{"id":52345,"date":"2016-03-01T00:46:29","date_gmt":"2016-03-01T07:46:29","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=52345"},"modified":"2016-03-01T08:07:01","modified_gmt":"2016-03-01T15:07:01","slug":"an-introduction-to-separation-of-powers-doctrine","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/03\/01\/an-introduction-to-separation-of-powers-doctrine\/","title":{"rendered":"AN INTRODUCTION TO SEPARATION OF POWERS DOCTRINE"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

A Constitution is not a wish-list of everyone\u2019s favorite goodies.\u00a0 It is the Supreme Law of the Land, and the framework around which all other laws are to operate.\u00a0 So, the most important thing to consider when generating a new Constitution is the underlying principles that are to animate it.<\/p>\n

Unfortunately, there is very little discussion of Constitutional principles today, even though the public is being asked to suggest possible provisions that ought to be included in the new Constitution.\u00a0 The purpose of this article is to discuss a fundamental Constitutional principle\u2014Separation of Powers\u2014in the hope that it will be useful in the coming days and weeks as the Constitution-making process gathers steam.<\/p>\n

What is the fundamental principle underlying the present Sri Lanka Constitution?\u00a0 I think most people will agree it is the principle enshrined in Article 3 of the Constitution, which says that Sovereignty is in the People and inalienable, and explains how that Sovereignty is to be exercised.<\/p>\n

If the People are Sovereign, but of necessity must be governed through representatives<\/em>, then the fundamental problem is ensuring that the representatives stay true to their mandate.\u00a0 What are the safeguards, implied or explicit, that exist under the present Constitution to ensure that the representatives of the people stay true to their mandate?<\/p>\n

In my view, they are as follows:\u00a0 one, it is presumed that there will be a strong Opposition, so that it will provide an internal check on Parliament; two, it is presumed that the \u2018Public Trust Doctrine\u2019 operates, i.e. public officials exercise power in trust for the People, and can be held accountable if they violate that trust;<\/p>\n

Three, the National List, which is supposed to introduce to Parliament persons of high integrity and professional competence, who will enlighten the proceedings of the House with their wisdom and knowledge; and finally, the Constitutional Council, which is to de-politicize appointments to high office.<\/p>\n

Each of the aforesaid safeguards has obviously failed.\u00a0 The concept of a \u2018National Government\u2019 has made a mockery of the notion of an \u2018Opposition\u2019; the \u2018Public Trust Doctrine\u2019 is in tatters, with the Government co-sponsoring an international resolution that more or less compels the Government to admit that the State committed war crimes<\/p>\n

I need not discuss what has happened with the National List; finally, it appears the Constitutional Council has become nothing but a Rubber Stamp for the executive, as evidenced by its conduct with regard to the recent appointment of the Attorney General.<\/p>\n

So, that\u2019s where we are.\u00a0 I have no doubt that the new Constitution will also proclaim in grand terms that \u2018Sovereignty is in the People\u2019 or some such thing.\u00a0 But the question is whether we have learnt anything to avoid the awful mistakes of the past.<\/p>\n

Whether one likes it or not, other than new elections, the only effective way to ensure that representatives stay true to their mandate is \u2018separation of powers.\u2019\u00a0 It is generally agreed that the exemplar of \u2018separation of powers\u2019 doctrine is the U. S. Constitution.<\/p>\n

Meanwhile, The Federalist Papers<\/em>, a series of essays by James Madison, Alexander Hamilton and John Jay, written between 1787 and 1788 to persuade Americans to approve the Constitution, is universally regarded as the best commentary on the U. S. Constitution.\u00a0 Thomas Jefferson even called it The best commentary on the principles of government which ever was written.\u201d[1]<\/a><\/p>\n

