15 August, 2020

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Apples & Oranges: The Need To Stop Playing The Late H.L De Silva’s Game

By Basil Fernando

Basil Fernando

Did Neville Samarakoon and Dr. Shirani Bandaranayake understand the 1978 Constitution of Sri Lanka? This question has bothered me for many years.

I can clarify what I mean by referring to an incident that happened when I was a young lawyer. Some time after the adoption of the 1978 constitution, I attended a meeting of lawyers organized by the Bar Association of Sri Lanka. The purpose of the meeting was to discuss a public statement made by President Jayewardene to the effect that H.L. De Silva PC, then a prominent lawyer, did not understand “his” constitution. The late S.L Gunasekara, moved a resolution condemning the President’s statement and affirming confidence in the ability of Mr. De Silva.

What had irritated JR Jayewardene and prompted him to make that statement?  It was the attempt by lawyers like H.L. De Silva, to interpret J.R.’s constitution using the framework of  liberal democratic constitutional principles. In effect, what J.R  stated wasdo not compare apples with oranges.

What was the meaning of this ‘constitution’? Hermeneutics is a theory of interpretation that  aims to elicit the meaning of a text. The text may be a sentence,  a paragraph, or a whole document, like a constitution.

The basic assumption behind any attempt to find the meaning is to ascertain what meaning the author was trying to convey by writing the text. Hermeneutics provides principles and techniques to be followed when trying to uncover the meaning.

It is quite another matter when the text is written purposefully to confuse or deceive. In such a situation the text has been concocted with the aim of defeating all rational attempts at interpretation or attempts to grasp a logical meaning. In short, what this 1978 constitution says to us is this: the only person who knows the meaning of this document is its author:  he can interpret it in any way he likes and use it to justify whatever he does; he is not bound by any rules;  this constitution has liberated him from all rules.

Thus, the 1978 constitution was created to ‘de-constitutionalize’ the state of Sri Lanka.

In this way, not only the rule of law, but law itself was displaced. Even a Chief Justice can be dismissed without any regard to established rules. Those who heard the case against her knew they were playing a practical joke on her. Although Dr. Banadaranayake and her legal team tried to play H.L De Silva’s game by  trying to treat the issues as being within conventional legal rules, they received a rude treatment. A list of such devastating practical jokes played on the system of law and justice is a long one, including an extension of a parliamentary term by way of a referendum.

Examining the text of this constitution with the view towards tryng to find its meaning is like examining the prescription of a doctor who uses a term that appears to be a medical drug, but in fact is poison. The poison this time was administered to the constitutional system and the nation itself.

Two others who sat as Chief Justices, S.N. De Silva and Mohan Peiris, understood the ‘constitution’ quite well and acted accordingly.

Another rule of hermeneutical interpretation is the rational link of parts with the whole. That means different articles of the constitution must be logically linked to each other. If some articles which seem to  convey a meaning of a liberal democratic concept is contradicted by several other articles which convey an authoritarian frame work, then no rational meaning can be derived from these articles. Practically no institution can function rationally, if that institution has to work under and trying to apply self-contradictory principles. Every important principle contained in the different articles of the constitution is contradicted by one or many other articles of that same constitution. This is usually referred to as what is given by one hand is being taken away by the other.

A suitable Sinhalese translation for the word, manipulation is KAPATIKAMA. This, in a Hermeneutical sense, means to manipulate a text in such way so as to prevent the possibility of eliciting any rational meaning out of it. Examples of those who tried to rationalize this Kapati document learned their lessons in a bitter way, including the late Mr. Samarakoon and Dr. Bandaranayake. This spider net has proved its deadly nature over and over again. And the worst is not yet over. 

The result of living with an absurdity, is gradual disintegration. Disintegration simply means the inability to hold things together rationally.

Things begin to fall apart. That also has been happening for many years and that will not stop now.

The ultimate destiny of the disintegration of rationality, is insanity. In terms of the state of law and the constitution, Sri Lanka is currently an insane nation. At the time when the new court complex was being constructed, something a senior lawyer said was quoted by the late S.L Gunesekara to the effect that, when the new parliament was built we lost parliamentary democracy: by the time we have the new court complex, we will also lose our justice system.

