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

Public Law

Public Law is the common term used for the laws regulating the states and it basically comprises constitutional law and the aspects of administrative law.[1]. The states here include the structure of the states, the actions and interactions of its institutions, the people who are in the states, and the principles and mechanisms that run the states.[2]. It further concerns the state and its relationships with other bodies and also individuals inside and outside the state.[3]. The global world after the eighteenth century expanded its developments in many ways including laws and the concepts that regulate the states. New developments of every country are adopted by other states on a scientific basis that advances its status internationally and the Public law is also the same. Accordingly, states in these days assign more and more new duties to the public organizations and check power abuses.[4]. In addition to that when a crisis arises, and it has been already solved by some other country in a particular manner, the same manner is adopted to resolve it.[5]. This is how a state compares the other states and has later become a comparative study in law named comparative public law.

Comparative Public Law

However, the term Comparative Public Law will experience less difficulty in determining what should meant by "comparative" in public law.[6]. This is a modern world with plenty of modern ideas and such ideas often have ancient origins and traditions. Social conditions in modern public law are not only based on the ancient origin but also certain psychological factors belonging to present and former organizations. According to Dean Stone entire legal system is not always scientific i.e. it is not made by those who have a thorough knowledge of it.[7] He further states that to be scientific law must be based on an adequate understanding and it must be carried on in comparison with other legal systems.[8] Acts of state, political representation, social contract, separation of powers, and the protection of the rights of individuals are just a few examples of topics requiring the study of new laws of different countries. Comparing the doctrine of separation of power under public law gives us an idea of how modern democracies are developed.

Doctrine of Separation of Power

Though Locke expressed his view of a growing English radical tradition, French philosopher, Baron de Montesquieu (1689-1755) articulated the foundations of the separation doctrine after visiting England from 1729 to 1731[9].

The concept of separation of powers, for example, prohibits a person or a body of persons from the government.[10]. Governmental powers constitute twofold: organic separation where the institutions of government are properly established and functional separation where the functions of such institutions are exclusively exercised by the organs of government according to the constitution.[11]. Such organs of government are named as the executive power, legislative power, and judicial power. Though, according to Finnis, all three powers should be exercised by three different organs Hon. Sir Mason, a former Chief Justice of Australia has observed that absolute separation between these three organs is not possible[12].

Montesquieu in The Spirit of the Laws says as follows:

“Democratic and aristocratic states are not in their nature free. Political liberty is to be found only in moderate governments, and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.”[13]

According to him, it is stressed to protect individual liberty and to avoid abuse of powers and when there is an autocratic power of the government, individuals would lose their liberty.[14].

Doctrine of Separation of Power in Sri Lanka

Separation of Power under the Soulbury Constitution

Separation of Power in Sri Lanka has impliedly been recognized by Soulbury in 1947. In Bribery Commissioner v. Ranasinghe[15] Stated as follows:

“….The importance of securing the independence of the judiciary and maintaining the dividing line between the judiciary and the executive and also, one should add the Legislature, was appreciated by those who framed the Constitution”… [16]

Lord Pearce[17] Held that the acts disputed were ultra vires and invalid. What they constituted is a grave and deliberate interference with the judicial power of the judicature and it is contrary to the constitution.

Here, the Independence of the judiciary is questioned by Montesquieu’s principle of separation of power which lies about the independence of the judiciary from legislative and executive control and influence.

Separation of Power under the 1972 Constitution[18]

Section 05 of the Constitution Recognizes the unicameral National State Assembly as the supreme instrument of state power of the Republic. Accordingly:

The National State Assembly is the supreme instrument of State power of the Republic. The National State Assembly exercises-

(a) the legislative power of the People;

(b) the executive power of the People, including the defense of Sri Lanka, through the President and the Cabinet of Ministers; and

(c) the judicial power of the People through courts and other institutions created by law except in the case of matters relating to its powers and privileges, wherein the judicial power of the People may be exercised directly by the National State Assembly according to law.

Accordingly, the National State Assembly as the supreme instrument functioned through three separate organs – legislative, executive, and judiciary.

Separation of Power under the 1978 Constitution

The intention of drafting the 1978 Constitution in the doctrine of separation of power perspective was to have a division of powers among the different organs of government which would tend to act as a restraint upon the arbitrary exercise or the abuse of power by the delegates of the people.[19]. Article 04 of the 1978 Constitution exercises the sovereignty of the state as follows:

The Sovereignty of the people shall be exercised and enjoyed in the following manner:

(a) the legislative power of the people shall be exercised by Parliament, consisting of elected representatives of the people, and by the people at a referendum;

(b) the executive power of the people, including the defense of Sri Lanka, shall be exercised by the President of the Republic elected by the people;

(c) 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 regarding 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.

According to this Constitution, all powers of government are vested in the people. However, the Constitution visibly defines how governmental power must be exercised and creates three separate institutions to carry out the powers of government the Parliament exercising legislative powers, the President, his Cabinet of Ministers and the public service performing executive functions, and the Judiciary exercising justice. Though there is a line between all these organs it must be noted that the judicial power of the people is to be exercised by Parliament that enacts laws. A merging of judicial and legislative power is noticeable by way of the provision declaring that the Parliament would exercise the judicial power of the people through Courts, tribunals, and other institutions established for the administration of justice.

