In the two earlier parts of this article, the writer dealt with the Constituent Assembly process that led to the First Republican Constitution and how the Constitution led to constitutionalising majoritarianism in multi-cultural Sri Lanka. In a country with a history of missed opportunities, 1972 was another.
A noteworthy feature of the 1972 Constitution is the recognition of fundamental rights. Principles of State Policy contained in another chapter were to guide the making of laws and the governance of Sri Lanka. But these Principles did not confer legal rights and were not enforceable in a court of law.
The fundamental rights guaranteed by the 1972 Constitution, however, were mainly civil and political rights: equality and equal protection, freedom from arbitrary deprivation of life, liberty and security of person, freedom of thought, conscience and religion, freedom to enjoy and promote one’s culture, freedoms of assembly, association, speech and expression, movement and residence and freedom from discrimination in appointments in the public sector. But all these rights were subject to such restrictions as the law may prescribe in the interests of national unity and integrity, national security, national economy, public safety, public order, the protection of public health or morals or the protection of rights and freedoms of others or giving effect to the Principles of State Policy.
Thus, even the freedom from arbitrary deprivation of life and the freedom of thought, conscience and religion could be restricted. While Principles of State Policy did not confer legal rights, fundamental rights could be restricted to give effect to such principles. In several cases, the Constitutional Court held that impugned provisions of Bills that were prima facie inconsistent with fundamental rights were nevertheless for the purposes of giving effect to Principles of State Policy. It is hard to see the rationale for permitting fundamental rights, which bind all organs of government, to be restricted in the interests of Principles of State Policy which are only for guidance in law-making and governance and are not enforceable.
Much has been said about the new constitution not having a provision equivalent to section 29 (2) of the Soulbury Constitution. While the fundamental right to equality and equal protection was a safeguard against discrimination, it was subject to wide restrictions, unlike section 29 (2), which was absolute. Also, section 29 (2) was in the nature of a group right. Although it was not as effective as it was expected to be, as was demonstrated by the failure to invoke it to prevent the disenfranchisement of hundreds of thousands of Hill-Country Tamils, numerically smaller ethnic and religious groups nevertheless felt comfortable that it existed, at least on paper. They saw its omission from the 1972 Constitution as a move towards majoritarianism, especially in the context that Sri Lanka was declared a unitary state, Buddhism given the foremost place, and Sinhala declared to be the only official language.
With the ‘Republic pledged to realise the objectives of a socialist democracy’, the non-inclusion of second-generation human rights based on the principles of social justice and public obligation is puzzling. Important examples of such rights that could have been included are the right to just and favourable conditions of work, equal work for equal pay, right to rest and leisure as an employee, right to free elementary education, right to food, clothing, housing, medical care and necessary social services and right to special care and assistance for mothers and children.
Section 18 (3) of the 1972 Constitution provided that all existing laws shall operate notwithstanding any inconsistency with fundamental rights. This was in sharp contrast to the Constitution of India, which provides in Article 13 (1) that all laws in force before the commencement of the Constitution, in so far as they are inconsistent with fundamental rights, shall, to the extent of such inconsistency, be void. The 1972 Constitution did not provide for a special jurisdiction of a court for the enforcement of fundamental rights against the executive arm of the State. Theoretically, fundamental rights could have been enforced through writs in public law as well as through actions for damages, declaratory actions and injunctions in civil courts. There is only one known fundamental rights case under the 1972 Constitution, Gunaratne v People’s Bank, a declaratory action arising out of the famous bank strike of the 1970s.
Constitutionality of legislation
A significant feature of the 1972 Constitution was that, unlike under the Independence Constitution, a law could not be challenged for constitutionality. Post-enactment judicial review of legislation was thus taken away. Chapter X provided for pre-enactment judicial review. A Bill could be challenged in the Constitutional Court within a week of it being placed on the agenda of the National State Assembly (NSA).
A Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest shall be referred to the Constitutional Court which shall communicate its advice to the Speaker as expeditiously as possible and in any case within twenty-four hours of the assembling of the Court.
An argument against post-enactment judicial review is that there should be certainty as regards the constitutionality of legislation. However, no serious problems have arisen in jurisdictions where post-enactment judicial review is permitted. To mitigate hardships that may be caused by legal provisions being struck down years later, the Indian Supreme Court has used the tool of ‘prospective over-ruling,’ limiting the retrospective effect of a declaration of invalidity in appropriate cases. Section 172 of the South African Constitution expressly permits such limitation.
Post-enactment judicial review is an essential tool to prevent infringement of constitutional provisions by legislative action. The effect of most legislative provisions are felt only when they are being enforced. Another argument in favour of post-enactment judicial review is that the people are able to get the benefit of the latest judicial interpretation of a constitutional provision. There have been many instances of obviously unconstitutional provisions going unchallenged. Provisions relating to urgent Bills have been abused by successive administrations. An urgent Bill is referred directly to the Supreme Court by the President even without a Gazette notification. Such a Bill is not tabled in Parliament before such reference and even Members of Parliament would not know the contents of such a Bill.