To turn to Sri Lanka, in my view, the last substantive discussion of Constitutional reform in this country, if we understand that to mean published work, is to be found in Ideas for Constitutional Reform<\/em>, ed. Chanaka Amaratunga, (Council for Liberal Democracy, 1989).\u00a0 That collection essays includes essays by Professor G. L. Peiris, Dr. Colvin R. De Silva, H. L. De Silva, and others, generally considered Sri Lanka\u2019s leading Constitutional experts from the 70\u2019s to the present.<\/p>\n

As far as I\u2019m aware, there\u2019s no essay on separation of powers in that book, and neither is there a reference to The Federalist Papers<\/em>, which is a tragedy to say the least.\u00a0 Under the circumstances, it seems to me this is as good a time as any to discuss American separation of powers doctrine, and in the process to also introduce The Federalist Papers<\/em> into the Constitutional discourse of this country.<\/p>\n

In the discussion below, I summarize the American separation of powers doctrine and then discuss in some detail the role the American Founding Fathers envisioned for each branch of government.<\/p>\n

American Separation of Powers Doctrine<\/strong><\/p>\n

Because one of the primary purposes of this article is to introduce The Federalist Papers <\/em>to readers who may be unfamiliar with that work, my approach is to quote as much as possible from the original, and to provide a little commentary where necessary.\u00a0 My intent is to sketch the basic tenets of the American system of Government more or less through the words of the American Founding Fathers themselves.<\/p>\n

Before I proceed to the discussion proper, however, I must reply to an objection since I\u2019m in essence recommending that Sri Lankans learn from American Constitutional principles.\u00a0 Certain critics may say something like this:\u00a0 Even a former American President has said that the United States is now no longer a democracy but an oligarchy[2]<\/a>; if this is what has happened under the vaunted American Constitutional principles, of what use are they to us?\u201d<\/p>\n

I have two replies.\u00a0 First, I am not interested here in what the Americans have done with or to their Constitution in the 200-plus years since its enactment.\u00a0 The fact that Americans may have made mistakes in the course of putting their Constitution into practice does not mean that ideas contained in that document are unsuitable to solving the particular problem to which I want to apply them in the case of Sri Lanka.<\/p>\n

Second, in the 200-plus years since its enactment, the U.S. Constitution has been amended 27 times.\u00a0 In contrast, in the 60 or so years since independence, Sri Lanka has had three Constitutions, which comes to an average of about 20 years per Constitution.\u00a0 Meanwhile, the present Sri Lanka Constitution, enacted in 1978, has been amended 19 times, with the last amendment running to nearly 60 pages, roughly 1\/3 the length of the entire Constitution!\u00a0 And now a new Constitution is being contemplated.<\/p>\n

Generally speaking, in matters of law, longevity is a sign of substance and merit.\u00a0 Justice Benjamin N. Cardozo of the U. S. Supreme Court once said of judgments, Those that cannot prove their worth by the test of experience are sacrificed mercilessly and thrown into the void.\u201d[3]<\/a><\/p>\n

I believe the same can be said of Constitutions:\u00a0 those that cannot prove their worth by the test of experience are invariably thrown into the void.\u00a0 Reciprocally, those that last for a considerable length of time, bespeak a certain substance and merit in their underlying principles.<\/p>\n

In my view, it doesn\u2019t hurt for the citizens of a country that has had to change Constitutions once every 20 years or so, where the present Constitution has been amended 19 times, to presume they have something to learn from a Constitution that has lasted over 200 years with just 27 amendments.\u00a0 If there\u2019s nothing to learn, so be it, but it cannot hurt to start with the presumption.\u00a0 I shall now turn to the discussion proper.<\/p>\n

The key point to remember about American separation of powers doctrine is that, though the word separation\u201d is used, there is no separation per se<\/em>, meaning a pulling apart or isolating of each branch of government from the others:\u00a0 what the system actually does is juxtapose or pit the three branches of government against each other in such a way that they naturally impose checks and balances on each other.<\/p>\n

The classic passage that discusses this system is in Federalist 51, by James Madison.\u00a0 He says:<\/p>\n

