Title : Existing law interpretation (Lakshan)
Author: Lakshan Bandara
Created Date: 2021-12-09
Last Modified Date: 2021-12-10
Article Code: 205
Keywords: suggestions, article, idea, Sri Lanka, politics, develop, pdf, pictures, videos, discuss, forum
The exact wording of the article is as follows:
Article 16: Existing written law and unwritten law to continue in force.
(1) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter.
(2) The subjection of any person on the order of a competent court to any form of punishment recognised by any existing written law shall not be a contravention of the provisions of this Chapter.
1.What is Article 16(1) and what does it mean?
Article 16(1) is a clause in the Fundamental Rights chapter of the 1978 Constitution of Sri Lanka. It says that all written and unwritten law that existed prior to the 1978 Constitution is ‘valid and operative’. This means that these laws are valid even if they are ‘inconsistent’ with fundamental rights granted to all citizens.
[ It says that all written and unwritten law that existed prior to the 1978 Constitution is ‘valid and operative’. ]
Is this a Supreme Court interpretation?
I don't think so.
Constitutional jurisdiction in the interpretation of the Constitution
Fundamental rights jurisdiction and its exercise
Article 16 is under Fundamental rights.
Can Supreme Court mislead by signaling to left and turning to right in it's interpretation (add extra clause 'that existed prior to the 1978 Constitution' in interpretation) ?
Yes, in a crazy way. But better not. That damages public trust in the communication of legal convention.
Existing does not mean and/or end as existed prior to or existing only at the point of 1978 commencement of this Constitution.
Constitution is a live (active in present) document. It is not dead (deactivated) at birth. It is continuing at changing present.
Existing means operation at the current time.
The current time changes over time. This is common sense.
Requirement for an external legal system to be recognised under article 16 is, it shall actively exist (existing).
The external system shall be constituted as a written constitution. It may consist laws and/or values and /or customs, etc of existing written and/or unwritten legal systems like Hela culture.
It is not necessary for the external legal system to fully function.
13th ammendment to the constitution of Sri Lanka is not operational (devolution of land, the police and financial powers to the provinces).
Does fictional constitution of Sri Lanka has jurisdiction over external legal systems, if they do not submit?
But, it can recognise (identity) that they continue in force.
That's the purpose of article 16.
Why article 16 under Fundamental rights?
Fundamental rights are technically privileges (not rights) given to its fictional members (citizens) by the constitution.
Citizens can challenge misinterpretations of article 16 for Supreme Court to intervene.
External legal system is not a Fundamental right for a citizen unless that citizen owns it.
Most importantly, article 16 can be ignored for mutual recognition via an act.
For example, United States of America is not recognised as per Article 16.
I brought Article 16 to the picture in order to support mutual recognition.
Even, an external legal system can exit in the land without such mutual recognition.
With mutual understanding, we can avoid unnecessary conflicts.
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