Constitutional Law

Constitutional Law
Official Edition -2019

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iGuide
Sri Lanka Law College,
244, Hulftsdorp Street, Colombo 12.
Compiled by
iGuide Educational Committee
Samadhi Gamalath
Nuwan Athukorala
Ravindra Jayawardana
Rashad Ahamed
Udani Ekanayake
Nipuni Chandrarathne
Upeksha Perera
Nisansala Madushani
Heshani Chandrasinghe
Anagi Perera
Nadeeshani Gunawardhana
Poorni Mariyanayagam
Dewni Wijesinghe
iGuide | www.sllciguide.com
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CONTENTS
1. Nature of Constitutional Law & Constitutional Development ……………...1
2. Classification of Constitutions………………………………………………….. 3
3. Constitutionalism………………………………………………………………….8
4. Rule of Law……………………………………………………………………….. 12
5. Separation of Powers……………………………………………………………. 18
6. Sovereignty……………………………………………………………………...... 27
7. Fundamental Rights…….……………………………………………………….. 34
8. Directive Principles of State Policy and Fundamental Duties………………. 48
9. Executive President and Immunity……………………………………………. 50
10. Independence of the Judiciary………………………………………………….. 54
11. Supremacy of Parliament….……………………………………………………. 58
12. The 13th Amendment….………………………………………………………… 67
13. Recent Amendments to the Constitution….…………………………………... 70
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1. NATURE OF CONSTITUTIONAL LAW
Definition
The Constitutional law of a state has been defined as “the law relating to the constitution of a
state”. The definition is wide enough to include the study of matters that are of constitutional
importance to a country, such as the historical, political and philosophical foundations of the
constitution.
The State
‘The State’, according to Harold Laski in a Grammar of Politics “is a temporal society divided
into government and subject claiming within its allotted physical area, a supremacy over all
other institutions. It is in fact the final legal repository of the social will…”
For Constitutional law to exist, a state does not have to be an independent political society
recognized international law. A dependent country, such as a colony, can have laws relating
to its constitution and this was the case in Sri Lanka as well.
A state can be either Unitary or Federal (Explained in detail in the subsequent lesson).
State and Government
It is necessary to note that there is a distinction between the terms ‘state’ and ‘government’.
A government may be defined as the machinery through which the purposes of the state are
sought to be achieved. Our study of constitutional law is subject to the principle of
parliamentary democracy. Thus, although the purpose ( or purposes) of the state have been
variously identified, we may accept the concept that the basic purpose of the state is the
enrichment of quality of life of the individual citizen. Generally the term ‘state’ and
‘government’ are synonymously used.
The Constitution
It is sometimes called the supreme law or fundamental law of the land and has been described
as the source from which all other laws derive their validity and legality. It thus deals with
authority and power.
The word ‘constitution’ may be used in at least two different contexts. Firstly, it is used to
describe the whole system of government in a country, i.e. the collection of rules which define
and regulate the organs of state. The rules are partly legal. Secondly, it is used in a narrower
and concrete sense to refer to the legal and non – legal rules which have been embodied in one
document or a group of documents. The constitution of USA is an example of this narrow
sense.
In whatever context, the term is used a “near perfect constitution” may be obtained if and only
id the concepts which are treated as fundamental to the constitution are utilized to conform to
the social will and to achieve the purposes of the state.
Thus, constitutional law may be scientifically defined as the body of rules which in effect governs all
other rules and which determines the structure, powers and functions of the principal state organs and
which regulate the relations between these principal state organs and the private citizen.
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Sources of Constitutional Law
1. Principal source: the constitutional document and the amendments thereto.

2. Supplementary sources:
i. Judicial decisions interpreting the provisions of the constitution.
ii. Conventional rules regulating the working of the machinery of government.
iii. Academic writings.
Constitutional Development in Sri Lanka
1. Donoughmore Constitution
Created by the Donoughmore Commission, served Sri Lanka (Ceylon) from 1931 to 1947. It was a
significant development. It was the only constitution in in the British Empire enabling general elections
with adult universal suffrage. For the first time, a “dependent” non-Caucasian country with in the
empires of Western Europe was given one-person, one-vote and the power to control domestic affairs.
2. Soulbury Constitution
Sri Lanka’s Independence Constitution. It was based on the British system of Government. Traditional
British Constitutional principles relating to the Parliamentary and Cabinet systems were adopted. The
Soulbury Commission was keen on preventing ethnic tension and encourage national consciousness. In
Soulbury Constitution provisions were provided for racial and religious equity. It upheld most
fundamental principle of constitutionalism, supremacy of the constitution enabling judicial review of
legislation.
In 1947 August first election was held by the newly formed Department of Parliamentary Elections. Prime
Minister – Rt.Hon. D.S. Senanayake
In 1952 the second election under the same Department was held.
PM. D.S. senanayke died in 1952. Then – Prime Minister – Hon. Dudley Senanayake. In 1953 Hon Dudley
Senanayake resigned due to ill health. Then Sir Jhon Kothalawala became the PM. For the first time SLFFP
contested at the election.
In 1956 elections – Mahajana Eksath Peramuna – Hon. S.W.R.D Bandaranayke became the PM. He was
killed on 26th September 1959. Then in 1960 elections – SLFp won. Hon. Mrs. Sirima Bandaranayake
became the PM. In 1965 elections- Hon Dudley Senanayake won.
1970 Election- The last election held under the Soulbury Constitution. Hon. Mrs Sirima Bandaranayake
became the PM again.
3. 1972 Constitution
The first Republican Constitution of Sri Lanka. It was drafted soon after the General Election in 1970,
Pieter Keuneman a prominent minister in the new coalition government, declared that the country
needed a constitution. The framers said it should be a people’s homegrown (autochthonous)
Constitution. The new Constitution was opposed by the Tamil people and main opposition party – UNP.
Introduced the British doctrine of Parliamentary Supremacy which had been rejected by the Soulbury
Constitution. Supreme power resided in the elected representatives of the people.
The General Election of 1970 was the last held under the Soulbury Constitution. Although the center-
right United National Party gained the highest total number of votes, the first past the post electoral
system handed the United Front, a coalition of left wing parties, 116 of the 151 seats in Parliament 1970.
The Parliament declared itself to be the Constituent Assembly and after a short period of deliberation
adopted by an autochthonous process, the First Republican Constitution of 1972.
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The 1972 Constitution established a Westminster type parliamentary democracy with an all-powerful
unicameral legislature, the National State Assembly (NSA) which was declared to be the ‘supreme
instrument of State power.
This Constitution brought about radical changes to the judiciary. The courts were denied the power of
judicial review of legislation. The Constitution established instead a Constitutional Court with power to
determine whether a Bill presented to Parliament was inconsistent with the Constitution.
The judges of this ‘court’ had no security of tenure and were appointed for a term of 4 years.21 A
challenge to a Bill had to be made within seven days of its presentation to Parliament. A Bill declared to
be inconsistent with the Constitution could be enacted with a two-thirds majority.
The other major change to the judiciary concerned the tenure of judges in the lower courts. Judges of the
Court of Appeal and the Supreme Court were appointed by the President (himself a prime ministerial
appointee) until the retirement age of 65 and could only be removed by Parliament. The judges of other
courts were appointed by the Cabinet from a list of recommended applicants supplied by the
Judicial Service Advisory Board (JSAB).
The Cabinet was not bound by the recommendations and was able to appoint a person not so
recommended. A Judicial Service Disciplinary Board (JSDB) was established to advise the Cabinet on
matters of disciplinary control of the lower court judges including dismissal for misconduct. The
JSAB and the JSDB were not fully independent bodies. Members of the JSAB other than the Chief Justice
held office for renewable terms of 4 years. The Cabinet had power to regulate the functioning of this body
by laying down rules.
Although the dismissal of lower court judges had to be done by address of Parliament, the determination
of misconduct by the JSDB could not be questioned.
The Cabinet had power to lay down rules of conduct for judges and to determine the procedure in
disciplinary inquiries. The executive branch therefore had a high degree of indirect control over the
judges of lower courts.
The second Republican Constitution. The Constitution introduced by UNP government headed by
J.R. Jayawardane who became the first executive President under the 1978 Constitution. Stability for
rapid economic development seemed to be the dominant consideration of the framers of the new
constitution
The introduction of the Executive Presidency, which is perhaps the most radical change introduced by
the1978 constitution , undermined the notion of parliamentary supremacy by reposing considerable
power in one person. President Jayawardane pressed for establishment of political stability by providing
for strong leadership, an executive freed from the whims and fancies of Parliament.
With the 1978 Constitution the role of a Member of Parliament was changed. Edmund Burke addressing
the electors of Bristol, on 3rd November 1774said, “you choose a member indeed, but when you have
chosen him, he is not a member for Bristol, but he is a
Member of Parliament”
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2. CLASSIFICATION OF CONSTITUTIONS
Constitutions are classified in to various types according to their features. Among them are:-
⇒ Written and Unwritten

⇒ Rigid and Flexible
⇒ Unitary and Federal
⇒ Autochthonous and Granted
Written and Unwritten
A constitution is said to be written where the rules relating to the organs of government are laid
down in a formal document containing special legal Sanctity.
Eg: USA, India, Sri Lanka (Soulbury, 1972 & 1978)
Jurists have stated that a written constitution is the final outcome of a constituent assembly.
In an unwritten Constitution, the rules relating to the organs of government are not formally
laid down in a specific document, but have evolved through constitutional conventions.
Consequently, all laws are not integrated into one place. Rules relating to constitutional
matters are included in statutes and case law.
Eg: Britain (Possess an unwritten constitution and hence the rules relevant to the government are
found in statutes such as the Bill of Rights and Act of Settlement).
Rigid and Flexible
A rigid constitution is one under which the fundamental laws cannot be altered in the same manner
as ordinary laws or cannot be altered at all.
Rigid constitutions can be further classified as follows:-
i. Constitutions in which the special amending procedure is within the sole power of the
legislature. (Eg: India)
ii. Constitutions which require a special amending procedure to brought in by an external source.
(Eg: Switzerland)
Hood Pilliphs Comments that in this case, “the constitution may be said to be supreme over
the legislature”.
The second Republican Constitution of Sri Lanka presents a hybrid of (i) and (ii). While
certain provisions can be amended in parliament by adopting the special procedure
laid down in the constitution, certain other provisions can be altered only by seeking a
vote at a referendum. This has been judicially recognized in Wickramasinghe V The State.
iii. Constitutions which cannot be wholly or partly altered at any given time. (Eg: Basic articles of
the constitution of the Republic of Cyprus)
There was a strong academic opinion in regard to Section 29(2) of the Ceylon Order in Council (1946)
which asserted that, the said section was unalterable.
A flexible constitution is defined by Dicey as follows:
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“One under which every law of every description can legally be changed with the same ease and
in the same manner by one and the same body.”
Eg: Constitution of Britain
The operation of a constitution shows that, what really gives it rigidity or flexibility is
attributed to political and psychological factors such as the temperament and character of
those operating the constitution concerned.
Unitary and Federal
A unitary constitution is one in which the central government of the state exercises the
supreme power and authority over the entire country (it does not recognize any other
institution with similar power). The supreme power is thus concentrated in a single body.
The essence of a unitary state is that sovereignty is undivided, in other words, the powers of the
central government are unrestricted.
Justice Sharvananada, in Re thirteenth Amendment (1987) 2 Sri L.R. 312 states that:
“In a unitary state, the national government is legally supreme over all other levels. The
essence of the unitary state is that sovereignty is undivided-in other words, the power of the
central government is unrestricted. The two essential qualities of a unitary state are;
1. The supremacy of the Central parliament

2. The absence of subsidiary sovereign bodies
It does not mean the absence of subsidiary law making bodies, but it does mean that they may exist
can be abolished at the discretion of the central authority.”
Eg: Sri Lanka
A Federal state is one where the country is divided territorially into several units and the
powers and functions of the state are divided and distributed between a central government
and on one hand and the state (Provincial / regional governments) on the other in such a way
that each is supreme within its prescribed sphere.
In other words, a federal state can be two or more bodies with one power. Each body has
exclusive power in each area within its power. Federal state may be subdivided into –
1. States where the powers allocated to the federal government are specifically stated in
the constitution (while the remaining powers are left to the constituent states). Eg:
USA, Switzerland and Australia
2. States where the powers of the constituent states or provinces are specified and the
residuary power is vested in the Central government. Eg: Canada
In the case of Re thirteenth Amendment (1987) 2 Sri L.R. 312:

“The existence of co ordinate authorities independent of each other is the gist of the federal
principle. The federal government is the sovereign on some matters and the state governments
are sovereign in others. Each within its own sphere exercises its powers without control from
the other and neither is subordinate to the other.”
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It must be noted that it is the constitution that determines whether a state is unitary or federal.
In most countries it is clearly visible, however, in certain countries it is not so.
Eg: India
(India has a basic structure of a federal state, but in respect of the powers possessed by the
central government it displays more characteristics of a unitary state. For this reason, India is
referred to as a Quasi – Federal State.
Autochthonous and Granted
An autochthonous constitution is one which is rooted entirely or has sprung from its own
native soil and is enacted by the mandate of the people of that country. The basis of an
autochthonous constitution is that, it does not owe its existence to any foreign country or
sovereign agency.
Eg: The British Constitution and the First Republican Constitution of Sri Lanka There
are 3 main features of an autochthonous constitution;
1. Autonomy
2. Self Sufficiency
3. Break in legal continuity
Autonomy
The principle of autonomy is that, an autonomic system of government is in no way subordinate to any
other government.
The constitution of such a country would have the force of supreme law within its territory.
In the case of Ibralebbe V The Queen, the Court of England stated that, as per the Ceylon
Independence Act of 1947 (Section 10), the British Parliament shall cease to legislate for
Ceylon, unless with the consent or at the request of Ceylon. By interpreting the said provisions,
court held that the Ceylon parliament was in any sense subordinate legislature, but had the
full legislative power of a sovereign independent state.
The most important feature of an autochthonous constitution is its “independence”.
1972 Constitution (Article 1) – “Sri Lanka is a free, sovereign, independent Republic…”
1978 Constitution (Article 1) – “Sri Lanka is a free, sovereign, independent and Democratic socialist
Republic…”
The above implies that no foreign body can impose or influence the laws of Sri Lanka.
Self Sufficiency
Prof. K.C. Whear – a well known British Jurist has described ‘Self Sufficiency’ as follows:
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“For some members of the common wealth it is not enough to be able to say that they enjoy
the system of government which is in no way subordinate to the government of the United
Kingdom. They wish to say that their constitution has the force of law.”
This means that an autochthonous constitution is ‘born in its country’ and not granted by any other
state.
The first Republican Constitution of Sri Lanka (1972) is an example for a self sufficient constitution.
Break in Legal Continuity
The break referred to here is the break from the existing constitutional system.
This feature is visible in the first Republican constitution of Sri Lanka (1972). With the
enactment of this constitution, there was a strong break in the continuity of the governing
system which prevailed till then.
A constitution which is granted is one which has its legal origin in the form an enactment or
authorization by some other supreme legislative body. Through a granted constitution only a
very limited power is vested on the legislature.
Eg: The Soulbury Constitution
RELATED PAST PAPER QUESTIONS:
 (a) Describe the essential requirements for an autochthonous constitution to gain its validity.
(b) Do you think the 1972 constitution of Sri Lanka had satisfied all the necessary
requirements needed for a valid autochthonous constitution? Give reasons for your
answer. [Q4; Oct 2016; 16 marks]
 (a)What is meant by an ‘Autochthonous Constitution’? Explain the rationale behind the

validity of a Constitution that is adopted through unconstitutional means. (b)In your opinion,
what did validate the process adopted in making the First
Republican Constitution? [Q4; Apr 2016; 16 marks]
 “The Validity of a Constitution does not flow from law. The validity of a Constitution initially
is a political fact and it flows from acceptance by the people. All revolutions are legal when
they have succeeded.”
Discuss in light of the validity of the process adopted in making the autochthonous Constitution
of Sri Lanka. [Q4; Oct 2015; 16 marks]
 The Principle of autonomy emphasizes that the country enjoys a system of government which
is not subordinate to any other country’s government.”
Discuss the above statement analyzing the main features of the principle of autonomy in
relation to 1972 Constitution. [Q7; Apr 2015; 16 marks]
 (i) Explain the difference between a Unitary State System and a Federal State System.
(ii) What system of government should be appropriate to Sri Lanka? Give reasons for your
answer. [Q9; Apr 2014; 16 marks]
 (a) What is meant by an “Autochthonous Constitution”?

(b)What are the characteristics of such a Constitution?
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(c) Explain with reasons whether the 1978 constitution is an “Autochthonous” Constitution?
[Q8; Dec 2013; 9 marks]
 Explain the essential features of a unitary state with special reference to the provisions of the
constitution and decided cases. [Q9; Dec 2013; 9 marks]
 (a) What is meant by an “Autochthonous Constitution”?

