Constitution-making is not all about law for it has its links with political science as well. In any Democratic society political rights and freedom ought to express the idea that state sovereignty belongs to the people who are the source of all authority of the State. The idea of sovereignty of the people has existed for a long time. It embodies humanitarian desire for a just political system ensuring development of all members of society and excluding the abuse of power by those who have access to it as a result of their economic and social status. Now there is a move afoot to abolish the present Executive Presidency with a Parliamentary Executive.
Constitutionally we all stand for a new constitution framed with the approval of the people that will give full effect to the people’s sovereignty in the best and true sense of that term with unitary character of the state being preserved. Here, the Crux of the matter is this; nowhere the people have been told as to what the model of this parliamentary Executive be like.
Anyway this phrase, parliamentary sovereignty is no synonym for people’s sovereignty. This phrase, parliamentary sovereignty is full of ambiguity and it calls for a clear and proper interpretation. If not, we would be in a helpless position later to object and take up a strong attitude on a mere question of interpretation. It is now or never? Where the parliamentary sovereignty prevails, the will of the people have no role to play.
Today, various blatantly undemocratic theories justifying the estrangement of Parliament from the people are in wide use. The trouble with our politicians is that they, with its colonial mentality, have not yet been able to break away from the traditional pattern of British Westminster parliamentary politics. And, there still remains in our midst a coterie of politicians who prefer British Westminster model parliament to any other progressive model. They seem to believe Westminster Model; in all respect is the most satisfactory form of parliament suited to our country. Even the cabinet subcommittee has not yet been able to make any clarification of facts, despite its political significance.
In Britain, parliament is sovereign in the sense that once elected it is not subordinate to anybody or organ until the expiry of its five-year period. British ruling circles believe that for democracy to exist the government of the People is necessary, Government for the People is possible, but the Government by the People is a patent impossibility. Thus, under the British concept of Parliamentary sovereignty, there is no role for the will of the people to play. There parliamentary sovereignty is democratic in theory and dictatorial in practice.
It is fallacious to treat the parliamentary sovereignty as an equivalent to people’s sovereignty. There parliamentary sovereignty is a phrase that conveys limitation. People are kept away from the participation of the political decision making and in the governing of the state and society. Therefore for the sake of ‘efficiency’ voters are recommended not to interfere in the activity of Members of parliament and only to evaluate at a subsequent election either by re-electing the Member of Parliament or turning down his candidature. On the whole the theory and practice of parliamentary sovereignty ascribes the people the passive role of outside observer or mere onlooker. Montesquieu (French Political writer) once said the English people were free only at election time; at all other times, he said, the Government was their master.
It is not for nothing that Montesquieu made that foregoing remark. Judges in Britain, unlike in the USA cannot entertain any question as to the competence of Legislature to enact a given law.
Supposing Parliament passes a Law Englishmen may be imprisoned without trial, Judge may dislike it and even consider it as being against the spirit of the Constitution, but has no right to question the validity or declare it inconsistent or unconstitutional. On the other hand, Legislature can by an amendment of the law virtually override the decision of the court. From 1948 up until 1977 Sri Lanka was governed by a Parliamentary Executive based on the English Westminster model. In the late 1970s this was what the late Mr.J.R.Jayewardene had to say referring to the power of that parliament; “Our Parliament could do anything except making a man a woman and a woman a man. By a resolution passed in parliament itself in 1975 Mrs. Sirimavo Bandaranaike was able to extend the duration of parliament by another two years with no mandate from the people. Similarly by a resolution passed in parliament late Mr. J.R. Jayewardene was able to implant in our midst the present Executive Presidency by crushing all opposition views. What were all these acts if not usurpation of power?
Here, what is most important is that we must return, so to speak to the mainstream of democratic politics and realise that the shortcut we tried in the past to build a ‘Dharmishta society’ only led into a blind alley. Under this sovereign parliament the will of the people was suppressed. Both in the present constitution (1978) as well as in the previous constitution (1972) we found these words written; Sovereignty is in the people; it is inalienable. Nevertheless, it was never a reality in our politics. Here usurpation of power is rather the rule than the exception. Our ruling elements are least of all concerned about its real content and used it as a fiction, a screen to hide its political intrigue and ideological deception of the masses. In the absence of direct democratic checks like popular initiative and recall the ruling elements have been able to usurp the power with no mandate from the people. It all happened under a sovereign parliament.
Under the sovereignty of parliament what will the ‘Will of the People’ be like? In the first place what does it directly determine? Apart from the exceptional use of the Referendum people act through representatives? At once their choice is limited. They normally choose between candidates whom they do not nominate; the great endeavour is not to elicit public opinion but to make it, to control it to use it. The will of the people is directed to objects which are seen through high colours of interest which may not be their own. And democracy demand far more than universal franchise. Abraham Lincoln, a past president of the USA defined Democracy in in his famous Gettysburg Speech in following terms. ‘Democracy is government by the people, of the people and for the people.’
US constitution’s greatness lies in its socio-political thoughts. It is set forth in a language intelligible to the citizen. This is what it says “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights Governments are instituted among Men, deriving their powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it and to institute new Government laying its foundation as such on principles and organising its powers in such form, as to them shall seem most likely to affect their Safety and Happiness .”
Though the socio-politic part is short it expresses three fundamental doctrines of the enlightenment: equal natural rights among Men; the social contract as the foundation for political power; the right to overthrow a despotic government by Revolution (the latter two doctrines are logically connected with the first and ensue from it, for enlighten thinkers considered the social contract and rebellion).
Switzerland is another European country that provides a better example for Democracy. It respects its citizens. There the people have a greater say in Government. The Initiative (constitutional device) is in wide use in Switzerland. Accordingly a petition from 50,000 voters is needed to bring about a national Referendum which can accept or reject any legislation which has been passed by parliament and the like of which is not possible under Westminster model of Parliament. The Initiative gives voters in many cantons, the right to propose constitutional or legislative amendments and to demand a popular vote on it. A petition by 100,000 voters is needed to initiate a vote on amendment to the Constitution. Initiative is also used by the political opposition to bring about changes in Government. Under the Westminster form of sovereign parliament no such things are permitted and the ruling class govern the country by keeping its citizens at its arm’s length. Constitution is not touchable by the people. In the present context of things, democracy as obtaining in this country has no meaning to the people and the government by the people is a mere phrase only.
Let not Divinity be attached to Parliament..!