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FUNDAMENTAL LEGAL AND POLITICAL RULES IN THE SCOPE AND THE DEFINITION OF THE CONSTITUTIONAL LAW

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The constitution is the higher law of the state and it is the principal source of the law and acts as the supreme and fundamental law of the state. Every citizen including ordinary law-making institution is the subjects of the constitutional law.
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  1 FUNDAMENTAL LEGAL AND POLITICAL RULES IN THE SCOPE AND THE DEFINITION OF THE CONSTITUTIONAL LAW 1.   Most of the constitutions of the contemporary states describe the legal nature of the state with rudimentary notions statecraft such as basic principles of the state, its sovereignty, separation of power and institutions of the government and fundamental rights of the people. Therefore constitution is the higher law of the state that need special procedure to amends; repeal, altered or added. Accordingly, this higher law is referred as constitutional Law and it is the principal source of the law of the state in which all other laws are being derived 1 . According to Katabaro and Jackson, constitution is the mother law of the state in which all other laws are subjected to it. Therefore, constitutional law acts as a capstone law in the legal hierarchy and, it is the supreme and fundamental law of the state 2 . 2.   Constitution of the country has got a binding effect over its people and the institutions of the state which are the subjects of legal person. It determines the constraints of the structure of the power where the execution of the power must always be done in accordance with the constitutional provisions. It expresses the political ideology of the people together with historical traditions and right of the people as citizens of the state. In a democratic society sovereignty of the state is with the people. As constitution law is made by the law making institutions in accordance with the consent of the people it has got a widespread public legitimacy and certain procedures are to be adopted to change the constitution which is generally a hard approach. Finally, constitutional laws of the country are always being in accordance with the internationally recognized standards in order to achieve due recognition to the constitution as a supreme and fundamental law of the state. 3.   Every citizens and the ordinary law making institutions of the state are under the  binding effect of its constitution. Constitution is the ultimate legal authority. Therefore, every citizen is under the binding effect of the constitutional law. It is therefore applied to every citizen as in the legal context; it concerns the relationship between individual and the state. Especially, in the fundamental chapter of the several contemporary constitutions ensures the equality before the law that no other person or institution could act against it. For example Chapter III of the Sri Lankan constitution says the Fundamental Rights that Sri Lankan citizen 1  International IDEA journal Article, ‘ What Is a Constitution ’, 2014.   2   Katabaro and Jackson, ‘ The Meaning and Function of the Constitution ’, 2016 , PL1-5.  2 can enjoy on freedom of thought, freedom from torture, Freedom from arbitrary arrest, Freedom of speech and right access to information 3 . The Article 12 of the constitution under the Chapter III says that ‘All persons are equal before the law and are entitled to the equal  protection of the law 4 ’. On the other hand, no citizen can  be opted out from the binding effect of the Constitutional Law as it preserves the Fundamental Right of the people that all are bond to protect. It is the duty of the every citizen of Sri Lanka to uphold and defend the constitution and the law 5 ’ according to the Article 28 (a) of the constitution. Further, Part III of the Indian constitution also determines fundamental rights of its people; especially Article 14 of the same guaranteed the equal protection of the laws within the territory of India. Not only the citizens, ordinary law making institution  –   basically parliament of the state also performs under the  binding effect of the constitution. It is the duty of the parliament to duly pass the laws in accordance with the constitution. Sri Lanka for example exercises the sovereignty of the  people by legislative power by parliament as stated in the Article 4 (a) of the constitution. Further, whole Chapter X and XI of the constitution state the power and function of the  parliament. Therefore, there is no room available parliament to pass any law against the constitution as it is being reviewed for several times by the different institutions such as Attorney General Department as mentioned in the Article 77 of the constitution, by the Supreme Courts of Sri Lanka as mentioned in the Article 121 of the constitution and, at the committee stage. Therefore, it is clear that every citizen and the ordinary law making institutions are under the biding effect of the constitution of the country. 