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The Doctrine of Public Trust

Upholding the sovereignty of the people:

Following is the Inaugural Commemorative Oration delivered by Chief Justice Sarath N. Silva PC at the 125th Anniversary Celebration of the Attorney General’s Department held at the BMICH on May 12.

The topic encompasses concepts of Constitutional Law that pertain to the sovereignty of the People and the Rule of Law. These concepts have evolved in Constitutional Law to safeguard the rights of the people, but, if a question is asked from any ordinary person as to what the concepts mean, the answer would be:

“I do not know; all that I know is that periodically through the exercise of the franchise groups of persons are elected to office at different levels; their decisions are carried out by public officers and enforced by the Police and the Armed Forces and if my rights are affected, I plead for relief from the Courts”.

This sadly is the reality. Elegantly worded concepts intended for the benefit of the people go over their heads. These concepts remain in the domain of the written law, Judgments, legal literature, Institutions teaching Law and of course as subjects in symposia probably addressed by the same persons. A veritable flapping of silvery wings in an ivory tower.

Sovereignty of the people

Ironically the term “sovereign” was initially used to designate a Ruler or Monarch who had total power over his people. It thus denoted power over people and not power of the people. Sadly, which notions linger on pervasively, heightened by the introduction of the Executive Presidency in the 1978 Constitution.

The other use of the word “sovereign” is to designate a State or county which is independent and free from any external force. Today, with globalization, not only in the area of Trade, Commerce, Finance and Information but also in the spread of epidemics and worse still terrorism, barriers of sovereign States have become lower and lower. The word itself has got lost in a somewhat dreary desert. Hence we have to look to its practical dimensions.

Natural law


Attorney General Mohan Peiris PC presents a memento to Chief Justice Sarath N. Silva PC. Picture by Ranjith Jayaweera

The power of the Monarch identified as ‘summa protestas’ (total power) in the 16th Century by Jean Bodin and in the 17th century a ‘majestas’ by Thomas Hobbes acquired a practical dimension in the theory of Positive Law espoused by Jeremy Benthem (1748-1832) and John Austin (1790 - 1859). The Austinian theory represented an intellectual reaction against theories of natural law which sought to discover principles of universal validity on which the law is grounded. Thus, theorists of natural law sought to discover what ‘ought’ to be the law and the Austinian theory accented on what ‘is’ the law and traced its origins to the commands of the sovereign. I would quote a passage from Dias on Jurisprudence which cites a statement from the old texts specifying the content of the theory of Positive Law and more specifically the two meanings of the word ‘sovereign’ referred to by me previously.

“If a determinate human superior, not in the habit of obedience to a like superior, receive habitual obedience from the bulk of a given society, that determinate superior is sovereign in that society, and the society (including the superior) is a society political and independent.”

Dias, makes a valid point in observing that the required attribute of a sovereign in receiving “habitual obedience from the bulk of a given society,” reveals that every legal system is ultimately founded on some fact for which no justification can be adduced in law.”

Professor K.N. Jayatilleke in his collection of essays titled “Dhamma Man and Law” states in reference to the Buddhist conception of law and sovereignty as follows:

“It means that ultimate sovereignty resided not in any ruler, human or divine, nor in any body governing the State nor in the State itself but in Dhamma, the eternal principles of righteousness.

Dhamma

This is not to be interpreted to mean that Dhamma is some sort of mysterious entity but that it is only to the extent to which states conform with Dhamma in their internal and foreign policy, that man can achieve his legitimate aspirations for peace, prosperity and happiness. Since man is free to choose and the power and right to govern is vested in the people according to the Buddhist social contract theory, it would be the responsibility of man to set up such States.

Since sovereignty does not reside in the king or body delegated to govern the State, Buddhism does not view with favour the belief that they are immune from the operations of the laws they enact. Another corollary of this theory is that it would not be consonant with the Austinian conception of the law as the command of a sovereign. Our allegiance to a law-making body is always qualified and the unjust legislation of such a body need not justify obedience.”

Social contract

It is seen that Professor Jayatilleke in presenting the Buddhist conception has alluded to the ‘social contract’ theory of writers such as John Locke (Civil Government 1690) and Thomas Paine whose initial writing were simply titled ‘Common Sense’. They espoused the present conception that power resides in the people and exercised by those who govern on a ‘compact’ with the people. The oldest surviving written constitution being that of the United State of America has been heavily influenced by these writings.

Although Sri Lanka has a written history which recounts a monarchical system of government stretching beyond 2500 years, the power of the Monarch was not absolute nor of divine origin as postulated by Bodin and Hobbes. It was more akin to the lineage of “Mahasammatha” in Buddhist literature which connotes the highest acceptance by the people. A practical dimension of the sovereignty of the people which then prevailed can be gleaned from a graphic description of a ceremony for the installation of a Monarch in ancient Sri Lanka given by Dr. A.R.B. Amerasinghe, in his work titled. “The Legal Heritage of Sri Lanka”, which I would quote:

“At the ceremony for the installation of a monarch (abhiseka), which was introduced in the second half of the third century B.C., maiden of nobility (Khattiyakanna) took with both hands a marine shell, the spiral of which wound to the right, which was filled with water from the Ganges river, poured the water on the king’s head and said” “Or Majesty, all the clans of the nobility make thee for their own protection and security by this consecration a consecrated king; rule though with justice and peace persisting in the law..... “Then the domestic chaplain (purohita) of the royal court, poured water from a silver shell with the same words, only substituting ‘brahmana clans’ for noble clans. The foreman of the guilds (setthi) performed the same ceremony for the householder clans (gahapati-gana), using a golden shell (ratana-sankha). Paranavitana stated that “these details are reminiscent of a time when the king was elected by the three main divisions of the Aryan social order, a conclusion which is also supported by the titles like gamani and maparumaka, borne by the early kings. “There was an address by three persons who said: “If thou will rule in the manner as we said, well: but if thou does not do so, thy head will split into seven pieces.’ This was a warning that was meant to be taken seriously.”

Vision

Mr. Attorney, Your Lordships, Ladies and Gentlemen, I have had the unique privilege of administering the Oath of Office to two elected Executive Presidents and an acting President (a rare appointment that was made) and have to state that the Oath of Office in the Fourth Schedule to our Constitution pales into insignificance in comparison to the ancient ceremony of ‘abhisheka’ which had all the vibrance, depth and significance. On a lighter vein I may add that we could consider an appropriate Amendment to our Constitution. We may reasonably anticipate the elusive two-third majority in Parliament with our Members being stuck by the vision of a maiden of nobility (Khattiyakanna) getting sufficiently proximate to anoint them with water from a Valampuri. Perhaps, even that may not fire the dormant Opposition.

Thus we get three dimensions of the sovereignty of the People”

i) election by the People;
ii) acceptance by the People; and
iii) sanctions that follow

The missing element, necessary to bind the three dimensions is the Doctrine of Public Trust being the second component of the title.

To be continued

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