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Sat, 01 November 2014 00:39:02
Sri Lanka learns harsh lesson in parliamentary supremacy vs liberty: fuss-budget
22 Jan, 2013 07:50:54
By Fuss-Budget
Jan 22, 2013 (LBO) - Sri Lanka has received a harsh lesson in how parliamentary supremacy can be used by the elected ruling class to deny justice and liberty in a telling demonstration of illiberal 'democracy' in action.
Parliamentary supremacy is a concept developed it Britain, where it was originally used to enhance the liberties of ordinary citizens and curb the absolute power of the ruler (sovereign), and not to rob the already established liberties (and sovereignty) of citizens.

Outside Britain 'parliamentary supremacy' was explicitly outlawed in many free countries to advance liberty, by preventing the sovereignty of the people being undermined by a majoritarian vote or what is loosely referred to as 'democracy'.

Countries where liberals triumphed over nationalists and interventionists drew up codified constitutions to progressively restrain the state or sovereign to ensure that sovereignty passed to the individual.

Parliamentary Supremacy

Two events stand out in Britain in the development of 'parliamentary supremacy' or parliamentary sovereignty,

From 1641 onwards during the reign of Charles I, the parliament went to war against the King. The army of the parliament under Oliver Cromwell defeated the King's army.

Charles I was subsequently executed and Cromwell was made Lord Protector. Following the Restoration, Cromwell's body was dug up and beheaded.

A second event that cemented the supremacy of the parliament was the overthrow of King James II of England by parliamentarians and his replacement by William III of Holland and his wife Mary. The parliament therefore effectively 'appointed' the king.

Again parliamentary supremacy was directed against the king not ordinary people as in Sri Lanka's case.

But even during Cromwell's time the dangers of parliamentary supremacy and the presumption that the parliament could pass any law, either to enhance or rob the liberties of the individual was recognized.

This was seen in the 'Leveller' movement. They wanted a written constitution to restrain the absolute power of the state, the parliament and rulers as well as expanded voting rights, religious tolerance among other liberties.

Some of the actions of Cromwell's parliament itself, in terms of discriminatory legislation against religious minorities showed that these fears were justified.

Constitutional Restraint

Constitutionalism on the other hand recognizes that individuals have certain fundamental freedoms. Constitutionalists fear the untrammeled majoritarianism that is implied in parliamentary supremacy.

A constitution is an instrument of restraint, mostly on the ruler and the state but also on the parliament. A constitution of liberty also gives absolute guarantees of equality to people. It recognizes the operation of just rule of law to take society forward.

The origins of the movement towards liberty can be traced back to the Magna Carta Libertatum or The Great Charter of the Liberties of England.

The greater the restraint on the state and rulers, the greater the freedom of the individual.

The original document dates back to 1215, where feudal barons in England restrained the King John by forcing him to sign up to the charter after he imposed half a dozen taxes without their consent.

It also established the concept of taxation by consent which is blatantly violated in Sri Lanka where taxes changed by gazette, with no discussion.

Opposition leader Ranil Wickremasinghe referring to recent actions of lawyers who struggled to protect the rule of law says they cannot overthrow a government. That is silly. Lawyers need not overthrow a government. Neither does the change of administration necessarily bring freedom.

Overthrowing countless administration since 1948 has not brought any greater freedom to the people in this country. Each new administration had been more oppressive and arbitrary with only a few exceptions. That is not surprising since Sri Lanka's major political parties have been illiberal, interventionist or nationalist.

It was the UNP that built the 1978 constitution, which violated the fundamental principles of constitutionalism. It expanded the power of the state and rulers and gave unrestrained arbitrary power to an absolute ruler. Nor were there absolute guarantees of equality.

It destroyed the last vestiges of an independent public service, by ending the institution of permanent secretaries, who had same security of tenor as judges and acted on a rule of law before the 1972 constitution.

Restraint vs Overthrow

Before the Magna Carta despotic kings were simply overthrown and a new one brought on, just like political parties in a two party system. There was no change in the system.

But the barons decided to restrain the existing king partly because they did not have an obvious alternative candidate. If they did find an alternative, the divine rights of the king may never have been challenged.

This is similar to the situation in Sri Lanka. Under Ranil Wickremasinghe the United National Party has become irrelevant. That may be a blessing in disguise. With no viable alternative, and no party politics to deceive and muddle issues, people have a chance to think on their own. The break from slavish partisanship is useful.

