Methsiri Cooray in this book, which is a revised and updated version of the dissertation submitted to the University of Colombo in partial fulfilment of the course work required for the award of the Master’s Degree in Law, traces the history and engages in a constitutional analysis of the concept of pre-enactment judicial review of Bills presented in the Parliament of Sri Lanka.
The Supreme Court of Sri Lanka, under Article 120 is vested with the exclusive jurisdiction of pre-enactment judicial review to examine the consistency of such Bills with the provisions found in the present 1978 Constitution of Sri Lanka. The relevant constitutional provisions are examined in Chapter 1 as an introduction to the discussion.
While Article 121 provides for pre-enactment judicial review for unconstitutionality to be challenged within one week of the Bill being placed in the Order Paper of Parliament, Article 122 spells out the procedure for review of Bills certified as urgent in the national interest by the Cabinet of Ministers.
Questions relevant to the discussion have been raised in the introductory Chapter, the answers to which are found in the concluding chapter. Chapters II to IV deal with the historical aspects commencing from the time of the ancient Sinhala Kings up to the enactment of the first Republican Constitution of 1972 and the establishment of the Constitutional Court.
The significance of the period 1978 to 1994, subsequent to the enactment of the second Republican Constitution of 1978, is discussed in detail in Chapter V. The challenges to the Bills presented during that period have been discussed comprehensively and the findings of the Supreme Court in each case have been analyzed.
The comments made by the Supreme Court on the inadequacy of the time limit of one week for a citizen to petition the Court regarding the unconstitutionality of a Bill, the deliberate withholding of the Gazette Notification containing the draft bill from the public in some instances, the bypassing of even the limited time frame in the case of bills certified as urgent and the short time granted to the Court to arrive at a decision which enables only a cursory examination to be made indicate the shortcomings in the pre-enactment judicial review process provided for in the 1978 Constitution. It is preferable that the said drawbacks should be remedied either by an amendment to the present Constitution or in the enactment of a revised Constitution resulting in the guaranteeing of the sovereignty of the People of Sri Lanka.
The author states in the concluding chapter that the Supreme Court has played a significant role during the period 1978 to 1994 in pre-enactment judicial review, although in a restricted sense. The author quite rightly points out that due to the restriction placed by the provisions in the present Constitution, the Supreme Court cannot be blamed for the said position. As post enactment judicial review has been barred by Article 80(3) of the Constitution, it is advisable to remove the severe restrictions placed on pre-enactment judicial review so as to enable a more comprehensive analysis to be made by the Supreme Court on the constitutionality of a Bill before such enactment.
The general public who wish to be informed of the constitutional provisions and the procedure to invoke pre-enactment judicial review would greatly benefit by perusing the book. |
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