Trias Politica or Separation of power is a common concept among the democratic hemisphere. The basic concept holds the governance of the state. Being a Democratic Republic state, the governing structure of Sri Lanka comprises of three branches. namely the Executive, the Legislature and the Judiciary. These are three independent institutions which are governed by the supreme law of the land which is currently the 1978 Constitution 19th Amendment. How these three entities should adhere to the governance of the state is clearly mentioned in the constitution. In basic definition:
The Executive which is lead by the Executive President who is the head of the state and of the government, is responsible for implementing and administering the laws passed by the legislature.
The Legislature which is the Parliament, is responsible for enacting the laws of the state.
The Judiciary which is the Supreme Court, is responsible for interpreting the Constitution and the laws enacted by the legislature.
As these three institutions are independent and their duties are mutually exclusive, the Constitution has provided required regulatory powers to safeguard the continuity of the system, to be specific the balance of the democracy. Due to these boundaries no institution subdues another and ultimately ensures these entities are following the Constitution. This protective measures prevents the tyranny among the institutions which is an inherent weakness of democracy as the classical Greek philosopher Plato discussed.
One of such key important limitations imposed by the Constitution is the power of interpreting the Constitution. In fact the legislature has no right to interpret the Constitution even though the legislature is the body which enacts it. This is clearly mentioned in the Article 125, Section 1 of the Constitution. Any matter which arises the constitutionality should be brought before the Supreme Court.
125. (1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution and accordingly, whenever any such question arises in the course of any proceedings in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question.
Therefore at this point, it is clear that any assertions of breaching the Constitution should be adjudicated by the Supreme Court, neither the Executive nor the Legislature is privileged to hold a proclamation.
Below is the proposal for the No Confidence Motion (NCM) submitted to the parliament yesterday (2018 November 14) by the JVP.
මෙම ගරු සභාව,
- අතිගරු ජනාධිපතිවරයා විසින් ප්රකාශයට පත්කල 2018 ඔක්තෝබර් 26 වන දින හා අංක 2094/43, 2094/43 A සහ 2094/44 දරණ අති විශේෂ ගැසට් නිවේදන සහ එහි සදහන් නියෝගයන් සහ පත්කිරීම් ආණ්ඩුක්රම ව්යවස්ථාවට පටහැනි වන බවත්, නීතිය ඉදිරියේ ශුන්ය සහ බල රහිත බවත්, නීතිය ඉදිරියේ කිසිදු බලයක් හෝ වලංගු භාවයක් නොමැති බවත්,
- ඉහත සදහන් හේතු නිසා 2018 ඔක්තෝබර් 26 වන දා හෝ ඉන් පසුව හෝ පත් කල අග්රාමාත්ය මහින්ද රාජපක්ෂ මහතා හා කැබිනට් මණ්ඩලය හා එලෙස පත් කරන ලද්දාවූ ආණ්ඩුව කෙරෙහි කිසිදු විශ්වාසයක් නොමැති බවත්,
යෝජනා කර සිටී.
In the above proposal, it lacks the adjudication of the Supreme Court but supported by an assertion of the proposers. According to the Article 125 section 1 of the Constitution, nobody interprets the Constitution but the Supreme Court. In such grounds the proposal is merely based on personal interests of some MPs, not to mention the majority of 122 MPs. Therefore the proposal itself has no legal standing form the inception and cannot be voted for or against. The proposal is null and void. And specially the MPs were violating the Article 125 section 1 of the Constitution as they were testifying their own assertions and including it in a proposal to the house. In the contatary the speaker has accepted an incomplete document which lacks constitutional adherence. Both are serious misconducts and setting adverse examples.
The proper procedure was to seek the Supreme Court opinion over the incident and present the NCM which upholds the democracy as laid by the supreme law of the state.
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