“Law should reflect common sense” | Sunday Observer
Understanding legal issues of the common man

“Law should reflect common sense”

15 May, 2022

In an attempt to understand through mass media, the relationship between law and society we intend to seek clarifications on various legal issues, that have an impact on the common man. We have sought out Shaheeda Barrie, Attorney-at-Law, who has agreed to provide answers to the questions posed, as a pioneering public educational exercise.

Shaheeda Barrie, Attorney-at-Law and Barrister-at-Law (Gray’s Inn, London), is a retired Deputy Solicitor General of the Attorney General’s Department of Sri Lanka. She holds an LLB (First Class Honours) from the London School of Economics and Political Science, UK, the post graduate degree of Bachelor of Civil Laws(BCL) from the University of Oxford, UK, and an LLM(Summa Cum Laude) from the American University, Washington College of Law, USA. She is a Commonwealth Scholar and a Hubert H. Humphrey Fellow.She is also a lecturer in law at graduate and postgraduate levels.

Here are excerpts of the interview:

Q: Law is generally a subject that is considered to be rather exclusive and known only to lawyers. There is also the perspective that law is a subject that should be akin to common sense, where each person, whether in village or town or holding high posts or not, should have knowledge of the basic factors of law pertaining to citizens and a nation at large. Your comments?

A. I understand this question as querying the extent to which ‘law’ should reflect common sense.

To answer this question we have to first reflect on the word ‘law’.

Article 170 of the Constitution of Sri Lanka, defines ‘law’ to mean ‘any Act of Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an order in Council’. However, the same Article defines ‘written law’ to mean ‘any law and subordinate legislation [and includes statutes made by a Provincial Council, Orders] Proclamations, Rules, By-Laws and Regulations made or issued by any body or person having power or authority under any law to make or issue same’.

Thus, the term ‘law’ though a mere three letters of the alphabet, encompasses a wide and varied web of laws, rules, regulations, statutes, etc. at various levels of the governance structure at national and subordinate levels.

‘Law’ is a vital party of a structured society. The role of ‘Law’ broadly includes defining and governing the rights and responsibilities of individuals, providing mechanisms for resolution of disputes and facilitating safety and security within society by establishing and maintaining a fair, just, effective and credible system of legal enforcement.

Law is a malleable tool for controlling and engineering human behaviour. Therefore, used positively, law can be an instrument of social change, in the spheres of economic development, environmental protection, social justice and human welfare.

Clearly therefore, law is meant to serve society. So does it mean laws should mirror common sense? This again gives rise to the question, what is ‘common sense.’

Black’s Law Dictionary defines common sense as “sound practical judgment; that degree of intelligence and reason, as exercised upon the relations of persons and things and the ordinary affairs of life, which is possessed by the generality of mankind, and which would suffice to direct the conduct and actions of the individual in a manner to agree with the behaviour of ordinary persons.”

There is an implicit assumption, that all of society function on a sense that is in fact ‘common’.

But in actual fact the so-called ‘common’ sense is far less common than we would suppose and too imprecise and vague to be captured, as legal norm. Instead of using general perceptions, credible legal systems must utilise objective tests to assess evidence and weigh legal arguments.

However, the perception of the ordinary person does have a role to play in the working of the law, as the test of the ‘reasonable man is similar situation or circumstance’, is commonly used by courts to decide on the validity of impugned conduct.

Therefore, I would say that whilst ‘law’ is too intricate a subject to be assessed by a barometer as general as ‘common sense’, any legal instrument or the judicial pronouncement should be rooted in ‘good’ sense. By that I mean objectively justifiable, supported by sound reasons, made in terms of established legal norms and principles, and effected in the best interest of society at large.

Q: Could you comment on the gender aspect of law as a profession?

A: When you say ‘law’ as a profession, you must understand that the stage of law making and law enforcement are distinct phases.

The law making takes place in Parliament where Bills are presented either as government Bills or private members Bills. Laws are also formulated at subordinate levels. The ‘lawyers’ role kicks in at stage of, interpretation, implementation and enforcement.

At the law making stage, it is no secret that the female representation in the legislature whether at the National or Provincial levels, is not significant in number. There are a variety of social and political factors that stymie the participation of women.

As for the legal practice, in recent times the proportion of females passing out as legal professionals is significantly greater than the percentage of males. This social change is positively reflected in recruitments in the State sector. For instance, the Attorney General’s Department’s intake of female officers has grown considerably over the years. They are recruited on the basis of merit, and have contributed effectively to the legal system. However, this transition is not seen in the private bar where female advocates are sparse. Here the proverbial glass ceiling remains very much in place.

Q: There is something that I have been trying to understand as a media professional on the interpretations of the word ‘State’ and ‘Government.’ Could you explain this as to how it is enshrined in the Sri Lankan constitution?

A: The concept of a ‘State’ is distinct from the concept of ‘Government’. A State will stand on its own in the abstract sense, regardless of who governs it, but Governments can be changed. A ‘State’ is a distinct and populated geographic entity, with sovereignty. ‘Government’, is the instrumentality that makes and enforces the laws of the State. Thus, it would not be incorrect to say that a Government is the agency of the State, put in place to give effect to the will of the State.

