1978 Nature of the Legislative Powers of Parliament
Parliament is not the sole organ of exercising sovereignty of the people. The
constitution had provided that legislative power of the people can be exercised
by parliament, which is composed of the elected representatives of the people,
as well as directly by the people at a referendum.
LegislativePower of Parliament
According to Article 75, Parliament has powers to enact (a) laws, including
retrospective laws (that is, laws applicable to the past), (b) laws to repeal and amend
any provision of the Constitution, and (c) laws to add new provisions to the
Constitution.
However, Parliament cannot enact laws that cause the suspension of the Constitution
in part or in full. Neither canitenact laws to abrogate the constitution without enacting
a new constitution.
On the issue of the position of parliament in relation to the state structure, there is a
difference between the 1972 and 1978 Constitutions. The 1972 Constitution, in
Article 5, had enacted that the National State Assembly (Parliament) was the
‘supreme institution of state power of the Republic” embodying the legislative,
executive and judicial powers of the people.” Under the 1978 Constitution, executive
powers of the people is exercised by the President, and not vested in Parliament.
Similarly, parliament is not given the constitutional status of the ‘supreme institution
of state power of the Republic.” It is because of the centrality of the office of the
President in the state structure created by the 1978 Constitution. Every Bill that is proposed to be included in parliamentary agenda needs to be
published in the gazette for the public to know about it. When aBill is approved by
MPs after the voting, the Speaker is required to issue a certificate that the law has
been dully passed by Parliament. In case of laws that require special majority of the
members of Parliament, the Speaker is obliged to certify that the required majority has
given the consent to the Bill.
The Bills passed by parliament becomeActs or law only after the certification issued
by the Speaker by signing the certificate. After the Speaker’s certification, law’s
validity cannot be questioned. According to Article 80 (3), “no court or tribunal shall
inquire into, pronounce upon or in any manner call in question, the validity of such
Act on any ground what so ever.” This clause represents the principle of ‘legislative
sovereignty of parliament’ first incorporated into the first Republican Constitution of
1972. It also effectively excludes the principle of judicial review of legislation from
Sri Lanka’s constitutional doctrine.
If any Act or any provision of anAct requires the consent of the people at
Referendum, the Speaker must mention it in his certificate. In such occasions, the Act
becomes law only after the certificate given by the President that the relevantAct has
been approved by the people of the country at a Referendum.
The President, who is the Head of the Executive, is not a member of Parliament.
However, the 1978 Constitution gives the President legislative powers as well. This
is a departure from the 1972 Constitution.
The President participates in the preparation of legislative bills which are to be
deliberated and approved in Parliament. He/She does so in his/her capacity as
both the Head of the Cabinet and alsoamember of it. It is the President who
initiatesBills. It is also the President who seeks the opinion of the Supreme
Court on the constitutionality of proposed Bills. Further, President
hasthepower to take part in the debates in Parliament.
It is also the Presidentwho has the sole power to call aReferendum for the
approval of any bill passed by the 2/3 majority, if it requires the approval of
the people. Accordingly, President can call for Referendum on
(a) ABill that requires the approval of the people at a Referendum
besides the 2/3 majority in parliament.
(b) Bills that do not seek to amend the Constitution and yet rejected by
Parliament.(c) Any matter of national interest, as deemed bythe President.
Consequently, the President can strategically bypass Parliament and directly
seek the approval of the people for his/her policies. This situation results in
enhancing the legislative power of the President and conversely weakening of
the authority of Parliament
20 сен 2024