The backing of parliamentary supremacy also put the UNP's illiberal leader in stark relief as a person who defends the privileges and voting power of Sri Lanka's increasingly hereditary elected ruling class at the expense of the liberties of the individual citizen and the rule of law.

Across party divides, the (divine?) privilege of parliamentarians to oppress citizens through their majoritarian vote is being proclaimed. This absolutism is little different from the attitude of hereditary despots and their vassals down the ages who had claimed a divine right to rule and oppress.

Many of the elected representatives in Sri Lanka are now hereditary, with their fathers and uncles and mothers and aunts being in parliament before them.

There are sometimes more than one member of the same family in parliament at the same time. Or in other bodies like Provincial Councils. The Rajapaksa family is a case in point, but they are not alone.

Sometimes members of the same family sit in opposite camps. When their own party loses power, they switch sides to remain in office. There is no ideological difference.

Unlike hereditary peers in Britain, where many contributed to liberty, almost to a man Lanka's elected ruling class are illiberal, interventionist, or worse nationalist as seen by their actions The rest either have no backbone or are too hungry for power.

The few who batted on the side of rule of law and liberty in the recent ouster of the Chief Justice in the ruling coalition abstained from voting. The few in the opposition who stood by the people attended court and earned the wrath of their leader.

In Britain the 'Levellers' who wanted a codified constitution did not belong to a party. Though their influence waned as group, their ideas did not die. The lawyers and some civil society activists in Sri Lanka are now playing a similar role.

Liberty vs Democracy

Compared to Britain, the US constitution was a very robust instrument of liberty from the very beginning. The founding fathers of the US are thought to have been influenced by the ideas of Levellers as well as others, including French liberal thinkers.

The founding fathers went to great lengths to outlaw parliamentary supremacy and ensure that 'democracy' did not destroy the liberties of the people.

The word democracy is not mentioned in the US constitution. Several mechanisms were put in place to prevent the popular vote or 'democracy' from being used against the individual by elected representatives.

The US parliament or legislature was divided into two. The house of representatives was elected by popular vote. To prevent the more populous states from having a bigger say, the Senate was created with each state having only two representatives, regardless of its population. Until the 17th amendment, senators were not popularly elected.

Both houses could individually sponsor legislation. But they agree on a final draft. As a further check on 'democracy' the President was allowed to veto legislation.

The president himself was not elected by the popular vote directly but through an electoral college. Even ministers are not popularly elected representatives.

The courts can strike down legislation.

The separation of powers is very clear in the US. It was not so in the British system. Even in Sri Lanka under British rule the first civil servants were also judges. As long as the intention is to dispense justice and not injustice it does not matter.

But parliamentary supremacy is slowly and surely dying in Britain. Already the human rights act has restrained the parliament. EU legislation is creeping in. Britain is moving towards a codified constitution.

Law vs Legislation

Constitutions seek to recognize what are essentially pre-existing rights and 'laws'.

A parliament legislates. A piece of legislation however is not necessarily law in the classical liberal sense. Before parliamentarism, law was established by custom through decades or centuries, which was accepted by everybody and allowed the members of society to interact and behave.

A parliament on the other hand can cook up a piece of legislation and impose it on the people almost overnight. Such a piece of legislation can lack the key ingredients of a just law. A legislature can even cook up victimless crimes where there is no victim. Communist states criminalize political dissent where the state is a 'victim'.

Legislation can be against the rules of natural justice. It can be discriminatory as well as unjust which is the case in relation to most nationalist legislation. It can be against the laws of nature, which many interventionist laws are. That is why state interventions often lead to economic chaos.

Such legislation is not just 'law'. They are unjust commands of the state or rulers imposed on a hapless population through police power.

Unlike countries with old monarchies, a modern post-feudal nation state can impose any unjust legislation on its citizens. That is with the backing of a standing army and police. Monarchs did not have a standing army in the past and could be deposed relatively easily.

The police in Britain was developed as a private agency (Thames River police) to protect the citizens and later made into a state agency under Prime Minister Robert Peel.

In Eastern Europe police became agencies that protected the rulers and harmed the citizens. Such an agency is not 'police' but a Gestapo.

Self determination vs Liberty

When Sri Lanka gained independence from Britain, the Soulbury constitution through its Section 29 outlawed the enactment of discriminatory legislation against minorities. Technically Sri Lanka's parliament was not supreme in the absolutist sense that is now being bandied about.

However in 1956 the parliament passed linguistically nationalist legislation. One could argue that parliamentary supremacy was established by robbing the language liberties of the citizens.

