Basil Fernando

Ever since promulgation of the Sri Lankan Constitution of 1978 the country has proceeded on a course of anarchy. This is not due to any mysterious circumstances or bad omen but rather due to constitutional provisions that brought about the end of rational government. Enough critiques of this constitution have been made from the points of view of constitutional law and political science. The purpose of this article is to show how the 1978 Constitution makes law enforcement difficult by affecting the law enforcement agencies in the country adversely.

The Constitution of 1978, which was tailored to give the first president absolute power, made it inevitable that two major institutions so basic to the enforcement of law become miniature institutions with diminished importance. These two were the Department of the Attorney General, which also acts as the main prosecution institution of Sri Lanka, and the Sri Lankan police. Their independence undermined, they were brought under the influence of the all-powerful president.

This situation became even worse under subsequent presidents, as institutional habits adjusted to the new power relationships. The institutional prestige associated with the fierce independence of the prosecution and police investigation functions gave way to the wishes and instructions of successive presidents. Taking advantage of this situation, powerful politicians began to exercise their control over these institutions, either through the president or directly. Decisions on the investigation and prosecution of criminal cases were no longer left to a rational process based on principles of due process. Instead, doors were opened to extraneous influences.

A prosecutor’s duty is to uphold the principles of due process by acting on their basis alone. Applying criminal principles defined by law, the prosecutor must examine evidence; and charge those where there is sufficient evidence of the commission of a crime. To do this, the prosecutor must have legal power and actual power.

The 1978 Constitution of Sri Lanka did not change the legal powers of the prosecutor, the Attorney General, however it changed the prosecutor’s actual power. The all-powerful president was no longer the nominal head of the prosecution branch; he was, in fact, the real head of every branch, including the prosecution branch. Thus he could influence decisions on a routine basis.

The chief prosecutor could claim to be head of his branch only in theory. In reality he is not the real head, and nor is he perceived as the real head. His own subordinates and the public understand where the real power lies and where his stops. However the executive president cannot in practice run the prosecution branch. There is so much work to be done by a chief prosecutor in arriving at day-to-day decisions on legal and practical issues that an executive president simply does not have the time or possibility to attend to such tasks. This results in an absurd situation. On the one hand, the chief prosecutor has no real power to carry out the duties of a prosecutor. On the other hand, the executive president, who has the real power, is not in a position to attend to the tasks of a chief prosecutor. The outcome of this situation is the absence of a functioning chief prosecutor in the country. A vacuum has thus developed in one of the most fundamental institutions necessary for maintaining the rule of law.

This same process has taken place in the police. The inspector general of police, who within a rule of law model of policing would be the final decision-maker within the police institution, is no longer the real holder of this power. His immediate subordinates, the deputy inspector generals, also are no longer the key players of the institution. A vacuum has developed in the actual decision-making process. Thus, another very important institution for maintaining the rule of law has lost functioning leadership.

When the two most important institutions for law enforcement—the prosecutor and the police—become institutions without real leadership, the only result that can be expected is lawlessness, and that is what has now penetrated all areas of life in Sri Lanka. While the police and Attorney General’s Department perform some functions, they are unable to address the more fundamental problems besetting the enforcement of the law due to the lack of actual power to deal with the situation.

This is a direct result of the 1978 Constitution. While bad situations can arise even under a good constitution—perhaps due to the failures of people who do not enforce the constitution—even the best of people cannot do much to prevent lawlessness within the framework of the 1978 Constitution. It is very likely that the best people will not even want to take these positions, as they would perceive that doing their job properly is a logical impossibility.

The 1978 Constitution is so absurd that it can only confuse all the institutions necessary for maintaining the rule of law. The 1948 Constitution, with all of its limitations, introduced a basic framework for a liberal democracy: it laid a foundation which, though insufficient to deal with many future developments, did provide a logical and constitutional framework for a society based on the rule of law. Like the clock repairer who destroys the entire machine in order to correct some of its defects, the makers of the 1978 Constitution removed the basic framework necessary for the rule of law under the pretext of improving the 1948 and 1972 Constitutions. Thus the Sri Lanka’s constitutional crisis arose from the 1978 Constitution itself. It was not the events subsequent to the making of this constitution that created chaos in the country: this constitution made those events inevitable.