But the great security against the gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the others.\u00a0 The provision for defense must be made commensurate to the danger of attack.\u00a0 Ambition must be made to counteract ambition.\u00a0 The interest of the man must be connected with the constitutional rights of the place.\u00a0 It may be a reflection on human nature that such devices should be necessary to control the abuses of government.\u00a0 But what is government itself but the greatest of all reflections on human nature.\u00a0 If men were angels, no government would be necessary.\u00a0 If angels were to govern men, neither external nor internal controls on government would be necessary.\u00a0 In framing a government which is to be administered by men over men, the great difficulty lies in this:\u00a0 you must first enable the government to control the governed; and in the next place oblige it to control itself.\u00a0 A dependence on the people is no doubt the primary control on government; but experience has taught mankind the necessity of auxiliary precautions. [4]<\/a><\/p>\n

I draw the reader\u2019s attention to two points in the above passage.\u00a0 First, the reason for separation of powers is that the primary check on government, i.e. the People, is inadequate, because, for one thing, if elected officials become uncontrollable between elections, the people have no direct way to get rid of them, that is, until the next election.\u00a0 So, an auxiliary precaution is needed.<\/p>\n

Second, the way the system is supposed to work is by exploiting the self-interest of the officers of each branch, to wit:\u00a0 by investing the officers of each branch with requisite powers and privileges so that when they see the officers of another branch trying to encroach on those powers, they naturally resist such efforts.<\/p>\n

A necessary inference that follows from the above is that the system runs on a certain tension between the branches, in the sense that the officers of each branch regard the officers of the other branches as adversaries<\/em>:\u00a0 the stronger the tension, the more vibrant the system; the more the tension relaxes, to that extent the system starts to break down.\u00a0 In short, separation of powers\u201d is actually a binding together<\/em> of the three branches of government in a certain special way.<\/p>\n

The next question is, \u2018What is the specific role that the Founding Fathers expected the officers of each branch of government to inhabit within the aforesaid system?\u2019\u00a0 As far as I understand it, the theory of government that informed the Founding Fathers when they formulated those roles, is as follows.<\/p>\n

The Founding Fathers considered that the well-spring of all legislative power is the will of the people, but the people tend to be gripped by prejudices, impulses, and sentiments\u2014in a word \u2018passions\u2019\u2014that in their primitive form and intensity are inimical to good government.<\/p>\n

So, the real task in setting up a proper scheme of government is to insulate the decision-making processes that go on within the institutions of government from those elemental passions animating the masses, but at the same time to ensure that the said \u2018passions\u2019 provide the raw-material for legislation.\u00a0 As Madison put it,<\/p>\n

But it is the reason alone of the public that ought to control and regulate the government.\u00a0 The passions ought to be controlled and regulated by the government.[5]<\/a><\/p>\n

In short, according to the theory above, the three branches of government act as a series of filters, each helping to reduce the irrational component of the original raw-material of legislation, and gradually making it more susceptible to reason.\u00a0 We can now look at each branch in a little more detail, to see how the said \u2018filters\u2019 are supposed to work.<\/p>\n

    \n
  1. i) The Legislature<\/strong><\/li>\n<\/ol>\n

    The American legislature has two components:\u00a0 The House of Representatives and the Senate.\u00a0 I\u2019ll start with the former.\u00a0 The Founding Fathers had three goals when they designed the House:\u00a0 first, to capture within it as wide a range as possible of the \u2018passions\u2019 animating the populous; second, to make it the most powerful branch of government, reflective of the fact that it was the closest to the people; and finally, to impose an internal safeguard to prevent it from abusing that power.<\/p>\n

    The Founding Fathers sought to achieve the first goal above by making the qualifications necessary for being a Representative the lowest relative to the other branches of government.\u00a0 I quote below some of Madison\u2019s thoughts on the type of person he wanted as a Representative, from which one can also gain an idea of the type of place Madison wanted the House to be:<\/p>\n

    A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States.\u00a0 Under these reasonable limitations, the door to this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.[6]<\/a><\/p>\n