The struggle for independence from British rule was not a struggle for freedom or liberty. It was a struggle for self-determination. Self-determination is not a synonym for liberty.

Self-determination is the means or empowerment to charts one's own course. That course can lead to liberty, or economic intervention, socialism, or in the worse case, dehumanizing nationalism as had happened in many East European states.

Why wasn't there a struggle for liberty in Sri Lanka? Was it because there was no need at the time?

True liberty stems from the rule of law as we have seen. In ancient Sri Lanka for example a great deal of emphasis was placed on a 'just king'.

Illiberal Democracy

Liberty can exist in a democracy if liberal thought pre-dominates. If nationalism comes to the fore human values disappear. Misery, war and de-humanization are the inevitable outcomes.

If intervention prevails, poverty and economic decline is frequently the result.

In Britain, and in Western Europe generally, freedom has prevailed in spite of democracy due to the prevalence of liberal thought. After the Second World War, interventionism, inflation and currency depreciation even reduced Britain to its knees, until Margaret Thatcher came.

Even in Britain, leftist administrations used parliamentary supremacy to violate people's property rights and nationalise many industries.

In Eastern Europe end of feudalism brought great misery. Great states under feudal rule became shadows of their former selves under the weight of state intervention and nationalism. Unimaginable atrocities were committed upon millions upon millions of people.

An illiberal democracy is still a 'democracy' where the popular vote prevails. Hitler came to power through the popular vote. He increased his majority the second time around.

Then he went around destroying parliamentarism, through legislative and therefore 'legal' means.

In many countries that do not have a two party system and are not considered 'democratic' people have many more freedoms than in some 'democratic' ones. Dubai is a case in point. Liechtenstein is another oddity in this day and age.

Citizens of Hong Kong under British rule had many more freedoms than many former colonies, which had self-determined themselves into dictatorships. Hong Kong citizens still enjoy many freedoms under Chinese rule, that Chinese people themselves do not enjoy.

Constitutions of Expediency

Whether it is Ranil Wickremasinghe or Mahinda Rajapsaksa or J R Jayawardene, one thing stands out.

In this country concepts such as parliamentary supremacy are interpreted and constitutions are made and changed to undermine the liberty of citizens.

Yet another amendment to the constitution is now in the works.

Sri Lanka's politicians are fond of saying that 'Oh in the US 20 odd amendments have been brought. Or 'That is democracy. The will of the people expressed through the members of parliament."

In the US amendments were brought to the constitution to strengthen it and further restrain the state and increase liberties of the individual. It is extremely difficult to change the constitution. After passage by both houses, changes also have to be ratified by the states.

But for a people in search of liberty this is not a hindrance but an aid.

The first 10 amendments were enacted in a single day, on December 15, 1791 (the Bill of Rights). These include the freedom of speech, freedom of the press and the right to assemble. Others dealt with the right to bear arms (which is now being questioned) prohibiting the quartering of soldiers in peacetime, prohibiting unreasonable searches and seizures, requirement for search warrants, the right to remain silent, the right to a fair and speedy trial and on on.

The 13th amendment abolished slavery, the 15th prohibited denial of suffrage based on race or colour, 19th established women's suffrage. The 22nd established term limits. In Sri Lanka the 18th amendment lifted term limits.

Only a few such as the 18th which prohibited alcohol was illiberal. The 21st abolished the abolition.

Constitution of Liberty

Without a codified constitution, any law passed by the British parliament by simple majority could potentially 'amend' the unwritten 'constitution'.

What has kept Britain a free country is the knowledge especially among sections of the urban intelligentsia about liberty and how to safeguard it.

Sri Lanka's constitutions were not written by the masses. The masses all over the world have loved liberty, when they experienced it. Liberty is the most precious commodity in the universe.

But they have no knowledge of how to get it or more importantly preserve it. The mechanisms of liberty were promoted by a few thinkers and civil society organizations and movements. Where their ideas triumphed, liberty blossomed. Elsewhere arbitrary rule, injustice, state sponsored violence against unarmed citizens became commonplace.

Sri Lanka's oppressive constitutions were instigated and drawn up by the best educated urban intelligentsia (mostly lawyers) who had even studied abroad. It is significant that lawyers are now among people battling for freedom.

It is also significant that there was a move towards first principles in the impeachment saga of the Chief Justice. Ideas such as the principles of natural justice, the sovereignty of the individual and the right to a fair trial for a citizen were brought to the fore.

For the first time since independence from British rule, members of the majority community have started talking about the sovereignty of the individual, rather than the state.

