By Basil Fernando –
There appears to be a well pronounced schizophrenia in the political mind of Sri Lanka, on all vital matters that decide the nature of the Sri Lankan State and also the nature of the political role of the people of Sri Lanka. Perhaps, it is better to explain this through illustrations. Is Sri Lanka a Republic?
According to the Constitution, Sri Lanka is a Republic. However, the foundational notion of a republic is the supremacy of the law as against the supremacy of an individual or a particular office. In the 1978 Constitution, the supremacy of the law was abandoned in favour of an Executive President who is above the law. This split between the notion of a republic was expressed by Thomas Paine in terms of the United States as “in the United Kingdom, the king is the law. In the United States, the law is the king.” These are two completely opposing points of view and they are irreconcilable. In fact, the entire history of building the idea of a republic was to defeat the idea of the monarchy where the king decided everything including what the law is in the country. Acting outside the law was quite normal within those circumstances as the king was not bound by any laws and there were no restrictions to his power. Thus, in the very heart of the Sri Lankan Constitution which is supposed to be the supreme law of the country, there is a very great split. So long as this split exists, the Sri Lankan State is bound to suffer from enormous confusions and unsolvable problems because the two fundamentally opposed ideas are being treated as valid within the same Constitution.
Role of the Rule of Law?
Flowing from this split of fundamental ideas is another split which is opposing notions about the role of the rule of law within the Sri Lankan State. On the one hand, the basic public institutions such as the Parliament, the Judiciary, other institutions of the administration of justice such as the Police and the Attorney General’s Department, the civil service, all other public institutions such as the Inland Revenue Department, corruption control agencies and the like are theoretically speaking, supposed to work within the framework of the rule of law. However, in their real functioning, all these institutions including even the Central Bank recently was controlled directly by the orders of the Executive irrespective of whether these directives conformed to the norms of the rule of law or not. Thus, the officers acted more on the direct orders of the President himself or others who work on his behalf. This is a crucial conflict because by definition, the rule of law requires that all those who work for the State in their institutional or private capacity has to act within the law that has been publicly made. Every person who acts on behalf of the State is bound to perform the duties he/she is expected to carry out in terms of his/her office and also not to exceed the limits to his/her power imposed by the law. Thus, an officer of the State can commit offenses of commission or omission in terms of the abuse of power or in terms of the failure to perform the duties that go with the office. However, when a person has to act on the basis of orders from outside which may be opposed to the law, then the very idea of the officer of the State itself is challenged in a very fundamental way. The major criticism that is brought against the present system of governance is that the State officers are placing such circumstances that they are compelled to carry out the orders from others irrespective of whether these orders are legal or illegal.
Another fundamental area in which there is a major split in the political mind of Sri Lanka is as to whether Sri Lanka is a democracy. The Constitution enshrines a Democratic, Socialist Republic of Sri Lanka. The most fundamental idea of a democracy is that power must be bound and restricted within a framework of the law that has been publicly made. In explaining the American Constitution, the Founding Fathers have taken lot of effort to explain that the valid principle for good governance is to have a distrust in those who are placed in power. That is not due to any reasons of a personal nature of a particular person but due to the very nature of power which tends to corrupt and the cliché is that absolute power corrupts absolutely. Thus, within the Sri Lankan Constitution, there is an irreconcilable conflict on the one hand of proclamations where we state that it is a democracy and is bound by the principles of democracy, while on the other hand, removing all the restrictions to power which are normally placed within a democracy against the Executive. This means that at an operational level, this conflict gets manifested all the time. This results in great confusions and both the officers of the State and the people are influenced by this great confusion.
The Role of the Parliament?
There is also a split in the ideas relating to the role of the Parliament itself. Within a democracy, there is a notion of the supremacy of the Parliament. However, when the Executive is above the law, the Parliament can be turned into merely an instrument serving the Executive than being a separate branch of governance. From all appearances, the Sri Lankan Parliament observes the rules and rituals that give the appearance of an independent Parliament. However, through the very nature and the structure of the 1978 Constitution, the role of the Parliament is to support the President to get through the laws he wants and to approve the budgets that he requires. The Parliament’s power to hold the Executive responsible for wrongdoings is extremely limited and most difficult to practically achieve. Thus, there is a tremendous confusion on the actual role of the Parliament and this confusion goes into almost every affair of the State and also into all affairs such as even the control of the finances of a country.
The Role of the Judiciary?
There is also a split in the mind regarding the role of the Judiciary. The Constitution states that the Judiciary exercises the power of the Parliament. On the other hand, it is said that the Judiciary is independent. For the Judiciary to be independent, it should be a separate branch of governance. The very idea of independence is that it acts to prevent wrongdoings on the part of the Executive or of the Legislature itself. Thus, the operations of the doctrine of checks and balances are based on the idea of the Judiciary being a separate branch of governance. In Sri Lanka, according to the Constitution, it is not a separate branch of governance. Thus, the claim of independence is restricted by the lack of equal power with the other branches of the Government when dealing with problems which need to be dealt with in a decisive manner. Hence, there is a need for the removal of the split that exists in the political mind of Sri Lanka about the actual role that should be played by the Judiciary.
The Role of the Police
There is also a split of the mind as to the role of the Police. In a letter written by the Inspector General of Police (IGP) which recently became highly publicized in the media, the IGP himself talks about the officers in charge of police stations which is a function which carries enormous responsibility having not even been chosen on the basis of any interviews as required by the regulation. What is implied is that these appointments have been made by other persons following other persons and not by the IGP following the normal processes of making such appointments within the Department. The law enforcement function is a fundamental function within a State. If within the law enforcement division itself there is a huge split of mind, then the entire fabric of the society will be greatly disturbed by that split and Sri Lanka is suffering from that state of confusion regarding this matter. Also, with regard to the Police, there is a fundamental split in terms of the function of the Police investigations. For the efficiency of the functioning of the State and society, the investigative function of the Police is a vital function. However, there is a split of opinion as to what crime should be investigated and what crimes need not be investigated by the Police. These are decided not on the principles of criminal law or criminal procedure but for extraneous reasons. Therefore, the citizen has no way of knowing whether the crimes the society may complain of will be investigated or not. There is also a question as to whether these investigations will be conducted independently following the professional rules or on the basis of directions given by extraneous forces. When the law enforcement function itself undergoes such a split of the mind, it is not possible for the society to function. These are just a few examples of the fundamental split in the mind of the State and the people of Sri Lanka which makes the very idea of the rights of the people highly questionable. Can rights exist in a country which calls itself a Republic but has arranged itself to function outside the basic notions of the rule of law and in every other way has created the irreconcilable distinctions between what is proclaimed as principles and what is being practiced as legitimate within the State.
In a country which has remained within that state for over 40 years now, it is not even a surprise that the economy has collapsed. The functioning of an economy requires consistency in principles as much as individuals require consistency of mind in order to function properly. These basic splits need to be addressed and cured if Sri Lanka is to come out of the present situation of extreme crisis which has pushed the State and the people into an abyss.