Constitutional Court in Sri Lanka
Introduction
Theories of constitutional interpretation refer to different philosophical approaches the interpreters take in construing the meaning of the constitution. The theories are both prescriptive and descriptive. These theories describe what interpreters usually do, but also prescribe what they ought to do. These theories are generally address how the meaning of the Constitution should be discerned, thus allowing the application of substantive constitutional law to a particular set of facts or issues. Whether it is necessary to have a unified theory of constitutional interpretation to analyze all aspects of the Constitution is itself a matter of debate and establishment of constitutional courts. Typically, the term ‘constitutional court’ denotes a decision making institution which is separate from the ordinary judiciary, and which has the final, and usually exclusive, say on the interpretation of the constitution, as well as the constitutional validity of laws and State action has so far demonstrated any inclination to undertake. However there are five sources that have guided interpretation of the constitution. These five theories are different directions of guides to interpretation. Even though I suggested that the consequences of alternative interpretation theory for establishment of constitutional court in Sri Lanka. However I’m giving more substantial weighting to precedent consequence is called Living Constitution theory as well as non-originalists constitution.
Purpose of the
constitutional court
A number of factors in Sri Lanka support the establishment of a constitutional court, and suggest that it may be a viable institution. There are various possible reasons why constitutional courts have become so popular and why constitutional court wants to be adopted.[1] For lawyers, a “powerful confluence of forces” is presented as supporting the establishment of such a body, which includes both functional and symbolic reasons, such as:
(a)
The need for legal certainty and efficiency in a new constitutional order.[2]
(b) The need for a court untainted by links to
the previous authoritarian regime;
(c) Concerns that existing supreme courts will
not act to support democratic institutions and values;
(d)
The need for a more efficient method of ascertaining the constitutionality of
laws and State action (by permitting such matters to be addressed at first instance
rather than on appeal)
(e)
A superior capacity to address political questions;
(f)
The need to insulate the ordinary judiciary from politicization; and
(g) The symbolic importance of more clearly
indicating that the state is committed to the rule of law and rupture with the
authoritarian past.
The enduring perception of a constitutional court’s capacity to deliver these goods has raised it to a pre-eminent design option among many scholars, constitution-makers, and policymakers.[3]
Introduce a constitutional
court based on Living constitution theory in Sri Lanka
A
living Constitution is one that evolves, changes over time, and adapts to new
circumstances, without being formally amended.[4] A common law Constitution
is a "living" Constitution, but it is also one that can protect
fundamental principles against transient public opinion, and it is not one that
judges (or anyone else) can simply manipulate to fit their own ideas. Although "the living
Constitution" is itself a characterization rather than a specific method
of interpretation, the phrase is associated with various non-originalist theories
of interpretation[5].
However
new constitution of Sri Lanka proposed to establish a new Constitutional Court
in order to interpret constitutional matters and resolve constitutional
difficulties arising out of power sharing. The Constitutional Court (CC) should
protect the supremacy of the Constitution. It should be able to give judgments
on important principles in relation to gender justice and plural democracy and
equality principles.[8]
Because this Living Constitution suggest that a dynamic view of civil liberties is vital to the continuing effectiveness of our Constitutional scheme. Not only is it currently seen as unacceptable to suggest that minorities or women are not entitled to liberty or equal protection as they were not at the time of the Constitutional ratification, but neither do advocates of the living Constitution believe that the framers intended, or certainly demanded. And also Living Constitutionalists suggest that broad ideals such as "liberty" and "equal protection “and Right to privacy were included in the Constitution precisely because they are timeless, due to their inherently dynamic nature.[9] Therefore new constitution of Sri Lanka should adopt the constitutional court for protect the principles of equality and right to privacy based on Living Constitution.
The mandate of the Constitutional Court will be any
matter which falls within the ambit and jurisdiction of the Constitutional
Courts, as per the Constitution arising in a case before any court in the
country as such matters will be referred to the constitutional courts. The
jurisdiction of the Constitutional Court should include the interpretation of
the Constitution, including the authority to determine whether a matter falls
within the ambit of the Constitution, the judicial review of Bills, Laws and
Statutes and issues arising from the Centre and the Periphery. It also includes
the review of its own judgments.[10]
The Constitutional Reform for the Judiciary proposal for the Constitutional Court which is meant for the interpretation of the Constitution.[11] This is an instrument for the living Constitution and will also address post enactment Judicial Review cases. One of the arguments in support of the concept of a "living Constitution" on the concept of establishment of constitutional court, the Constitution itself is silent on the matter of constitutional interpretation. Relating to the Living Constitution arguments.[12]
I agree that the new constitution
introduced a constitutional court in Sri Lanka under this theory. Under
constitutional
interpretation, the Living
Constitution is the claim that the Constitution has
a dynamic meaning or that it has the properties of an animate being in the
sense that it changes. The idea is associated with views that contemporaneous
society should be taken into account when interpreting key constitutional phrases.
Argued
that if judges were denied the opportunity to reflect on changes to modern
society in interpreting the scope of Constitutional rights, the resulting
Constitution either would not reflect current mores and
values, or would necessitate a constant amendment process to reflect our
changing society. And the proposal to
establish a Constitutional Court, based on this theory the apex of our judicial system, may well
serve as a catalyst for change to society, but only if it is realistically
constituted and its establishment is accompanied by vitally necessary reforms
in respect of the language of the law and in establishing judicial accountability.
