26 February, 2020

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The Erosion Of A Tradition Of Law: What Went Wrong?

By Rajan Hoole

Dr. Rajan Hoole

Dr. Rajan Hoole

Present Realities and Precarious Options – II

The Citizenship Act, the Sinhala Only Act and the practices that ensued from them were a clear beginning. Officials were encouraged to break or circumvent the rules to advance preferment to Sinhalese. The Constitution of 1972, which was drafted by the veteran LSSPer, Dr. Colvin R. de Silva, compounded the situation with several errors of subjectivity. The rulers mistook the landslide victory against the UNP in the 1970 elections, which only required a modest swing in support in the first-past-the-post system, for a revolutionary mandate. The tone of the rhetoric was that the people had banished the opposition for all time. Central to the Constitution was the idea of the Sovereignty of the People as exercised through their elected representatives in Parliament.

This was distinct from the sovereignty of a Moral Tradition as codified in legal statutes for practical application. While the Judiciary interpreted the Law, the guardianship of this tradition was diffused among the various components of civil society. A judgement given at a particular point of time is bound to be influenced by prevailing opinion, class and vested interests, and may obviously be contrary to a long established moral tradition. Such was the case with the Supreme Court judgement upholding the Citizenship Act of 1948, which was quite evidently contrary to the spirit of Article 29 of the Soulbury Constitution. This however did not nullify Article 29 or the anti- discriminatory principle it enshrined. Its utility remained in the fact that a future Supreme Court could reverse the ruling of the early 1950s. Today, Sri Lankans are more conscious of the universality of the Law as strengthened by international covenants beginning with the UDHR, and a self-respecting Supreme Court would be hard put to uphold iniquitous laws, and their reversal was only a matter of time.

The same applied to the Sinhala Only Act and Mediawise Standardisation that were contentious issues when the 1972 Constitution was being drafted. Dr. Colvin R. de Silva underestimated the fickleness of Parliament which supposedly represented the sovereign people. What was worse, this principle was so inflexible that it could not brook any check on the power of Parliament.

So out went the second chamber (the Senate) even before the Constitution was promulgated and judicial rulings could no more constrain Parliament. Also of no little value in retrospect was that delicate, undefined and largely untried balance of power that had existed between the Sovereign (Queen Elizabeth II) and Parliament, even if in practice the Queen’s role was only ceremonial. The Queen and Section 29 of the Soulbury Constitution played a stabilising role that was both subtle as well as psychological.

In the context of ethnic polarisation and the alienation of the minorities, the British Sovereign, however tenuous the link to her was, even remotely, an independent arbiter. It was also not lost on the Tamils that it was the Queen’s representative, Sir Oliver, and not the Parliament, who acted to stamp out the 1958 communal violence. These stabilising features of the Soulbury Constitution were dissolved at the stroke of a pen on 22nd May 1972 when Ceylon became Sri Lanka. The Tamil problem was aggravated by leaving the key issues of Tamil agitation unresolved, yoking the minorities, as it were, to a majoritarian tyranny. Ironically, Dr. de Silva had himself sided forcefully with the minorities on these issues in the late 1940s and 1950s.

Why did Colvin R. de Silva do it? Having been a lifelong Marxist revolutionary, it perhaps appealed to him, symbolically at least, to sweep away everything before him and put something supposedly new in its place. But the enhanced power was not passing on to anything remotely resembling a revolutionary vanguard. It understandably meant a lot to Dr. de Silva to make that symbolic act of defiance against the British Crown. In making Parliament sovereign, Dr. de Silva appears to have encountered difficulty in prescribing legal remedies for Fundamental Rights that were defined in his Constitution.

This problem is addressed by Walter Jayawardena QC, who was cabinet secretary to the ministry of constitutional affairs under Dr. de Silva, in a recent article (Sunday Island 12.3.2000). Among Dr. de Silva’s reasons were, that the courts and administrators were bound to have due regard to these rights whenever a citizen took his stand on them, and the Constitution should be brief and need not include matters that would be dealt with in the normal course of legislation. Walter Jayawardena comments on Dr. de Silva’s strongly felt insistence on the removal of the Public Service Commission -“three gentlemen who owed no direct loyalty to anyone”- and vesting its functions with ministers.