4.   Constitution determines and set limitations of the structure of the power of the country. There are different structures of power in contemporary states. Those are basically identified as Unitary, Federal and Confederation models. Therefore, the main duty of the constitution of the state is to explain the structure of the power of the state. For example Article 2 of the Sri Lankan Constitution says that Sri Lanka is a unitary state 6  that has a highly centralized government authority, in that local governments are depend upon the central government and substantial authority is concentrated with central government. Article 40 and 41 of Chapter 3 of the South African constitution also describe the similar idea on power structure such as Sri Lanka. Further, Indian constitution for example, is a Union state 7  which has more federal 3  Chapter II I of the Constitution of Democratic Socialist Republic of Sri Lanka, 1978.  4  Ibid. 5  Article 28(a) of the Constitution of Democratic Socialist Republic of Sri Lanka, 1978.  6  Article 2 of the Constitution of Democratic Socialist Republic of Sri Lanka, 1978.  7  Article 1 of the Indian Constitution, 1950.  3 features. In that, state governments possess relatively autonomous level of government yet central government still powerful over several matters. USA is the best example for federal  power structure where States Governments are able to act directly on behalf of the people. It is said that the constitution of USA intends to safeguards State interests while creating a strong union led by an effective centralized central government. It is hard to find confederation state with very centralized power concentrated around local governments with weak a central government. However, Europe Union may be the good example for the confederation power structure. Further, the constitution determines parameters of the structure of state. The nature of the power shared between central and local government determines nature of the power structure. It is the main responsibility of the constitution to determine the level of power to be shared. After the 13 th  Amendment to the Sri Lankan constitution in 1987, the Provincial Council system came to exist in Sri Lanka and Article 154 G explains the matters regarding statutes of Provincial Councils. Articles 154 G (1), 154 G (5), and 154 G (7) state the matters set out in List I , II and III of the Night Schedule - Provincial Council List, the Reserved List and the Concurrent List respectively 8 . Accordingly, Local Governments are constrained to make any laws related to national policy, national defence, foreign affairs and mineral and mines etc. while central government has granted local government to make laws related to social welfare of the province, implementation of provincial economic plans and provincial educations etc. 5.   Transferring of the sovereignty from king to the people has a long historical evolution in the different school of thoughts in the political science. This evolution results the system of government rule by the people called democracy. It evolved through ancient city states of Rome and Athens, Westphalia Treaty, French Revolution and American Revolution etc. Further, the democracy is totally opposite to dictatorship or tyranny. Larry Diamond argues that democracy has got four main elements. They are free and fair elections to appoint the government, active participation of the citizen in government ruling process, protection of Human Rights and the presence of rule of law. Therefore, it is clear that in the democratic society people are having an absolute power to establish the government and participate in ruling process electing their representative to the government 9 . Therefore, sovereignty of the state srcins within its people. Article 3 of the Sri Lankan constitution says that sovereignty of the state is in the people and is inalienable and it includes the power of government that of 8  Article 154 G of the Constitution of Democratic Socialist Republic of Sri Lanka, 1978.  9  Diamond. L, "What is Democracy ”,  Lecture at Hilla University for Humanistic Studies, 2016..  4 legislative, executive and judicial institution and, Fundamental Right and the Franchise. Further, Article 19 of the South African constitution state that every citizen is free to make  political choice and they have right to enjoy free and fair regular election under the terms of the constitution and all adult citizen are having right for vote and stand for public office and if selected to hold the office. Therefore, it is clear that in a democratic society sovereignty of the state is with the people. 6.   