The Inaugural K.C. Kamalasabayson, P.C Memorial Oration Delivered By Justice Saleem Marsoof
August 25, 2008 at 10:09 am · Posted Public Articles
(The inaugural K.C. Kamalasabayson, PC Memorial Oration organised by the K.C. Kamalasabayson, PC Foundation, was delivered by Supreme Court Justice Saleem Marsoof, PC on the topic “Some Thoughts on the Sovereignty of the People and the Rule of Law“, amidst a distinguished gathering, comprising judges, legal luminaries, civil servants and members of the public, at HNB Towers on 22nd August 2008.)
some thoughts on the sovereignty of the People AND THE RULE OF LAW
The Inaugural K.C. Kamalasabayson, P.C Memorial Oration
delivered by
Justice Saleem Marsoof, P.C.
Judge of the Supreme Court of Sri Lanka
My Lord the Chief Justice Sarath N. Silva P.C., Hon. C.R. de Silva, P.C., Attorney-General of Sri Lanka, Justice Dr. C.G. Weeramantry, Judges of the Superior Courts and other members of the judiciary, Mr. W. Dayaratne, President of the Bar Association of Sri Lanka, Dr. W. D. Rodrigo, Principal, Sri Lanka Law College, Mr. W.P.G Dep, Solicitor General, Mrs. Ramani Kamalasabayson, Miss Vidhya Kamalasabayson and other members of the Kamalasabayson family, President’s Counsel, members of the Attorney-General’s Department, distinguished guests and ladies and gentlemen,
Today we pay tribute to the memory of late Kandappar Chinniah Kamalasabayson, who will be remembered as one of the most distinguished Attorneys-General Sri Lanka ever produced, and who has left a lasting impression in our minds and hearts as a great son of our land. He was snatched away from our midst by the deadliest of all deceases, and his untimely demise was an irreparable loss to our country and to humanity.
Moved by my sense of gratitude towards a man who has been my friend, philosopher and guide, and the passion for justice which I shared with him, I accepted with humility the invitation extended to me by the Kamalasabayson Foundation to make this inaugural oration, but I hesitated very much before saying “yes” to Mrs. Ramani Kamalasabayson, because I feared that I may not be able to do justice to his character and accomplishments or match his professional and intellectual attainments or oratorical skills. Nevertheless, I consider it a privilege and honor to be invited to make this oration before such a large and learned audience, and I take this opportunity to thank the organizers for their kind invitation, and seek your indulgence if I fall short of your expectations.
The late Mr. Kamalasabayson, commenced his education at Hindu Primary School and continued his studies at S. Thomas’ College, Mt. Lavinia from where he entered Ceylon Law College. Both at school and at the Law College, he excelled in studies, oratory and debating. He passed the Final Examination for Admission of Advocates held in November, 1971 with honors and won the gold medal for oratory. He devilled in the Chambers of the late Mr. G.F. Sethukavalar, P.C., and his elder brother the late Mr. K.C. Kamlanathan, and on completion of his apprenticeship, was enrolled as an Advocate of the Supreme Court of Sri Lanka on 23rd June, 1972.
Mr. Kamalasabayson was known as “Kamale” to his schoolmates at S. Thomas College, Mt. Lavinia, and as “Saba” to his colleagues at the Bar, but to me he was always Kamal, and that is how I propose to refer to him in the course of this oration. After taking his oaths, Kamal began practicing under Senior Lawyer Mr. Bala Nadaraja, who commanded a tremendous civil practice. Kamal loved his noble profession, and enjoyed every minute of his work. His sterling qualities made him very popular among his colleagues, and he showed all signs of maturing into a busy practitioner commanding a lucrative legal practice. But that was not to be, as after little more than two years in the Unofficial Bar, he chose to join the Attorney-General’s Department as an Acting State Counsel in August 1974.
Our paths converged when I joined the Department in September 1975, a little more than a year behind Kamal, and this gave me the opportunity to work closely with him and learn from him not only the mundane and sometimes boring aspects of the law, but also exciting things about life. I must say that I took an instant liking to Kamal, and the qualities of Kamal I remember most were his simplicity, sincerity and straightforwardness.
When I first met Kamal, he was a youthful and handsome prince, and I was able to go up the seniority ladder in the Department almost behind him, to occupy positions as Senior State Counsel, Deputy Solicitor General, and Additional Solicitor General until he became the king by reaching the pinnacle of the Official Bar in October 1999, when he was appointed to the exalted office of Attorney-General of Sri Lanka. In my humble view, he was one of the greatest Attorneys-General we ever had.