(b)What are the characteristics of such a Constitution?
(c) Explain with reasons whether the 1978 constitution is an “Autochthonous” Constitution?
[Q4; Oct 2011; 12 marks]
 What are the characteristics of an Autochthonous Constitution? [Q8; Apr 2011; 9 marks]
 Describe the classification of Constitutions. [Q11; Apr 2011; 9

marks]
 Write a note on the classification of Constitutions. [Q1; Oct 2010; 9 marks]
 Explain the essential features of a unitary state with special reference to the provisions of the
constitution and decided cases. [Q7; Apr 2010; 12 ½ marks]
 Write a note on ‘Constitutional Autochthony’ with reference to the Constitutions of Sri Lanka
since independence. [Q10; Apr 2010; 12 ½ marks]
3. CONSTITUTIONALISM
 In lay man’s terms, constitutionalism is to be understood as a concept which speaks about

the legitimacy of the government.
 Constitutionalism is a way of evaluating the form, substance and legitimacy of the
constitution.
 It focuses on ensuring that the government is limited, i.e. that there are limitations on the
powers of government.
 The nature of the limitations imposed upon the government depend on what the architects
want to safeguard:
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⇒ They may want to ensure that the system of government cannot be changed
arbitrarily and introduce a clause to say that the constitution can be changed
only with a cetin majority or after a referendum.
⇒ They may feel that a certain relationship between the legislature and executive is
important.
⇒ They may feel that the Judiciary should have a certain guaranteed degree of independence.
⇒ They may feel that there are certain right that citizens have which not be tampered with.
 Thus, it supports fundamental laws. Ideas, attitudes and patterns of behavior that limit
and regulate the power of government.
Sovereignty people’s power, on trust, in order to serve the public.

 The constitution is not only the source that derives this power, but also the fundamental
source which limits or regulates that power by imposing checks and balances on
government institutions belonging to the Judiciary, executive and institutions, its
authority, powers, functions and personnel should be kept apart without vesting it all on
one person or one institution, which could lead to confusion. However, it is also reckoned
that pure separation of power do not assist a government practically in functioning
properly and may sometimes lead to a ‘constitutional deadlock’ if separation of power is
strictly practiced.
legislature.
Supported by the doctrine of separation of powers

- Establish impartiality
- Prevent abuse of power
 The constitutional doctrine of separation of powers (SOP) suggests that these
 The doctrine of SOP guarantees that the human rights. Freedoms and liberties of the
citizens are best protected through a constitution which divide proper institutional
powers, demarcate the legal boundaries of those institutions and their legal jurisdictions.
The authority of
Therefore concept of Constitutionalism + doctrine of SOP => government derived from
and limited to a
body of fundamental
law
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Constitution
 However, the Supreme Constitution cannot do anything in isolation without the high
regard for the rule of law in a country.
Constitutionalism thus proclaims the desirability of ROL over the arbitrary judgment and
fiats of public officials.
 For a constitution (which is considered as supreme law of the country) to be effective and
efficient, and the ROL must be given due recognition. For without the ROL, the concept
of constitutionalism is no more than a mere concept.
 For the officials on the institutions who practice governmental power, to limit its exercise
of power to its jurisdiction, the official as well as the government should be aware of the
constitutional limits available to them in order to protect the rights, interests and liberties
of the Citizens.
But mere awareness will suffice, if they do not hold the ROL in high regard in its inherent virtue
and liberties of the citizens.
 Thus having the constitutional right as the backbone of the country’s supreme law
undoubtedly protects the rights, freedoms and liberties of citizens.
 Thus, a country’s constitution assists the citizens as well as public officials to determine
the scope of their rights and powers, whether any official has acted ultra vires (beyond the
powers) or intra vires (within the powers). This determination of scope guarantees the
protection of human rights of citizens recognized by the supreme law.
Practical application and also the touchstone of the concept of constitutionalism “Limited
Government under a Supreme Law”.
 The concept of ROL is not only of great antiquity but also one of the predominant concepts
of constitutionalism.
 In essence, the concept suggests that society should be governed by law alone and all must
be equally subjected to the law.
Similar idea to that of constitutionalism; leg itimate government under Supreme law.
 For a government to be conducted under the law it is essential that there are both judicial
and parliamentary procedures which ensure that the government only uses those powers
that have been conferred on them and the government is accountable to the people
through Parliament.
But if the executive have excess power over proceedings of Parliament and also the
ability to influence the legislature and Judiciary, such powers derogate from Separation
of Powers.
 The Judiciary though separate from legislature constitutionally, is subordinate to the law
making Parliament. The functions of judges and Judiciary being to interpret the statutes a
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much as possible in line with the intentions of Parliament and the presumption that the
intentions of the Parliament was, as always to adhere to the ROL is borne in mind by the
Judges in deciding FR cases.
Judges or no judicial office can declare an Act of Parliament invalid. Validity of an Act passed
by the legislature is unchallengeable and Parliament at any given time can overturn a judicial
decision by enacting a new Act because Parliament has the ultimate power to make laws.
* Thus we can argue that ROL cannot stand alone without Constitutionalism and vice versa!
 For the ROL to be adhered to there should be a separation between the law makers and
law enforcement.
Thus constitutionalism demands a clearly defined separation of the two concepts, sovereignty and
the government.
 How the FRs are protected in the constitution by itself is of utmost importance.
ROL demands interpretation of Acts of parliament bearing in mind the intentions of
parliament, but the constitutional restrictions placed on the government power also has
to be observed as a part of ROL and to uphold constitutionalism.
 In safeguarding FRs, the idea of constitutionalism has played a major role in SL because
FRs are both written and entrenched.
 SL has emerged successfully with the concept of constitutionalism and with its
practical plausibility.
⇒ The written constitution adds value in terms of writtenness and entrenchment of

FR and entrenchment of FR and extends to other important provisions of the
constitution.
⇒ The issue of ROL in its ability to set the restrictions upon the Freedoms and rights
of individuals is remedied by the Sri Lankan constitution by clearly enumerating
article 15 (Restriction of FRs)
⇒ SL maintains its parliamentary sovereignty by Article 75 and 83 while not compromising on
the supremacy of the constitution.
 “All salient features of the principle of constitutionalism are nothing but the
requirements for ‘Rule of Law’. But these features are expected to appear with
attractive labels.”
Do you agree? Explain the salient features of this principle with reference to their
relationship with the Rule of Law. Cite authorities at least from two different
jurisdictions. [Q1; Oct 2016; 20 marks]
 “There is some merit saying that out of all the post - independence Constitutions of the
country, the Soulbury Constitution ensured “Rule of Law” in the country surviving all
the challenges to a Constitutional democracy. The spirit of Constitutionalism was to be
developed during that period”
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Do you agree? Identify the salient features of the Soulbury Constitution and compare
them with the other two Republican Constitutions in the light of Constitutionalism.
[Q1; Apr 2016; 20 marks]
 The Principle of Constitutionalism ensures that ‘Rule of Law’ prevails over ‘Rule by
Law’. However, the question remains as to whether in a Constitutional democracy the
‘law’ could be defined by the legislature.”
Do you agree? Identifying the salient features of Constitutionalism discuss to what extent
they are to be found in the 1978 Constitution. [Q1; Oct 2015; 20 marks]
 “in order to assure ‘the sovereignty of the people’, it is necessary to create a

depoliticized government and it could only be done by ‘Rule of Law’ found up on the
principles of ‘Constitutionalism’ and not by other means”.
Discuss the above statement analyzing the relevant provisions of the 1978 Constitution giving
attention to decided cases. [Q1; APR 2014; 20 marks]
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4. RULE OF LAW
 Rule of Law is that, every man is governed by law and not by the whims and fancies
of the rulers. Rule of law treats every person alike. Due to the rule of law arbitrary
departure from law and unfair victimization of another is prevented.
 The two main aspects of the concept of the Rule of Law are – I. Minimizing the
abuse of power by those in authority
II. Thereby safeguarding the Fundamental Rights of people.
 Rule of Law also means the Supremacy of Law. During the time kings ruled, the power
of the king was supreme. It was based on the concept “King can do no wrong”.
However it was later found that setting up a legal system to regulate is far better than
giving supreme power to an individual person.
 Many Historians and Jurists have explained the Rule of Law –
⇒ Aristotle
“The Rule of law is better than that formulated by any individual”
⇒ Bracton
“The King himself ought not to be subject to man, but subject to God and the law,
because the law makes him king”
⇒ Dicey was the first to give the rule of law a clear explanation. He gave 3 meanings to this
concept.
The meanings given by Dicey for the Rule of Law contrasted with a system of
government based on the exercise of power by person in authority with “wide,
arbitrary or discretionary powers of constraint.
€ No man is punishable or can be made to suffer in body or goods, except for a
distinct breach of the law established in the ordinary legal manner before the
ordinary courts of the land.
 This meaning stresses the idea that the Law is Supreme. In modern day
however, the parliament is recognized as the supreme power.
 The South African Law (Apartheid law) and the Special Commissions of
Inquiry Act are contrasts to this first meaning.
 When Dicey gave these meanings in 1985, the primary function of the state
was ‘preservation of law and order’ and handling of defence and external
affairs.
 However, now the state, in addition to the above focuses on public welfare
including education, Communication, health, agriculture etc.
 Therefore a state is vested with wide discretionary powers in executive.
€ Everyman, whatever his rank or condition, is subject to the ordinary law of the state
and amendable to the Jurisdiction of the ordinary tribunals.
 This gives the idea that every man is equal before the law.
 However, certain public citizens have received certain privileges of
immunity from the legal process. (Ex: President of the Republic,
Ambassadors, Judges)
 There is a need for special tribunals and courts in a modern state provided
they are independent.
€ The constitution of England is the result of the ordinary law of the land.
 The constitution is judge-made law
 An unwritten constitution doesn’t guarantee Fundamental Rights as much
as in a written Constitution.
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Brown V Board of Education of Topeka [(1953) 347 US 483]
- The US declared that the state laws that established separate public schools for the
black and white students denied the black students equal educational opportunities.
Sriyani Silva V Iddamalgoda and Others [(2003) 1 SLR 14]
- Alleged Violation of Article 11 of the 1978 Constitution
 All the principles of the British Constitution are not found in Judicial Decisions.
(Ex: Bill of Rights)
⇒ The essence of Rule of law as explained by Prof. Goodhart is as follows-
“Public officers should be governed by law which limits their powers.” ⇒
Jennings has tried to equate the Rule of law with democracy.
It was found that the above explanations were brought out with a view of avoiding
the mistakes that Darcy made.
 The Rule of Law has been used universally in many instances –

− Use of the concept by judges
− Reference to international instruments (preamble to the Universal declaration of
Human Rights 1948)
− The European Convention of Human Rights 1950
− Reference to the rule of law made in the English Constitutional Reforms Act 2005
International Commission of Jurists and the Rule of Law
The International Commission of Jurists has tried to give material content to the concept of Rule of
Law and formulate it in a manner that suits the modern world.
The jurists gathered in New Delhi in 1959 and arrived at 4 different conclusions which were embodied
in 4 reports as follows –
1. The Legislature and the Rule of Law
2. The Executive and the Rule of Law
3. The Criminal Process and the Rule of Law
4. The Judiciary and the legal process and the Rule of Law
The Legislature and the Rule of law
It is noted here that the legislature in a free society under the Rule of Law is to create and maintain
conditions which will uphold the dignity of man as an individual.
This dignity requires not only civil and political rights, but also the establishment of the social,
economic, educational and cultural rights which are essential to the development of a
personality.
This also states that the powers of the legislature should be forced and determined to enforce
fundamental constitutional provisions such as guaranteeing a free election and safeguarding
the existence of an independent Judiciary.
The legislature has the responsibility to –
⇒ Abstain from enacting retrospective penal legislation.

⇒ Not discriminate in its laws between citizens.
16
⇒ Not interfere with the freedom of religious belief. ⇒
Not impair the exercise of fundamental rights.
The Executive and the Rule of Law
There should be adequate safeguards against the abuse of power by the executive. Further it
ensures a reasonable standard of economic security, social welfare and education for a mass
of people.
Criminal Process and the Rule of Law
The report states that, if a citizen is charged with a criminal offence, he is entitled to receive the
following minimal necessities –
€ Certainty of the Criminal law (Absence of retrospective penal legislation)

€ The presumption of innocence
€ Restriction of powers of arbitrary arrest and detention
€ The opportunity to know the charges for arrest
€ Elimination of evidence obtained by discreditable means
€ A fair trial open to the public
€ Having measures for appeal
€ No excessive punishments
The government has to ensure that all these rights are available for every citizen in the country.
The Judiciary and the Legal profession under the Rule of Law
 The Judiciary should be independent from the interference of the legislature and executive.
 Equal access of law should be available for the Rich and Poor alike.
 It is essential that representation is made available and litigation provided for those who are
unable to afford the same.
Declaration on upholding Human Rights and the Rule of Law in combating terrorism In
the suppression of terrorism, states must give full effect to 11 principles.
1. Duty to protect
- All states have an obligation to respect and to ensure the fundamental rights
and
freedoms of persons within their jurisdiction.
- States must take measures to protect such persons from acts of terrorism.
- Counter-terrorism measures must always be taken with strict regard to the
principles of legality (actions taken to combat terrorism must be legal),
necessity (there must be a need for it), proportionality (punishment must fit
the action) and non discrimination (has to apply to all terrorist groups alike).
2. Independent Judiciary
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- In the development and implementation of counter-terrorism measures, states have
an obligation to guarantee the independence of the judiciary and its role in
reviewing state conduct.
- Government may not interfere with the judicial process or undermine the integrity
of the judicial decisions.
3. Principles Of Criminal Law

- States should avoid the abuse of counter-terrorism measures by ensuring that persons
suspected of involvement in terrorists acts are only charged with crimes that are strictly
defined by law.
- States must not apply criminal law retrospectively.
- Criminal responsibility of for acts of terrorism must be individual and not collective.
- In combating terrorism, states should apply and where necessary adopt existing criminal laws
rather than create new, broadly defined offences or resort to examine administrative
measures, especially those involving deprivation of liberty.
4. Derogations (where certain rights can be suspended /restricted for a particular period of time)
- States must not suspend rights which are non - derogable under treaty of customary law.
- States must ensure that any derogation from a right subject to derogation during emergency
is temporary, strictly necessary and proportionate to meet a specific threat and does not
discriminate on the grounds of race, colour, gender, sexual orientation, religion, language,
political or other opinion, national, social or ethnic origin, property, birth or other status.
5. Peremptory Norms
- States must observe at all times and in all circumstances the prohibition against torture and
cruel, inhuman and degrading treatments or punishment.
- Whenever such acts occur, they must be effectively investigated without delay and
those responsible must be brought promptly to justice.
6. Deprivation of Liberty
- States may never detain any person secretly or incommunicado and must maintain
a register of all detainees.
- States must provide all persons deprived of their liberty, prompt access to lawyers
and family members and medical personnel at the place detained.
- States have the duty to ensure all detainees are informed of the reasons for the arrest and any
charges and evidence against them and are brought before a court.
- All detainees have a right to habeas corpus or equivalent judicial procedures at all times and
in all circumstances, to challenge the lawfulness of their detention.
- Administrative detention must remain an exceptional measure, be strictly time
limited and be subject to frequent and regular judicial supervision.
7. Fair Trial
- States must ensure at al tiems and in all circumstances that alleged offenders are
tried only by an independent and impartial tribunal established.
- The alleged offenders must be accorded a full fair trial guarantees, including the
presumption of innocence, the right to test evidence, right to defence, right to
effective legal counsel and right of appeal.
- States must ensure that accused civilians are investigated by civilian authorities and
tried by civilian courts and not by military courts.
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- Evidence obtained by torture or other means which constitute a serious violation
of human rights against a defendant or a third party is never admissible and cannot
be relied in any proceedings.
- Judges trying lawyers defending those accused of terrorist offences must be able to
perform their professional functions without intimidation, hindrance, harassment
or improper interference.
8. Fundamental Rights and Freedom

- In the implementation of counter- terrorism measures, states must respect and
safeguard fundamental rights and freedoms including freedom of expression ,
religion, conscience or belief association and assembly and the peaceful pursuit of
the right to self determination as well as the right to privacy.
- All restrictions on fundamental rights and freedoms must be necessary and
proportionate.
9. Remedy and reparation

- States must ensure that any person adversely affected by counter-terrorism measures of a
state or of a non-state actor whose conduct is supported or condoned by the state, has an
effective remedy and reparation.
- All those who are responsible for serious human rights violations must be held
accountable before a court of law.
- An independent authority should be empowered to monitor counter terrorism
measures.
10. Non – Refoulment

- States may not expel, return, transfer or extradite a person suspected or convicted of
acts of terrorism to a state where there is a risk that the person would be subjected
to a serious violation of human rights including cruel, inhuman or degrading
treatment or punishment, enforced disappearance or extrajudicial execution.
11. Complimentarity of Humanitarian Law
- During times of armed conflicts and situations of occupation, states must apply and
respect the rules and principles of both international humanitarian law and human
rights law.
Sri Lankan Case Law that have used the Rule of Law
1. Premachandra V Jayawickrema and Other (1994) 2 SLR 90 @ 102

