In the late Stone Age, Human had started to get together and perform in small
groups, because, living together made their life easier and safer. As time
passed these simple groups began to expand and turn into complex and mass
societies with a set of traditional values and costumes of their own. With a
growing population and different traditional beliefs of their own, these groups
needed a space of their own. Therefore, they marked an area as their territory.
These territories became states. Independent from its governing method, a set
of rules and regulations govern it. They called it ‘the
Constitution.’
Every
state is different, the content of the constitution must vary according to the state's wishes and tradition. Therefore, it is hard to build up a universally
accepted definition for the Constitution but by considering its general facts,
The
constitution is the collection of rules which define and regulate the organs of the state.[1] And It is the supreme law.
No normal legislation can change the Constitution unless by follows the
provisions given in the Constitution itself. Laws related to the constitution
of the state are defined as constitutional law and the scope of the subject is
wide enough to study the historical, political, and philosophical foundations
of the constitution. Nevertheless, any broadly accepted definition of a
constitution includes some universal facts that define the meaning of the
constitution itself. They are,
a)
The constitution is to bind every citizen and ordinary law-making institutions
of the state.
In
democratic nations, sovereignty is naturally laid with its citizens. The Constitution regulates this enormous power which lies with people creatively
without scratching it out from people. Sovereignty is governing power,
fundamental rights, and franchise. Direct democracy is no longer a practical
solution to govern a country, thus with provisions of the constitution, the governing power of the people is exercised by using three organs. executive,
legislation, and Judiciary. It is their duty to, make law, enforce law, and
Interpret law. Those laws and interpretations bind all citizens and
institutions alike. The constitution of Sri Lanka says that “all persons is
equal before the law and are entitled to the equal protection of the law”.
As aforementioned, laws are drafted and enacted by
law-making institutions established by the Constitution. Parliament is the
legislature of Sri Lanka which was established under constitutional Article
4(a) which is given the power to enact laws for the whole country.[2]
Other than that Provincial councils were established under the 13th
constitutional amendment[3], and also allowed to enact statutes for the relevant province.[4]
The Constitution is powering up all ordinary law-making institutions and the laws that make them bind citizens of the state other than a direct legal provision in the Constitution. This characteristic of binding all citizens and ordinary law-making institutions implies that the constitution is the supreme law of the state which falls under the scope of constitutional law.
b) The constitution determines the parameters of the
structure of the power.
The structure of the power of a state is defined by
the Constitution. For example, in the constitute of Sri Lanka recognized
governing power in the sovereignty, and divided it among three institutions. separation of power was first introduced by the French
political philosopher Montesquieu His idea was to prevent arbitrary power, it
must be divided among three organs.[5] Each of these organs must perform its duty and
shouldn’t interfere with others.
However, the pure separation of power does not exist,
on behalf of the ‘Check and balance system’ is followed in many countries, to
divide power. In this system, each organ functions independently according to
the parameters introduced by the constitution but can monitor and suggest
opinions and even interfere with them accordingly.
For example, in the Sri Lanka constitution, many
provisions can be found such as Grant of pardon,[6]
Immunity of the president,[7]
Appoint the prime minister,[8]
etc. Also, in federal states like the U.S.A., the constitution divides the power
between the state governments and the central government.[9] In
Sri Lanka, even though it’s not a federal state, according to the 13th constitutional
amendment provincial councils were added to the structure of power, and their
limitations were defined.
Forming the structure of power in the state and
shaping it from time to time is done by the Constitution. Because the
institutions in the power structure derived their power from the constitution
of the state. This displays the constitution is the supreme law of the country
which makes, which determines the parameters of the structure of the power that
falls under the scope of constitutional law.
c) The constitution embodied political ideologies,
historical traditions, and rights of citizens
Politics comes from the Greek word “politiká”
which means “affairs of the city”. Therefore, the word policies mean according
to Oxford’s dictionary affairs related to the state or government. The constitution is the mod of governing a state. It contains provisions needed to
govern a country, which means it contains the political ideology related to
governing the state. The political ideology behind the constitution could vary
according to state. Separation of power, Mood of government such as democracy,
liberalism, or communism. All these political ideologies are embodied in the
Constitution.
When a constitution is forming, it’s important to
consider and respect the historical traditions of the state. If they were
neglected, citizens might resist accepting the law that bound them by the
constitution. Hence, beliefs and historical values are embodied in many
constitutions. The highest level for traditions given by African constitutions
constitution.[10]
Most of them are related to family laws, for example, the Namibian
constitution expressly provides for marriages under customary law, to be
recognized to prevent compulsion to testify against a spouse.[11]
Sri Lanka recognizes Buddhism as the state religion.[12]
Likewise, every constitution embodied historical traditions.