Whether the doctrine of separation of power is applicable in an appropriate manner

Independence of the Judiciary, for example, although there have to be limitations, checks, and balances on all three organs of power such limitations have not been mentioned to the powers of the Executive and the Legislature. However, the judicial power of the people is exercised by Parliament through courts means that the judicial power of the people is also to be exercised under the Legislature. Here, the judiciary gets the second place due to its function according to the directions of the Parliament. This is how the Constitution 1978 itself breaches the doctrine of separation of powers.

For a further example of an independent judiciary, Article 107 (1) of the 1978 Constitution of Sri Lanka stated that the ‘Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and the Court of Appeal shall be appointed by the President of the Republic by warrant under his hand’[20] and that such judges shall ‘hold office during good behavior’[21]. According to the jurisprudential thoughts the term ‘good behavior’ is questionable and also it gives a path to think about whether the term affects the private conduct of judges.

In this way, the doctrine of separation of power in Sri Lanka exceeds its limit even more than the checks and balances in the organs of the government.

Comparative Study

Comparing the scenario with India to identify whether the separation of power is in its constitution, Article 50 of the Indian Constitution states that ‘the state shall take steps to separate the judiciary from the executive in the public services of the State’. This is a unique provision compared with other Constitutions of different states. This provision attempts to create a demarcation between the executive and the judicial organs of the Government and thereby steps towards the attainment of democracy are strengthened.[22].

Accordingly, judicial powers could be restricted by the not by legislature which is why there is a specific need to take steps to prevent executive interference. This provision could be one reason why India has ‘activist’ judges.[23].

The issue of executive interference in the judiciary is discussed in the case of K. Veeraswamy v Union of India and others about the impeachment motion of a judge. It was stated in the appeal of this case that if the President is regarded as the authority, he cannot act independently as he exercises his powers by and with the advice of his Council of Ministers and the Executive may misuse the power by interfering with the judiciary. Likewise in the Sri Lankan case of Queen v Liyanage,[24] it was stated that the nomination of the judges by the Minister was a violation of the Constitution and ultra vires to the Constitution. It was an open attempt to interfere with one of the embedded institutions in the Constitution in the name of an Independent Judiciary. According to Justice Krishna Iyer held in Union of India V. Sankalchand Himatlal Sheth (1977) 4 SCC 193 ‘independence of the judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government pleasure’[25].

Article 124 of the Constitution[26] Allows the President of the Republic to appoint all Supreme Court Judges under warrant of his hand may leave room for political intervention in the appointment of judges. In the matter of appointment of judges Sri Lanka's Chief Justice, the President of the Court of Appeal, and every other judge of the Supreme Court and the Court of Appeal also follow the same procedure as India which interferes with the judiciary by the organ of the executive.

In comparison with the unwritten Constitution of the United Kingdom[27], while there is a narrow separation of powers between the executive and the legislature, the independence of the judiciary from the other two organs is more noticeable. However, the Lord Chancellor holds office in all three arms of government. The United States on the other hand adopts Montesquieu’s model of separation of powers by following a strict system of separation of powers.[28]. Therefore where Sri Lanka is in comparison with the other major states it positions in the cord of separation of powers closer to the United States and India but further away from the United Kingdom.

Conclusion

Montesquieu believed by establishing this theory rulers who represent government are also human beings and inherently dominate and oppress others therefore, three organs of a government are essential to prevent arbitrary ruling and to establish democracy in the states. Independency of these organs is questioned, in practice it is hardly found accurate separation, because of interfering in the domain of other powers and attempting to dominate and control them. The judiciary is the vital organ that provides justice to the citizens where the sovereign exists. Interference of the judiciary by the other three organs is also questioned in the rule of law. Though the executive and legislature are elected by the people of the country both bodies interfere in the judiciary in the current scenario. For example, the removal of Chief Justice Shirani Bandaranayake in 2013 was an incident where the entire world looked at the interference in the judiciary. On the other hand, judicial review is a powerful weapon of the judiciary in that enacts effective laws for the country. However, the doctrine of separation of power is not in the way Montesquieu believed but in the way of balancing the sovereign of people under the umbrella of Separation of Power, another way of saying is that the pros and cons of the doctrine of separation of power including within the Sri Lankan territory is the two sides of a coin.

