UNIVERSITY OF JAFFNA, SRI LANKA

BACHELOR OF LAWS DEGREE PROGRAMME YEAR-I, SEMESTER-II.

THEORY AND PRACTICE OF CONSTITUTIONAL LAW.

IN-COURSE ASSESSMENT – I.

By Ranudi Premasinghe (2020/L/007)

Word count: 1499 words

Contents
Abbreviations 2

Introduction 2

The nexus 2

Comparative Analysis 3

Recommendation for Sri Lanka 6

Conclusion 7

Bibliography 8

1
Abbreviations

JR Judicial Review
SL Sri Lanka

Introduction

This paper includes an analysis of the nexus between JR and constitutional supremacy, and a
comparison of the practice of JR in SL under the 1978 constitution with India under its 1950
constitution.

The nexus

The doctrine of JR of Legislation declares that the Legislative body of the government possesses
the power to examine and determine the Constitutionality of legislation. Accordingly, Laws that
contradict the constitution can be declared null and void.

In practicing JR, Constitutionalism is adhered to. Constitutionalism is “a compound of ideas,

attitudes, and patterns of behavior elaborating the principle that the authority of government
derives from and is limited by a body of fundamental law” 1 which “seeks to explain the
objectives of a good constitution.”2

A constitution which

1. Properly lays out the structure of governance, i.e., the three organs of government, their
composition, powers, functions and interrelationship through checks and balances;
2. Protects individual autonomy;

1
Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding
South (University of Georgia Press, 1989), p 1.
2
Rohan Edirisinha, ‘Constitutions without Constitutionalism: SL’s Crisis of Constitutional First
Principles’, Human rights, human values, and the rule of law: essays in honour of Deshamanya
H.L. de Silva, P.C. (Colombo: Legal Aid Foundation, Bar Association of SL 2003) 277-294.
2
 3. Sets the basic values and principles that govern society(norms)

is said to adhere to constitutionalism.

The doctrine of JR mainly intertwines with Constitutionalism in the first consequence. The
doctrine of separation of powers along with checks and balances maintains the powers of the
executive, judiciary and legislature as distinct, separate and non-interfering with each other yet
each organ is subject to scrutiny by the other to prevent an organ exceeding their prescribed
powers. It further prevents concentration of power leading to corruption and dictatorship. JR is a
form of check conducted by the judiciary over the legislature. If done effectively, enables to
protect individual dignity and worth (individual autonomy) manifested in their fundamental
rights by eliminating unconstitutional laws (positive element) as well as by following precedent
created in previous Supreme Court JR decisions to avoid creating unconstitutional laws (negative
element). Constitutional supremacy is also identified as a norm that governs society.

Friedrich Hayeks in “The Constitution of Liberty” stated that “JR of Legislation promotes
Constitutionalism and it affords greater protection to the People.” It is essentially the will of the
people, found in the constitution as opposed to the will of the parliamentarians in ordinary
legislation, that is protected. As declared in Advocates on Record Association vs Union of India
(1993)3, “the Constitution was at its heart a repository of the will of the People. Where the will of
the people contravenes the will of Legislators, the will of the people shall prevail.” Thus, JR
helps maintain the will of the people above that of the legislators.

Comparative Analysis

Under the 1978 Constitution of SL, legislative power to the Parliament is conferred by the
constitution through article 4(a). However, only pre-enactment JR is permitted as in Article 80
subsection 3 which provides that once a bill becomes law upon the certificate of the speaker or
president, the judiciary cannot question the validity of such law. Post enactment JR was excluded
since the 1972 constitution itself prioritizing executive convenience over constitutional
governance as propounded by Mr. Rohan Edirisinha.
3
Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441 (Second
Judges Case).
3
The Indian constitution doesn’t expressly provide for JR of legislative action but the doctrine has
been adopted and used through interpretation of constitutional provisions like 13, 32, 226 and
245. Articles 245 and 246 of the Indian constitution gives legislatives powers to Parliament and
State Legislatures, with the inclusion of the phrase “subject to the provisions of the constitution”
implying the imposed limitation. Following the dictum in Kesavanand Bharti v. State of Kerala4,
constitutional amendments were required to be in compliance with the propounded basic
structure doctrine.