    It is clear from the above that Madison expected the House to be a veritable microcosm of society at large, a forum where, just as in society at large, various interests and the factions representing them constantly clash.\u00a0 As such, it was to be rambunctious and combative place.<\/p>\n

    The Founding Fathers sought to achieve the second goal mentioned earlier\u2014i.e. to make the House the most powerful of the three branches of government\u2014primarily by giving the House control over the public finances, which naturally ensures that the other branches have to always pay heed, at some level or other, to the wishes of the House.<\/p>\n

    They sought to achieve the third goal by limiting the term of office of Representatives to two years, under the maxim: \u00a0the greater the power, the shorter ought to be its duration, and conversely, the smaller the power, the more safely may its duration be protracted,\u201d[7]<\/a>\u00a0 That way, if a Representative made a mess of things once he got into office, his constituents could get rid of him as soon as possible.<\/p>\n

    I shall now turn to the Senate.\u00a0 The Founding Fathers designed the Senate with two goals in mind:\u00a0 first, to supply the country with certain things that the House couldn\u2019t supply; and second, to act as a check on the House.<\/p>\n

    With respect to the first goal, Madison discusses six specific benefits of the Senate, including the stability and a sense of gravitas it provides a legislature, its utility in helping build a sense of national character, and so on.\u00a0 I quote below two sets of passages in order to give the reader an idea of what Madison had in mind with respect to the above topics.<\/p>\n

    On the utility of the Senate in providing competent legislators, Madison says:<\/p>\n

    Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation.\u00a0 It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust.\u00a0 It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them.<\/p>\n

    A good government implies two things:\u00a0 first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.\u00a0 Some governments are deficient in both these qualities; most governments are deficient in the first.\u00a0 I scruple not to assert that in American governments too little attention has been paid to the last.\u00a0 The federal constitution avoids this error; and what merits particular notice, it provides for the last in a mode that increases the security for the first. [8]<\/a><\/p>\n

    On the value of the Senate in building national character, Madison says:<\/p>\n

    A fifth desideratum, illustrating the utility of a senate, is the want of a sense of national character.\u00a0 Without a select and stable member of the government, the esteem of foreign powers will not only be forfeited by an unenlightened and variable policy, proceeding from the causes already mentioned, but the national councils will not possess that sensibility to the opinion of the world which is perhaps not less necessary in order to merit than it is to obtain its respect and confidence\u2026.Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body.\u00a0 It can only be found in a number so small that a sensible degree of the praise and blame of public measures may be the portion of each individual; or in an assembly so durably invested with public trust that the pride and consequence of its members may be sensibly incorporated with the reputation and prosperity of the community.[9]<\/a><\/p>\n

    I shall now turn to the second function the Founding Fathers had for the Senate, which as I said earlier was to act as a check on the House.\u00a0 Here\u2019s how Madison discusses the matter:<\/p>\n

    To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add that such an institution may be sometimes necessary as a defense to a people against their own temporary errors and delusions.\u00a0 As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be most ready to lament and condemn.\u00a0 In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?\u00a0 What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?\u00a0 Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.[10]<\/a><\/p>\n

    To summarize, the roles the Founding Fathers envisioned for the House and the Senate are as follows:\u00a0 the House was to capture as wide a range as possible of the \u2018passions\u2019 animating the masses; the Senate was to provide balance and stability, and also to combat a particular danger, namely, provide a cooling influence on the House, on those occasions where the People, which is to say the Majority, contemplated some act destructive to themselves.\u00a0 So much, then, for the Legislature.\u00a0 Let\u2019s turn to the Executive.<\/p>\n

      \n
    1. ii) The Executive <\/strong><\/li>\n<\/ol>\n

      The Founding Fathers saw both the importance of the executive office as well as its danger.\u00a0 The importance of the office is that without a strong executive it is impossible to have a good administration, and without a good administration it is impossible for the people to enjoy the benefits of good government.\u00a0 The danger is that a strong executive can turn into a monarch, or a dictator.<\/p>\n