2. Bandara and another V Premachandra (1994) 1 SLR 301 @ 314
3. Hemasiri Fernando V Samaraweera and Others (1999) 1 SLR 415 @ 420
4. In Re 18th Amendment to the Constitution (2002) 2 SLR 71
5. Senarath V Kumaratunga and 99 Others (2001) 1 SLR 59
6. Ven, Ellawela Medananda Thero V District Secretary, Ampara and Others (20019) 1 SLR 54 RELATED
PAST PAPER QUESTIONS:
 “All salient features of the principle of constitutionalism are nothing but the
requirements for ‘Rule of Law’. But these features are expected to appear with
attractive labels.”
Do you agree? Explain the salient features of this principle with reference to their
relationship with the Rule of Law. Cite authorities at least from two different
jurisdictions. [Q1; Oct 2016; 20 marks]
19
 “The concept of Rule of Law embodies several important elements such as every
individual is possessed of certain rights and freedoms which should be guaranteed by
the state, the need for an independent judiciary and establishment of social, economic
and cultural conditions which will permit men to live in dignity.”
Critically examine the above statement. [Q6; Apr 2015; 16 marks]
 “In combating terrorism it is the fundamental duty of the state to protect and uphold
the Rule of Law.”
Critically examine the above statement. [Q3; Oct 2014; 16 marks]
 “The Rule of Law implies necessarily the legitimacy of laws and accountability of the
state, having as its core, the idea of justice as an underlying moral basis for all laws.
Law must protect basic human rights and act as a constraining fetter on legislative,
executive and judicial powers.”
Explain the above statement. [Q10; Apr 2013; 9 marks]
 “Our Constitution and system of Government are founded on the Rule of Law and
everything must be done according to Law.” Explain the above statement. [Q5; Oct
2012; 9 marks]
 “The Rule of Law has a number of different meanings and corollaries. Its primary
meaning is that everything must be done according to law.” Analyse the above
statement critically. [Q5; Apr 2012; 9 marks]
 “The concept of Rule of Law is evolving and needs to be understood and applied based
on political, social and economic imperatives. It has no relevance in a society plagued
with terrorism.”
Make a critical assessment of this statement with reference to the work of the
International Commission of Jurists. [Q3; Oct 2011; 9 marks]
 “The rule of law implies the legitimacy and accountability by state organs and ensures
the exclusion of the existence of arbitrariness.” Analyze the above statement critically.
[Q6; Apr 2010; 9 marks]
 Write a note with reference to decided cases how our Supreme Court has endeavoured
to prevent the erosion of the Rule Of Law, which is considered to be the foundation of
the constitution and the system of government. [Q5; Apr 2010; 12 ½ marks]
5. SEPARATION OF POWERS
Traditionally, the powers of a government are divided into legislative, Executive and Judiciary.
Montesqquieve formulated the “Doctrine of Separation of Powers” according to which,

concentration of powers of government in one body will lead to erosion of political freedom
and liberty. Thereafter many academics such as Blackstone, Jay and Hamilton, E. S. Crown,
Marshall and L. J. M. Cooray further elaborated the concept. Accordingly, there arose 4
characteristics of the doctrine;
20
i. The three branches of government ought to be composed of different powers. ii.
There should be functional separation between the organs of government.
iii. One organ should not control or interfere with the powers and functions of another.
iv. Modern governments demand coordination of the various functions of government rather
than a rigid separation.
 “When it comes to the doctrine of separation of powers, since all three post – independence
constitutions of Sri Lanka adopted three different approaches to it, a student of
Constitutional Law in this country gets rather confusd over the application of the doctrine.”
Do you agree? Discuss in light of the relevant provisions of the three constitutions.
[Q3; Oct 2016; 16 marks]
 In your opinion, does the doctrine ‘separation of powers ensure sovereignty of the people’
continue to remain with the people?
Identify, if any, the relevant provisions of the Second Republican Constitution
providing the operative basis for the doctrine. Why do you think that they are for
safeguarding the people’s sovereignty? [Q3; Apr 2016; 16 marks]
 “It is not certainly exaggerating to say that out of all the post – independence Constitutions
of the country, the Soulbury Constitution upheld the doctrine of separation of powers in its
letters and spirit.”
Critically examine the above statement in light of the relevant provisions of the Constitutions.
Support your answer with case law authorities. [Q3; Oct 2015; 20
Marks]
 “There would be an end of everything, were the same man or the same body, whether of
the nobles or of the people to exercise those three power, that if enacting laws, that of
executing the public resolutions and that of trying causes of individuals.” Critically examine
the above statement analyzing the relevant provisions of the 1978 Constitution giving
attention to the decided cases. [Q1; Apr 2015; 20 marks]
 “The balance of power between the three organs of government, as in the case of other
Constitutions based on a separation of powers is sustained by certain checks whereby
power is attributed to on organ of government in relation to another. The power of removal
of Judges of the Supreme Court and the court of Appeal conferred on the President upon
address of Parliament is a check provided by the Constitution to sustain the balance of
power between the tree organs of the government. The judiciary has no role to play in that
removal procedure.”
Critically examine the above statement analyzing the relevant provisions of the 1978 Constitution
giving attention to decided cases. [Q1; Oct 2014; 20 marks]
 ‘”Though there are specific provisions in the Constitution in relation to the checks and
balances of one organ, of other organs, in this effect it has not been so.
Discuss the above statement with reference to the provisions of the Constitution and decided
cases. [Q6; Apr 2013; 9 marks]
 (a) Discuss with reference to decided cases the meaning of “Judicial Power”.
21
(b) Discuss instances where the courts have struck don legislative acts or executive act
as being unconstitutional since they encroached upon “Judicial Power”. [Q2; Dec
2013; 9 marks]
 Critically analyze the provisions of the Constitution relating to separation of powers and
state as to whether the present constitution recognizes such separation. [ Q9; Oct 2012; 9
marks]
 Briefly describe the concept of separation of powers analyzing the provisions of the second
Republican Constitution. [Q1; Apr 2012; 9 marks]
 (a) Discuss with reference to decided cases the meaning of “Judicial Power”.
(c) Discuss instances where the courts have struck don legislative acts or executive act
as being unconstitutional since they encroached upon “Judicial Power”. [Q5; Oct
2011; 12 marks]
 (a) Discuss what is meant by the doctrine of Separation of Powers and its importance in a
democratic society.
(b) Compare the separation of powers under the Soulbury Constitution and the 1978
constitution with reference to decided cases.
[Q9; Oct 2011; 12 marks]
 Briefly describe the concept of separation of powers analyzing the provisions of the
Soulbury Constitution, the First Republican Constitution and the Second Republican
Constitution. [Q2 ; Oct 2010; 9 marks]
 Do you consider the doctrine of ‘Separation of Powers’ as important? Give reasons for your
answer with illustrations from the constitutions of Sri Lanka since independence.
[Q10; Apr 2010; 12 ½ marks]
22
Law Students’ Union of Sri Lanka 23

Point Soulbury Constitution 1972 Constitution 1978 Constitution
 Queen was the head of  President was the head of  President was the head of
executive and part of the executive and was not a part executive [Article 30(1)]and
Legislative Composition legislature of the legislature cabinet of ministers [Article
and  Cabinet of ministers selected  Members of cabinet had to be 43(2)], but not a part of the
Executive from House of Representatives members of the National State legislature [Article 91(1)(c)]
or Senate Assembly (selected by the  Members of cabinet elected from
president) members of parliament
Therefore no Separation
Therefore no clear cut Therefore no clear cut Separation
Separation
 Act not valid until approved  Legislature controls executive  Legislature controls executive by:
by queen by : - Parliament can bring about an
Control and  Cabinet of ministers couldn’t - Defending budget impeachment motion against
Interference - Passing no confidence the President [Article 38(2)]
function without majority of
the legislature motions Parliament shall determine
 Statutes enacted by - Defeating policy statements the salary of the President
parliament drafted by cabinet  Executive controls legislature [Articles 36 (1) & (2)]
of minsters by: - Cabinet will be collectively
- Preparing and drafting bills responsible and answerable to
Therefore no Separation - Planning and implementing Parliament [Article 42(2)]
policies - Defending budget
- Passing no confidence
motions
Have a functional separation
which is not too strict
 Executive controls legislature by:

- President is entitled to
Parliamentary privileges and
immunities [Article 32(3)]
- Preparing and drafting bills

[Article 85(1) & (2)
- Planning and implementing
policies [Article 122(1)(b)]
Have a functional separation which

is not too strict in terms of articles
76(2) & (3) and 155 (2)

Exercise of each  Weerasinghe V Samarasinghe  Legislative power of NSA  Parliament shall not abdicate or
other’s functions - Governor General had ensured! [Article 45(1)] delegate its law making power.
power to make regulations, - Subordinate Legislation [Article 76(1)]
but parliament retains [Article 45(3)] But can do so for subordinate
control over executive.  Power to make Emergency legislation. [Article 76(3)]
 Associated Newspapers Ceylon regulations delegated to  Delegation of power to President
LTD(Amendment) Bill President under the Public to make Emergency Regulation
- Minister can amend an Act Security Ordinance which was [Article 76(2)] as per Public
relevant to his ministry. enacted by the NSA Security Ordinance which was
[Articles 134(1) & 45(4)] deemed to be enacted by
 President acts on the advice of Parliament [Article 155(1)]
Exercised each others’ powers to a
the Prime Minister - Yasapala V Minister of
certain extent  President is responsible for Education
the NSA [Article 91]
President can exercise legislative
All powerful NSA! Therefore power at one instance, but parliament
powers not exercised by the cannot exercise executive power.
executive
 Judiciary can issue prerogative

writs against executive
actions.[Article 140]
 Fundamental Right Jurisdiction
of the SC [Articles 17 and126]

Judiciary and Composition Judicial Officers cannot be members of the executive and vice versa
Executive
[Section 13(2)(b) [Article 70(1)(c)
Compositional Separation Present
 Removal of Senior Judges by  Judges of SC and CA  President appoints CJ, President

Governor General upon appointed and removed by of CA, Judges of SC and CA upon
Control and address to the House of Lords President upon address to the approval of the Constitutional
Interference NSA[Article 122]
and Commons. [Sec 52(20] Council. [Article 107(1)]
 Appointment of members to  Cabinet appoints lower court  Appointment of members to
Judicial Service Commission judges after receiving Judicial Service Commission by
by Governor General [Sec 53] recommendations from the president on the approval of the
 Judiciary issued prerogative Judicial Service Advisory Constitutional Council. [Article
writs against executive. Board [Article 124] 111D(1)]
 Judiciary was able to issue  Judges to the HC appointed by
prerogative writs against President on recommendation of
Interference by both Organs executive actions. JSC and consultation with the
AG. [Article 112(2)(a)]
Interference by both Organs

 Removal of SC and CA Judges by
the President upon address of
Parliament [Article 107(20]
- Shirani Bandaranaike V Chamal
Rajapakse and Others
 Graning of Pardon by President
[Article 34(1)]

Exercise of each Exercise of Judicial power by executive was invalid, however members sometimes acted quasi judicially
other’s functions Queen V Liyanage
 Sometimes members of
the executive act quasi
Judicially.
Exercise each others’ functions to a certain extent
Legislature Composition  Queen was the nominal head of  Judicial officers cannot b  Judicial officers cannot be
and Judiciary both organs members of the NSA [Article members of Parliament
 Judicial officers cannot be 70(1)(c)] and vice versa. [Article 91(1)(d)(i)] and vice
members of the legislature and versa
vice versa
As Queen was the head of both Strict Separation in both Organs

organs, no strict separation
Strict Separation in both
Organs (Functional Separation)

Control and  Judicial review of legislation  NO Judicial review of legislation  NO Judicial review of
Interference present  Salaries of Judges determined by legislation [Article 80(3)]
 Both Houses could request NSA (But cannot be reduced  Determination of SC /CA
Governor General to remove an during tenure) judges salaries(but cannot be
judge of the Supreme Court  NSA could constitute Courts reduces during tenure)
 Salaries of Judges determined by (But cannot appoint members)  Removal of SC/CA judges
Parliament (But cannot be by parliament (upon proof
reduced during tenure) through standing orders)
Generally free from each other’s
 Constitutional Jurisdiction of
control SC
Have independence from control

 Parliament could constitute
of each other
Courts (But cannot appoint
members)
Judiciary is seen to interfere with

legislature, but not vice versa
Exercise of each  Parliament exercises judicial  NSA exercises judicial power in  Parliament exercises judicial
other’s functions power in hearing matters relating hearing matters relating to power in hearing matters
to Parliamentary privileges. Parliamentary privileges. relating to Parliamentary
 Framing of rules by SC and CA  Framing of rules by SC and CA privileges.
(Judiciary exercising legislative (Judiciary exercising legislative - Premachandra V
power) power) Montague Jayawickrama &
Another
 Framing of rules by SC and
Exercise each other’s Functions Exercise each other’s Functions CA (Judiciary exercising
legislative power) [Article
136]

 Judges may interpret Acts

and make binding laws
[Article 125]
Summary of SOP in 1978 Constitution
 Have a separation in composition of legislature and Judiciary

 Functional separation between legislature and executive, but not strict.
 Exercise of each other’s powers seen in legislature and judiciary.
 Conceptual separation of executive and Judiciary seen, but functions flow into each other.
 Wide control by executive over legislature.
 Executive controlled extensively by Judiciary.
 Judiciary free from executive control.
 Legislature and Judiciary Free from each other’s control.

6. SOVEREIGNTY
Sovereignty is the absolute power or authority of the state. In democratic states, sovereignty
is vested with the people.
In Sri Lanka, both Republican Constitutions (1972 & 1978) recognize the sovereignty of the
people and it is inalienable.
1972 Constitution
• Sovereignty is vested with the people and is exercised by the National State Assembly.
- Article 3,
“In the Republic of Sri Lanka; Sovereignty is in the people and is inalienable”
- Article 4,
“The Sovereignty of the people is exercised through a National State Assembly …” •
Sovereignty contained only the government powers; Legislative, executive and
Judiciary.
• Fundamental Rights were not identified as a part of sovereignty and no mechanism to
challenge FR violations.
• No Judicial review of legislation.
- The constitutional courts can review bills inconsistent with the constitution, but NSA
was not bound to enforce the decision. The NSA had sole authority.
• Constitutional provisions including sovereignty were not entrenched. NSA could change
any provision with a 2/3rd majority.
• There were no provisions for the requirement of a referendum.
Sovereign power was nominally vested with the people. The concept was justiciable. There
was no mechanism for people to exercise their sovereign power except by the NSA.
Thus it can be stated that, under the 1972 constitution sovereignty of the people was nominally
recognized but the power was essentially with the NSA.

1978 Constitution
SOVEREIGNTY
Legislative Executive Fundamental

Juducial Power Franchise
Power Power Rights
Presidential
Parliament President Parliament
Election
Courts / Parliamentary
People
Tribunals Election
Parliament Referendum
• Sovereignty is in the people and is inalienable.

- Article 3
“In the Republic of Sri Lanka sovereignty is in the People and is inalienable.
Sovereignty includes powers of the government, Fundamental Rights and Franchise.”
• Article 4 depicts how the people shall exercise their sovereign power.
- Legislative Power shall be exercised by parliament and by people at a referendum
[4(a)].
- Executive power shall be exercised by the president [4(b)].
- Judicial power shall be exercised by parliament through courts and tribunals [4(d)].
- FR and Franchise shall be exercised by the people directly. Franchise can be used at a
presidential election or parliamentary election and referendum [4(e)].
• Supreme Court is vested with the Fundamental Rights Jurisdiction under Article 126.
Therefore the Supreme Court can protect the rights and freedoms of the people. If there is
a violation of FR, people can exercise their Sovereign power by applying to the SC for
relief.
• Supreme Court has Constitutional Jurisdiction. The legislature is prevented from enacting
laws inconsistent with the constitution. Therefore the parliament cannot alter the powers
given to it by the people without the consent of the people.

• Article 83 states that certain articles [1,2,3,6,7,8,9,10,11,30(2), 62(2), 83] of the constitution
are extremely important and cannot be altered without the approval of the people at a
referendum. This again, illustrates the sovereignty exercised directly by the people.
(source of the legislative power granted to parliament is people. People have the sovereign
power. Therefore, when parliament has to alter certain provisions, it has to root to its
source of power).
• Article 85 provides for Referendum. The President shall submit bills to people at a
referendum if it is in accordance with article 85(1).
According to Article 85(2), the president shall submit bills to people which is not for
amend, repeal, or inconsistent with the constitution, but which is rejected by parliament.
This is clear proof that the people have ultimate sovereign authority as they have the
power to override the parliament by approving such a bill. Thus absolute power is vested
with the people.
Sovereign power of the people under the 1978 Constitution
The 1978 constitution gave a practical meaning to the concept of sovereignty by the following
ways –
a) Article 3 which recognizes the concept of sovereignty.

b) Article 4 which explain in what manner it is to be exercises.
c) Supreme Court having jurisdiction on Fundamental rights and constitutional
matters.
According to Article 83 which sets out certain requirements in regard to amend certain
provisions of the constitution, article 3 is declared as an entrenched provision and therefore a
Bill for amendment, repeal or replacement of it needs a 2/3rd majority in parliament and the
approval by the people at a referendum for it to be passed as law.
However, Article 4 is not an entrenched provision and thus needs only a 2/3rd majority of the
parliament for amendment according to Article 82(5). Therefore a valid argument arses that,
the manner in which sovereignty is exercised can be amended without a referendum.
However if article 4 is connected with article 3, then article 4 also becomes an entrenched
provision and therefore will need the approval of the people at a referendum. The Supreme
Court tried to connect Article 3 and 4 over a period of time (discussed below in detail).
Sovereignty of People and exercise of Legislative Power
1. Wickramanayake V the State (1978-79-80) 1 SLR 299
− It was argued for the petitioner that the entrenched article 3 attracts article 4 and
therefore all the fundamental rights recognized in the constitution are entrenched.
− The court did not go to consider the situation that would have arisen since it was found
that the restrictions imposed upon the fundamental rights which were challenged was
in conformity with Article 15(5) and 15 (7).

