Constitutional Lawyer

The constitutional lawyer is the legal practitioner who works at the highest level of the legal system — where law constrains; channels; and defines the exercise of State power. Constitutional law practice is not a separate professional qualification in Sri Lanka; it is a specialisation built within the general legal career; but it is a specialisation of exceptional intellectual and practical importance that defines some of the most important legal work performed in the country. The Constitution of the Democratic Socialist Republic of Sri Lanka 1978 (the Second Republican Constitution; replacing the 1972 Soulbury Constitution successor) is the supreme law of Sri Lanka; all other laws are subordinate to it and invalid to the extent of inconsistency (Article 120 read with Articles 121; 122; 123; 126; 128; 131; 154G). The constitutional lawyer's work draws on: Chapter I — The People; Democracy; and the Republic (Article 1–8: the unitary state; sovereignty; the executive; legislative; and judicial power in the People; the supremacy of the Constitution); Chapter II — Buddhism (Article 9 — Buddhism the foremost place; the duty of the State to protect and foster the Buddha Sasana); Chapter III — Fundamental Rights (Articles 10–16A — the civil and political rights; the social and economic rights; the equality guarantee; the freedom of expression; the freedom from arbitrary arrest and detention; the freedom of religion; the language rights; the application to all government and administrative action); Chapter IV — Language (Articles 18–24; the official language provisions; Sinhala the official language; Tamil official language and language of administration; English link language; the language rights in courts; the 13th Amendment official language provisions); the Executive (Articles 25–64 — the directly elected President; the executive powers; the Cabinet; the Prime Minister); Chapter VIII — Legislature (Articles 65–107 — Parliament; the composition; the legislative power; the privileges of Parliament); Chapter IX — The Judiciary (Articles 105–130 — the Supreme Court as the apex court; the Court of Appeal; the High Courts; the District Courts; the Magistrates' Courts; the security of tenure of judges; the jurisdiction of the Supreme Court); Chapter XVI — Fundamental Rights jurisdiction (Article 126 — the right of any person to apply to the Supreme Court for relief in respect of a fundamental right infringed or about to be infringed by executive or administrative action — the primary constitutional remedy in Sri Lanka's legal system); Article 121 — Determination of constitutionality of Bills (the pre-enactment constitutional review process before the Supreme Court; where the President; the Supreme Court; or one-third of MPs refers a Bill for constitutional review before it is certified; the Supreme Court has 3 weeks to determine whether the Bill is inconsistent with the Constitution — giving the constitutional lawyer the opportunity to challenge legislation before it becomes law); Chapter XVII — Emergency Powers; Chapter XVIII — Amendment of the Constitution (Article 83 — the entrenched provisions requiring a two-thirds majority in Parliament and a national referendum — the People's sovereignty provisions; the fundamental rights chapter; the Buddhist foremost place; cannot be amended without a referendum); and the Provincial Councils legislation under the 13th Amendment to the Constitution. The major constitutional amendments are: the 13th Amendment (1987 — devolution to Provincial Councils; official language rights for Tamil; the merger of the Northern and Eastern Provinces — since reversed); the 17th Amendment (2001 — the Constitutional Council and independent commissions for Elections; Police; Public Service; Bribery; Judicial Service); the 18th Amendment (2010 — removal of the two-term limit on the presidency; abolition of the 17th Amendment Constitutional Council); the 19th Amendment (2015 — restoration of the two-term limit; reduction of presidential power; restoration of the independent commissions); the 20th Amendment (2020 — restoration of expanded presidential power; reduction of Constitutional Council role); the 21st Amendment (2022 — restoration of Constitutional Council provisions following the 2022 constitutional crisis and popular uprising). The constitutional lawyer's practice includes: fundamental rights petitions to the Supreme Court (Article 126 — the most frequent vehicle for constitutional litigation; bringing cases of unlawful arrest; police torture; arbitrary dismissal from public service; unconstitutional administrative decisions; restriction of freedom of expression and assembly; discrimination cases); Article 121 constitutional Bills reference (advising Members of Parliament; the President; or civil society organisations on whether a pending Bill is unconstitutional; preparing submissions to the Supreme Court in the Article 121 determination process); writ jurisdiction in the Court of Appeal (Article 140 — certiorari; mandamus; prohibition; quo warranto — the prerogative writs against inferior courts; tribunals; and statutory bodies for unlawful or ultra vires action; the Court of Appeal writ jurisdiction is the second major route to constitutional and administrative law relief); election law (Article 89 — the provisions on persons qualified and disqualified to be elected as Members of Parliament; the Court of Appeal election petition jurisdiction; the Supreme Court Article 128 opinion jurisdiction; the Peoples' Representation Act No. 15 of 1981); provincial councils and devolution (the Provincial Council Acts; the 13th Amendment devolution powers; the disputes between the Centre and the Provinces; the inter-governmental constitutional relationship); and constitutional advisory (advising the President; Cabinet; Parliament; and Parliamentary Select Committees on the constitutional implications of proposed legislation; executive action; and policy).