      In designing the executive office, the Founding Fathers had two goals in mind:\u00a0 first, to make sure that office was always filled by the right type of person, and second, to prevent those persons from trying to turn themselves into veritable monarchs.\u00a0 They thought they could accomplish the first by the process of election they set in place, and the second by making the executive share all of his powers with the legislature.<\/p>\n

      I present below two passages\u2014this time by Alexander Hamilton\u2014where he discusses the aforesaid matters.\u00a0 First, here\u2019s Hamilton discussing the principal role he expected the President to play in the overall scheme of government, and how he expected to obtain the right type of person for the job:<\/p>\n

      The process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.\u00a0 Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of the President of the United States.\u00a0 It will not be too strong to say that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.\u00a0 And this will be thought no inconsiderable recommendation of the Constitution by those who are able to estimate the share which the executive in every government must necessarily have in its good or ill administration.\u00a0 Though we cannot acquiesce in the political heresy of the poet who says:<\/p>\n

      \u2018For forms of government let fools contest<\/p>\n

      That which is best administered is best\u2019<\/p>\n

      Yet we may safely pronounce that the true test of a good government is its aptitude and tendency to produce a good administration.[11]<\/a><\/p>\n

      I am not saying that the thinking of the Founding Fathers on the efficacy of the election process to ensure that the right type of person would always occupy the executive office is necessarily correct (judging for instance by some of the Presidents the Americans have in fact elected to office over the years).\u00a0 The point, however, is this:\u00a0 the idea of the Founding Fathers was that only<\/em> a person preeminent in virtue and ability ought to occupy the office of the President.<\/p>\n

      I shall now turn to the other side of the coin, namely, the potential danger in the executive office.\u00a0 Even if the Founding Fathers may have been a bit idealistic in their formulation of the method to ensure that the right type of person would occupy the office of President, they were very practical in the measures they imposed to prevent any mischief, in case the wrong type of person were to become President.<\/p>\n

      Hamilton discusses the above matter in an interesting passage where he contrasts the powers of the proposed President with that of the British Monarch, (one of the main accusations against the Federalists was that they were trying to impose a monarchy on the Americans).\u00a0 I quote below the entire passage, because it sets out very clearly all of the powers of the proposed executive, as well as the controls on those powers.<\/p>\n

      The President of the United States would be an officer elected by the people for four years; the king of Great Britain is a perpetual and hereditary prince.\u00a0 The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.\u00a0 The one would have a qualified negative upon the acts of the legislative body; the other has an absolute negative.\u00a0 The one would have a right to command the military and naval forces of the nation; the other, in addition to this right, possesses that of declaring war, and of raising and regulating fleets and armies by his own authority.\u00a0 The one would have a concurrent power with a branch of the legislature in the formation of treaties; the other is the sole possessor of the power of making treaties.\u00a0 The one would have a like concurrent authority in appointing offices; the other is the sole author of all appointments.\u00a0 The one can confer no privileges whatsoever; the other can make denizens of aliens, noblemen of commoners; can erect corporations with all the rights incident to corporate bodies.\u00a0 The one can prescribe no rules concerning the commerce or currency of the nation; the other is in several aspects the arbiter of commerce, and in this capacity can establish markets and fairs, can regulate weights and measures, can lay embargoes for a limited time, can coin money, can authorize or prohibit the circulation of foreign coin.\u00a0 The one has no particle of spiritual jurisdiction; the other is the supreme head and governor of the national church![12]<\/a><\/p>\n

      It is possible to gather from the above that the powers the Founding Fathers wanted the President to have four principal powers:\u00a0 to have a qualified negative on the legislature, to command the armed forces, to appoint officers to the key departments of government, and to handle foreign policy, including negotiating treaties.<\/p>\n