Under the Independence Constitution, the Chief Justice, the Judges of the Supreme Court and Commissioners of Assize were appointed by the Head of State, on the advice of the Prime Minister. The 1972 Constitution made no change in that regard.
In relation to other judicial officers, however, the provisions of the new constitution were very unsatisfactory.
Since 1946, the appointment, transfer, dismissal and disciplinary control of judicial officers had been vested in a Judicial Service Commission consisting of the Chief Justice, a Judge of the Supreme Court and another person who is or has been a Judge of the Supreme Court.
The 1972 Constitution provided for a five-member Judicial Services Advisory Board (JSAB) and a three-member Judicial Services Disciplinary Board (JSDB), both headed by the Chief Justice. A list of persons recommended for appointment as judicial officers and state officers exercising judicial functions would be forwarded by the JSAB to the Cabinet of Ministers, which was the appointing authority. The Cabinet reserved for itself the right to appoint a person not recommended by the JSAB, subject to the proviso that the full list of JSAB-recommended names and the reasons for non-acceptance of anyone so recommended were tabled in the NSA. Dismissal and disciplinary control were exercised by the JSDB, which was required to forward a report to the Cabinet through the Minister of Justice and a copy transmitted to the Speaker. A judicial officer could also be removed for misconduct by the President on an address by the NSA. J.A.L. Cooray considered the changes effected by the 1972 Constitution to be hardly compatible with the independence of the judicial function. (Constitutional and Administrative Law of Sri Lanka, 2nd edn, 69).
Under the Independence Constitution, the Permanent Secretary of each ministry was subject to the general direction and control of the Minister in exercising supervision over the departments coming under the ministry. The 1972 Constitution made no change to this position except to include institutions, such as corporations, within the ambit of the relevant provision.
Before 1972, the appointment, transfer, dismissal and disciplinary control of public officers were vested in a Public Service Commission appointed by the Governor-General. This position was changed, and the powers were taken over by the Cabinet of Ministers. Appointments were made after receiving recommendations from a State Services Advisory Board. The power of appointment could be delegated to the Minister concerned or by the Minister, in turn, to any state officer. The power of disciplinary control and dismissal was exercised after receiving a recommendation from the State Services Disciplinary Board.
The UF no doubt considered the bureaucracy to be obstructionist and wished the public service to be available to the government to accelerate socio-economic development. This is understandable. As Radhika Coomaraswamy has argued in Sri Lanka, The Crisis of the Anglo-American Constitutional Traditions in a Developing Society, the framers of the 1972 Constitution considered the checks and balances contained in the 1947 Constitution appearing to obstruct decision-making, perpetuating a status quo of privilege and domination. But rather than including appropriate constitutional provisions to ensure that political decisions were carried out by the bureaucracy, the entire public service was placed under the control of the political executive, eroding the independence that it enjoyed.
Legality and legitimacy of the Constitution
1972 was undoubtedly a legal revolution. According to L.J.M. Cooray, the question of the legality of the process followed does not arise. ‘One might just as well ask: Was the American War of Independence legal? The Constituent Assembly of Sri Lanka was part of a revolution, which aimed at overthrowing the existing constitution.’ As to the ‘legality’ of the new Constitution, Cooray stated: ‘It could be answered by posing the question: Does the stigma of illegality apply to the United States Constitution or to the Bill of Rights and the Acts of Settlement which followed the 1699 Revolution [of Britain]?’ A constitution becomes legal in the course of time if it is accepted by the people, the courts and the administration. This requirement was fulfilled in respect of the 1972 Constitution, Cooray opines. Constitutional Government in Sri Lanka, 1796-1977 (Lake House 1984) 246-247.
Legality apart, did the 1972 Constitution have the necessary legitimacy? With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But, instead, the United Front imposed upon the country a constitution of its choice.
Rather than impose its will on the Constituent Assembly, the UF should have accommodated the views of the various parties that answered its call to take the Constituent Assembly route. Such accommodation would have given greater legitimacy to the 1972 Constitution. That ‘legitimacy deficit’ of the 1972 Constitution no doubt helped J.R. Jayewardene, who succeeded the liberal-minded Dudley Senanayake as the leader of the UNP, to impose his own will in turn in the form of the 1978 Constitution with which the country is still straddled.
While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.
1972 was also a historic opportunity to accommodate the diversity and pluralism of the people of Sri Lanka in state power and resolve the language question, an opportunity that tragically was missed. If the United Front had met the Federal Party halfway, the history of this country might have been significantly different.