There are countries with written constitution such as Sri Lanka, USA and Indian and, with unwritten constitutions such as United Kingdom and Israel. Some constitutions are flexible and some are rigid while some constitutions are granted and some are autonomous. This fact shows the constitution of the country may express political ideology of the state and its historical evolution and the traditions. However, it is believed that people have the right to formulate constitution of their own with respecting to internationally recognized norms. During the cold war era there were two main political ideologies existed such as capitalism and the socialism. Constitution of the countries like USA express their capitalist political ideology while Russian constitution says that ‘ Russian Federation shall be a social state whose policy is aimed at creating conditions ensuring a worthy life and a free development of Man 10 ’ and Chinese constitution says that ‘The  People's Republic of China is a socialist state under the  people's democratic dictatorship led by the working class and based on the alliance of workers and peasants 11 ’. Therefore, it is correct to say that the constitution expresses the political ideology of the people. Sri Lanka for example, constitution gives foremost place for Buddhism  by the Article 9 the constitution while assuring right of the other religions according to Article 10 and 14(1) (e). This shows the relationship between historical tradition and the constitution of the country as Buddhism has long rooted history in Sri Lanka. The rights of the citizens are also express in the most of the contemporary constitutions. People have the inalienable sovereignty in the democratic system of government. Therefore, constitution is to express the right and privilege of the citizens as it mentioned in the chapter V of the Sri Lankan constitution, Part II of the Indian Constitution and Article 3 of the South African Constitution. 7.   The law making process is done by the parliament of the state in the constitutional democratic countries. Parliament consists of representatives of the people as sovereignty of the  people being exercise through the three main institutions namely executive, legislative and the 10  Article 7 of the Constitution of Russian Federation. 11  Article 1 of the People’s Republic of China.    5  judiciary. The doctrine of separation of power is therefore a significant and a main characteristic in the democratic system of governance that confirms the rule of law of the country. Therefore, certain procedures are being laid down and law making power of the  people is vested upon the parliament. Article 4 (a) of the Sri Lankan constitution for example has given legislative power of the people of Sri Lanka to the parliament which consists of elected people representatives of the people and people exercise their by the people legislative  power by the free and fair election or by the people at a referendum 12 . It further facilitates  parliament to possess a certain privileges given in the constitution and parliament can have Standing Orders for its function as provided by the Article 74 of Sri Lankan constitution. Moreover, constitution acts as the supreme law of the country. Therefore, it is not always flexible to repeal, remove or added it provision which needs special procedure to be adopted. Most of the contemporary constitutions in the worlds are rigid and fundamental laws of the constitution cannot be changed in the same manner as ordinary laws being passed and sometime cannot be changed at all. USA, India and Sri Lanka are the example for rigid constitution and UK is the example for country with unwritten and flexible constitution. Sri Lankan constitution for example constitutional amendment Bill has to be passed with a majority of two-thirds or both a majority of two-thirds and the approval at a referendum 13 . However, anything contrary to the matters mentioned in the Article 83 of the constitution shall approve only by the people at a referendum. Therefore, constitution and its provisions have got a widespread public legitimacy and no law can go against the constitution. 8.   Constitutionalism has a long evolutional history. Although it has been srcin from the  people’s  sovereignty, there are some universally accepted norms and practices that must be  protected by the constitution of the state. Rule of Law for example has played a major role in every contemporary constitution. It was developed thorough early idea scholars like Socratic, Plato and Aristotle. Lord Chief justice Coke argues that the “ king or a ruler himself should not make the laws for the people and the laws made by the many are better than that formulated by any individual ” 14 . Later, rule of law became a measurement to evaluate the state against  peculiar system of government. The contributions of the scholars like Diecy, Wade and Phillip and Jennings had set certain internationally accepted standards such as the doctrine of welfare state, equally before law or  prima facie , and the concept of ‘ no man is above the law ’ . 12  Article 4 (a) of the constitution of Democratic Socialist Republic of Sri Lanka, 1978.  13  Chapter XII and XIII of the constitution of Democratic Socialist Republic of Sri Lanka, 1978.  14   Lord Chief Justice Coke, in the case of Proclamations (1610) 77 ER 1352.
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