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
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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 |