Let me at this stage digress a little to Kamal’s personal life. Although Kamal was one of the best Counsel in the Official Bar, which naturally would have placed him high on the “marriage market,” he remained a bachelor even after his promotion as Senior State Counsel. Only later did we discover that this was not because he had no heart – indeed, we all knew him as a wonderful human being with a big heart – but there was someone who had stolen his heart, and that was none other than Ramani. When he was yet a school boy attending S. Thomas’ College, Kamal was a great debater, and during one of the inter-college debates he had met Ramani, who debated for her school, Holy Family Convent, Bambalapitiya. It was love at first sight, but fate had its way, and their association sadly did not mature into marriage. Seventeen years later – during which he had almost got used to his bachelorhood – he met Ramani as a young widow. He used to tell us, “I missed her once; I don’t want to miss her again”. He married Ramani in 1986 and gave her a new life and a lovely daughter Vidhya, who is herself following in her father’s footsteps. He, no doubt, was a man with a golden heart, a loving husband and an exemplary father.
Coming back to Kamal’s professional career, which was crowned in June 1996 by the conferment of silk in recognition of his eminence in the Bar, I must say Kamal was a Counsel par excellence. Although he had mastered every conceivable field of law, including even the complexities of custom, tax, corporate, securities and extradition law, it was in the arena of Public law that Kamal left a lasting impression as Counsel. The law reports of the last three decades are studded with cases in which Kamal had appeared, which included a large number of writ applications, election related cases, fundamental rights applications, and constitutionality determinations. Many of the cases in which Kamal appeared are regarded as landmark decisions in Sri Lanka, and more often than not, he has been complimented by the judges who heard the cases for the excellent manner in which he assisted court.
When we pay tribute to a personality of the caliber of Kamal, it is natural that we focus on his favorite theme, which has to be in the area of Public law. This suits me well, as the constitutional issue of governance always intrigued me, although during my school days, Mr. Canakaratne who taught me ‘Government’ at Royal College in the Advanced level class, did not readily agree with my assertion that the best form of government is an enlightened dictatorship. What led me to this belief was the premise that democracy involves the rule of the majority, and in my experience the majority was, more often than not, wrong in its decision making. I must hasten to add that I have since modified my own views on these matters, as I have now come to realize that an informed majority is more likely to be right in its decisions.
Kamal used to say that power corrupts, and absolute power corrupts absolutely. He believed that for proper and effective governance, power should be shared, and it should be shared vertically as well as horizontally. Vertical power transfer can take the form of centralization of power from the periphery to the centre as in the United States, or decentralization of power from the centre to the periphery as in India and in Sri Lanka. Horizontal sharing of power takes place when through the “separation of powers” as advocated by Dicey the concentration of power in one person or body is avoided, and the legislative, executive and judicial functions are vested in different organs of State. Kamal had mastery of these constitutional concepts, and was fully conversant with the provisions of the Constitution contained in the Thirteenth Amendment relating to the devolution of powers to the Provinces. He knew the three lists in the Eighth Schedule to the Constitution inside out, and this helped him to handle all sorts of cases and problems in this very complex area of the law.
In all his work, whether it be advising the government or its agencies, or representing the State in court and other forums, Kamal always respected the concept of ‘Sovereignty of the People’, with its corollary that all governmental power emanate from the people, and that all government agencies, whether legislative, executive or judicial, are answerable to the people and must exercise their power in trust for the people and in accordance with the ‘Rule of Law’. To him, the ‘Rule of Law’ was just one attribute of the ‘Sovereignty of the People’. He was a “people-friendly” Attorney-General who always had the best interest of the people in mind, and his life work can best be summed up with the Latin maxim, salus populi est suprema lex meaning “regard for public welfare is the highest law”. It is therefore appropriate that I focus in my oration on the twin concepts of ‘Sovereignty of the People’ and ‘The Rule of Law’, which were so close to Kamal’s heart.
As we all know, the pre-Independence Constitutions of Sri Lanka such as the Donoughmore and the Soulbury Constitutions derived their authority from the British Crown, and not from the people of this country. The independence of the Parliament of Ceylon was ensured by the Independence Act enacted by the Parliament of the United Kingdom in 1947. After little more than two decades of independence, it was considered necessary to break away from the past, and have a Constitution of our own which also did away with certain limitations on the legislative power of Parliament which had been imposed by the Soulbury Constitution. Thus, in 1972, the people gave the United Front government a mandate to set up a Constituent Assembly to make and proclaim a new Constitution having no legal links to the then existing Constitution or to any British authority. The representatives of the people met symbolically at Nawarangahala, the auditorium of the Primary Section of Royal College, and not at the House of Representatives which was the legislative assembly created by the Soulbury Constitution, and proclaimed a Republican Constitution which derived its legal validity directly from the people of Sri Lanka. Thus, the Republican Constitution of 1972 was a truly autochthones Constitution, and it categorically stated in Article 3 that “in the Republic of Sri Lanka, sovereignty is in the People and is inalienable.”
Unlike the Republican Constitution of 1972, the Constitution of the Democratic Socialist Republic of Sri Lanka, was enacted in 1978 by the National State Assembly by following the procedure laid down in the 1972 Constitution for repealing and replacing the existing Constitution. To that extent the legal validity of the Constitution of 1978 was derived from the Republican Constitution of 1972. Article 3 of the Constitution of 1978 proclaimed 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.” Article 4 of the Constitution spelt out in clear terms how the ‘Sovereignty of the People’ is to be exercised by the various organs of State.