− Thus there was some indication that the court was willing to consider the argument of
the petitioner that the entrenched article 3 attracts article 4 and therefore all FRs
recognized in the constitution are entrenched.
2. Development Councils Bills
− Clause 24 of the Bill gave power to the development council to levy taxes/rates
determined by the council with the approval of the Minister.
− Article 148 of the constitution allows taxes to be imposed only under the authority of
the parliament.
− Court held that the Bill violates Article 1448 which declares that taxes can be imposed
only under the authority of parliament and that it contravenes Article 76 and is
inconsistent with Article 3.
3. In Re 13th Amendment to the constitution and the Provincial Councils Bill (1987) 2 SLR 312
− Majority judgment: “Article 4 is not independently entrenched. To the extent that a

principle contained or is a necessary corollary or concomitant of Article 3, a
constitutional amendment inconsistent with such principle will require a referendum
in terms of Article 83, not because article 4 is entrenched, but because it may impinge
on Article 3.”
− Minority Judgment: “this court has in fact ruled in a series of cases that Article 4 had
to be read along with Article 3. Vide our rulings in SD 5/78, SD 4/80, SD 1/82, SD
2/82, the application of Article 4 however could be raised, still in any particular
matter. It is not only Article 4 that we have often linked with Article 3, but by the
same token our rulings would cover any article in the constitution which the court
considers as being linked with any of the entrenched articles. So as to constitute a
basic feature of the constitution.”
− Under clause 2 (proposed Article 41FF of the Bill which empowers the council to make
rules of procedure and guidelines to be followed by it, the council is required before
gazetting the rules (whereupon they would come into effect) to communicate such
rules to parliament. No approval of parliament is required in the case of the
constitution. Hence, clause 2 alienates the legislative power of the people in violation
of Article 4(a); in the circumstances clause 2 requires to be passed by the special
majority and approved by the people at a referendum in terms of Article 84(2) by
virtue of Article 83.
Sovereignty of People and exercise of Executive Power
1. Land Amendment Bill
− Article 33(d) of the constitution conferred power on the President to make

grants/disposition of state land.
− Sections 3 and 5 of the Land Grants (Special Provisions) Act and Section27 of the Land
Development Ordinance empowered the President to make such Grants/ dispositions
of state land as constitutionally decreed in Article 33(d).

− This Bill was challenged on the basis that section 4(b) of the Bill, which made the
president obliged to make grants upon the recommendation by the Minister was
repugnant not only to Article 33(d), but Article 4(b) which attracted Article 3. − The
Supreme Court upheld the decision.
− Dissolution of parliament is a component of executive power of the people to be

exercised by the president for the people. It cannot alienated in the sense of being
transferred, relinquished or removed from where it lies in terms of Article 70(1) of the
constitution.
− The final say even in the situation referred to in Article 70(a) to (c) remains with the
President. Therefore, the amendments contained in clause 4 and 5 of the Bill constitute
an alienation of executive power inconsistent with Article 3 read with Article 4 of the
constitution and require to be passed by the special majority required under Article
84(2) and approved by the people at a referendum by virtue of the provisions of Article
83.
Sovereignty of People and exercise of Judicial Power
1. Prevention of Terrorism (Temporary Provisions) (Amendment) Bill
− Clause 15A(1) of the Bill sought to empower the Minister to make order that a person
be kept in custody of any authority which in effect meant that a person could be
transferred from Judicial custody to ministerial custody.
− Argued that this violated Article 3 read with Article 4(c) of the constitution.
− The supreme court upholding this decision held that “ this constitutes an interference
with a judicial order and is inconsistent with the provisions of Article 4(c) read with
Article 3 of the Constitution and must therefore be passed by a 2/3rd Majority and
approved by the people at a referendum as provided in Article 83...”
2. National Housing (Amendment) Bill
− Bill sought to confer power on the commissioner of National Housing (CNH) to order
payment of compensation for improvement effected by person to whom state land has
been given by an instrument of disposition and where such instrument is cancelled.
− Supreme Court held that these provisions appear to confer judicial power on the CNH
and the Minister.
− It was held that this was inconsistent with the constitution and may be passed only by
a special majority as required by Article 84(2).
− Note:
⇒ Court made no reference to Articles 3 and 4 although in other cases it did draw
the connection.
⇒ Parliament passed the law without acceding to the amendment suggested by
court to make the Bill consistent with Article 4(c).
Sovereignty of People and exercise of Franchise

1. Athukorala V Attorney General (1996) 1 SLR 238
− It was argued that Article 4(e) is not exhaustive of the manner in which the franchise is
exercisable and included pradeshiya sabha elections even though not expressly
mentioned in that Article.
− The Supreme Court held that “it would appear from the above provisions that having
extended the concept of sovereignty by adding Fundamental Rights and Franchise,
parliament in prescribing the manner of exercising the franchise limited it to voting at
the occasions referred to in Article 4(e). The wider meaning of Franchise which would
include voting at the other elections such as elections of local bodies or provincial
Councils had not been adopted.
2. Local Authorities (Special Provisions) Bill
− The Supreme Court stated that the mere fact that in Article 4(e) there is no reference to
elections of Local Authorities does not mean that the franchise as contemplated in
Article 3 would not extend to elections to local authorities.
− The constitution has to be looked at as an organic whole and in terms cannot be fixed to
meanings they may have had at the time of enactment. In terms of the 13 th
Amendment, the powers vested in the Local Authorities have acquired constitutional
recognition.
As seen above it is evident that the Sri Lankan courts have tried to build a bridge between
Article 3 and 4.
 “The doctrines of ‘Supremacy of Parliamnet’ and ‘Sovereignty of the people’ are not
two mutually exclusive ones. Instead, they should be considered as inherently
interrelated and buttressing each other.”
Discuss to what extent these doctrines have been conceptually accommodated in the
1978 constitution of Sri Lanka. [Q2; Oct 2016; 16 Marks]
 “In the Republic of Sri Lanka, sovereignty is in the paper and is inalienable.”
Discuss with reference to decided cases as to how the Supreme Court has given a
practical meaning to the political theory embodied in the above statement. [Q4; Oct
2014; 16 marks]
 “In the Republic of Sri Lanka sovereignty is in the people and is alienable. Sovereignty
includes the powers of government, fundamental rights and franchise.” (Article 3 of
the 1978 Constitution)
Describe as to how the sovereignty of the people referred to in the above statement
operates within the Sri Lankan Constitutional structure. [Q4; Apr 2014; 16 marks]
 (a) Explain the meaning of “Sovereignty of the people” a stated in Article 3 and 4 of
the Constitution.

(b)“The Public Trust Doctrine” reveals that power is conferred on all officers of state
as trustees of the people, and that they are obliged to exercise their powers only for
the benefit of the people.” Explain the above statement with reference to decided cases.
[Q2; Dec 2013; 13 marks]
 (a) Explain the meaning of “Sovereignty of the people” a stated in Article 3 and 4 of
the Constitution.
(b)“The Public Trust Doctrine” reveals that power is conferred on all officers of state
as trustees of the people, and that they are obliged to exercise their powers only for
the benefit of the people.” Explain the above statement with reference to decided cases.
[Q1; Apr 2013; 13 marks]
 “Discretionary powers can never be treated as absolute and unfettered, unless there is
compelling language; when reposed in public functionaries. Such powers are held in
trust to be used for the benefit of the public and for the purpose for which they have
been conferred – not at the whim and fancy of the officials for political advantage or
personal gain.” Fernando J. in Priynganie V Nanayakkara and Others (1996) 1 SLR at page
399
Explain the above statement with specific reference to Articles 3,4 and 12 of the
Constitution and decided cases. [Q3; Oct 2012; 9 marks]
 “Where sovereignty continues to be reposed in the People and the organs of the
government are only custodians for the time being, that exercise the power for the
people. Sovereignty is thus a continuing reality reposed in the people.” (in Re
Nineteenth Amendment to the Constitution at page 98)
Explain the above statement with reference to Articles 3, 4, 12 and Article 28
(Fundamental Duties) of the Constitution and decoded cases. [Q4; Apr 2012; 13 marks]
 Discuss the ways in which the sovereignty of the people is exercised under the 1978
Constitution. [Q10; Oct 2011; 12 marks]
 “The powers exercised by all three organs of the Government should be routed and
focused on the sovereignty of the people.”
Explain the above statement with reference to Articles 3 and 4 of the Constitution and
decided cases. [Q7; Apr 2011; 9 marks]
 “The 1978 Constitution of the Democratic Socialist Republic of Sri Lanka contains
many provisions guaranteeing the protection of fundamental rights and the language
right. However the violations of such rights continue to be in the increase.”
Discuss the above statement with reference to Articles 3 and 4 (sovereignty of the
people) and Article 28 (Fundamental duties) of the Constitution. Give your reasons
for such an increase and suggest as to what measures you would recommend to
ensure the implementation of the fundamental right and language rights. [Q5; Oct
2010; 13 marks]
 “Equality before the law means that among equals, the law should be equal and it
should be equally administered, that like should be treated like. (Jennings: Law and
the Constitution, 5th Ed. at. Pg 50)”
Discuss the above statement with reference to Article 12 of the 1978 Constitution of

Sri Lanka and the relevant decided cases. [Q1; Apr 2010; 12 ½ marks]
 “In the Republic of Sri Lanka, sovereignty is in the paper and is inalienable.”
Discuss with reference to decided cases as to how the Supreme Court has given a
practical meaning to the political theory embodied in the above statement. [Q4; Apr
2010; 12 ½ marks]
 Is the right to information a fundamental right in Sri Lanka? Discuss with reference to
decided cases. [Q8; Apr 2010; 12 ½ marks]
7. FUNDAMENTAL RIGHTS
The Nature and Scope
 The Independence Constitution of Ceylon (Soulbury Constitution) did not embody a Bill
of Fundamental rights. The nearest it came to one was through Section 29 of the
constitution.
 Section 29(2) provided that no law passed by parliament shall, for instance, “prohibit or
restrict the free exercise of any religion”, or “make persons of any community or religion
liable to disabilities or restrictions to which persons of other communities or religions
are not made liable.” This section which had been designed to protect the interests of
minority communities, failed to protect individuals against discrimination [Mudanayake
v Sivagnanasunderam (1951) 53 NLR 25 at 30 and 44].
 The first Republican Constitution (1972) enshrined a number of fundamental rights in
section 18(1), all of which were to be operative within certain confines or limitations
stated in section 18(2) which applied to all those rights equally.
 The present constitution (1978) has a separate chapter on fundamental rights (Chapter
VI).
 The Bill of Rights in the present constitution is quite elaborate in the sense that the several
rights enumerated therein are not subjected to blanket restrictions. While some rights
cannot be subject to any limitation (by way of ordinary/ subordinate legislation or
executive/administrative action), the other rights are subject to restrictions (prescribed
by law) of varying degree.
 Such rights cannot be affected by the special majority in Parliament. Any attempt to affect
such right will be successful only if people directly confirm such legislative action by
way of approval expressed through a referendum.
 The present constitution recognizes the following rights –  Religious Freedom – Article
10 and Article 14(1)(e)  Freedom from Torture – Article 11  Right to Equality - Article
12(1)  Personal Liberty – Article 13
 Freedom of Speech and Related Freedoms – Article 14(1)
(The rights will be discussed in greater detail in the lessons to follow)
 Article 15 sets down a number of far reaching restrictions on fundamental rights, except
those which are absolute and cannot be restricted.
− Articles 10, 11, 13(3) and 13(4) are absolute and cannot be restricted.
− Articles 12, 13(1), 13(2) and 14 operate subject to the provisions of Article 15(7).
Enforcement of Fundamental Rights

 A breach of Fundamental Rights may be committed by a public authority or a private

individual.
 If the breach is committed by a private individual, he is liable as if he violated an ordinary
law. Ordinary judicial remedies must then be applicable. Article 12(3) envisages
situations where breach f fundamental rights may be traced in a private action.
 Public authorities include the legislature, executive and the judiciary. Whilst the
constitution makes provision for the prevention of legislative excess and relief against
breaches of fundamental rights attributable for executive and administrative action, it
makes no provision for remedies for violation of FR by Judicial action.
 Article 126 is the provision governing he remedy for breach of FR by executive or
administrative action.
An outline of the rights recognized by the 1978 constitution
1. Religious Freedom
- There are 2 articles relevant to this freedom; Article 10 and Article 14(1) (e).
- Article 10 is in one sense a mental state. It is what a person thinks or perceives. None
can see or feel it. As such it is absolute and cannot be restricted. However, if it is to
be affected, it will require a referendum approval by the people.
Every person is entitled to freedom of thought, conscience and

religion, including the freedom to have or to adopt a religion or
belief of his choice.
- Article 14(1) (e) deals with the external expression (manifestation) of such belief (the
physical act of the aforementioned mental state) and is thus subject to limitations
incorporated in Article 15(7).
The freedom, either by himself or in association with others, and either in

public or in private, to manifest his religion or belief
in worship, observance, practice and teaching
Cases where Article 10 was interpreted
 Premlal v Weerasooriya (1985) 2 SLR 177

- In this case, an employee of the Railway Dept. made a petition to the SC under
Article 126 that a deduction from his salary as a contribution towards the National
Security Fund was a violation of his Freedom of thought, conscience and religion,
since there was a possibility that one of the uses of to which the fund money may
be put will be destruction of human life, which was repugnant to the tenets of his
faith, Buddhism.
- The SC held that there was no violation of FR since the contributions were not
compulsory, but merely voluntary.
 Christian Sahanaye Doratuwa Prayer Centre (Incorporation) Bill (4 SC CD 30) - This bill
was challenged on the basis that it violated article 10.
- The bill provides for the setting up of a prayer centre and it also provides financial
and economic benefits to its members.

- It was argued that the financial assistance will amount to inducement to follow that
faith.
- Thus its main objective may be foreseeable conversion.
- Court held that the bill was unconstitutional and requires a 2/3 majority.
- The constitution guarantees to every person that the basic choice he makes with
regard to his belief or would be taken with complete freedom without being
exposed to any undue influence, allurement or fraud.
 Teaching sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of SL
(Incorporation) Bill [SC Special Determination No 19/2003]
- This bill had been aimed at propagating Catholic religion and to allure persons of
other religions to convert.
- It is by this petition that the Court held that propagation of one’s religion is not a
right recognized under Article 10.
- Also under Article 14(1)(e) it has the right to manifest , worship, observance and
practice one’s religion.

-
The constitution does not guarantee a FR to propagate religion.
- Even where propagation is expressly permitted, the entitlement does not extend to the
right to convert others.
 The prohibition of Forcible Conversion of Religion Bill (SC Determination Nos. 2-22 / 2004)
- It was sought to prohibit the conversion from one religion to another by using force,
allurement or fraudulent means.
- It also meant that Article 14(1) (e) can be restricted by Article 15(7).
- Court recognized true evangelism as opposed to improper proselytism as a
manifestation of religion.
2. Freedom From Torture

- The article relevant is Article 11.
No person shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
- This too is an absolute right and thus cannot be restricted under the constitution.
- This provision is invoked frequently in respect of ill-treatment by Police or Security
forces.
- As declared in the UNDHR, ‘Torture’ means any act which inflicts severe pain and
suffering intentionally, either physically or mentally.
- It further states that this FR cannot be denied/ prohibited even if the applicant is a
hardcore criminal who is wanted by law.
- And also one can apply to the SC for remedy only if it is done by an executive or
administrative action.
- It is the task of the SC to decide whether an act is a cruel, torturing, inhuman or
degrading treatment.
-
Cases where Article 11 was interpreted
 Amal Sudath Silva v Kodithuwaku (1987) 2 SLR 119

- The petitioner was detained in police for 5 days and had beaten and tortured
inhumanely.
- The petitioner was an alleged suspect of theft.
- However, Article 11 guarantees to each and every person irrespective of his/her
status for getting recourse to the SC.
- Further it was held that the petitioner couldn’t identify the Police officers who tortured
him.
- The court held that the petitioner does not need to identify the officers who caused him
the injury, but the state is responsible for the conditions that are being complained of
and in the event the allegations are proved, the state is liable to pay compensation to
him.
 Deshapriya v Weerakoon (2003) 2 SLR 99
- The petitioner was a worker in the ship and was arrested on the allegation of theft. He
was thereafter retained in the naval ship and tortured in an inhumane manner.

