UNIVERSITY OF JAFFNA, SRI LANKA

FACULTY OF ARTS, DEPARTMENT OF LAW

BACHELOR OF LAWS-IN COURSE ASSESSMENT,
YEAR-I, SEMSTER-II
ALCLC 12024
THEORY & PRACTICE OF CONSTITUTIONAL LAW

Registration number of the student – 2022/L/004

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Word count – 1500 (Excluding Foot notes, cover page, Task page & Bibliography)
Contents

Task ............................................................................................................................................................... 3
Introduction ................................................................................................................................................... 4
Panel discussion of History, Parts of judicial review, Counter majoritarian difficulty ................................ 5
Brief history in Sri Lanka ......................................................................................................................... 5
What is counter majoritarian Difficulty? .................................................................................................. 5
Conversational essence of Pre-enactment judicial Review and fundamental rights within Sri Lankan
Context .......................................................................................................................................................... 6
Comparison of Sri Lankan Judicial Review with countries .......................................................................... 8
Judicial Review in India vs. Sri Lanka ..................................................................................................... 8
Judicial Review in Singapore vs. Sri Lanka ............................................................................................. 8
Recommendation for judicial Review of Sri Lanka .................................................................................... 10
Free of Judicial frame work .................................................................................................................... 10
Post-enactment judicial review ............................................................................................................... 10
Expanding the Public awareness ............................................................................................................. 10
Conclusion .................................................................................................................................................. 11
Task

"The recent legal challenges to the Online Safety Bill in Sri Lanka show us that post-enactment
judicial review of legislation is unnecessary in Sri Lanka. Our system of pre-enactment review
allows the judiciary to protect fundamental rights and ensures that laws passed by the
representatives of the people cannot be overruled by unelected judges. Sri Lanka has resolved the
counter-majoritarian difficulty. Describe with an essay sharing your opinion on whether or not Sri
Lanka should have a system of judicial review of legislation, and what kind of system best fits the
Sri Lankan context with your agree or disagreement.
Introduction

“Judicial review of the legislation is the power of the supreme court to decide if something is
allowed by the constitution” 1Judicial review of legislation is a mechanism of ensure that to the
laws which is pass by the parliament examine and determine whether that laws consists with the
constitution’s constitutionality. The concept encountered during the in-depth study of this
mechanism can be identified in mainly two ways, as pre-enactment and post enactment judicial
review. Within the territorial integrity of Sri Lanka has resolved the problem of counter
majoritarian difficulty as related to the judicial review process and also passed to protect
fundamental human rights. This essay defends that what is most suitable judicial review process
encover within the Sri Lankan context with a most counterproductively.

Key words: Judicial review, pre-enactment, post enactment, counter majoritarian difficulty,
unelected judges

1
Definition of judicial review noun from the Oxford Advanced American Dictionary
https://www.oxfordlearnersdictionaries.com/definition/american_english/judicial-review last accessed date 18th
of December 2023
Panel discussion of History, Parts of judicial review, Counter majoritarian
difficulty

In a democratic state, the power of judicial review is the planned mechanism that works primarily
to maintain the country's sovereignty, stability, and ensure basic human rights. This process
certified that upheld the supremacy of the constitution in a state. With the evaluation of
constitutional history some scholars like professor Wechsler, bickle who were good at law
attempted to analysis the process of judicial review of legislation.2

Brief history in Sri Lanka

According to the journey of evolution of political history in the Sri Lanka, soulbury constitution
didn’t define that process of judicial review. However the first republican constitution which was
established in 1972 article 54 (2) stated that the process of judicial review of legislation.3Under
the circumstances of this one week period some bills were detected as unconstitutional. The Sri
Lankan broadcasting authority bill also same as the online safety bill which was threat to
fundamental rights of freedom of expression.4.However under the pre enactment review it was
declared as a null and void. With the criticism of that one week period of pre-enactment judicial
review was change as two week period of time under 1978 constitution. It also were passed to
examine certain bills as unconstitutional.5

What is counter majoritarian Difficulty?