When one speaks about ‘Sovereignty of the People’, it is important to realize that this phrase consists of two words namely ‘Sovereignty’ and ‘People’, and both terms to some extent defy definition. For instance, the term “people” can mean different things in different contexts, and the meaning of “sovereignty” could change from time to time and place to place. The notion of ‘Sovereignty of the People’ which also is referred to as “popular sovereignty,” consists of the belief that the legitimacy of the State is created by the will or consent of its people, who are the source of all political power. The idea is closely associated with philosophers such as Thomas Hobbes, John Lock and Jacques Rousseau, who advanced the social contract theory, which assumes that government’s exercise authority only on the basis of the contract with the people who have empowered the government.
The history of medieval England presents us with a dramatic illustration of how power could shift horizontally over time. Prior to the seventeenth century, it was the British King or Queen who had legal authority to govern the people and was in that sense Sovereign. The power of the Crown was absolute and it was claimed that its source was divine. The absolute power of the Crown was challenged by Parliament resulting in a struggle which spanned the seventeenth century. It was during the seventeenth century when the struggle between the King and Parliament was in full swing that the famous Dr. Bonham’s Case, [1610] 8 Co. Rep. 114 was taken up before the Court of Common Pleas. Dr. Thomas Bonham, a graduate of the University of Cambridge in physic medicine, was found practicing medicine in London without a license from the London College of Physicians, who maintained jurisdiction in that city over the practice of medicine. Dr. Bonham was examined by the college censors on aspects of his professional practice, and they found him wanting. As a result, Bonham was determined unfit to practice medicine in this field, and was ordered to desist from such practice in London. When Dr. Bonham was later discovered flouting this order, he was arrested and placed in the custody of the censors, the case came before the Court of Common Pleas when Dr. Bonham claimed that his continued detention by the college amounted to false imprisonment. By way of defense, the London College of Physicians relied on its statute of incorporation, which authorized it to regulate all physicians in London and to punish practitioners not licensed by the College. The statute also entitled the college to one-half of all the fines imposed by it. Honorable Coke C.J., also a Cambridge graduate, held in favor of his fellow alumnus. After singing the praises of their alma mater, Chief Justice Coke argued that because the College censors were entitled to receive a portion of the fine they imposed on Dr. Bonham, the statute made them prosecutor, plaintiff, and judge in the dispute. Coke C.J. ruled that,
The censors cannot be judges, ministers and parties; judges … give sentence or judgment; ministers … make summons; and parties … have moiety [half] of the forfeiture, because no person may be a judge in his own cause … and one cannot be judge and attorney for any of the parties.
Although the parliamentary statute in question clearly contemplated that London College would wear all three of these hats, his Lordship observed as follows:
It appears in our books, that 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 common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void. (at 652)
With this ruling, Coke C.J. placed the judiciary in the middle of what was becoming a titanic struggle between the King and Parliament. King James I, thought that if the judiciary were allowed to assert the power to review acts of Parliament, it was only a short step away from passing judgment on actions taken by the Crown. Accordingly, King James removed Chief Justice Coke from the Court of Common Pleas and appointed him Chief Justice of the King’s Bench. The strategy did not work too well for King James, as Justice Coke’s replacement on the Court of Common Pleas, Sir Henry Hobart, in Day v. Savadge, Hob. 84 (K.B. 1614), declared that “an act of parliament made against natural equity, as to make a man judge in his own cause, is void in itself” Justice Hobart attributed his authority to review and invalidate legislation to “that liberty and authority that judges have over laws, especially … statute laws, according to reason and best convenience, to mould them to the truest and best use”. Exasperated by this decision, King James I ordered Chief Justice Coke to “correct” his decision in Dr. Bonham’s Case, and when he refused to accede to the King’s demands, he was removed from the King’s Bench.
We all know that the tussle between the Crown and Parliament was resolved in favor of Parliament towards the end of the seventeenth century. The Glorious Revolution of 1688 subordinated the power of the English Crown and judiciary to Parliamentary Sovereignty. Parliament emerged supreme and omnipotent making Acts of Parliament unquestionable. In 1765, English Jurist Sir William Blackstone described the power of Parliament to make laws in England as “absolute”, “despotic” and “without control”. In 1936, Sir Ivor Jennings, himself a strong adherent of parliamentary supremacy, and no lover of the rule of law, identified the (1) democratic, (2) parliamentary, (3) monarchical and (4) Cabinet-lead features being “implied in the principles of the Constitution” but said that of these features, “the fundamental principle is that of democracy”, which he defined on the basis that it is “carried on in the name of the people according to doctrines freely accepted by or acceptable to the people at a general election”. Dicey, in his Introduction to the Study of the Law of the Constitution considered the sovereignty or supremacy of Parliament to be the prime constitutional principle in England. While the decision in Dr. Bonham’s Case has consistently been subjected to criticism in England, the Chancellor Lord Ellesmere, observed that the said decision –
…..derogateth much from the wisdom and power of the parliament, that when the three estates – the King, the Lords and the Commons – have spent their labours in making a law, then shall three judges on the bench destroy and frustrate all their points because the act agreeth not in their particular sense with common right or reason, whereby [Coke] advanceth the reason of a particular court above the judgment of all the realm.
