By Edmund Ranasinghe (This is the second part of an article which analyses the role of parliament within a democracy. The first part appeared last week) It has been said by Western thinkers that “parliament today is little more than a meeting place in which rigorously controlled party delegates assemble together to register decisions already [...]


Parliament is supreme: It’s a myth


By Edmund Ranasinghe

(This is the second part of an article which analyses the role of parliament within a democracy. The first part appeared last week)

It has been said by Western thinkers that “parliament today is little more than a meeting place in which rigorously controlled party delegates assemble together to register decisions already taken elsewhere”.

They should know better than us who are mere imitators. How did this “meeting place” become sovereign? One thinker had said check and control of parliament has been reduced to a myth. Surely fiction and myth cannot be the means of governance.

We might bear in mind what R.H.S. Crossman has stated about parliament. According to him parliament, he is referring to the British parliament, was forged for a specific purpose under specific historical conditions.

Kenneth Minogue, a professor of political science at the London School of Economics and Political Science, talking about British politicians in his Politics: A Very Short Introduction’ says, “British politicians, for example, must know something of Magna Carta, Round Head and Cavalier, Whig and Tory, the Reform Bills of the ninetieth century, the contrasting political styles of prime ministers such as Melbourne, Peel, Disraeli, Gladstone, Churchill, Attlee and Wilson not to mention the events of the twentieth century”.

Since our constitution basically is a carbon copy of the British constitution it behoves our politicians to understand what Prof. Minogue said. If our politicians are unable to do that or do not care to do so, at least they must study the post-independence history and the leaders who were at the helm of affairs of this country.

In England in the course of their political development there were clashes between the judiciary the king. There is one case involving Chief Justice Coke which historians have commented on for his grit and commitment to law.

“The Government of Mankind” by J.A. Spender has five paragraphs on this episode. Here it is: “Again in the seventeenth century the staunchest champion of the common law was Sir Edward Coke, Chief Justice of the Common Pleas, the famous author of the great legal commentary Coke upon Littleton.

King John signing the Magna Carta or the Great Charter that eventually led to people's democracy in England

Coke was a rough and conceited man with a rasping tongue, who often put upon his theme a greater load than it could carry. But he held his head high when others abased themselves at the frown of the sovereign. In a trial held before him in 1616 counsel denied the validity of a grant made by the King to the Bishop of Lichfield of a benefice in commendam whereupon the King (James I) used his Attorney General, Bacon, to command the Chief Justice to delay judgment until he himself could discuss the question with the judges at Coke’s request. Bacon repeated this instruction to each of the judges, and Coke then obtained their joint signatures to a reply declaring the Attorney General’s instruction to be illegal and that they were bound to proceed with the case. The King then summoned them to his presence and expressed his extreme displeasure that his prerogative should be the subject of argument. On this the judges fell on their knees and asked pardon for the form of their letter, but Coke continued to insist on the correctness of its substance, and when asked whether in future he would delay a case at the King’s order, he would make no other reply than he would do what became him as a judge.”

For the sheer delight it gives one we might record here another paragraph from Spender’s “The Government of Mankind”:

“To Coke and the lawyers of his school the defence of liberty was the defence of law. They were not parliamentarians, or except in this one respect, Liberals, Coke, it has been said, would as readily have defended law against the encroachment of Parliament as against the encroachment of the King. Law and not Parliament was the Ark of his covenant and law again was much more than legislation. It was organised reason, the epitome of the good sense and experience of the English people, expressed in their common law, interpreted by judges and lawyers who were the guardians of liberty and the watchdogs of the constitution against King, Parliament or any other power which might encroach on it.

Coke would heartily have approved of the place assigned to the Supreme Court in the American Constitution. In his time and place he did great service to English liberty, and not least in the veiled struggle that he carried on with the more pliant Bacon, who taught that, though judges should be lions, they should be “lions under the throne” an opinion heartily shared by James I.

A few more remarks of Spender could not be more relevant to the present times. ”During a large part of the fifteenth and sixteenth centuries the defence of English liberty was in the hands of lawyers and judges who stoutly maintained the common law against both the encroachment of the crown and the more insidious attacks on it by their reactionary brethren, who would have imported into the despotic spirit of Roman Law”. “The King of England” wrote Chief Justice Fortescue in the fifteenth century” cannot alter nor change the lawes of the Realme at his pleasure. For why, he governeth his people by power not only royal but politique” (i.e. constitutional).