In Sri Lanka, Chapter 1 of the Constitution is titled ‘The People, the State and Sovereignty’. In terms of Article 1 of the Constitution, the ‘State’ is the Democratic Socialist Republic of Sri Lanka, which is Free, Sovereign, and Independent. In terms of Article 2 of the Constitution Sri Lanka is a unitary State and most importantly, Article 3 provides that in the Republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the power of government, fundamental rights and franchise.

Article 4 sets out the manner in which the sovereignty of the people shall be exercised. Broadly, legislative power of the people is exercised by Parliament, executive power of the People is exercised by the President, and the judicial power of the People is exercised by Parliament through courts, tribunals and other such institutions created by law.

Article 43(1) of the Constitution provides that ‘there shall be a Cabinet of Ministers charged with the direction and control of the Government of the Republic, which shall be collectively responsible to Parliament.

Thus, in the case of Sri Lanka, the State is our geographical mass over which the People are sovereign. As for ‘Government’, in a broader sense it would include the composite of legislative, executive, and judicial powers that administer the State. In a narrower sense, ‘the Government’ would constitute the executive arm of Government, as contemplated in Article 43(1) of the Constitution.

Justice Amarasinghe, in the famous case of Bulankulama and Six others v. Ministry of Industrial Development and seven others, had this to say:

‘The organs of State are guardians to whom the people have committed the care and preservation of the resources of the people. This accords not only with the scheme of Government set out in the Constitution but also with the high and enlightened conceptions of the duties of our rulers, in the efficient management of resources in the process of development, which the Mahavamsa, 68.8-13 sets forth in the following words:

“Having thus reflected, the king thus addressed his officers. In my Kingdom are many paddy fields cultivated by means of rainwater, but few indeed are those which are cultivated by perennial streams and great tanks. By rocks, and by many thick forests, by grate marshes is the land covered. In such a country, let not even a small quantity of water obtained by rain go to the sea without benefiting man. Paddy fields should be formed in every place, excluding those only that produce gems, gold, and other precious things. It does not become persons in our situation to live enjoying our own ease, and unmindful of the people ….”

Q: Could you detail out how the concept of ‘State’ and ‘Government’ is different in Sri Lanka’s Constitution from other countries?

A: The difference between the notion of State and Government stands true for all countries. In the contemporary era of Nations State (as opposed to Kingdoms and Empires), each State will be sovereign in its own right as well as in terms of comity between States. However, there are many possible options for ‘government’ as part of the political administration within such States. Some examples are, Communism, Monarchy, Oligarchy, Theocracy, Constitutional Monarchy and Constitutional Republic.

In Constitutional theory, the Constitution is a form of social contract that is agreed upon by members of the nation. Thomas Hobbes the English philosopher, propagated it as a means of escaping the violent state of nature, by protecting one’s right to life and property whilst maintaining order in society through a legal framework.

Given the diverse constitutional structures and frameworks of governance in the world today, the focal point of ‘where’ Sovereignty is notionally vested, will differ from State to State.

In India for instance, The Constitution declares India to be sovereign, socialist and secular. “The Constitution of the United States affirm that the Government of the United States exists to serve its citizens. The 1978 Constitution of Sri Lanka is unique, in that it expressly and unequivocally vest the sovereignty in the People of the Republic for Article 3 provides:

“In the Republic of Sri Lanka sovereignty is in the people…..”.

Q: So, is the correct term a ‘Government institution’ or a ‘state institution’ when we refer to institutions which are described as ‘Government owned’?

A. In my view, it would be conceptually more precise if the term ‘State Institution’ is used. However, the Constitution and other legal instruments do use the term Government Institutions (e.g. Article 154 relating to the powers of the Auditor General). Here the reference should not be construed as a reference to a specific Government in power or a ruling party in power but to the ‘Government of the Democratic Socialist Republic of Sri Lanka’, in respect of which the sovereignty is in the People.

Q: So to sum up is it correct to define all institutions that are understood to be ‘government owned’ to be ‘State owned’ institutions which in turn can be legally understood without doubt to be directly enshrined in the people?

A: Yes. As discussed above, Article 3 and 4 of the Constitution, makes it clear that Sovereignty is in the People. There are many Judgments of the Supreme Court that have decided that, all State property administered by a Government, is done in trust for the people. In Premachanda v. Major Montague Jayawickrema and another, G. P. S. De Silva, C.J. held as follows: “There are no absolute or unfettered discretions in public law; discretions are conferred on public functionaries in trust for the public, to be used for the public good, and the propriety of the exercise of such discretions is to be judged by reference to the purposes for which they were so entrusted’. The Doctrine of Public Trust, is now well entrenched in our jurisprudence.

Q: Is it to be understood without a doubt that the State media represents in actuality the people?

A: Yes. There is no doubt. State Media institutions, which are created by Statute, have a public duty to act in the best interest of the people at large. In Bennett Rathnayake vs. the Sri Lanka Rupavahini Corporation and Others, Fernando, J. observed that;

“The statutory powers which the 1st respondent has are not absolute, unfettered, or unreviewable; they are held in trust for the benefit of the public, and they cannot be exercised arbitrarily or capriciously or unreasonably. The airwaves are public property and the State is under an obligation to ensure that they are used for the benefit of the public.”

In this case, the Court was referring to the Rupavahini Corporation, but the legal principle enunciated in the judgment applies across the board, to all State media.