The American Revolution which began 11 years after Blackstone’s pronouncement of Parliament’s unfettered power was commenced in response to the coercive legislation passed in the colonies by what had become a despotic Parliament. Thomas Jefferson, James Madison and their contemporaries believed that the legislative despot was no better than the monarchical despot. In 1787, the US Constitution established the judiciary as a check on the legislative and executive branches of government, a check that was foreshadowed by Chief Justice Coke’s opinion in Dr. Bonham’s Case, which though not followed in England had inspired the Constitution-makers of the United States to acknowledge the Supremacy of the Constitution, as opposed to the Supremacy of Parliament or Congress. In fact, it was the decision in Dr. Bonham’s Case that spawned the concept of Judicial Review under which the courts in the United States are authorized to invalidate laws enacted by the executive and legislative branches of government. The power of judicial review of legislation, which was first recognized by the U.S. Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60, is invoked by courts every day across the United States but has since been rendered obsolete in England as far as the legislative process is concerned. In that landmark case, Chief Justice Marshall observed as follows:-
The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it…
Although the concept of Supremacy of Parliament has survived in the United Kingdom for the last three centuries, the question has now been posed as to whether the relationship between parliamentary sovereignty and the rule of law has changed in recent times. The foundations of the concept of Supremacy of Parliament were shaken when the United Kingdom joined the European Union in 1973 and subjected itself to the control of the European Parliament and the European Court of Justice, and under the Human Rights Act 1998, the courts have the power to declare (though not to invalidate) legislation incompatible with the European Convention on Human Rights.
In the recent case of Jackson v. Atorney-General ([2006] 1 A.C. 262), the House of Lords had the opportunity of reviewing the validity of English Acts of Parliament. The decision is important to those who hunt to hounds, as it involved a challenge to the validity of the Hunting Act of 2004, which had been passed in the House of Commons but not in the House of Lords. Mr. Jackson, Chair of the Countryside Alliance, challenged the validity of the Hunting Act on the ground that the Parliament Act of 1949, which permits a Bill which has not been passed in the House of Lords to become an Act under certain conditions, itself was not validly enacted. A unanimous nine-member House of Lords Appellate Committee agreed with a unanimous Court of Appeal (and before that, Divisional Court) that the 1949 Act was not invalid, and therefore upheld the validity too of the Hunting Act 2004. However, what is significant is that the Attorney-General in Jackson did not oppose the courts entering into judicial review, and the courts justified accepting jurisdiction of the matter by holding that they were not considering the mode of passing Bills but engaging simply in a matter of statutory interpretation, namely, whether the 1949 Act was permitted by the terms of the 1911 Act.
The decision contains interesting obiter dicta impinging on the concept of Supremacy of Parliament. At one end of the spectrum was Lord Bingham, who was not willing to deny Parliament’s sovereignty. He said:
The bedrock of the British constitution is, and in 1911 was, the supremacy of the Crown in Parliament…. Then, as now, the Crown in Parliament was unconstrained by any entrenched or codified constitution. It could make or unmake any law it wished. Statutes, formally enacted as Acts of Parliament, properly interpreted, enjoyed the highest legal authority.
At the other end of the spectrum was Lord Steyn. He examined the implications of the Attorney-Generals submission that the 1949 Act could be used even to abolish the House of Lords, and whether Parliament could, for example, abolish judicial review. His view was expressed in the following words:
….the European Convention on Human Rights as incorporated into our law by the Human Rights Act, 1998, created a new legal order….it is a legal order in which the United Kingdom assumes obligations to protect fundamental rights, not in relation to other states, but towards all individuals within its jurisdiction. The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism
Lord Hope was similarly critical of the principle of absolute parliamentary sovereignty. Speaking particularly from the perspective of a Scottish Law Lord, he said:
Our constitution is dominated by the sovereignty of Parliament. But Parliamentary sovereignty is no longer if it ever was, absolute……. It is no longer right to say that its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from…. Blackstone is being qualified.
