By Basil Fernando –
What took place as a result of the 1972 and 1978 constitutions was the change of the normative framework of the legal system of Sri Lanka.
One aspect of the explanation lies in how language affects understanding. Words derive their meaning from what exists in the outside world, whether it will be nature or social realities. However, when it comes to abstract ideas, when a word is used to express an idea that is outside of reality, the word itself acquires a fixed meaning that must be learned (but often is not). Whenever the same word is used, it is expected that a similar meaning is being expressed.
Then, by way of deductive logic, various conclusions can be reached, based on the fixed meanings of words. Let us illustrate this.
All judges reject bribes.
X is a judge.
Therefore X rejects bribes.
All prosecutors are impartial.
X is a prosecutor.
Therefore X is impartial
All policemen protect the law.
X is a policemen.
Therefore X protects the law.
All these three words are derived from a normative framework that exists in a particular context. In real life situations that adhere to that normative framework, judges do not take bribes, prosecutors are impartial, and policemen protect the law. It is assumed that that is how people in those role see themselves.
When that particular framework is universalized, there is an expectation that in all societies judges, prosecutors and policemen behave in the manner described above.
That conclusion is based on the assumption that all societies and cultures have a similar normative framework for the administration of justice. When a person looks into the world with that perspective, they assume that justice systems that say they have judges, prosecutors and policemen mean that those in justice systems judges desist from bribe-taking, prosecutors reject bias and partialtiy, and police reject illegality.
The result of that perspective is that if such a person learns about a judge taking bribes, a prosecutor who is not impartial or a policeman that does not attempt to protect the law, this person will treat this behaviour as an exception the rule. Such individual exceptions do not contradict the assumed normative framework. The normative framework merely sets out the ideals, and exceptional violations do not contradict the ideal. A person with this perspective would expect that, in instances of such exceptions, sanctions would be imposed, and that the normative framework would be strengthened in that way.
However, when the normative framework itself is different, words such as ‘judge’, ‘prosecutor’ and ‘policeman’ do not carry the same meaning. In that normative framework, those words may in fact carry the opposite meaning.
Every normative framework is based on ideals. A different normative framework means one that is following a different sets of ideals. To understand the meaning of words used in a particular framework, it is necessary to understand the ideal framework of a particular country or a society. For example, meanings given to behaviour of judges, prosecutors and policemen in the original examples apply to an ideal framework of justice in a particular legal and social context. In the three examples, a judge a prosecutor and a policeman are expected to behave in the ideal manner described above. The concept behind the ideal framework of justice in the original example is that there is a separation of powers established as an essential aspect of the system of governance, and that justice – meaning fairness – is an inseparable part of that ideal.
Ideally speaking, the Soulbury constitution of Sri Lanka was based on this normative framework. All the laws, court judgements and the behaviour of the operators of various institutions had to be within that normative framework.
However, the very ideals of that normative framework were changed by 1972 and 1978 constitutions. These constitutions rejected the separation of powers principle, where all the three branches of the state enjoy similar status and none is subordinate to the other, but where an independent judiciary is the final arbiter of the law and the protection of individuals.
The core of 1972 and 1978 constitutions was to relegate the judiciary to a lesser status within the separation of the powers conception. The judicial review of legislation was removed and various avenues were opened in order to interfere with the independence of judiciary.
The ideal expressed particularly by the 1978 constitution was to introduce a new constitution and thus reject the ideals based on the original constitution. The new ideal was that all power should be in the hand of the Executive President. The fact that later the Executive President’s position was mostly taken over by the Prime Minister did not alter this fact in any way. The ideal of the executive being outside the separation of powers principle became the foundation of the normative framework.
Within this framework, words like ‘judge’, ‘prosecutor’, ‘policeman’, ‘civil servant’, ‘cabinet minister’ or ‘legislator’ does not have the same meaning as they had under the original normative framework.
The attempt to interpret the new constitutions on the basis of the original conceptions of the Soulbury constitution lies rather than the new ‘ideals’ is at the heart of all the conflicts relating to political life, constitutional interpretation, the functioning of public institutions and all aspects of the functioning of Sri Lankan society.
This contradiction was already felt at the time the 17th amendment was almost unanimously passed. However, instead changing the normative framework of the 1978 constitution, the amendment only tried to modify the powers of the president, while not touching the ideal based on the rejection of separation of powers principle.
Later amendments led to other amendments; it goes on and on, but the normative framework of separation-of-powers-based political system remained rejected and abandoned.
This is let to a tragicomic situation of trying to operate a system that pretended to adhere to the original conception but was in fact really working under a new set of ideals that reject the separation of powers principle.
When words are used that would have one meaning in a normative framework that adhered to the separation of powers principle but have a different meaning in terms of the ideals of absolute power, no real or meaningful discourse is possible. That is the situation that exists now.