Sri Lanka needs a constitution of liberty if we want to be a free and peaceful nation. It is not a very difficult matter to create one. This columnist can write a constitution of liberty in a single A4 sheet.

But it is doubtful whether the elites in society and the urban intelligentsia have enough awareness about liberty and what is needed to guard it to prevent the precious commodity from slipping through their fingers again.

Horrific nationalism and state intervention seems to be hard wired into our psyche. Neither are compatible with freedom. One step forward is followed by two steps backward. The fate of Sri Lanka's (or Ceylon's) civil service commission, the constitutional councils, section 29 are examples.

A few months after the end of the war in 2009, this column (Thrift Column - Serfdom) warned about Sri Lanka's road to serfdom and the rule of law.

We are still speeding on that road.

Update II/corrected - US bill of rights passed on 1791

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READER COMMENT(S)
9. kawdaboy Jan 28
What any country needs is not a new constitution or new bills like 'Divinaguma' (which MP's from Government benches say will help the poor - yeah right!, if it was that simple this world will be free from poverty!), but a rule of law, justice and fair play. All which is absent in Sri Lanka. The constitution of the country should first guarantee the above 3 to its citizens, no matter what race, religion or region they come from.
8. fuss Jan 23
@Student of Justice
"If the people's representatives ignore the liberty and freedom of those who have sent them to Parliament, a third institution which looks after the interests of the people become supreme over the Parliament. That institution is the judiciary."

This comment is very pertinent. It seems a common sense observation but it goes to the heart of the whole issue.

It is justice that is the key. Justice brings liberty and frees everyone. It is not democracy, two party rule, elections or parliaments that brings freedom.

In Britain the separation of powers developed very gradually. In Cromwell's time for example judges even sat in parliament. The house of lords is effectively the highest appeal court and so on.

Senior British judges are now saying (orbiter dicta) that parliamentary supremacy has been allowed by judges.

In 2005 Lord Steyn said parliamentary supremacy was a "a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism."

Even the in the US the courts started to strike down legislation only which were unjust and the principle was accepted because it was seen to be fair and just.

The key here is that in a society where people stand up for justice and what is right, almost any type of institutional arrangement can deliver it. Labels like 'rule of law' can be a bit confusing.

When we say 'rule of law' we really mean rule of just law'

It would help everyone if we simply go further and say 'rule of justice'

7. CaMan Jan 23
A quote from Star Wars
"So this is how liberty dies... with thunderous applause."
6. da Jan 22
I disconnected unnecessary nationalism and tepid traditions from my psyche to enjoy true liberty. It pained me when I decided to deny my daughter her cultural heritage for want of giving her the gift of liberty and free thought. I don't believe we'd see any improvement in liberty of Sri Lankan citizens at the expense of state machinery in the decades to come. There's no point of raising the next generation forcing them to believe liberties are granted by a handful of hereditary ruling clans and not decided by the citizenry.
5. Niro Jan 22
De'mock'racy in action! No wonder we are screwed by our esteemed institutions.
4. Kapila Jan 22
An excellent article that explains how the freedom of the people has been stolen by their supposed representatives.

The rulers love to harp on sovereignty and independence and appeal to patriotism and emotion to blind the people to reality.

We are now subjugated. The political independence obtained in 1948 has become meaningless.

In terms of freedom, our ancestors were better off under the British than we are today.

3. mw Jan 22
Very informative - thank you.
I sincerely hope fuss-budget will be careful.
I for one, read and comment using the office network; a public computer in the lunchroom :D
2. Eagle Eyes Jan 22
In the tussle for supremacy by the Executive, the Legislature, the Judiciary, the Constitution and the Citizen, there is a clear winner. And its the PizzaHut BBQ Chicken Pan Pizza that is Supreme.
1. A student of justice Jan 22
An excellent article outlining the main problems which this nation is presently facing and the hard times it has to go through in the near future to seek its destiny.

The Parliament is supreme when it comes to dealing with an absolute monarch. The Parliament representing the people have to keep the monarch in check and therefore the concept of Parliamentary supremacy was designed.

But when it comes to dealing with people, it is the people who are supreme and not their representatives. If the people's representatives ignore the liberty and freedom of those who have sent them to Parliament, a third institution which looks after the interests of the people become supreme over the Parliament. That institution is the judiciary.

Unless these roles of various organs of state are not properly understood and respected, there is no scope for that nation to progress. That is because, like a single dictatorship, there is now multiple dictatorship which one can call the Parliament.