-
- The captain (Commander) however denied knowing that such torture took place. He
also went on to state that, even if such an act did take place, he was not directly involved.
- Court held that the commander was under a duty to take reasonable steps to ensure that
persons under his custody be treated in a humane manner.
In accordance with the law, in the Forces, command is a sacred trust and thus discipline
is paramount.
 Adhikary v Amarasinghe (2003) 1 SLR 270 - The petitioners were a lawyer and his wife.
- While the lawyer was travelling in his car with wife and child, a minister’s vehicle
overtook this vehicle, forcefully stopped the lawyer’s car, pulled him out and assaulted
him in the presence of his wife and child.
- The psychological trauma suffered by the wife was addressed in the judgment and it
was held that the acts committed by the security officers were in violation of Article 11.
 Sriyani Silva v Iddamalgoda (2003) 1 SLR 14
- The petitioner in this case was the wife of the individual who was tortured and
subsequently died as a result of those injuries.
- The petitioner’s husband was taken into police custody and tortured severely. He then
files a FR case under Article 11. However, before the case was heard, he died due to the
injuries suffered during the tortured period.
- The question then arose whether the next of kin can represent the person whose
rights were infringed (after his death).
- The state took up the objection that Article 11 protects only the person whose rights have
been violated and hence the wife cannot take up the matter.
- This was a dissenting judgment wherein the dissenting judge stated that if the wife
cannot take the case forward, there will arise an absurd situation in interpreting the law
and thus held that the wife (next of kin) had the right to file the case and seek redress.
3. Right to Equality
- The relevant article is Article 12(1).
All persons are equal before the law and are entitled to
the equal protection of the law.
- This is also included in the preamble to the constitution.

- The concept of equality before the law is also recognized in Article 7 of the UNDHR and
Article 26 of the International Charter of Civil and Political Rights.
- This right is not absolute and hence can be restricted under the circumstances set
out in Articles 15(7) and 15 (8).
- This article contains 2 aspects;
⇒ Equality before the law (negative aspect)
 Requires that the law of the land be enforced against all persons equally
without any distinction made on any ground whatsoever.
⇒ Equal protection of the law (Positive aspect)
 Demands that all persons are entitled to stand before the law on equal
terms, to enjoy the same rights belonging to and to bear the same burdens
as are imposed on the other persons in a like situation.
- All persons are not by nature, attainment or circumstance in the same position. Therefore
it is wrong to insist that every law must have a universal application or that in the matter

-
of administration of justice no distinction must be made between individuals or groups
of individuals.
- What the equality provision prohibits is ‘discrimination’, i.e. treatment of a person in a
manner prejudicial to him as compared to another person in similar circumstances.
It does not prohibit ‘reasonable classification’ (grouping of a person or things based
on some real and substantive distinction bearing a just and reasonable relation to
the object sought to be attained).
“Before a person can claim to be discriminated against another, he must show that the other
person was similarly situated or equally circumstanced; he must, make out that , not only had
he been treated differently from others, but that he had been treated from persons similarly
placed without any reasonable basis and such differentiated treatment is unjustifiably made”
(Perera v Jayawickrama (1985) 1 SLR 285@297)
- There are 2 criteria used in classification –

i. Geographical or Territorial basis
 Seneviratne v UGC (1978-79-80) 1 SLR 182
- Different parts of the country are different according to the local
circumstances.
- District quota system for university selection post the Advanced
Level Examination was challenged on the basis that it violates Article
12(1).
- Court held that the UGC has tried to act as fairly as possible and
tried to distribute on a rational basis.
ii. Nature of persons, business etc.
 Yasapala v Wickramasinghe [ FRD(1) 143]
-The Cabinet of ministers laid guidelines for dealing with persons
applying for reinstatement in the aftermath of the general strike of 1980.
-It classified officers who absented themselves from work into
categories consisting of officers who (i) involuntarily did not attend
office because of some misfortune such as illness or some other similar
reason and (ii) voluntarily absented themselves in furtherance of the
strike.
-The SC held that the guidelines exhibit reasonable classification .
Cases where Article 12 (1) was interpreted
 Palihawadana v Attorney General (1978) 1 SLR 65

- The petitioner challenged that the government Job Bank Scheme violates the equality
postulated in Artilce 12(1).
- Criteria for selection were specified by the cabinet. It vests arbitrary power in a MP to
- Under the said criteria, 3000 applicants were eligible. select 1000 persons out of a vast
out of which 1000 were selected by the discretionary number satisfying the eligibility
powers exercised by the Minister in charge of the criteria. Scheme.
- This discretion of power was a violation of Article
12(1).

-
- It was decided in this case that courts adopted a classification in relation to Article 12(1)
–
 Classification should be Intelligible Differentia – which distinguishes persons
from another group.
 The differentia must have a relation to the object sought to be achieved.
 Perera v UGC [FRD (1) 103]

- At the time the Advanced Level Examination was first introduced (1979), two examinations
were held (Old syllabus and new syllabus).

- The UGC adopted a system of allocating available places on a ratio 7.2: 2.8.
- The question was whether the classification was rationally related to the objective of
selecting best students.
- The SC held that by deciding to have a common basic aggregate in both examinations,
those eligible from both sources were integrated into one class and thereby made equals.
Thereafter they cannot be discriminated against by reference to the original sources.
There was no material tom show that one examination was superior.
 Rampillai v Minister of Public Administration (1991) 1 SLR 11

- The question was whether ethnicity can be a deciding factor in granting promotions
to Customs officers of equal rank.
- It was held that, “once the appointees are ‘clubbed’ together, into a common stream
of service, they cannot be treated differently thereafter, for the purpose of
promotion, by differentiating them on ethnic grounds.”
- If it was so done, it would have constituted an infringement of Article 12.
 Shafeek v Secretary, Public Service Commission [SC (F/R) 249/96, SCM 19.11.1998]
- It was held that the principle of ethnic quotas in relation to the recruitment to the
public service is an infringement of Article 12.
 Perera v Jayawickrama (1985) 1 SLR 285

- The petitioner was sent compulsory retirement maliciously and without just cause.
- Sharvananda CJ stated that, the retirement was ‘unreasonable’ and ‘unjustifiable’
and that it lacked ‘bona fides’. However, his FR guaranteed by Article 12 had not
been violated because he failed to cite instances of another person of under his
circumstances having been treated differently.
- Wmalarathna J, provided a different view stating that, the application of a wrong
procedure in taking disciplinary action against the petitioner by itself established
discrimination.
4. Personal Liberty
- Article 13 sets out freedom from arbitrary arrest, guarantees him the protection of
not being arrested on mere suspicion, detention, and punishment and prohibits
retroactive penal legislation.
out in Articles 15 (1), 15(7) and 15 (8).
No person shall be arrested except according to procedure

established by law. Any person arrested shall be informed of
the reason for his arrest.
-Article 13 in its paragraphs (3), (4), (5) and (6), lays down certain valuable
safeguards especially relevant to criminal law and procedure.
 Article 13 (3) guarantees that any person charged with an offence is
entitled to be heard either in person or by an attorney at law, at a fair trial
by a competent court,

 Article 13 (4) orders that no person shall be punished with death or

imprisonment except by a competent court in accordance with the
procedure established by law.
 Article 13 (5) Presumption of Innocence.
 Article 13 (6) Prohibits the creation of offences with retrospective effect
as well as retrospective enhancement of punishment (however, this does not
cover acts or omissions which are criminal according to general principles
of International law).
- In the event of an arrest, two fundamental point need to be taken into consideration.
(i) No person shall be arrested except according the procedure established by law.
(ii) Any Person arrested shall be informed of the reason for his arrest.
- The procedure to be followed during an arrest are explained in the following
legislation;
⇒ Section 32 (1) of the Criminal Procedure Act No 15 of 1979
⇒ Section 63 of the Police Ordinance
⇒ Section 6(1) of the Prevention of Terrorism Act No 48 of 1979
- Section 23(1) of the Code of Criminal Procedure Act states on relation to “Arrest” –
“In making the arrest, the person making the same shall actually touch or confine
the body of the person to be arrested unless there be submission to the custody by
word of action and shall inform the person to be arrested of the nature of the charge
or allegation upon which he is arrested.”
ARREST
 Namasivayam v Gunawardene (1989) 1 SLR 394

- The bus in which the petitioner was travelling was stopped midway by the police.
- The petitioner was thereafter asked to accompany the officers to the police station.
- The reason for the arrest was informed as “to investigate into a case of a robbery of
a gun”. On the belief that the petitioner was acquainted with such mater, the police
was said to behave in this manner.
- It was held that, the petitioner was prevented by the action of the police officer from
proceeding with his journey in the bus. The petitioner was deprived of his liberty
to go where he pleased.
- Thus this constituted an arrest as the freedom of movement of the petitioner was
restricted even though no force or threat was used.
-
 Piyasiri v Fernando (2998) 1 SLR 173
- The petitioner was a custom officer who along with some fellow officers was
travelling to Colombo by Car.
- The police stopped the vehicle midway, searched the car and told the customs
officers to follow the police to the station.
- It was held that the action constituted an arrest.

“... Lack of freedom of movement brought about not only by detention but also by
threatened coercion, the existence of which can be inferred from the surrounding
circumstances.”

 Mahinda Rajapakse v Kudahetti (1992) 2 SLR 23

- The petitioner was to travel to Geneva to attend a conference.
- He was informed by the respondent that his bag will be checked at the Katunayake
Airport on the information received that the petitioner was carrying fabricated
information.
- Upon finding such documents, it was confiscated and the petitioner was allowed to
proceed with his journey.
- The petitioner thus filed a case based on the ground of arrest.
- The court held that his freedom of movement was not restricted and thus Article
13(1) was not violated.
 Sirisena v Perera (1991) 2 SLR 97

- It was held that, whether or not a person has been arrested depends not on the
legality of the arrest but on whether he has been deprived of his liberty to go where
he pleases.
ACCORDING TO THE PROCEDURE ESTABLISHED BY LAW
 Premalal De Silva v Inspector Rodrigo (191) 2 SLR 307

- Court looked at the law and made the following observations.
⇒ The question for the Court is whether there was material for a reasonable
officer to cause the arrest.
⇒ Proof of the commission of the offence is not required. A reasonable suspicion
or reasonable complaint of the commission of the offence will suffice. The
test is an objective one.
⇒ Police are not required before acting to have anything like a prima facie case
for convicting.
⇒ A suspicion is proved to be reasonable if the facts disclose that it was founded
on matters within the police officers own knowledge or on the statements
made by some other persons in a way which justify him giving them credit.
 Yapa v Bandaranaike (1988) 1 SLR 63

- Court held that a person can be arrested without a warrant in 2 circumstances; ⇒ In
an instance where there is reasonable suspicion.
⇒ If the reason for arrest has been informed previously to the person for
committing an cognizable offence.
 Channa Peiris v AG (1994) 1 SLR 1

- Sets out the criteria an officer must follow prior to making an arrest.
⇒ The officer making the arrest cannot act on suspicion founded on mere
conjecture or vague surmise.
⇒ His information must give rise to reasonable suspicion that the suspect was
concerned in the commission of an offence...
⇒ The suspicion must not be of an uncertain and vague nature but of a positive
and definite character providing reasonable ground for suspecting that the
person arrested was concerned in the commission of an offence.
 Vinayagamoorthi Vimalendran v Army General (1997) 1 SLR 113

- It was held that the question whether the arrest was done following the du process
or not is not decided by the offence he was committing at the time of the arrest and
not by the offences that are revealed by the investigations carried out after the
arrest.
REASONS FOR ARREST
 Mariyadas Raj v AG (1983) 2 SLR 461

- Discussed why there is a requirement to inform a person the reason for arrest.
“... The purpose of this rule is to afford the earliest opportunity to the arrested
person to remove any mistake, misapprehension or misunderstanding in the mind
of the arresting official and disabuse his mind of the suspicion which actuated the
arrest”
PREVENTIVE DETENTION
This concept was brought about at the height of insurgence. Preventive detention does not
constitute punishment and Article 13 (4) has no application to preventive detention.
 Wickramabandu v Herath and Others (1990) 2 SLR 348

- “Preventive detention is vital to the law enforcement process. It is an indispensable
social necessity and is rsorted to in times of war, rebellion, insurrection of even
during peacetime. There is nothing inherently unjust in the concept provided that
any law for preventive detention should be arbitrary and should provide adequate
safeguards against oppression and deprivation of personal liberty.”
-
5. Freedom of Speech and Related Freedoms
- Article 14(1) incorporates the freedom of speech and expression including
publication, freedom of peaceful assembly; freedom of association; freedom to form
and join a trade union; freedom of movement and of choosing his residence within
Sri Lanka and some other related Freedoms.
out in Articles 15 (2), 15 (3), 15(4), 15 (5), 15(6) and 15 (8).
(1) Every citizen is entitled to –

(a) The freedom of speech and expression including
publication
- The freedom of speech and expression means absence of restraint upon the ability
of individuals and groups to communicate their ideas and experiences to others.
- This right is essential for the development of the human personality.
- The freedom of expression goes to the heart of natural rights as it gives one the right
to speak or listen.
- The freedom of expression may take a variety of forms including dialogues,
publication, distribution of written material, certain symbolic forms etc.
- Article 14 was amended by the 19th Amendment by introducing Article 14A (Right
to information as provided by Law). Its main purpose was to make governmental
actions transparent to the Public.

 Joseph Perera v AG (1992) 1 SLR 199

- Petitioner and 3 others organized a meeting to discuss “Freedom and the enemy of
Free education”.
- They circulated some leaflets containing issues relating to the meeting.
- On the day of the meeting the crowd was dispersed by the police.
- The petitioner charged that their Freedom of expression had been infringed.
- Court held that article 14(1) was infringed and gave different examples of how
freedom of speech and expression can be exercised.
“... By word of mouth, writing, printing, pictures or any other mode. It includes the
expression of one’s ideas through banners, posters, signs etc...”
 Amaratunga v Sirimal (1993) 1 SLR 264

- The opposition at the time organized a “Jana Ghosha” (vocal protest) against the
then government by using musical instruments and other apparatus.
- At one particular place, the police interrupted and broke one musical instrument in
the process of trying to stop the protest.
- The petitioner claimed that Article 14(1) was violated.
- Court held that the said article was violated and further gave examples to article
14(1)(a)
 Karunathilaka v Dayananda (1999) 1 SLR 157

- The government in power at the time used violence to stop people from voting.
- The question arose whether the right to vote at an election was a part of the right
mentioned in Article 14(1) (a).
- Court held that ,
“The Freedom of ‘speech and expression’ guaranteed by that article should be
broadly construed to include the exercise of the right of an elector to vote at the
election.
The silent and secret expression of a citizen’s preference between one candidate and
another by casting his vote is no less an exercise of the freedom of speech and
expression than the most eloquent speech from a public platform.”
 Viswalingham v Liyanage (1984) 2 SLR 123

- Court held that freedom of expression includes the freedom of the recipient (to
hear).
 Fernando v The SLBC (1996) 1 SLR 157
- SLBC had been airing a particular program on radio for some time.
- This was suddenly stopped.
- The petitioner came to Court on the basis that SLBC had violated his freedom of
expression and speech as he cannot now listen to what he preferred.
- Supreme Court took a different approach to that of Viswalingam’s case.
- It is also noteworthy that Justice Mark Fernando has recognized the right o
information by interpreting article 14(1)(a) in a broader sense.
 Environmental Foundation Ltd. v UDA [SC(FR Application No. 47/04)]

- Courts recognized again that there is a freedom of information inbuilt within Article
14(1) (a).

