By Basil Fernando –
Two great lies have been propagated about the 1978 Constitution. When a lie is repeated many times by many persons, often such a lie begins to be treated as a conventional truth.
The first of these lies is that the 1978 Constitution was created on the model of the French Constitution and the American Constitutional tradition. This was first propagated by Professor A.J. Wilson who called it a Gaullist Constitution. At the time, he was the advisor to President J.R. Jayewardene, a role which he publicly lamented about later, after the 1983 riots when the President could offer him only the safe passage to the airport to leave Sri Lanka. However, the false statement stuck. Later, others added the American model also. The mention of the similarity between the French and American Constitutions was constantly used by others and it is being repeated even now.
In recent debates about the proposed 21st Amendment to the Constitution, even the present Minister of Justice, President’s Counsel Dr. Wijeyadasa Rajapakshe in public interviews has repeated the same false position and even President Gotabaya Rajapaksa has also been repeating this position.
Therefore, a short explanation about this is necessary. One of the reasons for such an explanation is not merely to expose a false position but to reveal the dangerous consequences of this position not only since 1978 but also for the future.
The Constitution of 1978 negated the supreme fundamental principle of the rule of law
The most basic falsehood in stating that the French and American model of the Presidential system is similar to the one that was created under the 1978 Constitution is that both the French and American Constitutional model is based on the supreme fundamental premise of the rule of law. The 1978 Constitution of Sri Lanka was created for the very purpose of neglecting the principle of the rule of law.
The following statement by Judge John Michael Luttig made during the third session of the Inquiry at the House Select Committee to Inquire into the January 6th Attack on the Capitol highlights the central importance of the rule of law to the American Constitution:
“The most foundational concept in America is the rule of law. Thus, as I interpret your question, you are asking about that foundational truth of these United States (US), which we call America. The foundational truth is the rule of law. That foundational truth is, for the United States of America (USA), the profound truth, but it’s not merely the profound truth for the US, it’s also the simple truth, the simple foundational truth of the American Republic. Thus, in my view, the hearings being conducted by this Select Committee are examining that profound truth, namely the rule of law, in the USA.”
The most fundamental premise on which a republic is created is the notion that the law is the supreme principle on which the entire republic is created. Thus, the State and the people are all bound by and are entitled to the benefits of the law which is publicly made.
The central purpose of the 1978 Constitution was to displace the most basic elements of the principle of the rule of law. Such displaced principles within the 1978 Constitution virtually makes the law an unimportant aspect concerning the manner in which the Sri Lankan State was to function, and the experience under that Constitution for several decades now has clearly demonstrated the extent to which legality has been undermined in Sri Lanka. This displacement of the rule of law was not an accident – it was part of a design. The design was to create a State which is completely dissimilar to both the Presidential systems as understood in France and England as well as parliamentary systems of governance as understood in Britain and elsewhere. Thus, on the most supreme principle of constitutional law, the Sri Lankan Constitution does not belong or have any kind of a similarity to the great constitutional traditions in the world.
Dr. Colvin R. de Silva did perceive this position at the very start when the 1978 Constitution was put into debate. In an essay written by him and later reproduced in many publications, he said that the proposed Sri Lankan Constitution does not belong to any great tradition but perhaps it has been derived from the ideas of Jean-Bédel Bokassa of Central Africa. Bokassa is known as one of the craziest rulers in Africa where he came to power by way of a coup and thereafter declared himself to be the emperor. Thereafter, he held a coronation in which he claimed to be similar to that of the coronation of Napoleon Bonaparte. He was overthrown within a very short time by the people. His Constitution is known as one of the craziest pieces of legislation ever known in history. That is what Dr. Colvin R. de Silva who in his time was a top most constitutional lawyer declared the 1978 Constitution to be. In this instance, he was quite accurate despite the fact that his own contribution to Sri Lanka’s law, also has many elements which are lamentable.
