28 September, 2020

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13 Jan, 2013 -The 1978 Constitution Is Fulfilled

By Basil Fernando

Basil Fernando

Today, with the President of Sri Lanka signing the removal notice of the Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, the 1978 constitution came to be fulfilled.

The 1978 constitution is a representation of the conflict between the rule of law and the absolute power of the executive president. The historical circumstances in 1978 were not right for the fulfillment of this constitution. 34 years later, with the progressive deterioration of all the positive factors of the previous period, the final fulfillment of the 1978 constitution has come. Now the rule of law as a logical system has no ground to stand on as the two basic principles, the separation of powers and the independence of the judiciary, can no longer be practically implemented.

In 1978, despite of the weakening of the system by the 1972 constitution, there were still many forces which were vigorously supportive of the rule of law system. First of all, and above all, there was the sentiment among the people that was formed by long enduring practices of respect for the rule of law. The British introduced the law as the organizational principle of the Sri Lankan society. They introduced laws to almost all aspects of life and these laws constituted the railroads on which all the institutions of Sri Lanka ran.

Over a period of 34 years, Sri Lankans witnessed the collapse of all the basic institutions in their society. The collapse of these institutions means that the basic principles of law on which these institutions were organized and operated have been seriously disturbed. Among the institutions which so collapsed were Sri Lanka’s policing system, the public service commission, the election commission, the system of controlling bribery and corruption, and the department of the Attorney General. The collapse of those institutions were recognized by the Sri Lankan parliament when they made a limited  attempt to give some life back to these institutions by way of the 17th amendment. When the 18th amendment was passed, that rescue attempt was abandoned and the very possibility of the survival of the multiparty system and the possibility of a genuinely elected legislature was brought to an end.

In 1978, there was also the necessary critical intellect that could support the rule of law system. The judges were still those of ‘the good old tradition,’ and so were the lawyers. However, during the last 34 years, there has been the deliberate undermining of the judiciary in many ways, which are well documented and commented on by many authors. As the judiciary was undermined, the lawyers experienced the nature of earthquake that was taking place and those who still wanted to survive had to adjust to the new environment.

However, the factor that undermined the judiciary and the legal practice more than any other was the active cooperation of President Chandrika Kumaranatunge and the then Chief Justice Sarath Nanda Silva to undermine the legal system in favor of the arbitrary power of the executive president. S N De Silva dealt the death blow to the whole system by unscrupulously manipulating every aspect of the judicial practice in Sri Lanka. He ignored the procedural aspect of law in a diabolical manner, and the rule of law rests as much on the procedural aspect as on the substantive aspect of law. All the nuts and bolts were loosened so that the system could not run anymore.

However, officially, lip service was done to the principle of the independence of judiciary and, while the internal system was in great jeopardy, a façade of respect for the system remained.

With the impeachment and then manner of its conduct, this screen was lifted. Belatedly realizing that the final hour has come, the Supreme Court and the Court of Appeal, in what will remain as historical judgments, made an attempt to come to the rescue of the system.

The lawyers and judges also rallied with the kind of solidarity that has never been witnessed before. It was as if all relatives were gathering together on realizing that one of their dear ones was now critically ill. They tried to make a proverbial last minute intervention.

However, those who wanted the system to be dead wanted it to be dead sooner than later. The same hand that crushed the rescue operation by way of the 17th amendment has now decisively signed the declaration of death of the independence of judiciary and the rule of law.

What the Sri Lankans will face now is a completely new situation. In previous statements and articles we have tried to sketch what is waiting for the Sri Lankan society as whole, in all Sri Lankan institutions.

The question that will remain to be answered is as to how the people of Sri Lanka will find their way to a living under a system of law that will protect their liberties.

The system that was based on the ideas of John Locke, Baron de Montesquieu, Jean-Jaques Rousseau and others, which were the basis of French, British, American and all the best constitutional traditions of liberty, has come to an end today.

The experimentation of authoritarianism, which also has traditional foundations from around the world, will be what Sri Lanka experiences now.

The way out is for the present and future generations of Sri Lankans to work out if they are to enjoy the protection of their liberties by the state again.

However imperfect ‘the good old tradition’ was, it was one based on the global tradition of liberty. What is to come will be the opposite of that tradition.

Perhaps a source for hope could be Tolstoy’s short story, “What Men Live By”, which is a good read for an occasion such as this.

For an extensive discussion on 1978 constitution, kindly read Gyges’ Ring – The 1978 Constitution of Sri Lanka, which is available on the internet.

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Latest comments

  • 0
    0

    Having grabbed power, what will be the next move of the Executive? Who will be the next victim of his unsatiable appetite. Or will he now deliver the results he promised to the people and the world.

    This govt has so far failed to deliver which is the crux of the matter. The impediment was not the CJ, nor the opposition or the diaspora or international community. It is the flawed policies and corrupt mindset of the govt itself. Govt is simply staggering from crisis to crisis and dragging the entire country into dire straits.

    We are surviving on borrowed money half of which is going into the pockets of this regime. So those cheer leaders and mobs who eat kiribath and light crackers should now open their eyes and see if there is any earthly difference after their so called victory. Divinesuma is all set to kill the little bit of life that remained in the country and economy.