Bibliography

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

2. Bribery Commissioner v Ranasinghe [1965] AC 172; [1964] 2 All ER 785, [1964] 2 WLR 1301

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

4. Hilaire Barnett, Understanding Public Law (1st ed, Routledge-Cavendish 2010) 1.

5. https://www.goodreads.com/quotes/913113-democratic-and-aristocratic-states-are-not-in-their-own-nature> accessed on 08.11.2022

6. K. Veeraswamy v Union of India and others [1991] 3 SCR 189

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

8. Marsoof. A, The Doctrine of Separation of Powers and The Independence of The Judiciary in The Modern Constitutional Setting of Sri Lanka (2010) < https://www.academia.edu/20252957/The_Doctrine_of_Separation_of_Powers_And_The_Independence_of_the_Judiciary_In_the_Modern_Constitutional_Setting_of_Sri_Lanka > accessed on 07.09.2024

9. Medawattei D S, Separations of Powers: A Fairytale of Utopia < https://www.academia.edu/10208944/Separation_of_Powers_Danushka_Medawatte?email_work_card=title> accessed on 07.09.2024

10. Midttun. A, Montesquieu for the Twenty-first Century: Factoring Civil Society and Business into Global Governance (2010) Vol. 10 No. 1, pp. 97-109

11. Paul Halsall, Fordham University (1997) <https://sourcebooks.fordham.edu/mod/montesquieu-spirit.asp> accessed on 07.09.2024

12. The Constitution of Sri Lanka 1972 <https://www.parliament.lk/files/ca/4.%20The%20Constitution%20of%20Sri%20Lanka%20%20-%20%201972%20(Article%20105%20%E2%80%93134)%20Chapter%20XIII.pdf> accessed on 08.11.2022

13. The Constitution of Sri Lanka 1978

14. The Queen v. Liyanage and Others <https://www.lawnet.gov.lk/the-queen-v-d-j-f-d-liyanage-and-others/ > accessed on 07.09.2024

15. The Secretary, Ministry of Health & Family Welfare v. S.C. Malte & Ors < https://indiankanoon.org/docfragment/26439354/?big=3&formInput=independence%20of%20judiciary> accessed on 07.09.2024

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

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

[3] Ibid

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

[5] ibid

[6] ibid 633

[7] ibid 625

[8] ibid 626

[9] Atle Midttun, Montesquieu for the twenty-first century: factoring civil society and business into global governance (2010) Vol. 10 No. 1, pp. 97-109

[10] Althaf Marsoof, The Doctrine of Separation of Powers and The Independance of The Judiciary in The Modern Constitutional Setting of Sri Lanka (2010) < https://www.academia.edu/20252957/The_Doctrine_of_Separation_of_Powers_And_The_Independence_of_the_Judiciary_In_the_Modern_Constitutional_Setting_of_Sri_Lanka > accessed on 07.09.2024

[11] ibid

[12] ibid

[13]< https://www.goodreads.com/quotes/913113-democratic-and-aristocratic-states-are-not-in-their-own-nature> accessed on 08.11.2022

[14] Paul Halsall, Fordham University (1997) <https://sourcebooks.fordham.edu/mod/montesquieu-spirit.asp> accessed on 07.09.2024

[15] Bribery Commissioner v Ranasinghe [1965] AC 172; [1964] 2 All ER 785, [1964] 2 WLR 1301

[16]Danushka Sewwandi Medawattei, Separations of Powers: A Fairytale of Utopia < https://www.academia.edu/10208944/Separation_of_Powers_Danushka_Medawatte?email_work_card=title> accessed on 07.09.2024

[17] ibid

[18] The Constitution of Sri Lanka 1972 <https://www.parliament.lk/files/ca/4.%20The%20Constitution%20of%20Sri%20Lanka%20%20-%20%201972%20(Article%20105%20%E2%80%93134)%20Chapter%20XIII.pdf> accessed on 08.11.2022

[19] Althaf Marsoof, The Doctrine of Separation of Powers and The Independance of The Judiciary in The Modern Constitutional Setting of Sri Lanka (2010) < https://www.academia.edu/20252957/The_Doctrine_of_Separation_of_Powers_And_The_Independence_of_the_Judiciary_In_the_Modern_Constitutional_Setting_of_Sri_Lanka > accessed on 07.09.2024

[20] Article 107 (1) of the Constitution of Sri Lanka 1978

[21] Article 107 (2) of the Constitution of Sri Lanka 1978

[22] Danushka Sewwandi Medawattei, Separations of Powers: A Fairytale of Utopia < https://www.academia.edu/10208944/Separation_of_Powers_Danushka_Medawatte?email_work_card=title> accessed on 07.09.2024

[23] ibid

[24] The Queen v. Liyanage and Others <https://www.lawnet.gov.lk/the-queen-v-d-j-f-d-liyanage-and-others/ > accessed on 07.09.2024

[25] The Secretary, Ministry of Health & Family Welfare v. S.C. Malte & Ors < https://indiankanoon.org/docfragment/26439354/?big=3&formInput=independence%20of%20judiciary> accessed on 07.09.2024

[26] Danushka Sewwandi Medawattei, Separations of Powers: A Fairytale of Utopia < https://www.academia.edu/10208944/Separation_of_Powers_Danushka_Medawatte?email_work_card=title> accessed on 07.09.2024

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

[28] Danushka Sewwandi Medawattei, Separations of Powers: A Fairytale of Utopia < https://www.academia.edu/10208944/Separation_of_Powers_Danushka_Medawatte?email_work_card=title> accessed on 07.09.2024