      The important point is that in each of these areas the President\u2019s had to share his powers with the legislature:\u00a0 or, to be more accurate, he was given only half the powers necessary to carry out his functions in each area, the other half being reposed in the House or the Senate.\u00a0 So much, then, for the executive branch.\u00a0 Let\u2019s turn to the judiciary.<\/p>\n

      iii)\u00a0 The Judicial Branch<\/strong><\/p>\n

      The primary function of the judicial branch in any constitutional system is to interpret the laws.\u00a0 The Founding Fathers started from this premise also, but they went a bit further, in two respects.\u00a0 First, they explicitly set out that the Court could strike down any law that violated the Constitution.\u00a0 Second, they had in mind that the courts would be a sort of special protector of minorities in two specific situations.[13]<\/a><\/p>\n

      I present below two sets of quotes.\u00a0 The first and shorter one relates to the first function mentioned above, and is self-explanatory; the second and longer relates to the second, and I will make a brief comment on it.\u00a0 Alexander Hamilton is the speaker on both occasions.<\/p>\n

      First,<\/p>\n

      The interpretation of the laws is the proper and peculiar province of the courts.\u00a0 A constitution is, in fact, and must be regarded by the judges as, a fundamental law.\u00a0 It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.\u00a0 If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[14]<\/a><\/p>\n

      Second,<\/p>\n

      This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.\u00a0 Though I trust the friends of the proposed constitution will never concur with its enemies in questioning that fundamental principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body.\u00a0 Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively and individually; and no presumption or even knowledge, of their sentiment can warrant their representatives in a departure from it prior to such an act.\u00a0 But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.<\/p>\n

      But it is not with a view to infractions of the Constitution only that the independence of the judges may be an essential safeguard against the occasional ill humors in the society.\u00a0 These sometimes extend no further than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.\u00a0 Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.\u00a0 It not only serves to moderate the immediate mischiefs of those which may have been passed but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the court, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.\u00a0 This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of.[15]<\/a><\/p>\n

      As I mentioned earlier, the last set of quotes indicates that the Founding Fathers expected the courts to function as a special protector of minorities in two specific situations.\u00a0 In my view, those two situations are as follows.\u00a0 First, there may arise occasions where some \u2018ill humor\u2019 grips the populace so powerfully that it sweeps not just the House, but the Senate and the Executive also.<\/p>\n

      In other words, the traditional check on the House expected of the Senate, as well as from the President, fails, and there is an attempt to amend the Constitution to accommodate the \u2018ill humor\u2019 in question.\u00a0 Naturally, such an attempt will be challenged in the courts.<\/p>\n

      Since, however, both the legislature and the executive are behind the amendment, and (let us presume) a majority of the population is also behind it, the argument is put to the court that the\u00a0 amendment is what the people really want, and therefore the court should not get in the way.<\/p>\n

      More insidious, since the legislature and the executive are behind the change in question, either one or the other, or both, introduce some dangerous innovation\u201d, i.e. they exploit a loophole, or devise some technical manipulation, to try to give the change a semblance of constitutionality.\u00a0 Thus, when the argument is made that the impugned change is what the people really want, (and it may in fact be what the people want), it becomes tempting for the judges to go along with the \u2018innovation.\u2019<\/p>\n

      In my view, what Hamilton is saying is that in those circumstances, the Founding Fathers expected the judges to stand firm, and to say something to the effect, \u2018We don\u2019t care how many people support this amendment, or how clever a trick you\u2019ve devised to get around the Constitution, it\u2019s wrong and illegal, and we\u2019re not going to tolerate it!\u2019<\/p>\n

      Hamilton\u2019s second passage relates to Statutes other than the Constitution, and is even more interesting.\u00a0 It appears he is recommending an extraordinary extension of judicial discretion.\u00a0 He seems to be saying that the courts have the power, not just to strike down laws that violate or conflict with the Constitution, but to mitigate the severity and confine the operation of laws\u201d that, though compatible<\/em> with the Constitution, nevertheless are unjust or partial.<\/p>\n