JR was recognized as an element of the Basic structure doctrine of the Indian Constitution
established in the Kesavananda Bharti5 case. India practices JR of Law as opposed to bills in SL.

Article 120 of the SL Constitution vests sole and exclusive power of determining the
constitutionality of a bill to the Supreme Court. However, upon determination and providing
reasons for such decision according to article 123, the Supreme Court has no constitutional
power to strike down an inconsistent bill. Rather it may propose an amendment to make the Bill
cease to be inconsistent with the Constitution 6 or state whether a special majority7 or a special
majority plus a referendum8 is required.

Both federal and state laws can be reviewed. Grounds for review are:

 Legislature is not competent enough to pass a law on that particular subject matter
 The law is repugnant to the provisions of the constitutions
 The law infringes one of the fundamental rights.9

The judiciary can strike down an unconstitutional law wholly or just parts of it by applying the
doctrine of severability.

4
 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.2.
5
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.2.
6
Constitution of the Democratic Socialist Republic of Sri Lanka 1978, art 123(4).
7
ibid, art 83.
8
ibid, art 84.
9
Ashutosh Kumar Srivastava and Puja Srivastava, ‘JR In India an Analysis’
<https://dx.doi.org/10.2139/ssrn.2705279>, p 2.
4
SL Constitutional article 16 permits the continuation of all existing written and unwritten law at
the time the constitution was adopted, even if they violate the fundamental rights guaranteed by
chapter three of the constitution. Article 168 provides that Unless Parliament otherwise provides,
all laws, written laws and unwritten laws, in force immediately before the commencement of the
Constitution, shall, mutatis mutandis and except as otherwise expressly provided in the
Constitution, continue in force. Such clauses are one reason for the absence of post enactment JR
and the undermining of constitutional supremacy.

Indian Constitutional Articles 372 (1) enables “other competent authority” to alter, repeal or
amend pre-existing laws. Article (13) declares that any law including pre-existing law which
contravenes any of the provisions of the part of Fundamental Rights to be void. The doctrine of
eclipse renders existing law contravening the fundamental rights to be unenforceable and
unconstitutional upon the commencement of the constitution.

A practical difficulty arises in the one-week time limit under article 121 of the SL Constitution.
The 7 days do not account for any holidays and non-working days. Thus, a bill inconsistent with
the constitution may be enacted without Supreme court consideration due to procedural
discrepancies. The National Transport Commission Act No.36 of 1996 and the Southern Area
Development Authority Act No.18 of 1996 are unconstitutional acts which failed to be heard by
the supreme court due to procedural barriers.

Further, a bill is to be published in the gazette 7 days before placing in the order paper of
Parliament.10 Prior to the 20th Amendment of the Constitution, it was 14 days. It is submitted that
in “practice, such publication is not done in time”. 11 Thus, the time available for scrutiny of a bill
is often too short and impractical. The provision doesn’t mention the time the government can
wait after gazetting the bill and before placing in the order paper, which lets them wait
indefinitely either until public awareness dies or is distracted. 12 Since a petition should be made

10
Constitution of the Democratic Socialist Republic of Sri Lanka 1978, art 78.
11
‘The Judiciary: Written Submissions by Transparency International SL to The Subcommittee
of The Constitutional Assembly on The Judiciary’, p 10.
12
Dharshan Weerasekera, SL’s Future Challenges and the Quest for a New Constitution
(Sarasavi Publishers 2019), p 106.
5
to the Supreme court located only in Colombo, causing those living outstation or of poor income
to face practical inconveniences.13

Another obstruction to successful JR is the committee stage amendments brought to a bill after
the second reading held in Parliament. Article 78(3) and standing order 61 states that committee
stage amendments are not to deviate from the merits and principles of such bill, however, there is
no mechanism to evaluate the viability of such amendments because at the time pre-enactment
JR is invoked in the Supreme Court, the possible Committee Stage amendments aren’t known.
As mentioned in the Supreme Court determination of the Special Goods and Services Tax bill 14,
“Determination is confined to the opinion of this Court regarding the constitutionality of the Bill
(as contained in the Gazette) and reasons therefor. This Court refrains from arriving at any
finding on the proposed amendments to the Special Goods and Services Tax Bill.” The judiciary
advised the Parliament to “satisfy itself that the proposed amendments would not deviate from
the merits and principles of the Bill”, however, this cannot be ensured unless post enactment JR
is implemented.