The only way out of this pathetic and pitiable situation is to call a spade a spade, a spider a spider, absurdity an absurdity, lunacy as lunacy and not to confer respectability on a fraudulent document by acting as if it is a constitution of a democracy. That constitution’s real aim was to transform a democracy into an authoritarian system.

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Latest comments

  • 2
    2

    Basil Jernando,

    The Soulbury Constitution was thrown in 25 years, the first republican constitution lasted only 5 years.

    How would you explain the longevity of the 1978 constitution?

    • 2
      1

      ” How would you explain the longevity of the 1978 constitution? “
      It is certainly well suiting to the nature of the Sinhala Intellectuals!

    • 3
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      Sirikish, Corona Virus has also lasted longer than expected. It is likely to last even more, till an effective medicine is found. Till then it will cause deaths, bring down economies and do unimaginable harm. So is 1978 constitution. Those who came to power promising to abolish it found that it helps them to become more corrupt and abuse power. No medicine to this devastating situation is offered by anyone, who are all political rogues.

    • 0
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      Isn’t it correct to say that whereas the 1972 Constitution, carefully drafted by Colvin R.de Silva, in consultation with many others was a totally new Constitution, whereas J. R.’s so-called constitution was merely one which amended the 1972 Constitution?
      .
      Why didn’t it properly last longer? Because Sirima did what she wasn’t entitled to do. She decided to go on for longer than the five years that she was elected for. So much so, Colvin and Co. left that government, and thus she lost the next election so badly that her party was almost wiped out of Parliament.
      .
      That’s the impression that I have – and I gave it without carefully checking because that’s also the impression that most Sri Lankans have.

  • 3
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    Mr. Fernando, we well understand your good intention. To take stock of planets, the planets are not on the right position as at now. This is not the auspicious time to great deeds. When plane takes off or lands and you were in, you might have heard the ladies, hostesses, telling you to be seated and wearing seat belt. That is not the good time to go to bath room. Don’t think of changing the constitution while Royal’s rein is going on. You don’t want another 18A. Just don’t go to ask why the parliament is not convened. Then, in retaliation to that question, parliament may not come at all or may come with 2/3. In either way you get nothing, but Royals get everything. All these time you the Sinhala Intellectuals has been comfy, cozy with SWRD’s Sinhala Only Communism and JR’s Dharmista fascism. You may not do it now. It doesn’t tell that there is another good opportunity is going to come. The one couldn’t come from CBK time make me to suspect that auspicious time is already passed. Whether you can change the constitution any more time, it appears Lankawe has hit the dead end, if Royals not showing mercy on Sinhala Buddhist Modayas.

  • 0
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    “…the 1978 constitution was created to ‘de-constitutionalize’ the state of Sri Lanka”
    I think that is a good description of its purpose.
    Not only did JRJ create a monster but also placed effective barriers against getting rid of it.
    *
    The 1972 job, in contrast, changed not much in the substance of the state, despite making the British crown no more the nominal head of state, removing the Senate, negating safeguards for minorities (which did not matter in past practice any way) and unlawfully extending the life of the Parliament elected in 1970.
    Colvin R de Silva has much to answer for in each of these, as well as the consolidation of the dominance of Buddhism, a process initiated covertly by Dudley S.

    • 0
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      “consolidation of the dominance of Buddhism, a process initiated covertly by Dudley S”.
      You write all kind of “exotic filths” and if one question it, you immediately come back with cow dung stories like “You are a cheater”. You never respond in honest way like human being. What you wrote is something never happened and it is purely your & other Communists’ hallucination work to throw mud on everybody, while trying to show you as angels.
      You avoided saying bloody communists making SWRD’s Sinhala Only into the 1972 constitutions. They originally wanted to change the constitution only because Tamils appealed to Privy Council two times, when Up Country Tamils votes were removed by Don Stephen and SWRD made Sinhala Only as a rule. You are writing Dudley wanted Sinhala Buddhism into the constitution. You have no idea that Dudley’s girlfriend was Sir. Kandiah Vaithyanathan’s daughter and they restored Ketheeswaram with Dudley’s blessing.
      You wants to be a heroic, brave liar, hoping to shut down media freedom so you can spread your lies freely while calling others cheaters.

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