      Hamilton is saying that in deciding whether a particular law is unjust and partial, the court is to consider whether the law in question proceeds from iniquitous motives<\/em> on the part of the legislature.\u00a0 His contention seems to be that the courts, when interpreting legislation, can consider not just the intention<\/em> of the legislature, but the motives<\/em>:\u00a0 as I said, an extraordinary extension of judicial discretion.<\/p>\n

      Hamilton no doubt recognized the grave danger in allowing the aforementioned type of extension.\u00a0 He must have hoped that matters would never come to a point where the courts will actually have to exercise the discretion he had in mind, i.e. that the legislature will be discouraged from pursuing the type of law in question out of the knowledge that the latter will eventually have to contend with the \u2018scruples of the court.\u2019<\/p>\n

      Nevertheless, in my view, it is clear Hamilton intended the courts to be able to overturn the aforementioned types of laws if and when the need arose:\u00a0 otherwise, why would the legislature fear the scruples of the court\u201d in the first place?\u00a0 In any event, my point is that it is reasonable to suppose that the Founding Fathers wanted the courts to have the aforementioned extended discretion.<\/p>\n

      To sum up, the Founding Fathers intended the Judicial Branch to perform two primary functions:\u00a0 first, the traditional function of interpreting the law and the Constitution, and of striking down any law that conflicted with the Constitution.<\/p>\n

      Second, the courts were to be a special protector of minorities on those occasions where the checks expected from the Senate as well as the President fail, and there is a possibility of an innovation\u201d being introduced to justify or rationalize a Constitutional amendment, and second, on occasions where an unjust or partial law, but one nevertheless compatible<\/em> with the Constitution, is being contemplated.\u00a0 So much, then, for the judicial branch.<\/p>\n

      To summarize the discussion so far, the Founding Fathers fashioned their overall plan of government to accomplish two things:\u00a0 On the one hand, to capture, at the very starting-point of the legislative process, as wide a range of the interests, sentiments and passions animating society at large, and on the other, to provide filters that could reduce the intensity of the aforesaid elements when it came to generating policy and law.<\/p>\n

      As I mentioned at the very start, I hope some of the ideas discussed above will be useful in the coming days and weeks.<\/p>\n

      Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of two books:\u00a0 The UN\u2019s Relentless Pursuit of Sri Lanka (2013), and, The UN\u2019s Subversion of International Law:\u00a0 The Sri Lanka Story (2015)<\/em><\/p>\n

      [1]<\/a> Jefferson to Madison, November 18, 1788, Life and Selected Writings of Thomas Jefferson<\/em>, ed. A. Koch and W. Paden, New York, 1944, p. 452.<\/p>\n

      [2]<\/a> See, Paul Craig\u00a0 Roberts, \u2018Bring Back Jimmy Carter,\u2019 www.counterpunch,org<\/a><\/em>, 27 October 2015<\/p>\n

      [3]<\/a> Benjanmin N. Cardozo, The Nature of the Judicial Process<\/em>, Yale, p. 22<\/p>\n

      [4]<\/a> All references are to, James Madison, Alexander Hamilton and John Jay, The Federalist Papers<\/em>, (ed. Isaac Kramnick), Penguin, London, 1987, p. 320<\/p>\n

      [5]<\/a> Ibid, p. 315<\/p>\n

      [6]<\/a> Ibid, p. 323<\/p>\n

      [7]<\/a> Ibid, p. 326<\/p>\n

      [8]<\/a> Ibid, p. 367<\/p>\n

      [9]<\/a> Ibid, p. 369<\/p>\n

      [10]<\/a> Ibid, p. 371<\/p>\n

      [11]<\/a> Ibid,\u00a0 p.395<\/p>\n

      [12]<\/a> Ibid, p. 401<\/p>\n

      [13]<\/a> I am aware that when Hamilton refers to minorities\u201d he means economic minorities and not ethnic or other minorities.\u00a0 But I believe the principle can be applied to those other categories also.<\/p>\n

