Peoples’ sovereignty central to all agreements/treaties
(Courtesy of The Island)
My article in The Island of June 12, 2019, titled “Legality of agreements with foreign countries”, was immediately followed by a report titled “US wants future SL governments to respect yahapalana foreign deals”, wherein a US official was quoted having said: “We want any government that comes to respect human rights and democracy. We also want them to continue to respect the international obligations taken on by the present administration. We have a 70 year relationship with Sri Lanka and that will continue in some form …” (The Island, June 13, 2019).
The need to respect international obligations is a view held by one school of thought regardless of the circumstances under which they are signed. Their view is that no matter the circumstances, once signed, states are bound to fulfil their obligations. However, another school of thought views it differently, and thinks that circumstances matter for the legitimacy of agreements/treaties. For instance, how legitimate would be an agreement/treaty undertaken in the name of the people if it violated provisions in a Constitution relating to the sovereignty of the people? Under such circumstances, since obligations respected would be in violation of internal laws, governments would be in a dilemma as to how to handle such situations.
SOVEREIGNTY in the CONTEXT of SEPARATION of POWERS
The Constitutions of the United States and Sri Lanka are based on the principle of the separation of power. The Preamble to the U.S. Constitution stresses: “In order to form a more perfect Union”, the People of the United States decided by Article 1, that “All Legislative Powers…shall be vested in a Congress”; followed by Article 2, that “The executive Power shall be vested in a president of the United States of America”; and by Article 3, that “The judicial Power of the United States shall be vested in one Supreme Court”. Thus, the core principle adopted by the People of America in order to form a “more perfect union”, was the concept of the separation of power into three branches of government.
Section 2 of Article 2 of the U.S. Constitution refers to the “Powers of the President…”. Paragraph two states: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senate present concur…”. This provision endorses the fact that the President of America does not have the power to make treaties on his own. He has to have the “advice and consent” of two-thirds of the Senate. This underscores the fact that commitments such as making treaties undertaken in the name of the People require the participation of two separate branches of government that represent the People, namely the Senate and the Executive. This feature is a consequence of the separation of power.
Similarly, the Article 3 of the Sri Lankan Constitution states: “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government…”. Article 4 states: “The sovereignty of the People shall be exercised and enjoyed in the following manner: –
(a) “The legislative power of the People shall be exercised by Parliament…”
(b) “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President…”.
It is clear from the foregoing that the sovereignty of the people can only be exercised by Parliament and the President acting together in the name of the people. It also follows that sovereignty issues of the people CANNOT be exercised by Parliament or the President acting separately and unilaterally. The indisputable conclusion that follows is that any agreement/treaty signed in the name of the People by the executive, i. e. the President or the Cabinet, without the consent of Parliament amounts to a violation of the sovereignty of the people. Therefore, in Sri Lanka, such agreements/treaties have no legitimacy vis-a-vis international law as determined by the Vienna Convention on Law of Treaties of 1969 because in such instances, the Sri Lankan government action would be in violation of the Constitution that embodies the sovereignty of the people.
A question of equal relevance is whether the Acquisition and Cross Service Agreement of 2007 and the one renewed in 2017 had the consent of two-thirds of the US. Senate, and if it did not, what would be its status in international law?
RULINGS by the VIENNA CONVENTION
Laws relating to treaties between states are governed by the Vienna Convention of 1969.
Article 2. 1 (a) of the Convention states: “…‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation”.
Article 46 relates to “Provisions of internal law regarding competence to conclude treaties”. Continuing, Article 46 (1) states: “A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”.
The “internal law of fundamental importance” is violated whenever agreements/treaties are concluded by the Executive without reference to Parliament, let alone by securing its consent, because the fundamental principle of the separation of powers requires that Parliament and the Executive act together. Acceptance of this principle is incorporated in the US Constitution, where the President is required to seek the consent of two-third of the Senate before concluding agreements/treaties. Although such a specific provision as in the US Constitution is not included in the Sri Lankan Constitution, Article 3, which must be read with Article 4, confirm acceptance of the principle that sovereignty is in the people, and that the exercise of that sovereignty requires both Parliament and the Executive should be associated when concluding Agreements/Treaties. Since the practice in Sri Lanka has been for the Executive branch to act without reference to Parliament, it seriously questions the legitimacy of agreements/treaties entered into by Sri Lankan governments.
The provision in Article 33 (2) that “In addition to the powers, duties and functions expressly conferred or imposed on or assigned to the President by the Constitution or other written law, the President shall have power”, and in Article 33(2)(h): “to do all such acts and things not inconsistent with the provisions of the Constitution…”, cannot be invoked because any unilateral act by the Executive is inconsistent with provisions in the Constitution relating to sovereignty of the People under the provisions of separation of power.
Agreements and or treaties are international agreements between States. Since States are made up of their Peoples within each recognized territory, international agreements are instruments made on behalf of the Peoples of the State. Therefore, it is imperative that agreements/treaties concluded by States be in conformity with the Constitutions of the States concerned. In the case of Sri Lanka, such agreements/treaties should be based on the separation of power between two different organs of government, namely, the Parliament and the Executive. Furthermore, such agreements/treaties should have the consent of both organs of government for agreements/treaties to have legitimacy in international law. The need for such compliance is recognized in the US Constitution because the President of the US does not have the power to sign agreements/treaties without the consent of two-third of the Senate. Since the Constitution of Sri Lanka is similar to that in the US in that it is based on the separation of power between Parliament (Congress) and the Executive, procedures should be similar. In the absence of consent of Parliament for a Sri Lankan government to attempt to respect obligations undertaken becomes a challenge that evidently was not envisioned.
The Vienna Convention authorises Heads of States, Heads of the Governments and Ministers of Foreign Affairs to sign agreements/treaties. However, a fact that should not be overlooked is that while they are only designated persons, their authority is derived from following due process which in the case of Sri Lanka, as it is in the US is by securing the consent of both organs that represent the sovereignty of the people, i.e. two-thirds of members of Parliament and the consent of the Executive.
Whatever opinions one may have about the sanctity of sovereignty in today’s context, its relevance to Sri Lanka cannot be ignored because it is a core principle, and therefore central in the context of the separation of power as defined in Article 3, which needs to be read with Article 4 of Sri Lanka’s Constitution.
The practices adopted by successive Sri Lankan Governments should be brought to the attention of the Supreme Court for it to rule whether the procedures adopted are consistent or not with the hard core principles of the Constitution. Such action should not be directed at any particular agreement/treaty with any particular country. Therefore, the texts of agreement/treaties are not relevant. Instead, it should be a ruling on procedures adopted so that it would apply to all agreements/treaties regardless of with whom these are/were made.
By Neville Ladduwahetty