Another significant development in the United Kingdom was the enactment of the Constitutional Reform Act of 2005, which received the Royal Assent on 24th March 2006 upon being passed by both Houses, having been introduced in the House of Lords in February 2004 with the view of avoiding the delaying powers of the House of Lords under the Parliament Acts of 1911 and 1949. The Act guaranteed continued judicial independence, by placing a statutory duty on Ministers of the Crown, and all others involved in the administration of justice, to uphold the continued independence of the judiciary, and barred them from seeking to influence particular judicial decisions through any special access to the judiciary. The Act also provided for the establishment of a Supreme Court, separating the highest appellate court from the House of Lords and thus making it distinct from the legislature. The Act provided for the abolition of the office of Lord Chancellor, together with the associated historic office of Keeper of the Great Seal. The legislation preserved the principle of separation of powers and strengthened the concept of the independence of the judiciary.
These developments clearly show that there is a shift in focus in English law away from ‘Supremacy of Parliament’, and towards the ‘Rule of Law’ and the ‘Independence of the Judiciary’, which in fact will be more conducive to democratic governance. On the other hand, no such shift was necessary in the United States where the decision of Chief Justice Coke in Dr. Benham’s case was well received at the very inception.
Now let us get back to our own country. The popular perception throughout the world, except in countries like Switzerland which enjoys a form of direct democracy, is that the people become sovereign once in five or six years when they are called upon to vote at elections, and thereafter they cease to be sovereign. However, it is noteworthy that the Constitution of 1978 gives the people of Sri Lanka the opportunity of participating directly in the legislative process in two different ways. Firstly, the President of Sri Lanka, who is elected by the people at a Presidential election, may in accordance with Article 85(2) of the Constitution submit to the People by Referendum any Bill (not being a Bill for the repeal, replacement or amendment of the Constitution or any part thereof or which is inconsistent with any provision of the Constitution), which has been rejected by Parliament. This is a form of direct participation by the people in the legislative process. Secondly, in terms of Article 85(1) of the Constitution any Bill which has been certified by the Cabinet of Ministers as being intended to be submitted to the People at a Referendum, or which the Supreme Court has determined as requiring the approval of the People at a Referendum, necessarily have to be approved by the People to be enacted into law. This makes the People the ultimate guardians of the Constitution. These provisions further the ‘Sovereignty of the People’.
However, the people can exercise their sovereignty effectively only if they are well informed. My experience is that in most democracies misinformation and disinformation has become a fine art, and any one in control of the popular media can come into power. It is in such countries that, as I said earlier, the majority is invariably wrong, and the knowing minority has no say. Only an informed public can take the right decisions, whether at elections or Referenda. It is therefore imperative for good governance that the public has access to accurate, complete and timely information so vital for its decisions. Most democracies now have legislation, such as the Freedom of Information Acts of the United States and the United Kingdom or the Right to Information Act of India, providing a mechanism through which the public can have access to information, and the proper implementation of such legislation has in turn resulted in greater transparency and accountability while reducing the level of corruption in these countries. Although corruption is a global phenomenon, it has a greater impact on developing nations such as Sri Lanka than on more affluent countries, because third world corruption results in further impoverishment and the diminishment of dwindling resources. Therefore, some legislative mechanism to give members of the public access to information, is badly needed in our country.
The Sovereignty of the People has also suffered somewhat in Sri Lanka due to the curtailment of judicial review of legislation. Under the Soulbury Constitution it was possible to challenge any legislation enacted by Parliament at any time after its enactment as illustrated by decisions such as The Bribery Commissioner v. Ranasinghe 64 NLR 449 (SC) 66 NLR 73(PC); Jailabdeen v Danina Umma 64 NLR 419 and Liyanage v The Queen 64 NLR 313 (SC) 68 NLR 265 (PC). The ability to challenge enacted legislation, which was first curtailed by the Constitutions of 1972, continues to be limited by Article 80(3) of the Constitution which enacts that-
Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.
The effect of this provision is that we, in Sri Lanka stand between the United States, where there is unlimited judicial review of legislation, and the United Kingdom, where no judicial review of legislation is permissible, so that under our system of what may be called “pre-enactment judicial review” a Bill presented in Parliament may be challenged before the Supreme Court for unconstitutionality in terms of Article 121 of the Constitution “within one week of the Bill being placed on the Order Paper of Parliament” unless it is certified as an urgent Bill with respect to which the procedure for review in Article 122 will be applicable.
Sovereignty of the People is impeded in several ways under this system of ‘pre-enactment’ judicial review of legislation. Firstly, the time limit of one week is too short for any citizen to petition the Supreme Court regarding unconstitutionality of a Bill. Secondly, gazetted bills are not readily available, and there have been instances where it has been brought to the notice of court that copies of the gazette have been deliberately withheld from the public. Thirdly, it sometimes takes a fairly long time even for the relevant Ministry, Department or other Authority to begin implementing the enacted law, and not only members of the public but even public officials cannot readily comprehend how the legislation will impinge on the rights of individuals. It is therefore unreasonable to impose a short time-limit for the challenge of such legislation. Fourthly, the procedure of certifying bills as urgent which enables even this limited review mechanism to be by-passed subject to a very scrappy examination of the bill by the Supreme Court for unconstitutionality has not worked too well in this country. Some of these criticisms of the existing system surfaced when the constitutionality of the Inland Revenue (Special Provisions) Act No. 10 of 2003 was challenged by Mr. Nihal Sri Amarasekere some time after the Speaker had endorsed his certificate thereon in terms of Article 80 of the Constitution. Although Mr. Amarasekere had pleaded that the relevant gazette containing the Bill had deliberately been withheld from the public, a possible argument based on ultra vires was not pressed, and consequently the challenge failed in view of the ouster contained in Article 80(3). Subsequently, on a reference by the President, the Supreme Court ruled that the said Act had been enacted in violation of the Constitution, and action was taken to have the Act repealed. The whole episode cost the government a good part of its revenue, and also caused injustice to those who comply with tax laws and allowed some of the tax evaders to go scot-free.