Concept like sovereignty of people, Parliament and the concept of parliamentary privileges have histories of several centuries. They evolved through conflicts and struggles between peoples and Kings, between Kings and people and between Kings and Parliament and struggles between Kings and their subjects. Politicians without any knowledge of theses history can become enemies of the people. That may be why Prof. Minogue said that British politicians must know the political history of their country. This no doubt applies to all politicians of all countries that boast of representative democracy and parliaments and elections.

Historians of British politics have shown that the judiciary had insisted upon its independence and upon the supremacy of the common law over royal mandate. In the contest between the crown and judges the judges claimed they were sovereigns become it was they who interpreted the common law. This contest was said to be the forerunner of the greater contest between King and Parliament. The ignorance of how these concepts evolved can have deadly consequences for people in countries where carbon copy political institutions have been instituted. There were thinkers who asserted “The sovereignty of the common people and maintained that parliament was merely the agent of the nation at large.” Can one raise the question, basing oneself on this assertion how a mere agent of the nation at large become sovereign that it becomes untouchable.

The constitution tells us that “In the Republic of Sri Lanka sovereignty is in the people and is inalienable,” a layman not versed in constitutionalism and the law might want to know how, if the sovereignty is inalienable, it was alienated from the people and deposited in parliament an “agent of the people. And how does one of three parts of the constitution become superior to the other two? This is another question a layman could like to have an answer and also whether the constitution at any point has clear unequivocal answer.

To clear our mind we might quote a Gettell’s History of Political thought: “Sir John Fortescue analysed and eulogised the English system of law in contrast to the Roman jurisprudence. He also praised the excellence of the English system of government, which combined royal and “political” rule in that the consent of parliament was necessary to legislation and money grants, and the law applied by the judges was superior to the royal command. Like his predecessors he denied that the will of the prince is the source of law. The rights of Englishmen, which enumerated in contrasting English and French ideas of government, contained many of the items incorporated into later bills of rights…. Through Sir Edward Coke, the ideas of Fortescue were handed down, and they were frequently referred to by the opponents of the King in the later revolution.”

Today we are embroiled in constitutionalism, constitutional practices and law that had their birth in England. One wonders how familiar are the present day generations of the political class with these conventions, traditions and judicial pronouncements, enactments and practices.

As long as human nature continues to be what it is, history will continue to throw up events similar in nature but happening in different circumstances.

This “affair impeachment” brings to mind events that happened decades earlier. The event that is being referred to is the attempted coup of early nineteen sixties. With due acknowledgement to Sarasavi Publishers (Private) Limited certain details relating to that event are obtained and quoted from their publication ‘Memories of a Cabinet Secretary – Bernard Percival Peiris”.

This is how the story goes: The coup had failed. Twenty nine were arrested. They were top ranking officers of the army, navy, police and the civil service and few civilians. The government of the day decided to make drastic and unusual changes in the law.

A Trial-at-Bar was to be instituted. There was to be no preliminary magisterial inquiry and the proceedings were to be initiated in the Supreme Court. The power to choose judges, normally a function of the Chief Justice, was to be vested in the Minister of Justice. The trial against any accused persons could be commenced and continued in his absence. The penalty for the offence might be a sentence to death. Bail was to be refused unless authorised by the Attorney General. Confessions made to Police Officers could be made admissible in evidence. There was to be no appeal from the sentence. When everything was over and the accused convicted or acquitted the new changes in the law were to cease to have any effect and the old law revived automatically. The legal draftsman was given two days to prepare the Bill.

This Bill was severely criticised by all parties of the opposition. The General Council of Advocates of Ceylon passed a resolution to the effect.

The General Council of Advocates of Ceylon vehemently opposes the criminal law (Special Provisions) Bill in that:-

1. It removes the safeguards which are designed to ensure as far as possible a fair investigation and a fair trial;
2. It empowers the Minister of Justice to choose a Bench of Judges for a particular case; and
3. It deprives an accused person of the cherished fundamental right of appeal.

The Bill was passed after a long debate. The International Commission of Jurists in Geneva expressed “profound concern” at the legislation. Many of the provisions they said were entirely contrary to the accepted principles of the rule of law.
The Minister of Justice in keeping with the new act named the Judges for the Trial-at-Bar. Justices T.S. Fernando, L.B. de Silva and Sri Skanda Raja were appointed. The Attorney General Jansze led for the Crown with Solicitor-General Tennekoon and several Crown Counsel.