Walter Jayawardena observes: “He [Dr. de Silva] would not give the right weight to the contention that it was not the honesty of ministers that mattered so much, nor the fact that they were subject to party discipline and parliamentary control. What really mattered was that politics in Ceylon had reached a point where party bosses had themselves become biased completely the wrong way, thoroughly corrupted if you like; with the result that no one believed that a just appointment would be made without undue weight being given to party considerations… To the Tamil minority, this was an irreparable blow. It is an injustice fraught with danger for the nation, and could have been foreseen. I cannot believe that for all the feeling he displayed Colvin was a free agent in this matter. I recognise that this is indeed a double edged compliment.

It was left to J.R. Jayewardene to uncover the extent of mischief wrought by the 1972 Constitution. Having mistaken her five-year mandate in 1970 for a revolutionary one, Prime Minister Mrs. Bandaranaike overstayed her welcome and was resoundingly beaten in the 1977 parliamentary elections. All the prominent Left leaders and the majority of the SLFP ministers were beaten in constituencies they had long represented, often by unknown UNP opponents. With a five-sixths majority in the sovereign parliament, Jayewardene drew up another constitution, making himself in 1978 the first sovereign president. Mrs. Bandaranaike’s precedent was taken and the life of parliament became 6 years, as was the president’s term.

A public services commission was restored and so was a judicial service commission. But these, like the position of chief justice, were filled by the executive president and were more firmly politicised. The politicisation comes not so much directly as from a host of other factors. Restraining traditions observed up to 1970 had been decisively breached by this new notion of a sovereign parliament with no fetters. The moment one is happy to promote the 20th man on the seniority list to have a yes-man in place, it creates a chain of other evils. Fundamental Rights were made judicable, but this can be nullified by the Parliament’s unfettered legislative power.

This was the case with the Parliament in 1978 passing a law to overturn the Appeal Court ruling on the SPC (Special Presidential Commission) dealing with Mrs. Bandaranaike and then, in 1980, legislating to deprive Mrs.Bandaranaike of her civic rights for 7 years. This was done despite such retroactive punishment being contrary to the ICCPR (International Covenant on Civil and Political Rights) which Sri Lanka had already signed. Fundamental Rights were of no avail to the victim. Neither does it seem that the Judiciary could stop Parliament from enacting bad, inconsistent and even calamitous laws (see Chapter 7).

Had the Supreme Court not cleared controversial constitutional amendments, the Government would have been embarrassed and a point made. But Jayewardene would no doubt have, as in September 1978, removed all the judges using some obscure provision and re-appointed a new bench. To make its point, the sovereign Parliament appointed a committee on a frivolous petition in early 1983 to probe the alleged misconduct of two judges of the Supreme Court, whom it then exonerated. Judges were thus given a clear message to conform.

Thanks to Jayewardene having in 1978 replaced the first-past-the-post with proportional representation, Kumaratunga in 1994 did not get her two-thirds. This limited her freedom in the legislative sphere. We move onto some aspects of human rights, civil liberties and governance, pointing out how the present relates to the past.

*To be continued..

*From Rajan Hoole‘s “Sri Lanka: Arrogance of Power – Myth, Decadence and Murder”. Thanks to Rajan for giving us permission to republish. To read earlier parts click here

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Latest comments

  • 0
    2

    ‘The Erosion Of A Tradition Of Law: What Went Wrong?’

    Simple answer lies with JRJ and Sarath De Silva. Their combined contributions made Sri Lanka a crony country.

    Mahinda is the best person to solve this massive problem. I am working on it through the refined Mahinda Chinthanaya.

    In my Chinthanaya drafting there is no room for Wimal Buruwanse or Namal Kongpakse. The new chinthanaya will break through all the hurdles and will be a new thesis and panacea for the spoilt broth of Sri Lankan politics.

  • 0
    0

    Dr.Colvin.R.de Silvas role in contemporary politics is full of contradictions.

    One Language,two nations,he declared in 1956.
    16 Years later,in 1972 he turned his back and created that Monstrosity of a Constitution of 1972.
    True,he was a Historian; Nevertheless,a bad student of History!

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