It should be discuss that the problem of counter majoritarian difficulty while arises while exercise
the judicial review process. The term of counter majoritarian difficulty was conversed by scholars
among the political society about twentieth century.6They further stressed that unelected judges

2
The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 VA. L. REV. 279 (1973). 2
3
1972 constitution of the democratic socialist republic of sri Lanka
<https://www.parliament.lk/files/ca/4.%20The%20Constitution%20of%20Sri%20Lanka%20%20-
%20%201972%20(Article%20105%20%E2%80%93134)%20Chapter%20XIII.pdf >last accessed date 18th of
December in 2023
4
Athukorale and others vs. A.G. (1997) SC SD NO.1/97 (sri lanka broadcasting authority bill)
https://www.article19.org/data/files/pdfs/cases/sri-lanka-leader-publications-v.-rubasinghe.pdf <last accessed
date 19th of December in 2023
5
Colombo Port City Economic Commission Bill -2021< https://www.cpalanka.org/the-centre-for-policy-
alternatives-guarantee-limited-and-dr-paikiasothy-saravanamuttu-vs-the-attorney-general-sc-sd-4-2021-in-re-the-
colombo-port-city-economic-commission-bill/ > last accessed date 18th of December in 2023
6
See Aargon Tang, Reverse political process Theory,70 VAND.L.REV.1427,1436 (2017)
has involve to the process for determine and nullify the actions of elected representatives. Also
Ely stated that history of the constitutional evaluation was developed unidirectionaly towards to
the greater majoritarian democracy.7

Conversational essence of Pre-enactment judicial Review and

fundamental rights within Sri Lankan Context

Furthermore,

According to the online safety bill it is important that to mention in here several numbers of
communities has shown up their opinions, arguments upon the bill. It refers the situation of the
minority & majority groups should be equally perform and prevail.it also upheld the separation of
powers8 and the check and balance9 process. For an example HCRSL commissioner Mr.Nimal G.
Punchihewa argues that about online safety bill “commission should work under the determination
of Supreme Court and the bill will be pass after it brought before the parliament” 10

However the ground whatsoever element of pre enactment review is more suitable sense than the
post enactment judicial review. the reason why am I mentioned that sometimes if the bill what is
adverse effect of basic rights to the human society declared as a law it will be harmfully affect to
the society.11Chapter III of the Sri Lankan constitution12 declared that the basic fundamental
human rights. The mechanism of pre enactment judicial review does not provide an opportunity to
riskful laws to be prevail what is infringe the basic rights.as an example online safety bill also
infringe and threat to the basic rights of freedom of expression.as of result supreme court held that

7
One discussion of “how scholarly concern with democratic deficits in American constitutionalism has shifted from
the courts to electoral institutions,” see Graber, supra note 3, at 362.
8
Judicial review and SOP
https://academic.oup.com/book/9766/chapter/156963424#:~:text=Judicial%20review%20of%20administrative%2
0action,jurisdiction%20of%20a%20public%20authority <last accessed date 20th of December in 2023>
9
Judicial check and balances/ journal of political economy: vol 112,no 2
https://www.journals.uchicago.edu/doi/10.1086/381480 <last accessed date 20th of December in 2023>
10
Speaking to the Sunday morning https://www.themorning.lk/articles/PhpqK2qdoIpRefZMjhmf < last accessed
date 20th of December>
11
National Transport Commission Act No.36 of 1996
Southern Area Development Authority Act No.18 of 1996 (these acts are yet remaining even it had been
recognize as unconstitutional)

12
1978 constitution of republic of sri lanka https://www.parliament.lk/files/pdf/constitution.pdf <last accessed
date 20th of December in 2023>
some clauses of the bill must be pass with the special majority or if those clauses are amended the
bill supposed to pass with a simple majority.13It clearly shown up that counter majoritarian with
in the Sri Lankan context has already avoided.

13
The morning newspaper Online Safety Bill Not out of the woods The Morning[1].pdf <last accessed date 20th of
December in 2023>
Comparison of Sri Lankan Judicial Review with countries

Judicial Review in India vs. Sri Lanka

Judicial review of India has plays vital role in duty of safeguard the constitution and people’s
supremacy. Article 13 of the India constitution declared that if any laws violates the fundamental
rights it should be void.14Supreme Court and the high court of India has authority power to
determine and examine the legislative actions15 and also issues different kind of writs16.In India
president and the governor of the state has authority to pass the ordinance which is subjected to
the judicial review17In sri lanka under 1978 constitution Art 121 (1) stated about the process of
pre-enactment judicial review. Both India and Sri Lanka have similar judicial review process since
about 1970.some of the cases which was held that in India deeply expressed that the power of
judiciary and the constitution supremacy after the review process.18According to the Dr. Arne
Mavic India follows the “high court model”.19The important fact to that should be mention in here
India has a post-enactment judicial review of legislation. But in Sri Lanka context post enactment
judicial review has abolished the post enactment judicial review. In summery India Has a much
stronger judicial review process when it consider with Sri Lankan context.