    • 0
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      HO HO ;
      FOR THE NEW YEAR MARA THE CLAN HAS BROUGHT DIVINESUMA.
      THE CHEERLEADERS AND STOOGE GOONS SURELY WILL GET THE DIARRHEA SOON.
      THEN, WE CAN SEE????????????????

    • 0
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      The whole CJ impeachment scandal started with Economic Development Minister (Mr.10%)Basil Rajapakse proposing the total Rupees 85 Billion Divineguma Fund to get into his possession.

      Since Madam CJ Shirani Rajapakse gave a negative verdict…..Basil Rajapakse’s brother of Mahinda Rajapakse, the President of Sri Lanka brought the unjustified and fraudulent charges against CJ to kick her out……and he suceeded upto getting necessary votes in the Parliament.

      But yet to see how MARA plans to chase the only female Chief Justice in Sri Lanka’s History, who has the highest qualifications in Judicial History and who served as the Best Chief Justice Ever, and now we are not planning to give up without a fight.

      As we the citizens are against unjust, cruel , Barberic MARA force to misuse it’s powers that people gave to serve them…….is now using them against the citizen.

      Here are some of corruptions that MARA and his Brothers made using mandate that people gave them.

      President Mahinda Rajapakse Tsunami Robbery came to light.
      http://www.unbowedandunafraid.com/uusite/440366
      http://www.ask.com/web?qsrc=1&o=0&l=dir&q=Mahinda+rajapakse+Tsunami+scandle

      How ex.CJ Sarath N.Silva exploited his powers.
      https://www.colombotelegraph.com/index.php/corruption-vs-corruption/

      How Basil Rajapakse used Previous Divineguma funds.
      http://www.ask.com/web?qsrc=1&o=0&l=dir&q=Basil+Rajapakse%27s+corruptions
      http://www.trc.gov.lk/events/colombo-lotus-tower-minister-basil-rajapakse-lays-foundation-stone.html
      http://www.tourismconcern.org.uk/sri-lanka-land-grabs.html

      Internet profile on Gotabaya Rajapakse.
      http://www.ask.com/web?qsrc=1&o=0&l=dir&q=gotabaya+Rajapakse%27s+corruptions

      Therefore we have to deliver Justice to People who are been killed in Foreign countries trying to help survive their families…..and where 70% of people are malnourished and 40% are unemployed and 40% live in Cadjan houses similar to VEDDA (native) community lives…..below poverty line.

      President Mahinda Rajapakse spend 60% of the budget just for his family to stay in power.
      He spend this money on giving away Luxury houses, Luxury vehicles, Air tickets with vacations, Land, European and North American employment and studies, sending abroad for bogus seminars and conferences, Building unnecessary structures….like US $ 104.3 million Lotus Towers (where with this money a whole new university could have been built….or 500 houses for poor people) Advertising and cutouts throughout the country….(MR last Birthday paper advertisements alone cost 750 Million Rupees….as per Dayasiri Jayasekera’s parliament speech)Fake seminars, meetingts,conferences and plane loads of foreign travel etc…etc..

      Also MARA made our youth to loose over 100,000 jobs and over 600 factories, and loosing EU GSP status due to not abiding simple Human Rights issues.

      Therefore as a result of this pure dictatorial rule Country is turned into a total chaos.

      It is upto all of us to save CJ and to help her maintain last remaining Justice, Liberty and Freedom in the country…….and bring MARA administration to justice on the above Corruption, Bribery and Stealing Charges.

  • 0
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    Once, some foolish sri lankans have given reins of governance to beastly Malabares. to moron looters.
    anyhow, those beastly vultures want to suck the blood and eat the flesh of sri lankan’s upto the bones.
    so, there is no second chance.
    let us give our flesh and blood for the sake of future generations.

    REINCARNATION OF DEVADATHTHA?.

    MA RA’S generation and coming generations may burn in hell and suffer for billion, billion years for these sins they are doing.

  • 0
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    Chandrika should contest the next Presidential election. Bring a new constitution and in that change the name of the country to Lanka from Sri Lanka, as we have lost the “Sri” with this move of impeachment. New constitution should be written by professionals and not politicians. Let there be a new beginning to Lanka. Ranil is the biggest traitor after Rajapakse family, so none of them should be part of the Chandrika government. Chandrika’s father and mother were two who should be blamed for what Sri Lanka today is, not to mention JR. So its an opportunity for Chandrika to make things right.

    • 0
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      I agree. Chandrika surely still has a substantial following among the people and the professional organisations and institutions to challenge Rajapaksa. UNP as a party is finished and only a force within the SLFP can topple the Rajapaksa brothers from power.

    • 0
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      Good suggestion Park; and one final chance for the last Bandaranaike to make reparations to the country for the ill-considered, opportunistic misdeeds of her father, then JRJ (both of whom had the intellect to have known better), followed by the motley crew of Presidents who all promised to dismantle the executive presidency (including herself) but once ensconced in power, found it impossible to separate the drunkenness of power from civic responsibility. The less said about the current leadership, I am sure, the better….. it is a very worrisome state that we are all in now.

      I am not sure whether the madam is mentally up to it, or even physically able, but I hope she rised to the challenge and does this last and final good deed to save her legacy.

      Come on Madam, you know that you can do it; and that the masses and we’ll all be behind you.

  • 0
    0

    A combination between CBK and SF would be formidable and MaRa will tremble in his shoes.

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