19 October, 2019

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Weaponisation Of Ambiguity – Sri Lanka’s 1978 Constitution

By Basil Fernando

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. 

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Latest comments

  • 6
    0

    A Classic example of how low a crooked mind can stoop with the accomplished highest Level of Education and dumped the very innocent people who had trusted him and who had betrayed his motherland into an ocean of irredeemable misery. History can forget and forgive the master crook JR, but never an educated bootlegger AJW.

    • 5
      2

      “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.”


      Mr Basil Fernando

      To cut a long shindig short …….. in laymen’s language …….. JR wrote a constitution for himself; not for the nation/country ……… for the 12 years of his reign; not a day beyond.

      And the great man Mahinda altered the constitution for life; for his life.

      SLFP-side will readily agree with the first …….. and the UNP-side will agree with the second.

      Good ol’ truth is a strange thang ……..

      And after such herculean efforts to redeem his flock from untruths ………Buddha is somersaulting in his grave ……. Nadia Comaneci-ng ……… a perfect 10.

      Lanka is a Buddhist country ……. in true Lankan-sense of the term.

      Why are ye complaining? What more do ye want?


      A serial-killer will finally end up as the president ……… that’s the crowning glory of the 2500 year Buddhist journey ……… The crowning jewel on the pinnacle of the great Buddhist stupa

      The best fiction writers of the world couldn’t have come up with such a script! ……… and here we are right in front of our eyes ……………..

  • 1
    1

    The said Ambiguity of the constitution can be avoided or @ least be minimized by scrapping the written constitution & introduce a system with wholesomely ethical application & set to pass orally for considerable period of time.

    There may be challenges @ the beginning but in the long run it’ll be very successful.

    JRJ, though some identified as genius( some still maintain that in favor of political party) was the most horrific politician ever existed in Sri Lanka.

  • 2
    1

    Ambiguity in constitutions comes from various sources: (1) by purpose (2) bad drafting (3) crooked interpretation (judicial and other). Weaponization of ambiguity mainly comes from politics directly, and indirectly from politicized judiciary. Ambiguity also was there in the Soulbury constitution (written and unwritten). Removal of citizenship, Sinhala only and the Governor using emergency powers in 1958 came under that constitution. The British given constitution was not all rosy. The writer however is right in saying both ambiguity and weaponization of ambiguity were widespread under the JR constitution including Ranil’s additions, to mean 19A. A clearly written unambiguous constitution is a must. However, in my opinion, all the defects cannot be blamed on the presidential system. An executive prime minister also could be a danger. Even under the 1972 constitution these authoritarian tendencies were evolving. Best examples are ‘foremost place for Buddhism and political authority over public service in the name of people’s sovereignty. One more minor factual correction. Prof A. J. Wilson left the country not after 1983, but well before in early 1970s. The country needs not only constitutional bashing, but an overall socio-political analysis and a program for change.

    • 1
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      Laksiri,
      A agree with your first sentence 100% but, it also contradict your assertion that a foolproof constitution has to/can be written. Unlike the the excellent British tradition of respecting unwritten higher ethical standards in the face of ambiguity of written laws (that is not cricket), the dictatorship created by the 1978 constitution has encouraged the politicians in power to ignore the ethical standards whenever possible. The situation hit the rock bottom after MaRa came to power. During the failed 51 day coup, MY 3 also exhibited the unethical intention of manipulating ambiguities of a few words in the constitution.

      My argument is simple: Unless SL society reach such a high level of ethical standards that, at least the most conspicuous people of the nation, come to the habit of placing common social values over personal benefits, no constitution will work, no matter how well written. It may be possible to rewrite the constitution to eliminate the existing ambiguities. But, what is needed most is to develop a political tradition of respecting true intention of the constitution.

      I don’t know what is in the verdict of GoRa’s case but I wish if it could contain a few words regarding the apparent abuse of power by MaRa to provide a favor to his own brother. I’m not against the verdict; for the judges didn’t have any other choice. What is appalling is the corrupt way the family has abused power!

      • 0
        0

        D. P.,
        There can be a difference between the intention (objective) and the achievement (outcome) in constitutional drafting. However one should not promote or allow ambiguities. Yes, major problems are in political practices, political culture and lack of ethical standards. Two efforts (drafting a new constitution and changing politics, culture, leaders) should go together.

        Abuse of power is all embracing. The major challenge however at present is preventing the family rule coming back. However, it is mainly a political battle and not a legal task. Desperate and adventurist legal battles can play into the hands of the ‘family.’ I frankly don’t think the citizenship issue is a major issue to fight out at this stage. I am not the NGO or the ‘true believer’ type.

  • 0
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    Who is Prof A J Wilson. Please give me an idea. Is he not S J V’S SON-IN- LAW.

    • 1
      1

      BGANENDRA

      “Who is Prof A J Wilson. Please give me an idea. Is he not S J V’S SON-IN- LAW.”

      So, Prof A J Wilson must have helped draft this constitution with the long term view to destroying this island, a task which VP couldn’t achieve during his years of madness.

