Introduction

A well known convention in Constitutional Law, known as the division of

powers, recommends that in the fundamental organs of the State- Executive, Legislature and Judiciary, none of the three branches may work out the control of the other,

nor ought to any individual be a part of any two of the branches.

Montesquieu in 1748: has made a clear explanation to this impact which says that when the authoritative and official powers are joined together in the same individual, or in the same body of officers, there can be no freedom… there is no freedom if the powers of judging is not isolated from the administrative and official… there would be

an conclusion to everything, if the same man or the same body… were to work out those three powers.

More than in  Britain, United States closely takes after this tenet where Congress

is chosen independently from the President, who does not sit as portion of the council. The Preeminent Court can pronounce the acts of both Congress and President to be unconstitutional.

In the UK, the executive comprises the Crown and the Government, including the Prime Minister and Cabinet ministers. The executive formulates and implements policy. The legislature, Parliament, comprises the Crown, the House of Commons and the House of Lords. The judiciary comprises the judges in the courts of law.

However numerous nations select for a compromise where a few capacities are shared between the organs of state. In the UK, the powers of Parliament, Government and courts are closely intertwined.

GENERAL POSITION

Parliamentary  privilege

It is commonly accepted that the parliament enjoys a principle of privilege of speech and debate. It would thus be ultra vires for the courts to act contrary to this principle . The court has no powers to restrict of prohibit parliamentary debates.

Sub judice

This rule is there to ensure that on a matter that is still being discussed in a court of law, the parliament should not take up the same matter for debate or question. This does not prevent the Parliament from legislating on any matter.

POSITION IN SRI LANKA

SL Constitution 1978

The Constitution of 1978 declares Sri Lanka a unitary state and vests sovereignty in its people. Sovereignty while being inalienable includes the powers of government. The roots of the doctrine of separation of powers are engraved in Articles 3 and 4 of the Constitution. Since, the sovereignty of the people is inalienable it may be safely assumed that powers of government are also inalienable, as the former includes the latter. Article 4 of the Constitution, describes the mode in which the powers of government are to be exercised.

The Sovereignty of the People shall be exercised and enjoyed in the following manner:–

1. the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum;
2. the executive power of the People, including the defense of Sri Lanka, shall be exercised by the President of the Republic elected by the People;
3. the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the constitution or created and established by law.

Cabinet Ministers other than the President are members of the Executive while also being members of the legislature, thus there appears to be some fusion here between both Executive and Legislature and they are answerable to the Legislature.

Both Judicial and Legislative powers are exercised by the Parliament but in practice judicial functions are exercised through courts. Judicial members cannot hold any office in Parliament. However on matters relating to Parliamentary privilege, the exclusive judicial powers are exercise by Parliament which appears a dilution of separation of powers.

Presidential actions in his Ministerial capacity can be challenged by a writ but it is doubtful whether his acts as the Head of State could be challenged in the same manner

Presently only pre enactment judicial review of legislation is permitted. However we observe that before the first Republican Constitution, post enactment legislation was also included. Now once the bill has been certified by the Speaker it becomes Law and cannot be challenged in a court of Law. A recent example of the Online bill is an interesting case for discussion.

Prior to the 17^th amendment to the Constitution The President had exclusive rights to appoint judges of superior courts. The amendment sought to set up constitutional council which was required to approve the recommendation of the President thus eroding the powers of the President.

Prof.Dr.Lakshman Madurasinghe PhD., LLD., D Litt