G.G. Ponnambalam, E.G. Wickramanayake, H.W. Jayewardene, A.H.C. de Silva, all Queen’s Counsel supported by an array of Juniors appeared for the defence. Objection to the jurisdiction of the court was taken. This was done on the ground that it was wrongly constituted and the objection was upheld. The Court held that (a) the power of nomination conferred on the Minister is an interference with the exercise by the Judges of the Supreme Court of the strict judicial power of the state vested in them by virtue of their appointment in terms of section 52 of the Ceylon (Constitution) order in Council 1946 or in derogation thereof, and (6) the power of nomination is one which has hitherto been invariably exercised by the judicature as being part of the exercise of the judicial power of the state and cannot be reposed in anyone out side the judicature.

Section 9 of the Criminal Law (Special Provisions) Act No. 1 of 1962 is ultra vires the constitution.  The government in the face of these events brought in an amended bill with power of nomination of Judges restored to the Chief Justice and was passed by the House of Representatives.

The Chief-Justice constituted a Bench Consisting of Justices Sansoni, H.N.G. Fernando and L.B. de Silva and after a lengthy trial convicted the accused. The accused, as they had no right of appeal to the Court of Criminal appeal, appealed to Her Majesty in Council at this inquiry a preliminary question of law was submitted by the appellants counsel and the appeals were allowed and the convictions were quashed.

The fact that a government instituted bench of Judges held with the defence objection that it had no jurisdiction because it was instituted by the Minister of Justice when it actually should have been done by the Chief Justice speaks volumes for the integrity and calibre of judges who adorned the Supreme Court at the time.

The point that bothers an inquisitive mind is when all this happened where was the sovereign power of Parliament which is now claimed for it. In a certain historical epoch when the Parliament, Judges and common people were waging a struggle with Kings, the Parliament claimed supremacy. But now when those epochs have receded into history and with it the claim for supremacy could only be seen as an anachronistic move. One is reminded here of the position taken up by the judges in England who had to wage struggle with Kings to safeguard the rule of law. They claimed they were sovereign because they interpreted the common law.

Whatever may be the outcome of the impeachment controversy or in whatever way it could work itself out, one cannot escape the dissertation that it has done serious damage to the prestige and influence of Parliament. It is most unfortunate that in this controversy the members themselves collectively and individually exposed themselves to criticism that did not reflect well on them or Parliament. Newspapers and other media gave wide publicity to reports alleging that certain members had signed a blank sheet. What amount of intelligence does one need to conclude that ignorance had cast a dark cloud over this country and its future? Thee avoidance of such situations always augur well for countries. Actions are more explosive than realms of words.

Parliament was born in the West and it might do well to listen what historians and thinkers have said and written about Parliaments. Reference was made to this subject earlier. But a summary in some form would not be superfluous. They have said and written that Parliament is an institution, powers of which have been eroded and these powers now rest in party offices and caucuses — that Members of Parliament have become delegates of parties who assemble to endorse decisions taken elsewhere; that Parliaments have become places where members have become voting machines controlled and operated by party managers; that speeches are made just to impress and please voters; that the theory that Parliament is a check on the executive has become to mean no more than a fiction; that Parliament is merely an agent of the people who are sovereign; that Parliament is sovereign is a myth and a fiction.

Is it time for a national discourse on parliament?

One cannot but agree with the thinker in the West who said that “intelligent men naturally wish to understand the authority under which they live to analyse its organisations and its activities and to speculate the best form of political existence”.

A line or two from Arthur M. Schlesinger, Jr.’s “The Politics of Freedom” may be useful. “So the reform,” he says “of institutions becomes an indispensable part of the enterprise of democracy. But the reform of institutions can never be a substitute for the reform of man”.

He says again, “The hope for free society lies, in the last resort in the kind of men it creates.”

The notion that judges are representatives of the people is new to us or we may not have known that it existed. Edmund Burke said so in the eighteenth century. Here it is “The King is the representative of the people, so are the Lords, so are the Judges. They are all trustees for the people as well as the commons, because no power is given for the sole sake of the holders”. This quote is from “The Western Intellectual Tradition” by J. Bronowski and Bruce Mazlish.

(The writer is former editor-in-chief of Upali Group of Newspapers)

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