Thus, repeating this idea that the 1978 Constitution is made in the same model as the French or American Constitutions provide it a legitimacy that it does not deserve at all. What should have been declared as the work of a crazy, power hungry President who was deluded by the huge majority he had in the Parliament due to accidental reasons, wanting to acquire a position possessing of power which cannot in any way be justified within a system based on the principle of the rule of law thus gets to be recognized as just a piece of legislation which only differs from it not belonging to the British tradition.
When the rule of law is displaced from a constitution’s very core of the republican nature of the constitution, the democratic nature of the constitution is thereby completely removed. The 1978 Constitution is a primitive piece of legislation that should never have been allowed to be adopted and should have been discarded as early as possible. Due to many extraneous reasons, the discourse on actions was not followed in Sri Lanka. One of the consequences of this failure to reject the 1978 Constitution is now being experienced by the entirety of the nation when its economy itself has catastrophically collapsed. There is a direct relationship between the 1978 Constitution and the present economic catastrophe. It is essentially in the same area of the removal of the principle of the rule of law. It was that removal which made it possible for widespread indiscipline and corruption within all sectors of the State including the Central Bank itself. That chain of actions would not have happened if the rule of law was enforced rigourously within Sri Lanka. An illustration of this is the fact that when US President Donald Trump tried to retain his power after the loss he suffered in the 2019 Election, by ordering and thereafter trying to pressurize his own Vice President to violate the Constitution of the US, the Vice President himself disobeyed that order on the basis of legal advice from his legal advisors that to do so amounts to violating the most fundamental principle on which America’s Constitutional tradition is based. That is the position that is now explained in detail in the House Committee Proceedings into the January 6th Attack on the Capitol which is being exposed by media coverage to the whole world.
Thus, the American Constitution does not allow the President to do whatever he wishes to do. The validity of his actions are measured through the compliance or non-compliance with the rule of law.
This also explains as to why all these attempted Amendments like the 17th, 18th, 19th and 20th Amendments to the Constitution and now the proposed 21st Amendment to the Constitution are all false positions. None of these Amendments have attempted to restore the rule of law as a supreme principle on which the entire fabric of Sri Lanka’s Constitutional law is rooted. While in the US, the rule of law is being treated as the foundational principle, in Sri Lanka, it is discarded as a matter of no significance. Such constitutions which reject the fundamental nature of the rule of law cannot be amended. Such a Constitution needs to be rejected altogether and a new constitution needs to be created by reinstating the principle of the rule of law as the core principle of Constitutional law in Sri Lanka. Instead of doing that, attempting to amend the constitution while the rule of law remains an unimportant issue or insignificant issue, is to merely bluff or bring about a deception.
The second lie that is being told about the 1978 Constitution is question what is wrong about that Constitution which has given excessive powers to the Executive President. While it is true that the Executive President has powers that no ruler of any democracy should have, that is not the core issue. The core issue is that the removal of the rule of law has created the position of not only the Executive President but also even of Ministers and others to rule without being bound by the rule of law. Without reinstating the principle of the rule of law, it is not possible by this or that amendment to remove this creature called the Executive President which is created only through an illegitimate methodology of trying to create a constitution in the absence of the rule of law. Therefore, the real removal of the excessive powers of the Executive President is possible only when the constitution will be based on the fundamental notion of the rule of law. That will bring everyone within a framework where their functions and powers will be determined and also limited by the operation of this fundamental principle of the rule of law. Without doing that, engaging in all kinds of tricks could only contribute to the existence of this same principle which has brought only catastrophic consequences to Sri Lanka in all areas of life like the economy, the society and the legal system itself.
Here, it is worth quoting the definition of the rule of law so that what is involved in this definition could be compared with what is absent in the 1978 Constitution. This definition is as follows:
Tom Bingham’s definition of the rule of law:
“The core of the existing principle [of the rule of law] is… that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of the law publicly made, taking effect (generally) in the future and publicly administered in the courts.”