By Basil Fernando –

Basil Fernando

Why is there a need for a constitutional change? Is it to make the already bad situation worse? Or is it to undo, the state of disorder brought about by the 1978 constitution.

Judging by the passing of the 20th Amendment to the constitution, it is clear that the proposed constitution is not for changing the course of the 1978 constitution. It is in fact an attempt to make things even worse from the point of the view of the governance and law and order. It will improve upon the power of the executive to rule without any regard to law. Proposed Constitution will follow the model of 1978 Constitution and will go further in closing down all doors to any legitimate expression of public concerns.

All though public proposals regarding constitutional changes has been called for the model. Structure and the aims of the proposed constitution were well determined quite ahead of time.

What could be worse than what is there now, brought about by the 1978 constitution?

Here are some answers to that question:

1. The entire bureaucracy working in various departments were greatly weakened by the 1978 constitution. All public institutions have lost their independence to act and therefore the also the possibility of acting with integrity for the benefit of the people. Instead everywhere there is paralysis in every public institution. This will become even worse. The constitutional model recognizes only one person as a subject that has right to act: Everyone else has only a passive role, which is to carryout orders. All officers, at every level are expected to be passive. An officer that has no active role, has also no responsibility except the to obey expressly given orders. To take initiative for better performance of duties of office would thus be an offence, as only duty bearer is the executive president. The only person who could be held responsible is also the executive president. As he is above the law, the idea of responsibility and accountability become meaningless words. Further very idea of acting according to one’s conscience itself becomes irrelevant. Without freedom to act, there can be no duty to act, according to one’s reason or conscience.

2. Corruption has never been worse than it is now. This is a direct result of the 1978 constitution which paved the way for unlimited corruption in every sphere of society. Unlimited power of the executive and unlimited corruption were inseparable Officers who are reduced to play passive role, learn to find ways to use their office and uniforms foe self-enrichment. They know that due to the very nature of the office created by this constitutional model, the top duty to bearer, has no eyes to see what they do and no arms to act against them. To have many officers, who know that they can benefit from the general state of lawlessness is one of the grave dangers that unfortunate nations have to put up with.

2. The lawlessness has become the prevailing situation in every aspect of life. On this there is no controversy. All the presidents, prime ministers, all opinion makers and all citizens have repeatedly talked about Sri Lanka having become a lawless place. Of course much of the pain of that situation is experienced by the people and the people have so much understood the fact that law will not provide protection to them. They have adjusted their life in order to survive within a highly lawless situation. For this they have to make many adjustments and compromises among which the most prominent is to silently endure the assaults on their humanity, to forget about their own right even in the face of very grave injustices. That the demand for justice could lead to something worse than the injustice they have already suffered, is a common perception.

When the three above mentioned factors are put together, that is weakening of the public institutions, increase of in fact overwhelming levels of corruption and the almost complete lawlessness, that explains every other thing that is happening in the country.

One of those other things is the ever increasing levels of crime. A murder is being considered not as a shocking social event but as a very normal affair about which nothing can be done except to take all the possible precautions by oneself to protect oneself. The police as the public institution responsible for the prevention of a crime and thereby protecting among other things, the lives of people by dealing with serious crimes such as murder, rape, child abuse and of course even more graver crimes such as complete robbing of national resources is powerless, There has been for quite some time a clear system failure. Within the policing system the weakest link is the criminal investigation section. This is not merely due to absence of adequate number of trained and competent investigators but more due to politicization of the criminal investigation system. It does not allow even the best of the investigators to do their jobs in the manner that is required by their profession. Loyalty to political superiors has become much more important than obedience to their professional superiors. Yesterday’s investigators, today live in fear of threats to their lives from the suspects against whom they previously conducted investigations.

The authority of high ranking police officers over others has so much diminished that giving of orders often does not lead to any kind of positive result. Thus, the structure of the command responsibility has suffered gravely.

The same applies to other important institutions for example, like the Attorney General’s department which has the task of ensuring that the criminals are competently prosecuted and the innocent are protected. There are ever increasing complaints of fabrication of charges and  attempts to weaken the processes that lead to a fair trial even in cases where after competent investigations and by the scrutiny of the Attorney General’s department, it has been felt that there was adequate evidence to prosecute the offenders. The central theme that has developed is how to exonerate persons who are politically loyal to some persons from criminal liability about crimes that the investigators claim they have adequate grounds to prosecute. A Sinhala verse, exhibited in a banner placed in front of Colombo’s public library some time back, expresses public perception about the once highly respected institution:

“Aiyo Attorney General, Aiyo Attorney General

Criminals come and rape young girls

And murder people

Rob and suppress the law

Why should we have a Lord of The Law (neethi-pathi),

When there is no law in the land.

On the other hand, the same methodologies are applied in order to cook up whatever stories in order to arrest, detain and otherwise harass people who are considered to deserve such treatment for political reasons.

What makes it much more terrible are the extrajudicial killings. The criminals who have been arrested legally are, later found dead allegedly due to accidents while in custody.

1978 Constitution and the Proposed Constitution

Proposed constitution will complete the process started by 1978 constitution – Public institutions will be mere phantoms, all gates to corruption will be opened and lawlessness will become the norm. Social Disorder will be treated as Social Order. Illegality will be treated as legality.

Justice said, Hans Keelson is based on a system of values agreed upon by the people. Sri Lanka’s proposed constitution will have no room for justice. It will continue to be based on counter values as 1978 constitution did, but now, in a more perfected form. It will replace social order with social disorder. It will negative affect every aspect of life and thereby will have an un-civilizing impact on the nation.

Under such circumstances, sense and non-sense, right and wrong and sanity and insanity will be hard to distinguish.

Murder of persons under the custody of state institutions will be justified as heroic acts meant to save the nation and community, investigators who exonerate criminals and file fake prosecutions will be rewards, those who expose corruption will have to find places to hide, family members who complain about abductions for ransom and disappearances s will themselves face dangers. In short all attempts to pursue anything earnestly will turn into tragi-comic dramas.