Because the Living Constitution is based in viewing the Constitution not merely as law, but as a source of foundational concepts for the governing of society.[13]
One can agree that the
constitution is “living” and can be interpreted in light of changed understandings
without necessarily agreeing that all forms of constitutional change can
legitimately be made by amendment. And one can believe in the legitimacy
of interpretive change by the court without necessarily agreeing that
litigation, or legislation, is the preferred alternative to constitutional
amendment. Amendments remain a legitimate method of constitutional change
for the constitutional court, they are of less importance than precedent
because they are harder to deploy, not because they offer a uniquely democratic
and iterative process for deliberative decision making. Living
theory suggest alternative reasons for the growing popularity of constitutional
courts, such as a post-war rights-based popular demand for limiting majoritarian
democracy the need for such an
institution in federal states and the
emulation or adoption of constitutional court
through the influence of legal
systems.[14]
However law could be challenged in the proposed Constitutional Court even after being passed in Parliament. There is a dire need for a Constitutional Court. Even Provincial Statutes and for that matter all Statutes, could be challenged. If there is a dispute between the Centre and the Provinces, then such allied matters will be handled by the Constitutional Court. All interpretations of the Constitution could be challenged. It will be the Constitutional Court and there is no question on the highest authority.
There will be only one Court which will deal with the interpretation of the Constitution and that is the Constitutional Court. Even though living tree constitution supported to established the new constitutional court in Sri Lanka.
Constitutional court in
other jurisdictions under living constitution
South
African perspective
The South African constitutional courts established by South African constitution, similarly, can lay claim to a very significant and innovative jurisprudence on fundamental rights (including civil and political rights, and social and economic rights), and on separation of powers issues and guarding democratic values. That South African constitution is both about core values and living and changing constitution. However, neither court has been able to fully drive positive change on its own under living constitution. The Constitutional Court has jurisdiction to hear any matter if it is in the interests of justice for it to do so[15]. The Constitutional Court is the highest court in the country when it comes to the interpretation, protection and enforcement of the Constitution. It deals exclusively with constitutional matters and matter of direct access - those cases that raise questions about the application or interpretation of the Constitution[16]. Therefore South African constitutional court established under living constitution.
Canadian perspective
Although living constitution has some provenance in the United States,[17] suggested that a better constitution would characterize the type of organism,[18] to which Justice Holmes referred in his opinion for the Court as a rooted rather than a free-floating form of life.[19] In Canada, the term for what was created by Canada’s constituent act is the living tree;[20] include women in its textual word person so as to permit a woman to serve as a Canadian. And also court adopted by Canadian constitution based on living constitution.
Recommendation
1. New constitution of Sri Lanka wan to adopt under living constitution as
one that evolves, changes over time, and adapts to new circumstances, without
being formally amended.
2.
I suggested that constitutional interpretation is constrained by the past, but
not entirely. Unlike the less tethered "living constitution," it
captures the idea of constraint, the role of text and original understanding in
the roots of the constitutional tree and the role of precedent and new
developments in its growth. Therefore our new constitution wants to consider
the constitutional court under living constitution principles.
Conclusion
Constitutional Court in Sri Lanka today is the astonishing lack of awareness, among both lawyers and judges, of developments in constitutional and human rights jurisprudence beyond the shores of Sri Lanka. Typically, the term ‘constitutional court’ denotes a decision-making institution which is separate from the ordinary judiciary, and which has the final, and usually exclusive, say on the interpretation of the constitution. As regards a constitutional court, serious thought has to be given to how such a court would operate without taking undue constitutional oxygen from democratic deliberation therefore a constitutional court can only work properly if it has the potential to fit within Sri Lanka’s existing system, and is designed to target the precise needs of Sri Lanka’s governance system as well as legal culture, and society changes.
References
v N.Jayawickrames’
constitutional interpretation
v Justice
scalia’s interpretion of constitution
v Rohan
Edirisnhas’ interpretion of constitution
v Digitalcommons.law.yale.edu
v Theories
of constitutional interpretation handout
[1] Jayawickrama, ‘Establishing
a Constitutional Court’ 14.
[2] Constitutional Courts and Democratic Values
[3] Choudhry, Constitutional Courts (no 20)
[4] Justice Scalias’ constitutional interpretation
[5] missouri v. Holland 252 U.S. 416 (1920),
[6] New yourk times vs. Sullaivan
[7] Brown vs. Boad of education
[8] Justice Scalias’ constitutional interpretation
[9] Lawrence vs. Texas
[10] N. Jayawickrama, ‘Establishing a Constitutional Court: The
Impediments Ahead’, Working Papers on Constitutional Reform No. 13, January
2017
[11] Papers on Constitutional Reform No. 13, January 2017, 5.
[12] Justice Salias’ constitutional interpretaion
[13] N. Jayawickrama, ‘Establishing a Constitutional Court:
[14] Justice Scalias’ constitutional interpretation
[15] Superior court Act 2003 of south Africa
[16] Dudley vs. city of cape town and others
[17] Howard McBain, The Living
Constitution (1927),
[18] "Oliver Wendell Holmes, Jr.,
wrote in 1914
[19] Missouri v. Holland (1920),
[20] derived from an opinion by Lord Sankey, written in 1929,
interpreting the 1867 constitutional act
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