      Poor JR, RP, DBW, CBK, MR and MS didn’t notice/understand A J Wilson’s trap which
      even foxy JR didn’t realise why he shouldn’t have trusted equally foxy Demela’s intentions.

    • 0
      0

      A.J.Wilson was one of the consultants of JR from 1978-1983. Period 1978 Constitution was pure JR’s & his brother’s product. A.J.Wilson had his opinion about the constitution. He had criticized it & praised it. Some Tamil looneys’ job is only transferring all Sinhalese (mal-) achievements on Tamils. So those pretending PhD are trying to say AJW did it. Even when JR was alive, AJW never accepted that blame. Tamils (FP and TULF) cleanly boycotted both constitutions. (1972 & 1978). 6th amendment and 13th amendment were rejected with protests by TULF. TULF was never tricked AJW. If so, I would to read those passages, if they are in Net. AJW was not a constitutional expert like Colvin, Nadesan, Satyendra, Neelan…….. He was not a lawyer, but economist by education, and taught politics.

      Sinhalese has put all 70 years’ problem on SJV as all happened here was because SJV asked for federalism. After all, Federal Constitution was SWRD’s idea, to keep rural Sinhalese away from Kandy Telugu Radala.

      Nasty Colvin’s dirty work of 1972 was cleaned by JR introducing the 1978 filth. That is how the Sinhala Intellectual’s life goes. 1972 Constitution was the one first brought the treasury with Zero balance within 5 years.

      Racist Basil always finds some fault with Tamils or on Hinduism. Somebody needed evidence must go back on CT and read about how he was bashing Hinduism. But Kusal Perera has said Sinhalese vote based on caste. It is only Tamils have Temple Entry Bill of Federal party. Muslim don’t allow women in Mosques and Sinhalese has own temples for each caste. When Basil was writing his ugly essays about Tamil castes, Father Emmanuel came to defend Basil. After that he joined with Reginald Corey & Yahapalanaya for photo ops. Now Father Emmanuel and his Global thing are treated as most unreliable parties by Tamil diaspora.
      Long Live Basil Anti-Tamil Propaganda!

  • 0
    2

    There is no cure for this terminal malady of the warped Shinghala psyche. It is not capable of thinking straight. Only Egotism rules, ok.

  • 1
    0

    Wilson migrated to Canada when the PA government was in power, but played a very big role in drafting the constitution and defending it academically.
    He also helped JRJ to take the TULF for a ride in 1980-81 by making it accept the DDCs, which everyone knew would be not half as powerful as an urban council. The FP trusted him, because he was SJV’s son-in-law.
    I am not sure if Wilson visited the country in 1983, but he visited a few times during JRJ’s tenure as dictator, never to return after 1983.

  • 0
    0

    JRJ is the biggest traitor to this country for enacting his constitution. We can all see the evils of the proportional representation system which means one has to do the election campaign in the whole district instead of an electorate this prevented decent people from doing politics and only businessmen, crooks, thugs and kasippu mudalalis got elected because they had a lot of money to spend. Perhaps JR did this after analysing the 1960 election where the UNP lost but the difference in voter numbers was marginal. JR only thought about the UNP party and not the future of the country and that is why he will go into history as a traitor who ruined the country.

  • 3
    0

    “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.”

    This is the main reason why Singapore flourished and Sri Lanka is rotting.

    I think it was Sir John Kothalawala who said that we have ‘Wal Booru Nidahasa’. This ‘Wal Booru Nidahasa’ gave the Malabaris who were brought to this country by colonial parasites to play hell demanding a Separate State although there was no justification at all for such a demand. It led to a war that dragged on for 33 years and gave the opportunity for Hindians to interfere with internal affairs of the country and destabilize the country. Native Sinhalayo should curse ‘Para’ Parangi, Olanda and Ingirisi ‘Parayas’ for creating this situation.

  • 0
    0

    Having everything clear cut is a part of transparency. Ambiguity is the essence of opaqueness, the ability to interpret the way one wants at a critical juncture. Leave alone the performance of 1978 constitution, what about the 19th Amendment? Did it not have some ambiguity that resulted in a court battle? The politics of decency and genuineness did not commence eroding in 1978 because of JR and his constitution. Everyone knows who was instrumental in making the Ceylon in 1965 for not properly responding in a Privy Council case where the 1962 coup plotters were heard. There are so many incidents where long before the 1978 constitution where individuals through abuse diluted the administration of justice. It is the crooked mind that ruined the country not merely the ambiguities itself.

  • 0
    0

    Sir, with all respect (I mean it), do you actually believe we Lankans have a constitution????. Ours is not even worth the paper it is written. More HOLES than what it really could HOLD.

  • 0
    0

    Following the 26 October 2018 coup d’état there was this horse-trading of MPs. We were laughed at by the whole world.
    The ‘list MP system’ is at the bottom of this auction. Will any of our leaders consider doing away with this?
    PS: Mangala is the only MP to call the 26 October 2018 incident a coup d’état.

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