 “Religion is an organized belief and such beliefs should not be placed within the reach
of any positive laws. A belief for its own survival may depend on particular
observations prescribed in the name of religion. Hence, when it comes to constitutional
guarantees, there is no ne to make a distinction between the two.”
Comment on the above statement in light of Article 10 of the 1978 constitution of Sri
Lanka. Support your answer with case law authority. [Q8; Oct 2016; 16 marks]
 “The judicial approach to Article 12 of the Constitution has commendably helped to

develop jurisprudence in the sphere of equality. However, it is not exhaustible journey
for the judiciary in a plural society.
Discuss. Support your answer with case law authorities. [Q8; Apr 2016; 16 marks]
 What do you understand by executive or administrative actions in the context of the

Constitutional provisions of Sri Lanka? Discuss with the support of decided cases. [Q9;
Apr 2016; 16 marks]
 “While article 10 of the 1978 Constitution guarantees an absolute freedom, the actual
practice of such freedom is subject to certain limitations. In a plural society such
limitations warrant a careful and rational interpretation.”
Discuss. Support your answer with case law authorities. [Q8; Oct 2015; 16 marks]
 “In order to prove violation of the equality clause in the 1978 Constitution, one will
have to satisfy the court about two things: (a) that s/he has been treated differently
from others, (b) that s/he has been differently treated from persons similarly situated
without any reasonable basis.”
Critically analyse the above statement in light of the decided cases.
OR
Discuss the development of law in Sri Lanka in relation to sue as set out in Article 126
of the Constitution. [Q9; Oct 2015; 16 marks]
 “Article 10 of the 1978 Constitution not only declared the right to which every person
is entitled, but also defined that right to include the freedom to have and adopt a
religion or belief of a person’s choice.”
Critically examine the above statement analyzing the relevant provisions of the 1978

Constitution giving attention to the decided cases. [Q3; Apr 2015; 16 marks]
 Equality before the law means that among equals the law should be equal and it should
be equally administered that like should be treated alike. This article applies both to
substantive law as well as procedural law.”
Discuss the above statement giving reference to the relevant provisions of the 1978
Constitution and decided cases. [Q4; Apr 2015; 16 marks]
 “Every person is entitled to the freedom to have or adopt a religion or belief of his
choice. Every person has the right to manifest his religion or belief in worship,
observance, practice and teaching, the right to convert another person to his religion
and this right cannot be restricted.”
Constitution giving attention to decided cases. [Q7; Oct 2014; 16 marks]
 “No person shall be subjected to torture or to cruel, inhuman or degrading treatment

or punishment. It is an absolute fundamental right subject to no restrictions or
limitations whatsoever. The Supreme Court has in several decisions expanded the
scope of this protection.”
Discuss the above statement giving reference to the provisions of the 19778
 (i) Describe the Constitutional provisions contained in chapter 3 of the 1978

Constitution to assure the fundamental right to the people.
(ii) Describe the mechanism contained in the Constitution against FR violations
enforceable by the Supreme Court of Sri Lanka. Give your answer with reference to
 Select one of these two statements and discuss the relevant fundamental rights
provisions enshrined in the Constitution. Either
(a) “…Article 13(2) requires that an arrested person be brought before the judge
of the nearest competent court. How he should be brought before the judge
can be laid down by ordinary law, but the requirements that he be brought
before a judge, and that it is not any judge but the judge of the nearest
competent court, cannot be varied or dispensed with. Those are not matters
of discretion, but pre conditions which go to jurisdiction..” Marc Fernando J.
Weerawansa V Attorney General and Others (2000) 1 SLR page 144
Or
(b)”…Exceptions to Article 14(1) (a) must be narrowly and strictly construed
for the reason that the freedom of speech constitutes one of the essential
foundations of a democratic society, which as we have seen, the Constitution
is no uncertain terms declare Sri Lanka to be…” Amarasinghe J. Abeysekara V
Ariya Rubasinghe, competent Authority and Others (2000) 1 SLR page 314 [Q8;
Apr 2014; 16 marks]
 Discuss with reference to decided cases the approach of the Supreme Court to
“reasonable classification” in the context of Article 12 of the Constitution. [Q6; Dec
2013; 9 marks]

 Describe the provisions of the Constitution relating to language rights. [Q10; Dec 2013;
9 marks]
 “Issuing a warrant is a judicial act involving the liberty of an individual and no warrant
of arrest should be lightly issued by a Magistrate simply because a prosecutor or
investigator thinks its necessary. It must be issues as the law required, and when the
Magistrate is satisfied that he should do so on the evidence taken before him on oath…”
Deerartne J. in Mahanama Tilekaratne V Bandual Wickramasinghe and Others(1991) 1 SLR
page 382
Discuss the above statement with reference to Article 13 of the constitution and
 Write a note on the provisions of the Constitution relating to official languages and
language rights. [Q7; Apr 2013; 9 marks]
 “The right to personal liberty is a fundamental right which is guaranteed by the
Constitution of the Democratic Socialist Republic of Sri Lanka and a person cannot be
deprived of this right by the arrest on a mere suspicion.”
Discuss the above statement with reference to the provisions of the Constitution and
decided cases. [Q1; Oct 2012; 13 marks]
 “The capacity on the part of one human being to inflict pain or other sufferings o the
human being, in the name of the law cannot be accepted at all.”
Discuss the above statement with reference to the provisions of the Constitution and
decided cases. [Q2; Oct 2012; 13 marks]
 Write a note on the development of the law in Sri Lanka in relation to the right to sue
as set out in Article 126 of the constitution. [ Q6; Oct 2012; 9 marks]
 Describe the provisions of the Constitution relating to language rights. [Q7; Oct 2012;
9 marks]
 “Article 13 of the Constitution guarantees the right against arbitrary arrest and the
protection of not being arrested on mere suspicion.” Explain the above statement with
reference to Article 13(1) and 13(2) of the Constitution and decided cases. [Q3; Apr 2012;
13 marks]
 Discuss with reference to decided cases the approach of the Supreme Court to
“reasonable classification” in the context of Article 12 of the Constitution. [Q2; Oct
2011; 12 marks]
 “Every Citizen is entitled to freedom and expression including publication. This

freedom can be exercised in different ways. This fundamental right cannot be restricted
in any manner.”
Critically examine this statement with reference to decided cases. [Q12; Oct 2011; 12
marks]
 Write a note on the right against torture. [Q1; Apr 2011; 13 marks]

 (a) “Article 13 of the Constitution expressly guarantees the right against unlawful arrest
and deprivation of personal liberty. Arresting a person on a mere suspicion would
amount to a violation of such right”. Explain the above statement with reference to
decided case law.
(b) Explain the meaning of the phrase “Procedure established by law” as set out
in Article 13 of the Constitution. [Q2; Apr 2011; 13 marks]
 “The Judiciary of Sri Lanka has made immense contribution towards the protection of
fundamental rights and affording access to justice by adopting liberalized approaches.”
Do you agree with this statement? Support your answer with reference to the
provisions of the Constitution and decided cases. [Q4; Apr 2011; 9 marks]
 Write a note on language rights as guaranteed by Chapter IV of the Constitution.

[Q10; Apr 2011; 9 marks]
 “Article 13 of the Constitution provides to every person a right against arbitrary arrest
and guarantees him the protection of not being arrested on mere suspicion.”
Explain the above statement with reference to Article 13(1) and 13(2) of the
 Explain the provisions in the 1978 Constitution of Sri Lanka that guarantee the freedom
of ‘thought, conscience and religion’. [ Q2; Apr 2010; 12 ½ marks]
 “Article 14 of the Constitution deals with those great and basic rights which are
recognized and guaranteed as the natural rights inherent in the status of a free
country.” Joseph Perera V AG (1992) 1 SLR 199. Comment. [Q3; Apr 2010; 12 ½ marks]

8. DIRECTIVE PRINCIPLES OF STATE POLICY AND FUNDAMENTAL DUTIES
− Chapter VI (Article 27 to 29) of the deals with Directive Principles of State Policy and
Fundamental Duties.
− The Directive Principles of State Policy are meant to “guide Parliament, the President
and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka
for the establishment of a just and free society”.
− These principles of state indicate the political ideology acceptable to the constitution
makers, namely a mixed economy.
− The Principles enumerated in this chapter ensure that; ⇒
Resources of people are equally shard among all.
⇒ Environment is protected.
− These principles are not justiciable and thus cannot be agitated before a court of law.
However, in a series of cases the SC held that, even if though these principles are not
justiciable, they have ensured that the organs of state follow the principles. Cases in which
the Directive Principles of State Policy were discussed
 Seneviratne and another v UGC and another (1978-79-80) 1 SLR 182

“… It has been said that that the Directive Principles are in the nature of an instrument
of instructions which both the Legislature and executive must respect and follow.”
 In Re thirteenth Amendment to the Constitution and the Provincial Council Bills (1987) 2
SKR 312
“… The Directive principles require to be implemented by legislation”.
 Vadivelu v OIC , Sithambarapura Regional Camp Police Post, Vavuniya and Others (2002) 3
SLR 146
“ … It is true that the Directive Principles of State Policy do not confer or impose legal
rights and obligations and are not enforceable in any Court, but that does not mean
that the Judiciary is bound to ignore them.”
 Mediwake and Others v Dayananda Disanayke, Commissioner of Elections and Others (2001)
1 SLR 177
“… Article 27(15) requires the state endeavor to foster respect for international law
and treaty obligations in dealings among nations”.
 Weerawansa v The AG (2000) 1 SLR 409

- Artivle 27(15) was extensively discussed yet again.
 What is the significance of having provisions of ‘Directive Principles of State Policy’ in

a Constitution? Have any Constitutional purposes been served by such principles
found in the 1978 constitution of Sri Lanka? [Q6; Oct 2016; 16 marks]

 What is the significance of having Directive Principles of state policy in a Constitution?

Describe what kind of obligations the state undertakes under these principles towards
its citizens. Explain with examples. [Q7; Apr 2016; 16 marks]
 “Non enforceability of Directive Principles of State Policy does not indicate that any of
the organs of the Government can ignore them in exercising their respective powers.
The simple fact is that the Sri Lankan citizenry deserve the enjoyment of whatever that
have been committed by the state towards them.”
Discuss the above statement with reference to the relevant provisions of the 1978
Constitution and case law. [Q6; Oct 2015; 16 marks]
 Explain with reference to decided cases the value of the Directive Principles of state
policy. [Q9; Apr 2015; 16 marks]
 “Directive Principles of state policy shall guide Parliament, the president and the
cabinet of ministers in the enactment of laws and governance of Sri Lanka for the
establishment of a just and free society. However these Directive Principles of state
policy are not enforceable in any court or tribunal.”
Critically examine the above statement giving reference to the provisions of the 1978
Constitution and decoded cases. [Q2; Oct 2014; 16 marks]
 “It is true that directive principles of State policy do not confer or impose legal rights
and obligations and are not enforceable in any Court, but that does not mean the
Judiciary is bound to ignore them.” Fernando J. In Vadivelu V OIC Sithmabaram Regional
Camp Police Post, Vavuniya and Others (2002) 3 SLR at page 152. Explain the above
statement. [Q4; Oct 2012; 9 marks]
9. EXECUTIVE PRESIDENT AND IMMUNITY
− The most significant change made by the present constitution as regards distribution of
state power is to introduce an executive president, directly elected by the people and
whose tenure of office is firmly secured.
“There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the
Head of the Executive and of the Government and the Commander-in-Chief of the
Armed Forces.”
[Article 30(1)]
− The President of the Republic shall be elected by the People and shall hold office for a term
of five years. [Article 30 (2)]
− The President so elected shall exercise the executive power of the people.
“The executive power of the People, including the defence of Sri Lanka, shall be exercised
by the President of the Republic elected by the People.” [Article 4(b)]
− The Powers and functions of the President are set out as follows-
⇒ [Article 33]

“In addition to the powers and functions expressly conferred on or assigned to

him by the Constitution or by any written law whether enacted before or after
the commencement of the Constitution, the President shall have the power –
 ensure that the Constitution is respected and upheld;
 promote national reconciliation and integration;
 ensure and facilitate the proper functioning of the Constitutional Council and
the institutions referred to in Chapter VIIA; and on the advice of the Election
Commission, ensure the creation of proper conditions for the conduct of free
and fair elections and referenda.
 to make the Statement of Government Policy in Parliament at the
commencement of each session of Parliament;
 to preside at ceremonial sittings of Parliament;
 to summon, prorogue and dissolve Parliament;
 to receive and recognize, and to appoint and accredit, Ambassadors, High
Commissioners, Plenipotentiaries and other diplomatic agents;
 to appoint as President’s Counsel, attorneys- at- law who have reached
eminence in the profession and have maintained high standards of conduct
and professional rectitude.[Every President’s Counsel appointed under this
paragraph shall be entitled to all such privileges as were hitherto enjoyed by
Queen’s Counsel];
 to keep the Public Seal of the Republic, and to make and execute under the
Public Seal, the acts of appointment of the Prime Minister and other Ministers
of the Cabinet of Ministers, the Chief Justice and other judges of the Supreme
Court, the President of the Court of Appeal and other judges of the Court of
Appeal, and such grants and dispositions of lands and other immovable
property vested in the Republic as the President is by law required or
empowered to do, and to use the Public Seal for sealing all things whatsoever
that shall pass that Seal;
 to declare war and peace; and
 to do all such acts and things, not inconsistent with the provisions of the
Constitution or written law, as by international law, custom or usage the
President is authorized or required to do.
⇒ [Article 32(3)]
“The President shall, by virtue of his office, have the right at any time to attend,
address and send messages to Parliament. In the exercise of such right the
President shall be entitled to all the privileges, immunities and powers, other
than the right to vote, of a Member of Parliament and shall not be liable for any
breach of the privileges of Parliament, or of its Members.”
⇒ [Article 33A]
“to do all such acts and things, not inconsistent with the provisions of the
Constitution or written law, as by international law, custom or usage the
President is authorized or required to do.”
⇒ [Article 34(1)]
“The President may in the case of any offender convicted of any offence in any
court within the Republic of Sri Lanka –

(a) grant a pardon, either free or subject to lawful conditions ;”

⇒ [Article 70(1)]
“The President may, from time to time, by Proclamation summon, prorogue and
dissolve Parliament.”
Immunity of the President
− [Article 35(1)]
Confers on the President immunity from judicial proceedings.
“While any person holds office as President of the Republic of Sri Lanka, no civil or
criminal proceedings shall be instituted or continued against the President in respect of
anything done or omitted to be done by the President, either in his official or private
capacity:
Provided that nothing in this paragraph shall be read and construed as restricting the
right of any person to make an application under Article 126 against the Attorney-
General, in respect of anything done or omitted to be done by the President, in his official
capacity:
Provided further that the Supreme Court shall have no jurisdiction to pronounce upon
the exercise of the powers of the President under Article 33(2)(g)..”
− The SC has decided many cases regarding Article 35(1). 
Mallikarachchi v AG (1985) 1 SLR 74
“The rationale of this principle is that persons occupying such high office should
not be amenable to the Jurisdiction of any but the representatives of the people, by
whom he might be impeached and be removed from office and that once he has
ceased to hold office, he may be held accountable in proceedings in the ordinary
court of law.”
 Kumaratunge ve Jayakody and another (1985) 2 SLR 124

“ Article 35 gives blanket immunity to the president from proceedings of any kind
whatsoever instituted or continued against him in any court of law…”
− [Article 35(3)]
Immunity does not apply in the capacity of a Minister (Respondent would then be the
AG)
 Visuwalingham and Others v Liayanage and Otehrs (183) 1 SLR 203
- SC tried to dilute the immunity enjoyed by the president. (Immunity for the
“office” POF president and not the “doer” of the Act).
“ Actions of the executive are not above the law and certainly can be questioned
by a Court of Law. Article 35 provides only for the personal immunity of the
president during the tenure of his office from proceedings in any court.
 Karunatilleke v Dissanayake (1999) 1 SLR 157
- Further clarified that which was discussed in the previous case.
“… It imposes no bar whatsoever on proceedings (a) against him when he is
no longer in office… Immunity is a shield for the doer, not for the Act.”
 Senarath v Chandraratne, Commissioner of Excise and Others (1995) 1 SLR 209 - President’s
acts were relied on by the commissioner of Excise to justify his acts. “in the instant
case the petitioner has not filed proceedings in a court seeking relief against the

President. The Respondents to the application are all officials. Relief has been sought
against the officials only.”
 Senarath and others v Kumaratunga and Others [SC FR 503/2005].

