study’ (Columbia Law Review Association, Inc. 1921) Vol.21, 625

[5] Lawjure, 'Constitutionalism & its features' (Lawjure, 17 March 2021) <https://www.lawjure.com/constitutionalism-its-features/ > accessed 07 September 2024

[6] Terence corrigan, 'Constitutionalism & its features' (Jstor, 01 February 2016) <https://www.jstor.org/stable/resrep25994.8?searchText=&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3Dconstitutionalism&ab_segments=0%2Fbasic_search_gsv2%2Fcontrol&searchKey=&refreqid=fastly-default%3Af595a7b7742e0086076bf7732634d1cd > accessed 07 September 2024

[7] Lawjure, 'Constitutionalism & its features' (Lawjure, 17 March 2021) <https://www.lawjure.com/constitutionalism-its-features/ > accessed 07 September 2024

[8] The Constitution, A.4

[9] The Constitution, Chap. VII

[10] The Constitution, A.3&A.4

[11] 'Principles of Democracy ' (Wwwprinciplesofdemocracyorg, ) <https://www.principlesofdemocracy.org/what > accessed 07 September 2024

[12]Hilaire Barnett, Understanding Public Law (1st edn, Routledge-Cavendish 2010) p.56&57

[13] Jwani t mwaikusa, 'From parliamentary supremacy to judicial review: Relations between parliament and the judiciary in Tanzania' (Wwwun-ilibraryorg, April 2013) <https://www.un-ilibrary.org/content/books/9789210552851c008> accessed 07 September 2024

[14] 'Statutory exclusion of Judicial Review of Administrative Action: Court’s approach' (Archives1dailynewslk, 19 January 2021 ) <https://archives1.dailynews.lk/2021/01/19/features/239157/statutory-exclusion-judicial-review-administrative-action-court%E2%80%99s> accessed 07 September 2024

[15] All Answers ltd, 'Principle of the Separation of Powers' (Lawteacher.net, July 2023) <https://www.lawteacher.net/free-law-essays/constitutional-law/principle-of-the-separation-of-powers-constitutional-law-essay.php?vref=1> accessed 16 July 2023

[16] P.St.J.Langan, Maxwell on the Interpretation of Statutes ( 12th edn, N.M. Tripathi Private Ltd 1976) 28

[17] Sir Rupert Cross, Statutory Interpretation ( 3rd edn, Butterworths 1987) 21

[18] (1990) 2 Sri L.R. 121

[19] Somawathie v Weerasinghe (1990) 2 Sri L.R. 121

[20] Sir Rupert Cross, Statutory Interpretation ( 3rd edn, Butterworths 1987) 21

[21] All Answers ltd, 'Critical Analysis of the Literal, Golden, and Mischief Rules' (Lawteacher.net, July 2023) <https://www.lawteacher.net/free-law-essays/administrative-law/critical-analysis-of-the-literal-golden-and-mischief-rule-law-essay.php?vref=1> accessed 16 July 2023

[22] P.St.J.Langan, Maxwell on the Interpretation of Statutes ( 12th edn, N.M. Tripathi Private Ltd 1976) 28

[23] Somawathie v Weerasinghe (1990) 2 Sri L.R. 121

[24] (1975) AC 373

[25] Somawathie v Weerasinghe (1990) 2 Sri L.R. 121

[26] Graziella romeo, 'The Conceptualization of Constitutional Supremacy: Global Discourse and Legal Tradition' (Wwwcambridgeorg, 28 August 2020 ) <https://www.cambridge.org/core/journals/german-law-journal/article/conceptualization-of-constitutional-supremacy-global-discourse-and-legal-tradition/6C4866DC3A13EBBAC4AB0DB22D517D2F> accessed 07 September 2024

[27] G e devenish, 'Interpretation of Statutes: By G E Devenish [Cape Town: Juta & Co1992 lvii + 298 pp ISBN 0-7021-2754-X]' (Wwwcambridgeorg, 17 January 2008 ) <https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/abs/interpretation-of-statutes-by-g-e-devenish-cape-town-juta-co1992-lvii-298-pp-isbn-070212754x/6C2670348596AE95644DA6F6C96ECA00> accessed 07 September 2024

[28] 'The Legislative Power of Parliament' (Wwwparliamentlk, 23 April 2018 ) <https://www.parliament.lk/en/how-parliament-works/the-legislative-power-of-parliament> accessed 07 September 2024

[29] A v dicey kc, 'Relation Between Parliamentary Sovereignty and the Rule of Law' (Linkspringercom, 1979) <https://link.springer.com/chapter/10.1007/978-1-349-17968-8_14> accessed 07 September 2024

[30] Gonçalo de almeida ribeiro, 'What is constitutional interpretation?' [2022] Vol 20 (No 3) Oxford University Press and New York University School of Law 1130–1161

[31] Sampanthan v Attorney General SC(FR) 315-361/2018, SC Minutes 13 December 2018

[32] ibid

[33] ibid

[34] [2008 2 SLR 339 at p. 374]

[35] Sampanthan v Attorney General SC(FR) 315-361/2018, SC Minutes 13 December 2018