Notwithstanding all these drawbacks, the Constitutional Court set up under the Constitution of 1972 as well as the Supreme Court under the 1978 Constitution have developed a rich jurisprudence of ‘pre-enactment’ judicial review of legislation. The jurisprudence has been surveyed by Dr. J. de Almeda Gunaratne, P.C. in his valuable contribution to In Pursuit of Justice with Heart and Soul which is being launched today under the title: Judicial Response to the Concept of Sovereign Power of the People in Sri Lanka. In view of this publication, I do not have to go into this rich jurisprudence, except to highlight one of Dr. Gunaratne’s concerns. He has pointed out in his paper at page 167-168 that despite the Supreme Court determination in the National Housing (Amendment) Bill case [1978-83] DSCPB 25 that certain provisions of the Bill which sought to confer power to the Commissioner to award compensation for improvements and to confer power on the Minister to hear appeals against the Commissioners orders were inconsistent with Article 4(c) which vested the judicial power of the people expressly in courts, have been enacted by Parliament without making the modifications suggested by the Supreme Court to avoid such inconsistency. He observes at page 168 that-
..….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.
I learnt a bitter lesson when I assisted the Supreme Court in the Value Added Tax Bill case [1978-83] DSCPB 273. In response to certain submissions made by Mr. J.C. Weliamuna, who appeared for the Petitioner in that case, I gave an undertaking to make an amendment to the draft Bill to overcome the question of unconstitutionality raised by Mr. Weliamuna, and promptly informed the relevant Minister and the Legal Draftsman of the said undertaking. The Minister was not inclined to make the contemplated amendment to the Bill, even after I got Kamal (who was Attorney General at that time) to write personally to the Minister, and the Bill was enacted to law without making the amendment. Since then, I never gave any undertaking to court unless I was certain that the authorities will honor them. There have also been instances of Committee stage amendments being moved in Parliament which are inconsistent with the Constitution and even contrary to Standing Orders of Parliament which limit the scope of such amendments, but these amendments have been enacted into legislation without objection. In circumstances such as these, there is no provision in the Constitution to protect the ‘Sovereignty of the People’ from blatant violations.
Now let me turn to the Rule of Law, which Kamal believed was an aspect of the ‘Sovereignty of the People’. The Rule of Law, in its most basic form, is the principle that no one is above the law. As Thomas Paine noted in his pamphlet Common Sense [1776]: “For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.” As His Lordship the Chief Justice observed in Re the Eighteenth Amendment to the Constitution [1991-2003] VII DSCPB 305-
The rule of law, means briefly the exclusion of the existence of arbitrariness and maintaining equality before the Law. .
There is no doubt that our Constitution seeks to protect and preserve the Rule of Law. It contains many provisions which provide the procedures and norms for good governance and transparency. The Seventeenth Amendment to the Constitution was enacted to enhance these procedural and normative standards. The Constitution as it stood prior to the Amendment vested the President with power to appoint the Chief Justice, Judges of the Supreme Court, the President of the Court of Appeal and other Judges of the Court of Appeal, to make acting appointments to the said offices, and to appoint the members of the Judicial Service Commission and other members of institutions administering justice including the members of the Commission to Investigate Allegations of Bribery or Corruption. The object of the Seventeenth Amendment was to bring greater transparency and legitimacy to this process of appointment.