- The only case where a person instituted action against a president after she left
office.
 The suitability or otherwise of an executive presidential system of governance for a

country depends on various factors including the political past of the country. It
cannot be introduced just for experimental purposes. Some scholars are of the view
that Sri Lankan political history had not warranted such a system.
State to what extent you agree with the above statement. Your answer should
include discussion on the pros and cons of the executive presidential system
introduced to Sri Lanka. Support your answer with relevant authorities. [Q5; Apr
2016; 16 marks]
 “If not for the 19th Amendment to the Constitution, the Executive President of Sri
Lanka would have remained as the most powerful individual in the world in wielding
political powers in a democracy.”
Comment on the above statement citing relevant Constitutional provisions relating to
the powers of the Executive President in Sri Lanka. Support your answers with case
law. [Q5; Oct 2015; 16 marks]
 “it is important to specifically understand that no single position or office created by

the Constitution itself circumscribes the scope and ambit of even the power vested
with any President who sits as the head of this country. Power must only be used
strictly for the larger benefit of the people, the long term sustainable development of
the country and in accordance with the rule of law.” Shiranee Tilakawardene J.
Sugathapala Mendis and Others V Ms. Chandrika Bandaranaike Kumaratunge and Others
S.C.F.R. No 352/2007 (Waters Edge case)
Explain the above statement and set out the responsibilities of the President with
reference too the provisions of the Constitution and decided cases. [Q9; Oct 2010; 9
marks]
 “Article 35 of the Constitution only prohibits the institution (or continuation) of legal
proceedings against the president while in office; it imposes no bar whatsoever on
proceedings (a) against him when he is no longer in office, and (b) other persons at
any time. That is a consequence of the very nature of immunity: immunity is a shield
for the doer, not for the act.”
Critically examine the above statement with reference to decided cases. [Q9; Oct 2014;
16 marks]
 Analyse the provisions of the Constitution relating to the immunity of President from
suit and explain the instances in which acts of President can be challenged, giving
illustrations.
[Q1; Dec 2013; 13 marks]

 “Article 35(1) only prohibits the institution of legal proceedings against the President
while in office. But it does not purport to prohibit the institution of proceedings against
any other person, where it is permissible under the Law.” Fernando J. in Karunatilake
V Commissioner of Elections (1999) 1 SLR 157 at page 176
Explain the above statement with reference to decided cases. [Q4; Apr 2013; 9 marks]
 “The effect of the immunity conferred on the President under Article 35 of the
Constitution is only the prevention of legal proceedings against the President while
holding office.”
Do you agree with the above statement? Give your reasons. [Q8; Oct 2012; 9 marks]
 Analyse the provisions of the Constitution relating to the immunity of President from
suit and explain the instances in which acts of President can be challenged, giving
illustrations.
[Q2; Apr 2012; 9 marks]
 (a) Discuss with reference to decided cases the approach taken by the Supreme Court
in interpreting Article 35 of the Constitution.
(b) Do you think that there are compelling reasons for the post of President of Sri
Lanka to b given the immunity set out in Article 35 of the Constitution? Explain
your answer with reasons. [Q6; Oct 2011; 12 marks]
 (a) Explain the provisions of Article 35 of the Constitution which relates to the
immunity of the President.
(b) Can actions and omissions of the President be subject to judicial review?
(c) What are the responsibilities attached to the exercise of the executive powers of the
President?
Support your answer with reference to provisions of the Constitution and decided
cases. [Q5; Apr 2011; 9 marks]
 (a) What is the rationale behind the immunities conferred on the Executive President
by the 1978 Constitution of Sri Lanka? [Q6; Apr 2010; 6 ¼ marks]
(b) Explain the approach of the Supreme Court in interpreting the President’s
immunities. [Q6; Apr 2010; 6 ¼ marks]
10. INDEPENDENCE OF THE JUDICIARY
Introduction
 Independence of the judiciary has been described as follows –  Blackstone

- “The main preservation of public liberty in England consists in the distinct and
separate existence of the judicial power in a peculiar body of men, nominated
indeed, but not removable at the pleasure of the crown.”
 Wade and Phillips
- “It is essential that they (judges) be free from any fear of dismissal by the
persons whom they must be prepared to control.
- An independent Judiciary is the surest protection against excess of power by
the administration
- ... the British understanding of the separation of powers demands that the
judiciary should be independent of the executive. ”
 S. A. De Smith
- “Judicial independence in a liberal democracy demands that it should be
unconstitutional for the legislature to invade the domain of the judiciary by
pronouncing judgment (as in a bill of attainder) or reversing a judicial decision
with retroactive effect or enabling the executive to designate which judges
shall sit to hear a particular case or abolishing a judicial office while it has a
substantive holder, or reducing judicial salaries.
- It is clearly of great importance that justice be dispensed even-handedly in the
courts and that the general public feel confidence in the integrity and
impartiality of the judiciary ”
 Sharvananda C.J.
“Independence of the Judges that6 constitute the Judiciary”
 On taking into account all descriptions given above, the concept of Independence of
Judiciary can be defined as; “A constitutional or legal environment which enables
judges o discharge their functions and duties without fear or favour”
 Independence of the judiciary can be viewed as a logical consequence of the doctrine
of separation of powers.
 It can be regarded as a concomitant of the Rule of Law.
 Since the Act of settlement of the British Parliament was passed in 1701, judges held
office during good behaviour; their salaries could not be reduced during their term of
office and only upon address of both Houses of parliament could the judges have been
lawfully removed from their office. Consequently the Act may be regarded as the
original source of the concept of independence of the judiciary as that concept is
understood in modern constitutional parlance. This was related to later in the House
of Lords decision in Toronto Corporation v New York Corporation (1938) A.C. 415.
 In the case of Senadhira v The Bribery Commissioner (1961) 63 NLR 313, Sansoni C.J.
referred to the three principal pillars in the Temple of Justice as stated by Lord Atkin
in the York Corporation case. The principals were as follows –
a) The appointment of judges of the superior courts by the Governor- General.
b) Judges of the Superior courts hold office during good behaviour subject to
removal by the Governor- General on an address by the Senate and the House
of Representatives.
c) The salaries of the judges are fixed and cannot be reduced during their term of
office.
The framers of our constitution added a fourth pillar –

d) The power of appointment, transfer, dismissal and disciplinary control of

judicial officers was vested in the Judicial Service Commission.
Constitutional provisions in Sri Lanka directed at preserving the Independence of the

Judiciary
1. Soulbury
Constitution Higher Court Judges
- Section 52(1)
“The Chief Justice, Puisne Judges of the Supreme Court and the
Commissioners of Assize shall be appointed by the Governor –General”
- Section 55(1)
“The appointment, transfer, dismissal and disciplinary control of judicial
officers is hereby vested in the judicial Service Commission.”
- Section 122
Judges of the Superior Courts;  Appointed by the President on the advice
of the Prime Minister or an authorized Minister.
 They shall hold office during Good behaviour  Removed by
the President after an address of the National State Assembly. 
Salaries of Judges charged on the Consolidated Fund.
Judges of other courts are established under the Courts Ordinance, Presidents
appointed under the Rural Courts Ordinance and Judges of Courts which
may be created and established by the National State Assembly.
- Section 124
Appointment, transfer, dismissal and disciplinary control of judges and other
state officers’ administering Justice.
3. 1978 Constitution - Preamble

“... assuring to all people Freedom, Equality, Justice, Fundamental Human
rights and the Independence of the Judiciary as the tangible heritage that
guarantees the dignity and well-being of succeeding generations of people of
Sri Lanka...”
- Articles 107 – 111C  Appointment and Removal of the Judges of the SC/CA
 Salaries of the Judges of the SC and CA on the consolidated fund. 
Performance and Discharge of other duties and functions by judges 
Appointment, removal and disciplinary control of Judges of the High Court.
 Interference with the Judiciary considered an offence.
 Independence of the Judiciary was discussed extensively in the following cases-

i. Visuwalingham and Others v Liyanage and Others (1983) 1 SLR 203
ii. SC No.3/2012 C.A. (Writ) No 358/2012
iii. Attorney General v Bandaranayake and Others (SC Appeal 67/2013)
iv. Nixon v Unites States 506 U.S. 224 (1993) at page 234

 Independence of the Judiciary does not depend on the constitutional provision, but
the Judge Himself.
- Dr. Neelan Thiruchelvam
“The future of the judiciary as the custodian of the public conscience in strife
ridden Sri Lanka does not rest in abstract constitutional principles or
arrangements. It depends on the quality of those who assume the judicial
mantle and their capacity to be morally outraged by injustice and
discriminatory practices and to draw on the armoury of their legal power to
redress their grievances.”
- Jonathan Soeharno
“The aim of selection should be to find judges who are of professional
character. This means judges who are mindful of the right legal knowledge
who are aware of developments in society, who are attentive, who are
constant in character, who can transcend to institutional values, who are able
to9 mediate knowledge with the specific demands of the case, who know how
to enact institutional values appropriately and who have shown proper
behaviour overtime.”
 “Independence of the Judiciary means the degree of credibility enjoyed by this

institution in the eyes of the public. This independence is the popular yardstick by
which a country’s democracy deficit could be easily identified.”
Discuss the above statement in the context of independence of the judiciary under the
1978 Constitution of Sri Lanka. [Q9; Oct 2016; 16 marks]
 “When the judges themselves show indecision and do not show evidence of any
consistent attitude, the judiciary becomes vulnerable to ether open attacks or insidious
pressures that erode judicial independence.”
Critically examine on the above statement in light of recent happenings which have
raised serious questions over the independence of judiciary in Sri Lanka. [Q7; Oct
2015; 16 marks]
 Discuss the provisions of the 1978 Constitution in relation to the Independence of the
Judiciary with reference to decided cases. [Q5; Apr 2015; 16 marks]
 Compare and contrast the provisions of the Soulbury Constitution and the 1972
Constitution in relation to the independence of the Judiciary. [Q6;Oct 2014;16 marks]
 “Constitutional provisions are fundamental to protect the ‘independence of the

judiciary’ and it is the prime duty and obligation of the legislature and the executive
to honour and enforce such provisions; which is an essential factor for ‘good
governance’.”
Discuss the above statement giving reference to the provisions of the 1978 Constitution
and decided cases. [Q2; Apr 2014; 16 marks]
 Critically examine the provisions of the Constitution relating to the Independence of
the Judiciary with specific reference to the removal of Judges and state your views to

whether the safeguards provided in the Constitution are adequate to guarantee

Independence of the Judiciary.[Q5; Apr 2013; 9 marks]
 “The method of appointment of members to the judiciary has undergone several

changes from the Soulbury Constitution to the 1978 Constitution. These changes are a
step in the right direction and enhance the independence of the judiciary.”
Make a critical evaluation of this statement by considering the different methods of
appointment of judges from the Soulbury Constitution to the 1978 Constitution. [Q7;
Oct 2011; 12 marks]
 “The Judiciary is an important organ of state which performs the task of protecting the
rights of individuals and ensuring that all organs of the government do not exceed
their powers.’ Explain the above statement with reference to decided cases. [Q7; Apr
2010; 9 marks]
 Comment on the adequacy of the provisions in the 1972 and 1978 Constitutions of Sri
Lanka to ensure the ‘independence of the judiciary’. [Q12; Apr 2010; 12 ½ marks]
11. SUPREMACY OF PARLIAMENT
 In Britain, the transformation of legislative power from an all powerful Monarch to the
British Parliament took place over a period of time.
Growth of the powers of the British Parliament took place through a series of events including
− Magna Carta (1215)

− Case of Proclamation (1610)
− Bill of Rights (1689)
 The doctrine of Supremacy of parliament has been commented on by certain Jurists as

follows –
Dicey
The concept of “Supremacy of parliament” embodies 3 basic propositions:
⇒ Parliament can make or unmake any law

⇒ No person or body is recognized by the law of England as having a right to override or
set aside the legislation of parliament.
⇒ The right or power of parliament extends to every part of the king’s dominion.
De Lolme

“It is the fundamental principle with English lawyers that parliament can do anything but
make a woman a man and a man a woman.”
 A parliament can be considered Supreme upon the establishment of the following facts:
1. Parliament has the power to make or unmake any law whatsoever.

2. Parliament is not bound by its predecessors
3. Parliament recognizes no rival legislative authority
4. Parliament Acts are not subject to Judicial review
5. Parliament is not bound by International law
6. Parliament is not bound by Morality
7. There are no substantive limitations to the powers to the parliament
8. There are no procedural limitations to the powers of parliament
Supremacy of Parliament in Sri Lanka – Soulbury Constitution
Parliament has the supreme power to pass any law on any topic affecting any person.
Parliament further can unmake or amend any law. However it is also noted that the
constitution itself has imposed certain restrictions or limitations on parliament when
exercising the legislative power.
According to the Soulbury constitution, the parliament of Ceylon was created by the Ceylon
(Constitution) Order in Council in 1946. The limitations imposed on the parliament are stated
in the constitution.
 Section 4
- The Governor General shall be appointed by the queen of England.
- He may receive the power, authority and function which the queen of England
would assign to him
 Section 7
- The Queen of England was the head of parliament.
- The sovereignty of Britain is shared by the Sri Lankan Parliament.
 Section 29(2)
- Parliament cannot pass a law to prohibit or restrict the free exercise of religion.
- To privilege or advantage on a person of a specific religion or community - To
impose any disability on a person of a specific religion or a community
- To alter the constitution of any religious body
In Bribery Commissioner V Ranasinghe it was said that, entrenched religious or racial matters
shall not be the subject of the legislation.
 Section 29(4)
- Parliament may amend or repeal any provision of this order under the power of the
queen of England.
- Such a bill should have a 2/3 majority of votes and it should be certified by the
speaker (procedural limitation)

Restrictions on the Legislative power
• The Parliament of YUK could legislate for Ceylon.

• The Parliament could not legislate extra territorially.
• The King-in-Council could amend the order in council 1946.
• The King-in-Council could legislate on defence and external affairs.
• The governor could reserve certain classes of Bills.
• Certain types of legislation could be disallowed under section 39 of the order in
council.
Some of these restrictions were removed by;
- The Ceylon (Independence) Act

- Ceylon (Independence) Order in Council
- Ceylon Constitution (Amendment) orders in council 1947
However certain restrictions were imposed;
- Power of Judicial review’

- Section 29(4) - Section 39
- Section 29(2)
- No Judicial power
Supremacy of Parliament in Sri Lanka – 1972 Constitution
 Article 5
- NSA exercises the legislative power of the people
 Section 44
- “the legislative power of the NSA is supreme and includes the power,
a) To repeal or amend the constitution as a whole or in any part, and
b) To enact a new constitution to replace the constitution ...
 Section 51(5)
- Repeal, replacement or amendment of the constitution with the vote of two thirds
of the whole number of members of the Assembly (including those not present) 
Section 48(1)
- Retrospective operation of any or all of the provisions of law
 Section 52(1)
- Enact any law which is inconsistent with any provision in the constitution with a vote
of two thirds of the whole number of members of the Assembly (including those
not present).
 No provision similar to section 29(2) of the Soulbury constitution.  Proviso to
section 44
- “Provided that such power shall not include the power,
i. To suspend the operation of the constitution or any part thereof; and
ii. To repeal the constitution as a whole without enacting a new constitution
to replace it.”
Supremacy of Parliament in Sri Lanka – 1978 Constitution

 Unlike the parliaments during the Soulbury and 1972 constitutions, the Parliament
during the 1978 constitution was an all powerful supreme body. The reason being that
–
⇒ Presence of certain practical limitations on the supremacy of parliament;
i. International Law
ii. Doctrine of Mandate (Parliament cannot do an act contrary to what was
promised by a mandate)
iii. Public Opinion (opposition was faced in passing certain laws such as the
VAT Bill, as public opinion was taken into great consideration)
⇒ Referendum (reduces the legislative power of parliament greatly)
⇒ Article 83 (imposed substantive limitations on the law making power of
parliament)
⇒ Parliament is bound by certain considerations of International law
⇒ The people have become a rival legislative authority to parliament (in relation
to the entrenched provisions of the constitution)
 “The doctrines of ‘Supremacy of Parliament’ and ‘Sovereignty of the people’ are not
two mutually exclusive ones. Instead, they should be considered as inherently
interrelated and buttressing each other.”
Discuss to what extent these doctrines have been conceptually accommodated in the
1978 constitution of Sri Lanka. [Q2; Oct 2016; 16 Marks]
 “Supremacy of Parliament, despite its theoretical underpinnings, is reduced to a matter

of merely an academic debate in today’s context. There are many factors that contribute
to the gradual erosion of its significance in practitioners eyes.”
Do you agree? Give reasons for your answer with the support of case law authorities.
[Q2; Apr 2016; 16 marks]
 “Supremacy of Parliament doesn’t mean that it can pass any law without following any
method prescribed by the supreme law of the land. Otherwise, the concept of
‘sovereignty of the people’ would become meaningless”. Do you agree? Give reasons
for your answer with the support of case law authorities. [Q2; Oct 2015; 16 marks]
 “The 1978 Constitution recognizes the legislative Supremacy of Parliament. The 13 th

Amendment did not in any way compromise this supremacy.”
Critically examine the above statement with reference to decided cases. [Q8; Apr 2015;
16 marks]
 “The 1978 Constitution does not recognize the Supremacy of Parliament. The
legislative power of Parliament is limited. It was further limited by the 13 th
Amendment to the Constitution.”
Constitution giving attention to decided cases. [Q5; Oct 2014; 16 marks]

 “The restrictions imposed on the legislative power of Parliament suggest that

Parliament does not enjoy the supremacy any longer.”
Critically examine the above statement with reference to the provisions of the
Constitution and decided cases. [ Q8; Apr 2012; 9 marks ]

8 Questions Soulbury Constitution 1972 Constitution 1978 Constitution
Can Parliament make or YES YES NO

unmake any law?
- The Queen V Liyanage 65 NLR 73 - There were no restrictions on - The Parliament could not pass certain
(Accepted that the Ceylon the la making power of the laws without going for a referendum of
parliament could pass any National State Assembly (NSA) the people -
legislation, prospective as well as “The legislative power of the people
retrospective and legislation shall be exercised by parliament...and
contrary to principles of natural by the people at a referendum”
justice or fundamental principles of [Article 4(a)]
English law. It could have passed - “The parliament shall have the powe
even Criminal legislation which to make any law, including laws
was ad hominem) having retrospective effect...’ [Article
75]
- Kodikkan Pillai V Mudanayake 54 EXCEPTION to ^ [Article 13(6) and
NLR 433 Proviso to Article 75]
- The Parliament can make laws
inconsistent with the constitution
only upon [Article 84(1)] -
⇒ 2/3rd majority + Referendum
(If it is an Entrenched Provision)
⇒ 2/3rd majority (If it is a genera
provision)
- Ratnasiri Wickremanyake V The State
(“Unlike the 1972 constitution, the 1978
constitution has placed some
limits on the exercise of legislative
power”)

- 13th Amendment was seen to place

more limitations on the legislative
power of parliament.