Judicial Review in Singapore vs. Sri Lanka

As well-known Singapore is a one of the country which is ruling under the strict law system.
Constitution of the Singapore derived the priority for the judicial review process. A primarily
power to declare the actions of the executive and legislative are vested in high court and court of
appeal. For a stronger process of review Singapore use some application20.some cases decided in
a supreme court of Singapore exposed that the democracy and stronger context of their review

14
India constitution https://legislative.gov.in/constitution-of-india/ <last accessed date 20th of December in 2023>
15
Austin, Granville (1999) working a democratic constitution: (oxford university press)
https://archive.org/details/workingdemocrati0000aust/ <last accessed date 20th of December in 2023>
16
Habeas corpus, mandamus, prohibition, certiorari, Quo warranto https://www.centurylawfirm.in/blog/judicial-
review-in-india/ <last accessed date 20th of December in 2023>
17
See Article 123,213 of the India constitution
18
Kesavananda Bharati v. State of Kerla (writ Petition (civil) 135 of 1970)
19
https://web.archive.org/web/20070708201911/https://www.concourts.net/tab/tab1.php <last accessed date
20th of December in 2023
20
https://singaporelegaladvice.com/law-articles/judicial-review-singapore-apply/ <last accessed date 20th of
December in 2023>
process21Singapore also maintain a process of not only pre enactment judicial review process but
also the post enactment judicial review.in sri lanka context there is no mechanism for after bill
becomes a law to be invalidate (pre-enactment).Singapore has identified that raised of hand for
restrictions on fundamental human rights under the influence of political interfere. Also in same
way Sri Lanka judicial system have affected on the political interference.

More views on,

1. Judicial review of Canada22

2. Judicial review of USA23

In summery there should be a free mechanism of judicial procedure without interfering improper
political entity within Sri Lankan context and it is also worth for collecting the positive parts and
elements of the other countries under that I had mentioned in above statement. Furthermore
information will be aspect to discuss in conclusion part.

21
Tan Eng Hong v. Attorney-general (2012) https://www.elitigation.sg/gd/s/2012_SGCA_45 < last accessed date
20th of December in 2023>
22
https://www.constitutionalstudies.ca/2019/07/judicial-review/ <Last accessed date 21st of December in 2023>
23
https://www.lexology.com/library/detail.aspx?g=f82b603e-f5c7-47fc-b5df-0d842cda12b8 <Last accessed date
21st of December in 2023>
Recommendation for judicial Review of Sri Lanka

Free of Judicial frame work

There must be an independence judiciary to ensure that balanced judicial framework with in the
country. It should be free from political interference. Procedures of nominate judges should be
release from the hand of political affiliations. Sri Lanka must be create new procedure for elect
judges and it will be value to independence and transparent groundwork.24

Post-enactment judicial review

The post enactment process was abolished in Sri Lankan context.it is proper to recommend that
there must be post review system for protect fundamental rights and the find out the irregularities
of the enacted laws. As proved information in above India, Singapore are follows the post
enactment judicial review for worthful ruling system.

Expanding the Public awareness

Most of the citizens in the country has no idea about the judicial review process.it must be raise
up the public awareness for to nourish their knowledge and They must be purely know their
fundamental rights through this process.

Not only that empower the judicial training and education, strength up the constitutional provisions
which is related to judicial review and through implementing those recommendations will be
enrich the constitutional context of Sri Lanka.

24
For more clarifications about independence of judiciary https://groundviews.org/2022/05/05/the-need-to-
restore-judicial-review/ <last accessed date 21st of December in 2023>
Conclusion

Under the deep view of democracy, some scholars concerned that judicial review process is not
democratic. However, within stability state there must be a mechanism of review the laws enacted
by the legislative body. According to the online safety bill it declared that the Sri Lanka has
resolved the counter-majoritarian difficulty and ensured that the protection of human rights and it
can be discuss as of proved above connexion. Within Sri Lankan context there is only pre
enactment judicial review and it must be amend and should include post enactment judicial review
for the betterment of the human society. Developed countries has already using the both procedures
for ensuring the human rights.