I am certain that one of the most important achievements of Kamal was the enactment of the Seventeenth Amendment to the Constitution, which has been described as a high water mark in the legislative history of Sri Lanka. I had the privilege of being with him at the State Officers’ Box in the House of Parliament during the Second Reading of that important piece of legislation, and it was through the adoption of a suggestion made by Kamal that it was possible to break the deadlock between the government and the opposition, which paved the way for the successful passage of the Seventeenth Amendment in Parliament. This amendment has been hailed by Anwar Shah in Performance, Accountability and Combating Corruption (Public Sector Governance and Accountability Series, IBRD 2007), at pages 33-35 as “democracy in action”. He describes the legislation as an ‘indigenous initiative’ which came ‘from within’ at “the cost of some loss of local discretion and the increase in bureaucratic delays”(ibid., 34-35) Shaw hints that had the citizens’ voice been “harnessed to create a constituency for the reform, that would have helped it survive.” (ibid., 35). Dean of the Law Faculty, Mr. N. Selvakkumaran, in his essay entitled the Seventeenth Amendment to the Constitution – An Attempt Towards Good Governance at page 313 of In Pursuit of Justice has stressed that the non-appointment of Members of the Constitutional Council “seriously undermines the rule of law, constitutionalism and good governance” and expresses the hope that the Superior Courts would “construe relevant provisions of the Constitution in a manner which will promote harmonious operation.” (ibid., 329)
Sadly, the Seventeenth Amendment to the Constitution has become a dead letter due to the failure to appoint the members of the Constitutional Council, which has, for instance, compelled a fast aging Commissioner of Elections to continue in office ad infinitum and beyond even the compulsory age of retirement. In the absence of a properly constituted Constitutional Council, elections are now held without the salutary oversight of the independent Election Commission sought to be established by the said Amendment, and major appointments to the public service and the judiciary are made without complying with the mandatory provisions of the Constitution. It is therefore essential to bring about changes in polity and attitudes to create the climate for the appointment of the Constitutional Council, so that it can begin to function once again. This is extremely important for the preservation of the Rule of Law.
It is worth noting that the Supreme Court in its determination in Re the Eighteenth Amendment to the Constitution [1991-2003] VII DSCPB 305, required a provision of the Bill which purported to confer on the Constitutional Council the power to make Rules without the approval of Parliament contrary to Article 4(a) of the Constitution, to be approved by the People at a Referendum in addition to obtaining two-thirds majority in Parliament. The Supreme Court also refused to sanction the immunity from suit sought to be conferred on the members Constitutional Council established by the Seventeenth Amendment, and in doing so pointed out that –
The Constitution does not attribute any unfettered discretion or authority to any organ or body established under the constitution. Even the immunity given to the President under Article 35, has been limited in relation to Court proceedings specified in Article 35 (3).
This determination clearly establishes that in Sri Lanka, no one is above the law.
Kamal who appeared in the landmark case Re the Eighteenth Amendment to the Constitution [1991-2003] VII DSCPB 313, in which the issue that the Supreme Court had to deal with related to the curtailment of certain power of the President to dissolve Parliament, drew the attention of the Supreme Court to the following dictum of Bhagawati, J. (later, Chief Justice of India) in the case of Gupta and Others v. Union of India [1982] AIR (SC) 197, where he observed-
If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the Rule of Law meaningful and effective.
After citing this passage, the Seven Judge Bench that heard the Eighteenth Amendment case in the course of a well considered determination, stated that –
To sum up the analysis of the balance of power and the checks contained in the Constitution to sustain such balance, we would state that the power of dissolution of Parliament and the process of impeachment being some of the checks put in place, should be exercised, where necessary, in trust for the People only to preserve the sovereignty of the People, and to make it meaningful, effective and beneficial to the People.
The above quoted words not only link the Sovereignty of the People with the Rule of Law but also clearly demonstrate that “the rule of law is the basis of our Constitution”.
Kamal has been a very honest and straightforward public officer. Kamal expected the same standards of honesty and integrity from every public officer, and the only occasion when I heard him using harsh words was when he came a cross a public officer who was wanting in these respects. There were numerous occasions when he refused to defend public officers who had acted with corrupt or sinister motives or had yielded to political pressure in the discharge of their duties. Kamal always did what he thought was correct, totally oblivious of the consequences, and never yielded to political pressure. In fact he admired public officers of the caliber of Mr. Dharmasiri Pieris, who was an exemplary State Officer. In his opening comment on Mr. Pieris’s magnum opus entitled In the Pursuit of Governance, containing his memoirs as a civil servant, Kamal observed as follows-
……the writer with great thoroughness and keen analysis discloses the trials and tribulations faced by a responsible public servant in a politically sensitive system. He conveys an important message to the present day public servant, viz. that it is not difficult for a public servant to be fearless and independent and at the same time, discharge his duties and functions efficiently. He also strikes a warning note to those public servants who serve their political masters for personal gain. To the writer the public service was a pilgrimage, in the course of which he was given with the noble task of serving the public.