Every state recognizes the fundamental rights of its
citizens under the sovereignty and intends to protect them. Fundamental rights
are a portion of human rights that the government is bound to protect. In the Sri
Lankan constitution under Chapter IV Fundamental rights have been recognized.
this is a very important part of every constitution because it guarantees the
safety of the citizens’ lives.
It is clear that every constitution embodies political ideologies, historical traditions, and the rights of citizens and they belong to the scope of the constitutional law.
d) The constitution is based on widespread public
legitimacy
Public legitimacy usually is understood as, the
popular acceptance and recognition by the public of the authority of the
government. The government expects certain obedience from the public over its
policies. And why the public is obeyed? Because they believe that the existing
governing system is the best one for the country and the power is with them to
change it if they need it.
Public acceptance is the base of every constitution because what the constitution does is regulate the sovereign power of the people. Without public legitimacy to the constitution about the way, it regulates the power or is not happy and doesn’t believe the exciting government, neither the government nor the constitution can exist. hence the Constitution has recognized every possible provision of public legitimacy. i.e.; the Sri Lankan constitution has recognized the franchise[13] and every President, legislature, and provincial council is elected by the people. People are allowed to intervene in law-making activities, accept the freedom of belief and express themselves through Fundamental rights, forming new political forces to compete with, and even have the power to change or add provisions to the constitution itself. The constitution aims to regulate people’s power among the people themselves. Thus, widespread public legitimacy must be the basis of the constitution.
e)
The constitution is hardly changed
The
constitution is the supreme law of the country. Thus, ordinary law-making institutions are only capable of changing it by ordinary legislation. Several requirements
have to be fulfilled for that. Since 1978 The constitution of Sri Lanka has not
changed completely yet, but just 20 amendments were enacted.
If the constitution is capable of changing easily and more often, whoever is in the governing party at the time will change its provisions for them to be in power forever. It will be an arbitrary use of power. It will be like a football game in which one team is allowed to change rules while playing. This effect represents the legal supremacy and accountability of the Constitution. I.e.: the Constitution of the U.S.A. is even harder to amend or change for the last 233 years it has only been amended 27 times. This shows how the founders of the constitution try to contain the supremacy of the law in the constitution which falls under the scope of constitutional law.
f)
The constitution is to meet the internationally recognized standards.
In
the modern world, a state cannot survive on its own. It needs other ally
states to co-exist with. To trade, protect people, exchange ideas, and test
and introduce new technologies, countries need to go to conventions with
other states. As the supreme power, a constitution must facilitate engagement in
these activities. i.e.; The constitution of Sri Lanka allows the government to
enter into international treaties and agreements with other countries and adopt
those provisions to Sri Lanka by an act passed by the ⅔ of the majority in
parliament.[14]
In this way, Sri Lanka has adopted many laws to enforce locally. Also, with Supreme Court Judicial Interpretations on constitutional articles,[15] it is possible to
internationally recognized standards. In the Sriyani Silva v Iddamalgoda[16]
case even though the constitution doesn’t directly accept the Right to life as
a fundamental right in Sri Lanka's supreme court by using several articles and
international human rights conventions above-mentioned right was recognized as
a Fundamental Right. Likewise, a constitution is there to meet the
internationally recognized standard and to uplift people’s lives in the state.
and to protect sovereignty.
In conclusion to the paper, the Constitution could be different
according to the country but they have fundamental legal and political rules as
we discussed above, from (a) to (f). To learn and understand the true nature of constitutional law it is absolutely important to study, Read, and research
the Facts I have Discussed in this paper.
[1] R.K.W Gunasekara and Jayantha De
Almeida Gunarathne, Constitutional Law I (The open University of Sri
Lanka 1984) 03
[2] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 75
[3] Thirteenth Amendment to the
Constitution 1987, 154 A
[4] Thirteenth Amendment to the
Constitution 1987, 154 G (1)
[5] The editors of
encyclopedia Britannica, ‘Separation of Powers’ (Britannica, 20 July
1998) < https://www.britannica.com/topic/separation-of-powers/additional-info#history>
assessed 02 March 2021
[6] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 34
[7] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 35
[8] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 43
[9] The Constitution of the United
States 1789, 01 (9 and 10)
[10] Katrina Cuskelly, ‘Customs and
constitution’ (2010)
[11] The Constitution of the Republic of
Namibia 1990, 4(3)(b)
[12] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 09
[13] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 03
[14] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 157
[15] The Constitution of Democratic
Socialist Republic of Sri Lanka 1978, 125
[16] Sriyani silva v Iddamalgoda, O.I.C, Police station
Payagala (20030
Sc No 471/2000 (FR)