People’s sovereignty and legislative power | Daily News

People’s sovereignty and legislative power

The cardinal principle embedded in democratic governance is that people shall have their sovereignty with them which is inalienable to a coterie of rulers. This necessitates the assurance of the prevalence of the substantive safeguards in the Constitution to forestall any deterioration of the liberty of the people. Therefore an undeniable duty is cast upon the framers of a Constitution to insert provisions to strike a healthy balance between the powers of the rulers and the liberty of the people. This is also linked to the need for striking proper separation of powers among the Legislature, Executive and Judiciary in the context of peoples’ sovereignty.

Article 3 of the 1978 constitution describes sovereignty to include the powers of Government, fundamental rights and the franchise. Moreover, under the 1978 Constitution, there is no supreme body such as the ‘National State Assembly’ that existed under the 1972 Constitution. Under the 1978 Constitution, of the institutions that exercise the powers of government namely, the Presidency, parliament and the judiciary – none is supreme. At no stage are fundamental rights and franchise delegated to anyone. Thus, clearly popular sovereignty is the basis of the present Sri Lanka constitutional system.

Case Law

The concept of people’s sovereignty and its impact on legislative power may be briefly examined with particular reference to some of the significant decisions of the Supreme Court.

The Development Councils Bill

The ‘Sovereignty of the People’s came into focus in the Determination of the Supreme Court with respect to the Development Councils Bill. As provided by the Bill:

A Development Council shall have power to levy in the prescribed manner such taxes, rates and other charges as may be determined of the Minister in charge of the subject of finance by order published in the Gazette……

The Supreme Court after observing that the power to levy taxes, rates or other charges contained in the Bill has been left entirely to the Development Council and that in terms of Article 148 taxes may be imposed only under the authority of Parliament, held as follows: A wide and sweeping power to impose taxes, rates and levies at will is an attribute of the sovereign legislature and the conferment of such power on any other body constitutes an abdication and alienation of legislative power.

The Supreme Court further stated that, the conferment of an unrestricted power of imposing taxes rates and levies …… in another body, is such a fundamental departure from what may be done under our Constitution that it both contravenes Article 76 …… and is inconsistent with Article 3……

Consequently the Supreme Court ruled that “…… as it stands, the Bill can only become law if it is passed in the manner indicated in Article 83 and is approved by the People at a Referendum.”

This ruling in effect takes into consideration not only Article 3 which is entrenched in Article 83 but also Articles 4(a) and 76(1) (though not entrenched) as having an impact on Article 3. However, the prefatory words ‘as it stands’ in the Supreme Court ruling enabled Parliament at the Committee stage to amend the impugned clause by requiring any taxes, rates or other charges levied by a Development Council to be approved by the Minister with the concurrence of the Minister in charge of the subject of finance and confirmed by Parliament and published in the Gazette.

The effect of the Supreme Court ruling and the subsequent committee stage amendment would appear to be that, although provisions of a proposed Bill may be obnoxious to certain provisions of the Constitution which may impinge on provisions entrenched under Article 83 (in this instance Article 3) the potential which those un-entrenched articles possess to become impliedly entrenched could be got over by a suitable amendment.

The original draft of the Bill had sought to confer unfettered power on the proposed Development Councils to levy taxes, rates and other charges. This is what was found by the Supreme Court to be repugnant to Article 3 read with Article 76(1) (and impliedly Article 4(a). By amending the impugned clause at the committee stage which required Parliament to confirm any by-law of the said Council ‘the legislative power of the people in imposing taxes, rates and other charges’ which was to be ‘exercised by Parliament’ stood justified in terms of Article 76(3) of the Constitution. It is submitted that, the Supreme Court ruling carries a special significance in the context of the present Constitution in that, the concept of Sovereign power of the people contained in Article 3 was employed to give effect to the doctrine of Separation of Powers, that is, legislative power of the people conferred on Parliament as separated from the province of executive power.

(The writer is an Attorney-at-Law)



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