Like the throne of Macbeth, the post-1978 Sri Lankan "throne" can produce nothing but chaos. It not that J. R. Jayawardene was a bad president who abused a good constitution. His mistake was to create this very constitution. After promulgating it, he himself fell victim to it. Instead of absolute power, all that he enjoyed was colossal chaos. Subsequent presidents have not been able to extricate themselves from this constitution and its kiss of death. The 1978 Constitution is not a clock that can be repaired. It is, constitutionally speaking, no clock at all.

Talk of returning to the rule of law cannot be done under this constitution. It is instead necessary to create a constitution giving real powers of law enforcement to the two basic institutions that are so vital to maintaining the rule of law. Under a rational framework there are ways to curtail abuses of power by these institutions. But to use or abuse power they must have the real possibility of undertaking their functions.

The basic premise on which the 1978 Constitution has to be abandoned is that it makes the rational functioning of law enforcement agencies impossible. To return to the rule of law, the constitutional obstruction must first be removed.

At the 57th session of the United Nations Commission on Human Rights (UNCHR) in 2001, the Asian Legal Resource Centre (ALRC)—a sister organisation of the Asian Human Rights Commission (AHRC)—made submissions on reforming the prosecution and criminal investigation systems in Sri Lanka. The basic arguments were as those set out above.

Shortly thereafter a senior Sri Lankan diplomat invited AHRC to a discussion. He had seriously studied ALRC proposals and thought them worthy of further consideration. He raised a question: which government agencies, or which persons in the government, did AHRC think would consider proposals like the ones mentioned above. The AHRC representatives had to admit that they were unaware of any agency or group within the government that would consider them. They pointed out that the absence of a think-tank or research group within the government is a major defect in the Sri Lankan system. People make whatever suggestions they like, but there is no one to consider them. If proposals are rationally considered and rejected, there is the possibility of developing better proposals; but when there is no one even to consider them, there is no real possibility of progress. The result is that organisations or individuals make proposals merely to discharge moral obligations, without expecting anything to happen. For something to follow there must be some arrangement to consider ways to improve the system of governance.

The absence of an active centre to take in and deal with proposals for improvements of the system is also a product of the 1978 Constitution, for the same reasons as set out above. It has made governance nobody’s business.

The result of the 1978 Constitution was a power vacuum. Early after 1978 many argued that the constitution had centralised power in the hands of one person, and possibly created a constitutional dictatorship. However experience has proved that although it took away earlier powers exercised by other persons, it did not place all of these in the hands of the executive president. The president’s hands were too small to hold all of them. The result was that no one was left responsible for the exercise of many. In the heart of the system of governance, there was a big black hole. Thus the importance of the 1978 Constitution was not in what it created but in what it took away: the liberal democratic framework of governance established by the 1948 Constitution.

The argument that every country has a right to decide on its system of governance is, of course, valid. This may mean a paradigm shift from the original basis on which governance is based. However, if all this means is that the original foundation is removed and not replaced with anything else, let alone anything better, it cannot be called another form of governance, but rather a kind of anarchy. A governance vacuum cannot be called a homemade product in any complimentary sense: it is more like a homemade epidemic.

The civil conflicts in Sri Lanka that have occurred since 1978 cannot be understood without reference to the power vacuum created by the constitution. It is not that these conflicts, both in the South and North, started due to the 1978 Constitution; they have their own historic roots. However, the 1978 Constitution made the resolution of these conflicts impossible for the reasons described above.

What the country needs is to replace the power vacuum with a rational system of excising power. This can be done only by deliberate choice to abandon the 1978 Constitution altogether. However up to now no political party or leader has consciously taken this course, though there is a common realisation that the 1978 Constitution has brought about disaster to the country and its political and legal system. Perhaps when this common realisation is more crystallised a national consensus may emerge to take a decisive step to return to a workable paradigm. Since this is a matter of survival, it is quite likely that this will happen sooner than we can predict. Among other things, a rational solution to the civil conflicts depends on this decisive change of the Constitution. Until then, the type of law enforcement we are likely to have is described in a recent Supreme Court case by three judges thus:

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Published on: 2002-10-23 (956 reads)