By Basil Fernando –
The 1978 Constitution of Sri Lanka is an outstanding example of how meaning can be manipulated through the weaponisation of ambiguity. It uses language that gives the appearance of a liberal democratic constitution of a republic while also putting in place various devices that severely undermine all the basic norms and standards of such a constitution, thereby defeating the very purposes of a liberal democratic constitution.
In Singapore the former Prime Minister Lee Kwan Yew virtually rejected liberal democratic norms and standards, and did so quite openly. His was a very clear stand that the Singapore he envisaged was not a liberal democracy.
However, in Sri Lanka, we had a long tradition of constitutional law and legal interpretation based on the British common law principles that had been introduced to Sri Lanka. These liberal democratic norms and standards were the fundamental basis on which the constitution had been based.
The Soulbury Constitution of Sri Lanka, in place after Sri Lanka’s independence, contained the fundamentals that were established was in terms of the British constitutional law tradition.
Other former British colonies, including India, adopted constitutions which are similar in structure as that of the Soulbury constitution. In India, several famous judgments of the Supreme Court established the ‘basic structure’ doctrine. What it meant was that the Indian constitution had a basic structure that should not be altered.
Some of the basic principles on which this structure is based is as follows:
1. That India is a republic;
2. The separation of powers is an integral part of the constitution;
3. In making laws, the supremacy of parliament prevails;
4. The independence of judiciary is unalterable part of the constitution; and
5. That welfare of the people is also a fundamental aspect of the constitution.
These were also the fundamental principles on which the Soulbury Constitution was based. Thus, on those issues, there were no ambiguity.
The 1978 constitution created ambiguity on all these issues as a way of undermining the underlying principles. While stating that the constitution recognized the separation of powers, it raised the executive president above the parliament, the cabinet and the judiciary. Professor A J Wilson spent a long period trying to create the impression that the 1978 constitution brought in the principles of French constitutionalism and American constitutionalism. This was a complete falsehood because in France and the United States, the president is not above the law. In fact the supremacy of law and the rule of law are fundamental to both the French and American constitutional models. What Professor A J Wilson did was also to weaponize ambiguity. He tried to create the impression that, though the Sri Lankan constitution did not follow the British model of constitutionalism, it was somehow modeled under liberal democratic principles.
However, the very notion of the republic was altered in the 1978 constitution. The name ‘republic’ was retained but the powers given to the president to be above the law and to be the power above all powers was in fact a reintroduction of monarchic ideas under a different guise. It was therefore not a surprise that on several occasions thereafter there were presidents who tried to more openly adopt monarchic powers.
Modern constitutionalism in any liberal democracy is the result of the struggle against absolute power against the monarchy. Prof A J Wilson represented the point of view of a section of the population that that believed that their rights as minorities could not be achieved within a democratic system of governance, as such a system of governance will all ways depend on the majority approval of its decisions. They believed that a dictator who can ignore the majority point of view would better serve their ends. This was a fundamental illusion because a dictator that denies the rights of a majority could not be expected to protect the democratic rights of a minority. The very notions of dictatorship and democratic rights are in opposition to each other. Professor A J Wilson learned this lesson much later and expressed it in different ways after he left Sri Lanka, distancing himself from his collaboration with President JR Jayewardene. When the 1983 riots happened, the only offer President JR Jeyawardene could grant to Prof A J Wilson was safe passage out of Sri Lanka.
In terms of the parliament, the creation of such extensive presidential power created ambiguity in the law-making process. With resignation letters obtained from its party members, the majority in the parliament surrendered the power of making laws as the President wished. The presidents who came later did not have a majority won directly through elections. They had to develop various practices, including corruption, in order to have the required majorities by recruiting persons elected to parliament from other parties to join with them. The constitutional provisions for passing laws also changed in the president’s favor by prescribing a very short period for review by the Supreme Court. The extent to which this interfered with the system was demonstrated by the President sending a piece of paper as a law passed in parliament when in fact the parliament had passed a law that was the very opposite of what the President claimed.
The interference into judiciary was blatantly manifest in the careers of Sarath Nanda Silva as the Chief Justice and also Mohan Pieris, who was treated as Chief Justice but whose appointment has now been voided. According to the current president, Mr Mohan Pieris promised to do anything the president wanted if he were to be kept in the position as Chief Justice. That is the extent to which the judiciary was subjected to subservience by the executive president, who had acquired powers to that very close of a monarch.
In every aspect of the constitution, what we see is weaponised ambiguity. In the immediate period after the adoption of the constitution, several leading lawyers, such as H L de Silva PC and Colvin R de Silva (who was one of the most prominent lawyers in many fields, including constitutional law), tried to interpret the 1978 constitution as representing a continuity from the earlier constitutional tradition established in Sri Lanka. However, this effort could not succeed because of the ambiguities written in to the constitution.
To understand the damage done by the 1978 constitution to the legal system and legal interpretation within Sri Lanka it is essential to understand how the weaponisation of ambiguity was used so shrewdly to defeat the very fundamentals of liberal democracy in Sri Lanka.