It is the failure on the part of an increasingly greater number of public officers to adhere to principles of good governance, that resulted in unfortunate decisions such as the recent judgement of the Supreme Court in Vasudeva Nanayakkara, Attorney-at-Law, vs. K. N. Choksy, P.C. former Minister of Finance and Thirty Others (S.C. Application (F.R.) 209/2007, S.C. Minutes of 21.07.2008) in which all agreements entered into between the Board of Investment and Lanka Marine Services Ltd., for the sale of its shares as part of the process of privatization, were declared null and void. In the course of this judgment, His Lordship S. N. Silva, C.J., stressed the need for transparency in the conduct of public business. His Lordship based his decision on three well-established principles of our Constitution, namely, the Rule of Law, the Public Trust and Equality. His Lordship observed –
That the Rule of Law is the basis of our Constitution as affirmatively laid down in the decision of this Court in Visvalingam vs. Liyanage (1983 1 SLR page 236) and Premachandra vs. Jayawickrema (1994 2 SLR page 9) and consistently followed in several subsequent decisions. The Rule of Law “postulates the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power. It excludes the existence of arbitrariness, of prerogative or wide discretionary authority on the part of the Government” (vide: Law of the Constitution by A. V. Dicey – page 202). In the picturesque language of the famous British Chief Justice Lord Coke whose dicta and writings contributed to the early growth of English Constitutional Law, the principle of legality which underpins the Rule of Law assures that the powers of Government will be exercised in accordance with “the golden, and straight met wand” of law as opposed to the “uncertain and crooked cord of discretion”.
After referring to the decisions of the Supreme Court in Re the Nineteenth Amendment to the Constitution (1991-2003] VII DSCPB 313; [2002] 3 Sri L.R. 85 and Bulankulame and Others vs. Secretary Ministry of Industrial Development [2000] 3 Sri L.R. 243, His Lordship stated that “the resources of the State are the resources of the people and the organs of State are guardians to whom the people have committed the care and preservation of these resources.” His Lordship went on to point out that there is a “positive component in the right to equality” guaranteed by Art. 12 (1) of the Constitution as decided in Senarath vs. Chandrika Bandaranayake Kumaratunga (S.C. Application (F.R.) 503/2005, S.C. Minutes of 03.05.2007) and where the executive acts ultra vires and in derogation of the Peoples’ trust, it is in the public interest to implead such action before Court. The Supreme Court also directed the public officer who was found to be responsible for the loss and whose actions were held to be arbitrary and ultra vires, to pay Rs. 500,000/- as compensation to the State. This decision will no doubt be an eye opener not only to errant public officers, but all members of the public service in general.
Public officers of the caliber of the late Mr. Kamalsabayson are an indispensable ingredient for the building of a temple of justice which will preserve the Rule of Law. I must emphasize that Kamal discharged his responsibilities with unsurpassed distinction and unsullied honor throughout his long career in the Department. Speaking on the occasion of his Kamal’s retirement, Mr. A. Gnanathasan, Additional Solicitor General, who at that time was the President of the Attorney-General’s Department Legal Officers’ Association, referred to Kamal as “an eminent legal luminary and a brilliant Attorney-General of the Republic who has preserved and fostered the greatness of the office.” Expressing similar sentiments, His Lordship S. N. Silva, P.C., Chief Justice of Sri Lanka, whom Kamal had represented in several leading cases, observed that-
Mr. Kamalasabayson had the ideal temperament as a Counsel to represent the cause of the State. He discharged his functions at all times with due courtesy to the members of the Bar and the highest respect to the Bench. He argued his cases with ingenuity and dedication. I am personally indebted to Mr. Kamalasabayson for having represented me in Court when persons purporting to act in the public interest sought to implead my official actions and appointment. The reported judgments in those cases display Mr. Kamalasabayson’s skill and dedication which brought to an end a vicious and malicious trend which I hope would never resurface in this country.
During his tenure as Attorney-General Kamal strove to strike a balance between the rights of the accused and the rights of the victim of a crime, and made every effort to create the necessary public awareness regarding the need to enact legislation to protect victims of crime and witnesses. In his address of 2nd December 2003 he said:
Another important feature that requires consideration is the need for an efficient witness protection scheme that would ensure that witnesses are not intimidated and threatened. No doubt this would involve heavy expenses for the State and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?
Kamal played a major role in promoting the Protection to Victims of Crime and Witnesses Bill, now being debated in Parliament, which seeks to specifically codify, protect and promote the rights and entitlements of victims of crime and witnesses in accordance with international norms and best practices. It is noteworthy that His Excellency Mahinda Rajapaksa, the President of Sri Lanka, in his special condolence message, appreciated Kamal’s services in this connection and observed that he (that is, Kamal) “had a special interest in balancing the rights of the accused with those of the victim in the administration of justice, where he saw a glaring imbalance with the scales tilted more in favor of the accused than the victim.”
Those who knew Kamal closely knew that an important characteristic of Kamal was the “balance” he maintained in the discharge of his official functions. His Excellency, Gopalkrishnan Gandhi, the Governor of West Bengal in his Letter of Appreciation described Kamal as a man of great learning, patience and understanding, who maintained an “Euclidean balance”. Kamal strove with heart and soul – corde et amino – to protect, foster and preserve the ‘Sovereignty of the People’ and the ‘Rule of Law’ for the achievement of justice in all its facets all the time, and succeeded to survive unscathed through the vicissitudes of a public service. May the mission of achieving justice, that marked the lifework of the late Mr. K.C. Kamalasabayson, inspire all men in their pursuit of justice to posterity – esto perpetua!