Sovereignty

Article 3 of the Constitution declares that sovereignty or the supreme power is in the people and is inalienable. The People, in whom the sovereign power resides, are the source from which the constitution itself derives its authority. The preamble of the constitution accordingly acknowledges the fact that all powers are derived from the people and that the people are the source of sovereign power.
Article 4 of the Constitution declares that sovereignty of the People is exercised through a National State Assembly of Elected Representatives of the People.

The Supremacy of the National State Assembly

As the supreme instrument of State Power of the Republic, the National State Assembly exercised

1. The legislative power of the people
2. The executive power of the people
3. The judicial power of the people through courts and other institutions created by law except in the case of matters relating to its powers and privileges wherein the judicial power of the people may be exercised by the National State Assembly, according to Law.

The President

The Constitution provides that there shall be a President who is the Head of the State. When the position of the President was being discussed at the Constituent Assembly, the members agreed that nomination was preferable to election by the House as election would involve the future President in a power struggle. The Constitution also provided that the President was the Head of the Executive and the Commander in Chief of the Armed Forces.

However, he was always, except as otherwise provided by the Constitution, required to act on the advice of the Prime Minister or  of such minister who was given authority by the Prime Minister to advise the President.

The Cabinet of Ministers

The Cabinet of Ministers consists of the party or parties which can command the support of a majority in the National State Assembly. The Constitution provided for a Cabinet of Ministers through which in addition to the President, the executive power was exercised and which was charged with the direction and control of the Government of the Republic. The Cabinet was made collectively responsible to the National State Assembly and answerable to it on all matters form which the minister was responsible.

The Constitution required that all ministers should be appointed from among the members of the National State Assembly. The Cabinet of Ministers was the central directing authority of the Republic, responsible for the formulation and execution of the National Policy.

Prime Minister

Under the first Republican Constitution the PM was the Head of the Cabinet of Ministers. Under the Cabinet System the PM who was called primus inter paresoccupies a position which, so long as it lasts as one of exceptional authority. His/Her control over the Secretariat of the Cabinet of Ministers enabled the PM to exercise control over the entire central government organization.

State Services Advisory Board
State Services Disciplinary Board

The Public Services Commission that existed under the Soulbury Constitution was done away with under the first Presidential constitution and the powers it held were vested to the Cabinet and two Boards namely State Services Advisory Board and the State Services Disciplinary Board.

Appointments to the posts of Heads of Departments and to such other posts were to be prescribed by the Cabinet of Ministers after receiving the recommendation of the Minister in charge. But the minister was expected to consult the State Services Advisory Board before such recommendation was made.

The Cabinet of Ministers was to excise their powers of dismissal and disciplinary control of state officers only after receiving through the Minister in charge of the Ministry or department to which a state officer was attached, a recommendation from the "State Services Disciplinary Board."

 The Judicial Power

Under the first Republican Constitution there was neither any separation of power nor the vesting of the judicial power solely in the established courts. The National state assembly was the supreme instrument of State Power and it exercised the Judicial Power of the people, through courts and other institutions created by law, except in matters relating to its powers and privileges

Judicial Services Advisory Board
Judicial Services Disciplinary Board

The Judicial Services Commission that existed during the Soulbury Constitution was scrapped by the first Republican Constitution and its duties were vested to the Cabinet and the two Boards namely Judicial Services Disciplinary Board and the Judicial Services Advisory Board.

control of Judges of the courts established under the Courts Ordinance. Presidents appointed under the Rural Courts Ordinance and State Officers constituting Labour Tribunals etc. was performed by the Judicial Services Advisory Board.

Dismissal and disciplinary control of Judges and other state officers administering justice was
exercised by the Judicial Services Disciplinary Board. It consisted of three members and the Chief Judge of the highest court with original jurisdiction was appointed Chairman of the Board

The Constitutional Court

Under the first Republican Constitution the power of judicial review was taken away from the courts. Legislation once enacted could not be questioned in a court of Law. It was however possible to contest the validity of a proposed Law (Bill) in a specially established Constitutional Court appointed by the PM, before it was enacted.
Under article 54 of the constitution a Constitutional Court was created. It comprised of five persons elected by the President for a period of five years. They were expected to determine whether any provision in a Bill was inconsistent with the constitution and such a bill was to be referred to the Constitutional Court by the Speaker and during this absence by the deputy Speaker.
But this process was rendered of little practical value because the challenge had to be mounted within very short period. Further the Constitutional Court was under an obligation to make its order with in 14 days which was not adequate to consider all relevant issues.

Fundamental Rights
In the election manifesto of the United Front it was stated that a comprehensive statement of Fundamental Rights and Freedoms will be included in the proposed constitution. Though there was a chapter of Fundamental Rights, critics of the Constitution were of the view that it was not sufficiently comprehensive.

The Fundamental Rights included Equality before Law, freedom from arrest and detention, freedom of thought, conscience and religion, freedom to enjoy and promote one's own culture, freedom of peaceful assembly and association, freedom of speech and expression including publication, freedom from discrimination in respect of public appointment on the ground of race religion caste or sex and freedom of movement and of choice of residence within Sri Lanka.

The exercise of the fundamental rights were subject to very wide restrictions. There was no procedural machinery set out for judicial enforcement of these rights in case of their infringement. These rights were enforceable only through ordinary legal remedies ( see Gunaratna v Peoples Bank). Further the list of rights incorporated in the constitution did not include all these recognized in the Universal Declaration of Human Rights.