      [14]<\/a> Ibid, p. 439<\/p>\n

      [15]<\/a> Ibid, p. 440-441<\/p>\n

      [1]<\/a> Jefferson to Madison, November 18, 1788, Life and Selected Writings of Thomas Jefferson<\/em>, ed. A. Koch and W. Paden, New York, 1944, p. 452.<\/p>\n

      [2]<\/a> See, Paul Craig\u00a0 Roberts, \u2018Bring Back Jimmy Carter,\u2019 www.counterpunch,org<\/a><\/em>, 27 October 2015<\/p>\n

      [3]<\/a> Benjanmin N. Cardozo, The Nature of the Judicial Process<\/em>, Yale, p. 22<\/p>\n

      [4]<\/a> All references are to, James Madison, Alexander Hamilton and John Jay, The Federalist Papers<\/em>, (ed. Isaac Kramnick), Penguin, London, 1987, p. 320<\/p>\n

      [5]<\/a> Ibid, p. 315<\/p>\n

      [6]<\/a> Ibid, p. 323<\/p>\n

      [7]<\/a> Ibid, p. 326<\/p>\n

      [8]<\/a> Ibid, p. 367<\/p>\n

      [9]<\/a> Ibid, p. 369<\/p>\n

      [10]<\/a> Ibid, p. 371<\/p>\n

      [11]<\/a> Ibid,\u00a0 p.395<\/p>\n

      [12]<\/a> Ibid, p. 401<\/p>\n

      [13]<\/a> I am aware that when Hamilton refers to minorities\u201d he means economic minorities and not ethnic or other minorities.\u00a0 But I believe the principle can be applied to those other categories also.<\/p>\n

      [14]<\/a> Ibid, p. 439<\/p>\n

      [15]<\/a> Ibid, p. 440-441<\/p>\n

      [1]<\/a> Jefferson to Madison, November 18, 1788, Life and Selected Writings of Thomas Jefferson<\/em>, ed. A. Koch and W. Paden, New York, 1944, p. 452.<\/p>\n

      [2]<\/a> See, Paul Craig\u00a0 Roberts, \u2018Bring Back Jimmy Carter,\u2019 www.counterpunch,org<\/a><\/em>, 27 October 2015<\/p>\n

      [3]<\/a> Benjanmin N. Cardozo, The Nature of the Judicial Process<\/em>, Yale, p. 22<\/p>\n

      [4]<\/a> All references are to, James Madison, Alexander Hamilton and John Jay, The Federalist Papers<\/em>, (ed. Isaac Kramnick), Penguin, London, 1987, p. 320<\/p>\n

      [5]<\/a> Ibid, p. 315<\/p>\n

      [6]<\/a> Ibid, p. 323<\/p>\n

      [7]<\/a> Ibid, p. 326<\/p>\n

      [8]<\/a> Ibid, p. 367<\/p>\n

      [9]<\/a> Ibid, p. 369<\/p>\n

      [10]<\/a> Ibid, p. 371<\/p>\n

      [11]<\/a> Ibid,\u00a0 p.395<\/p>\n

      [12]<\/a> Ibid, p. 401<\/p>\n

      [13]<\/a> I am aware that when Hamilton refers to minorities\u201d he means economic minorities and not ethnic or other minorities.\u00a0 But I believe the principle can be applied to those other categories also.<\/p>\n

      [14]<\/a> Ibid, p. 439<\/p>\n

      [15]<\/a> Ibid, p. 440-441<\/p>\n","protected":false},"excerpt":{"rendered":"

      DHARSHAN WEERASEKERA A Constitution is not a wish-list of everyone\u2019s favorite goodies.\u00a0 It is the Supreme Law of the Land, and the framework around which all other laws are to operate.\u00a0 So, the most important thing to consider when generating a new Constitution is the underlying principles that are to animate it. Unfortunately, there is […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-52345","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/52345","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=52345"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/52345\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=52345"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=52345"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=52345"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}