By Basil Fernando –

Basil Fernando

Part-2 -Spurious Constitutions, What are those?

Earlier we discussed that the Constitutions formulated in good faith serve as a permanent foundation for resolving the perennial and recurring problems of a country.

But a Constitution can be formulated with devious and unscrupulous intentions as well. It happens when the rulers want to carry out their activities in an arbitrary manner. Such documents are referred to as ‘Spurious Constitutions’. The key element of spurious constitutions is that they are formulated with the intention of disregarding or circumventing the common law of the country which is generally accepted by the people. The spurious constitutions are formulated to facilitate the exercise of power without restraint. The ultimate result of the constitutions of this nature would be the abolition of the sovereignty of the people to a great extent or sometimes completely. Thus the intention of making a spurious constitution would be to depreciate the rights of citizens to a level of an invalid coin.

The implication of this can be further clarified by discussing the above point citing practical examples. The Constitutions enacted in 1972 and 1978 in Sri Lanka, fall into the category of spurious documents. The objective of the 1972 Constitution was to change the existing legal framework applicable to the governance of the country and adjust it in such a way that the control of it could be brought directly under the Executive. It was fulfilled by limiting the powers of the bureaucracy of civil service, drastically. Consequently, the powers of the top officials of the hierarchy of civil service, that is the Secretaries to the Ministries, were abolished and vested in the Ministers.

Thus, appropriating the rights of civil service on themselves and obstructing its legitimate and disciplined functioning, the politicians have managed to broaden their sphere of intervention   in the civil service and manipulate it arbitrarily with political decisions at their whim and fancy. Thus, the 1972 Constitution was not formulated for the progress of the country and the welfare of the people, but to create a civil service built around the politician, for narrow political gains. To this day, the people of Sri Lanka have suffered severely from the ill effects of the 1972 Constitution.

The 1978 Constitution was adopted to establish a system of governance based on what is called the ‘institutionalised arbitrariness’ on a much larger scale than the 1972 Constitution. It is one of the foremost among the spurious documents. The difference between the arbitrary rule and the rule of law is as wide as the difference between the sky and the earth. On the contrary a genuine constitution formulated in good faith naturally aims at eliminating, to a greater degree, the possibility of the rulers acting arbitrarily.

It is linked to the great concept that the national wealth which can be controlled by power and authority should be used only for the welfare of the country and the people. The so-called 1978 Constitution which has been formulated with an ulterior motive, disregarding this great concept and being prompted by the desire to achieve narrow and opportunistic interests has invariably created a state of maximum chaos in Sri Lanka.

By creating a chaotic condition in the country, JR Jayewardene, the founder of this spurious document, enacted it, on the belief that he could achieve a number of goals he had in mind by adopting an arbitrary approach at its maximum.

The main objective of Mr. Jayewardene in formulating and enacting the 1978 constitution was to stay in power as long as it was possible. Though he was appointed the Prime Minister for five years, he desired to remain in office for the rest of his life. However, the electoral system operative in Sri Lanka proved to be the biggest obstacle for him to realise this goal. In terms of the electoral system of Sri Lanka, the citizens elect their leader and the government from time to time, which is expected to remain in power for a limited period only. This limit has been enshrined in the Constitution adopted at the time of independence. Thus, one of the basic tenets or the well accepted notion upheld by the countries in the world that follow democratic tradition, that a government should be appointed only for a limited period has been enshrined in the constitution itself. Jayewardene, having realized that it was an essential condition to abolish this Constitutionalised attitude to achieve his goal of remaining in power for a long time , made use of the 1978 Constitution which is a spurious document created by him.

There were several other motives that Jayewardene wanted to achieve. One of them was to limit the power of judiciary. The authority of deciding the legitimacy of decisions made by a government has been traditionally vested in the judiciary. This is one of the core concepts of the rule of law. The rule of law cannot exist without a judiciary that asserts its independence fully. On the other hand, a judiciary which asserts its independence strongly, and a ruler who feels that he should have all the powers cannot co-exist. In such a situation, either the ruler must admit the idea that he is subject to the independence of judiciary and leave the supremacy of judiciary to prevail or else should suppress the independence of judiciary and assert his authority.

The ability of the ruler to suppress the independence of judiciary is determined by the extent to which the attitude of the people rooted in the society in regard to the need for safeguarding the independence of judiciary. This has been stated by a judge who has served on the Supreme Court of Australia responding to a question posed to him as to how the judiciary should protect itself if the Executive interfered with the independence of it; he further said that the security of judiciary is entirely rested on the belief that there is an atmosphere in our country where the people will take themselves to the streets against anyone who attempts to obstruct the powers of the judiciary. Mr. Jayewardene wanted to abolish the power of judiciary altogether, but he was unable to do so as there was an obstacle for him to do it at that time.

It was because there was an ideological conviction rooted in the middle class of Sri Lanka, in regard to the independence of judiciary. Therefore, he was not able to destroy the independence of judiciary completely. There existed an obstacle for it in the society itself. So much so, what he did was to obstruct the role of judiciary and its functioning by imposing various restrictions on it. For example, it would be possible to hamper the functioning of judiciary by preventing it from receiving adequate funds required for its proper functioning. He was able to thwart the qualitative change that Neville Samarakoon, the then Chief Justice was trying to make in the judiciary by obstructing the grant of   necessary funds for the appointment of new judges. He was also able to interfere with the independence of judiciary in various other ways, such as, by interfering with the appointment of judges as well inculcating and spreading various fears under the dreadful circumstances prevailed at that time.

The independence of judiciary is largely linked with the independence of all the institutions involved in the administration of justice. For example, if the police that are responsible for conducting criminal investigations do not perform their role properly, the judiciary may lose the ability to hear serious criminal cases and administer justice. Our legal system which is based on evidence is largely dependent on the police investigators who are the collectors of evidence. By influencing the police, that is, by obstructing the administration of justice, the role of judiciary could be severely weakened. In this manner, what Mr. Jayewardene has done was to carry out a program of weakening the judicial system in Sri Lanka using the spurious constitution that he introduced in 1978.

By the year 2000, the serious damage caused to the country by the 1978 constitution had begun to be felt by almost everyone in the country. Therefore, the idea that this Constitution should be abolished had become a generally accepted opinion throughout the country. This view was greatly instrumental in bringing Chandrika Bandaranaike’s government to power in 1994. But after coming to power, that task was evaded. The rulers were reluctant to renounce this spurious constitution as it allowed them to retain more power under their jurisdiction. However, at least to contain the public pressure mounted on the demand for reducing the power, the 17th Amendment to the Constitution was made and some attempt was made to appoint the top officials of the country’s major institutions on an independent system. But a clash between this attempt and the power of the Executive President was inevitable. Consequently, at a later date, the 18th Amendment was introduced eliminating even the limited changes made to the Constitution by the 17th Amendment. In the same way, the 19th Amendment sought to revive the 17th Amendment; but with the introduction of the 20th Amendment, the space available for the President’s arbitrariness was expanded granting him more powers than ever before.

The proposed new Constitution that is being drafted now is most likely to further enhance the arbitrariness and pave the way for creating an environment in the country where the rule of law will be diminished to a minimum or to a level of no rule of law, at all.

There is a huge difference between the tradition and the formulation of a constitution in good faith to address and solve the problems of the country. The difference is contrasting   like white and black. The ‘Spurious Constitutions’ will invariably widen the scope of the arbitrary existence of the ruler. On the contrary, the ‘Genuine Constitutions’ will expand the scope of intervention of the people and the functioning of the rule of law and convert the idiosyncrasies and conduct of the ruler into responsibilities to be discharged within a legal framework.