Are Acts of parliament subject YES NO (However, Bills could be NO (However, Bills could be reviewed)
to judicial review? reviewed)
- The following limitations were - “No Court or tribunal shall inquire
brought about by Judicial review; - Judicial review excluded “No into, pronounce upon or in any manner
⇒ Parliament cannot pass laws institution administering justice call in question the validity o
adversely affecting any and likewise no other an Act on any ground whatsoever
provisions relating to institution, person or authority [Article 80(3)]
government stock (Stock shall have the power or
invested by the British in Jurisdiction to inquire into
Ceylon)
pronounce upon or in any
⇒ Parliament could not pass laws
manner call in question the
which conferred judicial power
validity of any law of the NSA”
on the executive/legislature.
[S. 48(2)]
which were ultra Vires to the
provisions of the constitution.
which deprived any person’s
right to access the courts.
Are there any substantive DIFFERENT VIEWS YES YES
limitations to the law making
- Dr. C.F. Amarasinghe “Section - Proviso to Section 44 (only - “2/3rd majority AND approval by
power of parliament?
29(2) could not be repealed even by substantive limitation) people at a referendum required for
a 2/3rd majority. - No provision similar to section ⇒ Bill amending
- Bribery Commissioner V Ranasinghe 29(2) of the Soulbury /repealing/replacing/inconsisten with
66 NLR 73 constitution. Articles 1,,3,6,7,8,9,10,11 & 83
(Dicta by Lord Pearce supported (Entrenched Articles)
this view)
⇒ Amendment/repeal/replacement
- Professor Jennings
inconsistent with Articles 30(2) or
62(2) which would extend the term

“Section 29(2) could be amended by of office of president/duration of

the procedure set out in Section parliament to over 6 years
29(4).
[Article 83] -
Proviso to Article 75

Are the law making powers of NO No YES (practical limitation to the supremacy
parliament bound by of parliament)
- Leelawaithie V Minister of Defence - “Sri Lanka is a free, sovereign
considerations of international
and External Affairs 68 NLR 73 (The and independent republic...” - Parliament cannot pass a bill which
Law? [Article 1]
Universal Declaration of restricts the International treaties and
Human Rights had no binding - Leelawaithie V Minister of Defence conventions for economic development
force as it formed no part of the and External Affairs 68 NLR 73 and the National economic development
Municipal law) - (The Universal Declaration of [Article 157] However a contrasting
Human Rights had no binding situation was seen in-
force as it formed no part of the
Municipal law) - Nallaratnam Singharasa V The Attorney
General
- “Sri Lanka is a free, sovereign,
Independent and Democratic Socialis
Republic” [Article 1]
^in this context however, parliament is
not bound by International law
Is parliament bound by its *** NO (Not bound unless it wanted to) NO

predecessors?
- “Unless the NSA otherwise - Article 168(1) to (5) supports the
provides, all laws, written or position that parliament is not bound
unwritten, in force immediately by its predecessors.
before the commencement of “Unless Parliament otherwise
the constitution... shall mutatis provides...” [Article 168(1)]
mutandis and except otherwise
expressly provided in the
constitution, continue in force...”
[Article 12(1)]

Are there any procedural YES YES YES

limitations to the law making
- Bribery Commissioner V Ranasinghe - Procedure for enacting laws in - Article 78 - 80( Procedure for enacting
powers of parliament?
66 NLR 73 general [Articles 46 &47] laws in general)
(No law shall be passed Ultra Vires - Special procedure that should - Article 80-82 (Special Procedure for
to the Constitution) be followed in amending the laws amending the Constitution and
- Parliament may amend and repeal constitution and laws laws inconsistent with the constitution)
any provision of this order under inconsistent with the
the power of the Queen of England constitution [Articles 51 & 52]
[S. 29(4)] - Contemplation of certain
(^ such a bill should have a 2/3rd procedural steps in regard to
majority of votes and should be passage of urgent bills [Articles
certified by the speaker) 55(3) ,(4)]
- Requirement of a 2/3rd majority
for the passing of any Bill
[Sections 51(5), 52(1) & 55(4)]
- Bribery Commissioner V
Ranasinghe 66 NLR 73
(No law shall be passed Ultra
Vires to the Constitution)

Does parliament recognize any NO NO NO

legislative rival?
- British Parliament could not - “The NSA may not abdicate, - “Parliament shall not abdicate or in any
have delegate or in any manner manner alienate its power, and shall
passed a law affecting Ceylon, alienate its legislative power, nor not set up any authority with any
unless Ceylon requested. may setup an authority with any legislative power” [Article 76(1)]
“An Act of UK Parliament shall not legislative power other than the - “It shall not be a contravention of the
extend or be deemed to extend to a power to make subordinate provisions of paragraph (1) of this
Dominion... unless it is expressly laws” [Section 45(1)] Article for Parliament to make, in any
stated in the Act concerned that the law relating to public security,
Dominion has requested and - “The NSA may by law confer provision empowering the President to
consented to its enactment” [S. 4- the power of making make emergency regulations in
Statute of Westminster]

subordinate legislation for - accordance with such law” [Article

prescribed purposes on any 76(2)]
person or body” [Section Weerasinghe V Samarasinghe 68 NLR
45(3)(a)] 361
- C.W.C. v Supt. Beragala Estate (“...there is nothing in the Public
76 NLR 1 Security Ordinance to indicate that
(... “the unlimited right given - parliament has abdicated its
in a statute cannot be taken legislative authority...”)
away without express power Yasapala V Minister Of Education
by a regulation”) F.R.D. (1) 143
- Weerasinghe V Samarasinghe 68 (“The president’s power of making
NLR 361 @ 363 emergency regulations is thus
(“...there is nothing in the coextensive with that of
Public Security Ordinance to parliament.... the constitution
indicate that parliament has however enables parliament to
abdicated its - exerc ise a control check by
legislative authority...”) requiring the proclamation made
by the president to be approved by
a resolution of parliament...”
“It shall not be a contravention of
However, there may be one the provisions of paragraph (1) of
instance where such limitation to this Article for Parliament to make
its legislative power can be cited; any law containing any provision
- “Delegation of power to the empowering any person or body
President to make Emergency to make subordinate legislation for
Regulations in accordance with prescribed purposes...” [Article
the law for the time being, 76(3) ^Thereby, laws made by
relating to Public Provincial
Security”[Section 45(1)] Councils (established under the
13th Amendment) cannot override
laws passes by parliament.

Is parliament bound by *** *** ***

Morality?

12. THE 13TH AMENDMENT
 The 13th amendment was a result of an Indo-Lanka agreement which was an attempted
to distribute policy making powers among the 9 provinces.
 The provincial councils were established through this amendment with the intention
of solving the many ethnic problems that arose in the Northern and Eastern provinces
at the time.
 In order to understand that judgment in relation to the 13th amendment [In Re Thirteenth
Amendment to the Constitution and Provincial Councils Bill (1987) 2 SLR 312], one must
first understand the following terms;
 DEVOLUTION
Conferment of powers of the central government to a designated body in a
region without relinquishment of the Central governments supremacy
Hence
Does not result in the permanent alienation of any part of the sovereign
power of the State or its supremacy in all matters over the whole state
Not permanent because

The power to recall and resume the devolved powers exists in the sovereign
authority in the state.
 DECENTRALISATION
Powers of decision making of the Central government are exercised by
officials who are a part of the Central Government.
 DELEGATION
Grant power to do an act which is vested in the grantor to an agent usually
subject to conditions as to its exercise and can be revoked at any time.
 Does the 13th Amendment impose a restriction on the legislative supremacy of the
Parliament?
⇒ Article 75
“Parliament shall have the power to make laws, including laws having
retrospective effect…”
⇒ The 13th Amendment introduced 3 lists;
- Reserved List [Article 154G (7)]
A provincial Council has no power to make statutes on any matter set out
in List II of the Ninth Schedule (Reserved List) Exclusively for Central
Parliament
- Provincial Council List [Article 154G (1)]
Every Provincial Council may, subject to the provisions of the Constitution,
make statutes applicable to the Province for which is established, with
respect to any matter set out in List I of the Ninth Schedule (Provincial
Council List)

Only regarding matters

pertaining to their area (within its geographical boundary) [Article 154G
(3)]
This article sets out the special procedure to be followed by Parliament
when making laws in respect of the Provincial Council list.
[Article 154G (4)]

Parliament can make law on any matter set out in the Provincial Council
List where one or more provincial Councils request Parliament by
resolution.
- Concurrent List
[Article 154G (5)]
Both the Parliament and the Provincial council can legislate after
consultations (with each other).
[Article 154G (6)]
In the case of any conflict between Provincial Statute and an Act of
Parliament, the Act prevails and the Provincial statute shall be void to the
extent of inconsistency.
[Article 154G (9)]
If the Law existed prior to the 13th Amendment, this Law remains suspended
and inoperative within the province so long as the statute id in force unless
the Parliament decides contrary by resolution. After which the Act is
valid
⇒ It is therefore noted that some amount of legislative power is granted to the

Provincial Councils by the 13th Amendment.
⇒ The 13th Amendment Bill was thus challenged on the following grounds;
1. It will change the nature of a Unitary state
2. It will violate the Supremacy of Parliament
In this case Sharananda CJ stated that, “the essence of a unitary state is that
the sovereignty is undivided (In other words that the powers of the central
government are unrestricted.). He also mentioned the essential features of a
Unitary State –
1. The Supremacy of the Central Parliament
2. The absence of a subsidiary sovereign body
He further stated that, although the Provincial Councils stand as subsidiary

law making bodies, the can be abolished by the parliament at any time.
With regard to legislative power that is granted to the Provincial Councils,

Sharvananda CJ said, the legislative powers of Provincial Councils are not
exclusive as –
- That power is subject to constitutional restrictions

- The bylaws made by the Provincial Councils are applicable only to
those provinces
- The Parliament can amend or repeal this chapter regarding legislative
power at any time.

Hence, one can see that Provincial Councils are always subject to the
Parliament and therefore Sri Lanka continues to be unitary state and
Parliament still enjoys legislative Supremacy.
*Kindly refer both the Majority and dissenting judgments of In Re Thirteenth

Amendment to the Constitution and Provincial Councils Bill (1987) 2 SLR 312 in order to
get a better understanding on this unit.
 “The provincial Councils system introduced in Sri Lanka should be considered as an

experimental one in the sphere of devolution of power of governance. However, it has
been entrapped into a dogmatic quagmire within a short period of time and is
prevented from moving away towards meaningful devolution of power in its letter
and spirit.”
Briefly comment on the Provincial Councils system in Sri Lanka introduced by the 13th
Amendment to the Constitution. [Q7; Oct 2016; 16 marks]
 “Some critics are of the view that the 13th Amendment to the Constitution devolved
neither the legislative power nor the executive power to the provincial councils.”
Comment on the above statement in light of the concept of devolution of power and
state how it has been effected in Sri Lanka through the 13th Amendment to the
Constitution. [Q6; Apr 2016; 16 marks]
 The Thirteenth Amendment to the Constitution introduced devolution of power.”

How effective have been the said provisions in Sri Lanka? [Q5; Oct 2015; 16 marks]
 Write a note on the devolution of power to the provincial councils and analyze as to
how effective it has been in its interpretation. Give illustrations for your answer. [Q11;
Dec 2013; 9 marks]
 The Thirteenth Amendment to the Constitution introduced devolution of power. How

effective have been the said provisions in Sri Lanka. [Q11; Oct 2012; 9 marks]
 Discuss the impact of the 13th Amendment to the Constitution on the Supremacy of
Parliament under the 1978 Constitution. You must discuss both the majority and the
minority judgments of the Supreme Court in the 13th Amendment to the Constitution
determination.
 Write a note on the devolution of power to the Provincial Councils under the
Thirteenth Amendment to the Constitution and analyse as to whether the purpose for
which the said provisions have been fulfilled. [Q6; Apr 2011; 9 marks]
 Write a note on the devolution of power to the Provincial Councils and analyze as to
how effective it has been in its implementation.
Give illustrations and reasons for your answer. [Q10; Oct 2010; 9 marks]


Constitutional Law
13. SOME MAIN FEATURES OF THE RECENT AMENDMENTS TO THE CONSTITUTION (17TH, 18TH AND 19TH)
17th Amendment 18th Amendment 19th Amendment
Passed in 2010
Gave back to the President some of the
 Passed in 2002   powers taken away by the 17th  Passed in 2015
 Reduced the power of the Executive Amendment (Primary aim of the  Right to information recognized as an
President. Amendment). Fundamental Right (Article 14A)
 Established a –   Reduced the term o office of President
Replaced the Constitutional Council with
⇒ Constitutional Council a Parliamentary Council. from 6 to 5 years.
 
⇒ Independent Public Service Removed the prohibition on a person Re introduced a two limit on a person
Commission twice elected to office from contesting holding office as President,
 Changed the immunity of the President
⇒ Election Commission  again as President.
⇒ National police Commission President only had to obtain observations (prior to the 19th amendment, Article
(^ were made independent to ensure that the of the Parliamentary Council to make 35(3) gave immunity to the president in
influence of the President in some of the main certain appointments (Elections both his

areas of the country were reduced) commission, Public Private and official capacities)
Service Commission, Chief Justice,  Constitutional council re established
 President was required to obtain the (Similar to the 17th Amendment)
Attorney General etc)
recommendation of the Constitutional Prime Minister is vested with additional
council in making appointments to powers. (eg: President has to consult with
certain commissions (Elections  the PM prior to making ministerial
commission, Public Service Commission appointments)
etc) and the approval of the CC when Takes away the power of the President to
making certain appointments (Chief dissolve parliament on his whim (unless
Justice, Attorney General etc). in an extremely needed situation)
Constitutional Law

Constitutional Law
 “It is opined in some quarters that the 19th Amendment to the Constitution has not
effected any substantial changes to the executive powers of the office of President of Sri
Lanka. However, it has helped to restore certain precepts of democracy in the
governance.”
Do you agree? Discuss with support of case law authority. [Q5: Oct 2016; 16 Marks]
 Discuss the salient features of the 19th Amendment to the Constitution and its intended
effects on governance. Give examples. [Q6; Apr 2016; 16 marks]
 Compare and contrast the provisions of 17th and 18th Amendments to the 1978
Constitution of Democratic Socialist Republic of Sri Lanka.
 Critically analyze the provisions of the Eighteenth Amendment to the Constitution. [Q7;
Dec 2013; 9 marks]
 Critically analyze the provisions of the Eighteenth Amendment to the Constitution. [Q8;
Apr 2013; 9 marks]
Constitutional Law

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Constitutional Law

Official Edition -2019

All Rights Reserved.

Reviews, responses and criticism

iGuide Educational Committee

1. Nature of Constitutional Law & Constitutional Development ……………...1

8. Directive Principles of State Policy and Fundamental Duties………………. 48

9. Executive President and Immunity……………………………………………. 50

10. Independence of the Judiciary………………………………………………….. 54

11. Supremacy of Parliament….……………………………………………………. 58

12. The 13th Amendment….………………………………………………………… 67

13. Recent Amendments to the Constitution….…………………………………... 70

State and Government

1. Principal source: the constitutional document and the amendments thereto.

Constitutional Development in Sri Lanka

⇒ Written and Unwritten

Written and Unwritten

Eg: USA, India, Sri Lanka (Soulbury, 1972 & 1978)

Rigid and Flexible

Rigid constitutions can be further classified as follows:-

A flexible constitution is defined by Dicey as follows:

Eg: Constitution of Britain

Unitary and Federal

1. The supremacy of the Central parliament

Eg: Sri Lanka

In the case of Re thirteenth Amendment (1987) 2 Sri L.R. 312:

Autochthonous and Granted

are 3 main features of an autochthonous constitution;

3. Break in legal continuity

The most important feature of an autochthonous constitution is its “independence”.

1972 Constitution (Article 1) – “Sri Lanka is a free, sovereign, independent Republic…”

Break in Legal Continuity

Eg: The Soulbury Constitution

RELATED PAST PAPER QUESTIONS:

 (a)What is meant by an ‘Autochthonous Constitution’? Explain the rationale behind the

 (a) What is meant by an “Autochthonous Constitution”?

 (a) What is meant by an “Autochthonous Constitution”?

 Describe the classification of Constitutions. [Q11; Apr 2011; 9

 Write a note on the classification of Constitutions. [Q1; Oct 2010; 9 marks]

 In lay man’s terms, constitutionalism is to be understood as a concept which speaks about

Sovereignty people’s power, on trust, in order to serve the public.

government institutions belonging to the Judiciary, executive and institutions, its

that pure separation of power do not assist a government practically in functioning

properly and may sometimes lead to a ‘constitutional deadlock’ if separation of power is

Supported by the doctrine of separation of powers

 The constitutional doctrine of separation of powers (SOP) suggests that these

⇒ The written constitution adds value in terms of writtenness and entrenchment of

RELATED PAST PAPER QUESTIONS:

 “in order to assure ‘the sovereignty of the people’, it is necessary to create a

 The Rule of Law has been used universally in many instances –

International Commission of Jurists and the Rule of Law

1. The Legislature and the Rule of Law

2. The Executive and the Rule of Law

3. The Criminal Process and the Rule of Law

The Legislature and the Rule of law

The legislature has the responsibility to –

⇒ Abstain from enacting retrospective penal legislation.

The Executive and the Rule of Law

Criminal Process and the Rule of Law