Presentation made at the National Law Summit held on 30th July at Monarch Imperial Hotel. The participants exceeding 1000 consisted of Ambassadors, Party Secretaries, Lawyers, Professors, Academicians, Members of Parliament and Civil Society Leaders.
Some consider it as one of the most successful improvements
on the traditional European, parliament-oriented concepts of democracy and the
rule of law.
It exists in about 85 countries around the world. Out of 27
EU nations, 16 have Constitutional Courts. Became popular between 1945-56 in
Austria, Germany and Italy. It is used in South Africa, Spain, Indonesia,
Thailand and South Korea. Under 1972 Constitution Sri Lanka had a
Constitutional Court but many have raised questions whether it was a real court
with adjudicative powers.
Jurist and Legal Philosopher Kelson played a key role in
setting up in Austria. Federalism remains a key aspect of Austrian
constitutional adjudication to this day while the constitutional court
continues to serve as an irreplaceable pillar of federalism in the framework of
Austrian constitutional law.
PURPOSE
The purpose of a Constitutional Court is to review laws, and
usually also executive acts and decisions, to decide whether hey are
constitutionally valid and provide a remedy in cases where they are not. It
would be an exclusive power of the
Constitutional Court.
Unlike traditional courts, constitutional courts can often
perform abstract reviews of laws as well as concrete reviews.
Abstract review may be a priori (before
a Bill is promulgated as law) or a posteriori (after
a Bill becomes law).
A vital area is for the court to be empowered to perform
post-enactment review. Post-enactment reviews were seen under
the Soulbury Constitution in 1946 but removed under the 1972
Republican Constitution.
Post-enactment review is seen in India -Articles 13.32.131 and
South Africa 172.
COMPOSITION, POWERS, STANDING AND CHALLENGES
- Fixed
term or permanent appointment?
- Inclusion
of foreign judges
- Inclusion
of academics
POWERS
All constitutional courts share the core power to invalidate
legislation deemed incompatible with the Constitution.
- The
power to strike down laws
- The
power to suspend a declaration of invalidity
STANDING
A citizen should be able to question the validity of any
executive or legislative act which includes an act that is claimed
to infringe a fundamental right on the grounds of
inconsistency with any provision of the Constitution.
In Sri Lanka today the Supreme Court shall have sole and
exclusive jurisdiction to determine any question as to whether any Bill or any
provision thereof is inconsistent with the Constitution. It shall have sole and
exclusive jurisdiction to hear and determine any question relating to the
interpretation of the Constitution. Lower courts
have no power to address constitutional matters.
Challenges to a Constitutional Court: In addressing
‘transitional justice’ questions, such as assessing the validity of amnesty
laws or the validity of trials of former regime officials, and assessing the
constitutionality of laws
passed by the previous regime. In implementing changes
in courts the best approach in the current climate is
to embrace “constitutional incrementalism”
rather than dramatic change.
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