Sri Lankan constitution must be upheld the rule of law, enhance the supremacy of the judiciary
actions and upheld the actions of government. If these actions require to be fulfill there must be a
JRL. In the pleasant view, pre enactment judicial review process cover the considerable frame
work for upheld the basic human rights of the country.
Bibliography

Cases

1. Athukorale and others vs. A.G. (1997) SC SD NO.1/97

2. Kesavananda Bharati v. State of Kerla (writ Petition (civil) 135 of 1970)
3. Tan Eng Hong v. Attorney-general (2012)

Web Sites

1. Definition of judicial review noun from the Oxford Advanced American Dictionary
https://www.oxfordlearnersdictionaries.com/definition/american_english/judicial-review
last accessed date 18th of December 2023
2. 1972 constitution of the republic of sri Lanka
<https://www.parliament.lk/files/ca/4.%20The%20Constitution%20of%20Sri%20Lanka
%20%20-
%20%201972%20(Article%20105%20%E2%80%93134)%20Chapter%20XIII.pdf >last
accessed date 18th of December in 2023
3. https://www.article19.org/data/files/pdfs/cases/sri-lanka-leader-publications-v.-
rubasinghe.pdf <last accessed date 19th of December in 2023
4. Colombo Port City Economic Commission Bill -2021< https://www.cpalanka.org/the-
centre-for-policy-alternatives-guarantee-limited-and-dr-paikiasothy-saravanamuttu-vs-
the-attorney-general-sc-sd-4-2021-in-re-the-colombo-port-city-economic-commission-
bill/ > last accessed date 18th of December in 2023
5. Judicial review and SOP
https://academic.oup.com/book/9766/chapter/156963424#:~:text=Judicial%20review%20
of%20administrative%20action,jurisdiction%20of%20a%20public%20authority <last
accessed date 20th of December in 2023>
6. Judicial check and balances/ journal of political economy: vol 112,no 2
https://www.journals.uchicago.edu/doi/10.1086/381480 <last accessed date 20th of
December in 2023>
 7. Speaking to the Sunday morning
https://www.themorning.lk/articles/PhpqK2qdoIpRefZMjhmf < last accessed date 20th of
December>
8. 1978 constitution of republic of sri lanka
https://www.parliament.lk/files/pdf/constitution.pdf <last accessed date 20th of December
in 2023>
9. The morning newspaper Online Safety Bill Not out of the woods The Morning[1].pdf <last
accessed date 20th of December in 2023>
10. India constitution https://legislative.gov.in/constitution-of-india/ <last accessed date 20th
of December in 2023>
11. https://archive.org/details/workingdemocrati0000aust/ <last accessed date 20th of
December in 2023>
12. Habeas corpus, mandamus, prohibition, certiorari, Quo warranto
https://www.centurylawfirm.in/blog/judicial-review-in-india/ <last accessed date 20th of
December in 2023>
13. 1 https://web.archive.org/web/20070708201911/https://www.concourts.net/tab/tab1.php
<last accessed date 20th of December in 2023
14. https://singaporelegaladvice.com/law-articles/judicial-review-singapore-apply/ <last
accessed date 20th of December in 2023>
15. https://www.constitutionalstudies.ca/2019/07/judicial-review/ <Last accessed date 21st of
December in 2023>
16. https://www.lexology.com/library/detail.aspx?g=f82b603e-f5c7-47fc-b5df-
0d842cda12b8 <Last accessed date 21st of December in 2023>
17. For more clarifications about independence of judiciary
https://groundviews.org/2022/05/05/the-need-to-restore-judicial-review/ <last accessed
date 21st of December in 2023>

Books

1. The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59

VA. L. REV. 279 (1973). 2
 2. 1972 constitution of the democratic socialist republic of sri Lanka (department of Gov.
Press)
3. Aargon Tang, Reverse political process Theory,70 VAND.L.REV.1427,1436 (2017)
4. Austin, Granville, working a democratic constitution: (oxford university press),(1999 )

News papers

1. Sunday morning Newspaper

2. The morning newspaper

Bills

1. sri lanka broadcasting authority bill - 1997

2. Colombo Port City Economic Commission Bill -2021