Unitary State

Buddhism.

Article 6 of the Constitution provides that "The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18(1) d.

Official Language

According to article 7 of the Constitution "The official Language of Sri Lanka shall be Sinhala as provided by the Official Language Act, No.33 of 1956.

Article 8 (1) provides that the use of Tamil Language shall be in accordance with the Tamil Language (Special Provisions) Act No. 28 of 1958.

The Second Republican Constitution

Critics are of the view that the cardinal weakness of the first Republican Constitution was the over concentration of power in the National State Assembly. It was also reported that this particular constitution was based upon securing power and convenience of the rulers and not the rights and freedom of the people who were ruled.

After the breakup of the United Front between 1975and 1977 it was evident that the popularity of the SLFP was on the decline. At the elections held on 21st July 1977 the UNP polled 50.92 % of the votes securing 140 seats of the 168.

In the run up to the elections the UNP incorporated far reaching constitutional changes in its election manifesto. This decisive victory was treated by the UNP as an endorsement of its proposals for a major overhaul of the constitutional structure.

The first step in implementing the constitutional changes came in August 1977 in the appointment of a Parliamentary Select Committee on constitutional reform and the adoption by the National State Assembly of a constitutional amendment establishing a presidential system of government. Under the terms of this amendment Prime Minister J.R.Jayawardena assumed office of the first elected Executive President of the Country on 4th February 1978. The new constitution which came into effect on the 7th of September 1978 was a unique blend of features of American, French and British systems of Government

The President of the Republic

Article 30 of the Constitution provides that there shall be a President of Sri Lanka, who is the Head of the State and Head of the Executive and of the Government and the Commander in Chief of the Armed Forces.

In addition to all the powers that were vested in the Prime Minister under the 1972 Constitution, more powers have been added and conferred upon the President under the 1978 constitution.

Powers of the President were somewhat absolute and could be extended to every sphere of governance. Under this constitution he is not just an executive President, but also the Head of State, head of the executive and the Government. He is the Commander in Chief of the forces and also the fountain of all power. The Executive Power of the people will also be discharged by him.

Though the cabinet may change completely with the change of Government, the President will remain and continue as the Head of the next Government and the Cabinet perhaps belonging to a different political party. He will also select the next Prime Minister and the Cabinet. Though he is not a member of the Parliament he will distribute cabinet portfolios among new parliamentarians and keep a few for himself if he wishes to.

The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and Court of Appeal shall be appointed by the President. Every such Judge could be removed by an order of the President made after an address of Parliament supported by a majority of the total number of members of the Parliament.

The President by virtue of his office has the right at any time to attend, address and send messages to Parliament and to preside at the ceremonial sittings of Parliament.
He could receive and recognize and appoint and accredit, Ambassadors, High Commissioners,
Plenipote                    ntiaries and diplomatic agents.

He could declare war and peace and grant pardon to any convicted offender of any offence.
No proceedings shall be instituted against him in any court or tribunal in respect of anything done or omitted to be done, by him either in his official or private capacity.

He could be removed from office if he is found permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the President has been found guilty of

1. intentional violation of the constitution
2. treason
3. bribery
4. misconduct or corruption involving moral turpitude

In reality a president who has not completed his full term of office could be removed only at a presidential election if people wish. It is difficult to bring an impeachment against a president as the procedure involved is long and hazardous and the incumbent president could always block it through various means.

The constitution declares inter alia that upon the assumption of office the President shall cease to hold any other office created or recognized by the constitution and he shall not hold any other office or place of profit whatsoever.

The Prime Minister

The President shall appoint as Prime Minister the Member of Parliament who in his opinion most likely to command the confidence of Parliament. If the President's party has a majority in the Parliament, he can exercise a certain amount of discretion in his choice of a Prime Minister from among his party members.

Where the President's party is in a minority in Parliament, where it is controlled by a rival party or parties the President would have to come to a working arrangement with the PM.
The PM like other ministers continues to hold office throughout the period during which the Cabinet of ministers continue to function.

He could hold office unless he

1. Is removed by writing under the hand of the President
2. Resigns his office by writing under his hand addressed to the President.
3. Cease to be a member of Parliament.

If the office of President becomes vacant prior to the expiration of his term of office, the PM shall act in the office of President. He shall appoint one of his cabinet colleagues to act in the office of PM.

As the leader of Parliament, commanding confidence of its majority, the PM introduces and pilots important bills through the House and answer questions.

In comparison to the position and powers of the PM under the previous constitutions it is quite clear that his powers and importance have been greatly diminished under the Present Constitution.

The Cabinet of Ministers

The Constitution [Article 43 (1)] provides for a Cabinet of Ministers charged with the direction and control of the Government of the Republic and which is collectively responsible and answerable to Parliament. The President is a member of the Cabinet of Ministers and the Head of the Cabinet. He continues in office notwithstanding the dissolution of the Cabinet under the provisions of the Constitution. (Art. 43)

The Cabinet of Ministers except its head must be able to command respect of a majority in the Parliament.

The President may assign to himself any subject or function and remain in charge of any subject or function not assign to any minister. He may relieve any minister of his duties of the said minister to himself if he things appropriate.

Article 43 (1) provides that the Cabinet of Ministers shall be collectively responsible and answerable to Parliament