JR in India can be invoked anytime when a petition is made challenging the constitutionality of a
law or such question arises during litigation. However, the Supreme Court can’t invoke it by
itself. No stringent procedures are available. Since both Supreme Court and the high courts in
India can exercise JR, with the ultimate decision lying in the Supreme Court, it is more
accessible.

Recommendation for Sri Lanka

The best recommendation is to introduce a framework of pro-enactment JR through a

constitutional amendment or through a new constitution itself. In amending, ouster clauses 16
and 80(3) should be dealt with accordingly. The pre-enactment framework should be disposed
for its futility.

13
Ibid, p 107.
14
Special Goods and Services Tax Bill, SC SD 01- 09/2022.
6
 Conclusion

It is submitted that the only instance where a blanket provision like 80(3) of the SL constitution
was only found in the Apartheid era South African Constitution, but even then, then South
African Amendment act of 1956 permitted judicial review of a law that alters, repeals or purports
to repeal or alter sections 137 or 152 of the South Africa Act of 1909. 15 Thus, SL’s position is
even worse. Its framework undermines constitutional supremacy and constitutionalism. The
comparative analysis shows the India’s success in maintaining the separation of power and rule
of law. Considering the similar constitutional history between India and Sri Lanka as previous
colonies, the current SL status is disheartening.

Bibliography

Cases

1. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.2.
2. Special Goods and Services Tax Bill, SC SD 01- 09/2022.

15
Dharshan Weerasekera, SL’s Future Challenges and the Quest for a New Constitution
(Sarasavi Publishers 2019), pp 107, 108.
7
3. Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441 (Second
Judges Case).

Legislation

1. Constitution of India.
2. Constitution of the Democratic Socialist Republic of Sri Lanka 1978.
3. National Transport Commission Act No.36 of 1996.
4. Southern Area Development Authority Act No.18 of 1996.

Other

1. ‘The Judiciary: Written Submissions by Transparency International Sri Lanka to The

Subcommittee of The Constitutional Assembly on The Judiciary’.
2. Ashutosh Kumar Srivastava and Puja Srivastava, ‘JR In India an Analysis’
<https://dx.doi.org/10.2139/ssrn.2705279>.
3. Edirisinha R, ‘Constitutions without Constitutionalism: Sri Lanka’s Crisis of Constitutional First
Principles’, Human rights, human values, and the rule of law: essays in honour of Deshamanya
H.L. de Silva, P.C. (Colombo: Legal Aid Foundation, Bar Association of Sri Lanka 2003).
4. Gupta P, ‘Doctrine of Judicial Review: A Comparative Analysis between India, UK and USA.’
<https://thelawbrigade.com/wp-content/uploads/2019/05/prashant.pdf> accessed 9 June 2022
5. Landa L, ‘A COMPARATIVE STUDY OF JUDICIAL REVIEW IN THE UNITED STATES
AND INDIA’ (2022) 10 International Journal of Creative Research Thoughts.
6. Sivanesan P, ‘Constitutionalism I, II, III’.
7. Sivanesan P, ‘Judicial Review of Legislation I, II, III’.
8. Srivastava AK and Srivastava P, ‘Judicial Review in India an Analysis’
<https://dx.doi.org/10.2139/ssrn.2705279>.
9. Urveshi, ‘Judicial Review: Comparative Study in USA and India’
<https://ssrn.com/abstract=3788741>.
10. Weerasekera D, Sri Lanka’s Future Challenges and the Quest for a New Constitution (Sarasavi
Publishers 2019).