The Sirasa Rupavahini Television Service has conducted a series of discussions on the 1978 Constitution of Sri Lanka, which has brought into focus some of the Constitution’s fundamental defects. Most of the themes discussed are not in fact new, with several groups reflecting on these defects in the past, as well as a certain amount of literature produced on the issue. The importance of the Sirasa TV discussion however, is that it brought the issue to the nation, and created the possibility for wider debates on this important topic. This article will give a brief overview of the TV discussions, before elaborating on some aspects important to this topic that were not taken into account.

The participants in the TV discussions were Sri Lanka’s former chief justice Sarath Nanda Silva, and senior consultant to the Ministry of Constitutional Affairs, Uditha Igalahawa. They were able to clarify some basic constitutional issues, as well as explain the background to the evolution of constitutional provisions. The TV discussions also gave a prominent place to the historical evolution of the 17th Amendment.

The discussions are based on the foundation of the civil administration introduced by Britain in Sri Lanka. Having developed a decent system of civil administration in its own country, Britain attempted to create a similar model in Sri Lanka. In fact, Britain’s civil administration is one of its greatest strengths, lasting to the present day with the necessary adaptation and sophistication.

This basic administrative system, adopted and incorporated into Sri Lanka’s first constitution after independence, suffered serious interference in 1972. When the Civil Service Commission was abolished in 1971, its functions were incorporated into the functions of the cabinet itself; in 1972, cabinet ministers took over the functions of the previous civil service commission.

The most important of these functions were the appointment, promotion and disciplinary control of all civil servants. The taking up of these by the cabinet resulted in a discontinuity with the traditions of civil service introduced by Britain, in which the position of the permanent secretary of a ministry was key. These permanent secretaries played prominent roles in shaping their ministries. Direct cabinet interference into the workings of the civil service damaged its independence, and led to the problem of politicization.

While the Civil Service Commission was restored in 1978, the position of permanent secretary was not restored. At the same time, the creation of the Executive Presidential system meant that the ministers came under the President’s control. The process that began with the cabinet taking over ministerial functions was now continued by the President deciding on appointments, promotions or disciplinary control relating to the civil service.

1947	1972	1978
CIVIL SERVICE COMMISSION | CIVIL SERVANTS	CABINET | CIVIL SERVANTS	EXECUTIVE PRESIDENCY | CIVIL SERVANTS

The 17th amendment to the Constitution (2001) was an attempt to remove this interference through independent commissions that would oversee the appointments and such of civil servants. Five of these commissions were appointed, and they were to ensure that the civil service had the necessary independence to function well, with no direct interference from the president. In turn, these commissions were to be appointed by an independent Constitutional Council.

CONSTITUTIONAL COUNCIL FIVE COMMISSIONS PUBLIC SERVANTS

While the above overview of the problem facing Sri Lanka’s public administration is accurate, the Sirasa TV discussions missed one fundamental factor: the rule of law. The British civil service, like the entirety of the British system, was based on the foundations of the rule of law. In fact, perhaps unlike any other nation, Britain built itself on the respect for rules, which was developed together with respect for rule of law. Its unsurpassed attachment to the supremacy of the law even allowed for the head of a king to be sacrificed to establish this principle. Supremacy of the law rather than supremacy of the ruler was deeply entrenched into the British justice and administrative systems. Any discussions on the British administrative heritage left to Sri Lanka should therefore be discussed within the rule of law framework. This would lead to a different set of implications regarding the country’s present problems.

The interference into the country’s constitutional framework in 1972 and 1978 led to not just the politicization of the civil service, but the abandonment of the supremacy of the law. The executive presidential system as envisaged by the 1978 Constitution placed the president above the law. Article 35 of the Constitution, as well as many other provisions, should be seen as an attempt to displace the rule of law framework and to give the president power to act without following basic rule of law norms.

Conflict between Judiciary and Executive Presidency

Since 1978, there has been interference not only within the civil service, but also with regards to the judiciary. While the Sirasa discussions gave the impression that interference towards the judiciary was somewhat mitigated by judges being in charge of the Judicial Service Commission, in fact ignoring the separation of powers between the executive and judiciary was inherently damaging to the judiciary and the entire rule of law system.

The presidential system’s impact on the judiciary could have been dealt with by rule of law concepts and the insistence on the supremacy of the law. By adopting this approach, the judiciary could have interpreted section 35 of the Constitution—the absolute prohibition of bringing lawsuits against the president—for instance, as a prohibition limited to lawsuits not dealing with the presidential system’s interference with rule of law fundamentals. In other words, the court has the power to entertain lawsuits and address matters regarding the president’s interference in issues of rule of law.

Similarly, when the issue of the president’s non-appointment of Constitutional Council members came before the court, it should have interpreted the action as interfering with the entire system of the rule of law, in addition to the fact that the president was obliged to make these appointments immediately.

Such a ruling by the court would have led to deeper discussions regarding supremacy of the law; without dealing with the fundamental issue of whether the president is above the law or not, it is not possible to resolve the constitutional problems facing Sri Lanka today.

The issue of the supremacy of law did not come up only regarding the 17th Amendment; in fact, it came up very early on since the adoption of the 1978 Constitution. For that matter, the first appointment of the first president without an election could have been challenged on this basis. The referendum issue before the Supreme Court in 1982 should also have been decided on this basis; if the Sri Lankan president can postpone parliamentary elections for six years by a referendum, surely that is a blow to the supremacy of the parliament, which is the law making body and thereby a fundamental component of rule of law.

There is no way to ignore that the 1978 Constitution unsettled the very foundations of constitutionalism and dealt a blow to the supremacy of law. Its shortcomings are not related to the Civil Service Commission and independent selection alone, but also to the powers of the executive and the disabling of the rule of law framework. This is a key issue that needs to be addressed when discussing the 1978 Constitution.

Under the separation of powers principle, it is the judiciary’s duty to limit executive power within the framework of the law. This may create a conflict if the executive insists it is above the law, but the judiciary cannot avoid such conflict without abandoning the rule of law. If the judiciary dares to face the conflict, people themselves would have an opportunity to intervene, to save the rule of law system. When the judiciary avoids the conflict however, the executive is allowed to stand above the law. In the same vein, Sirasa TV should not avoid dealing with the key problem posed to the country by the 1978 Constitution. Dr Colvin R De Silva did not mention that this constitution is an imitation of the one made by Jean Bedel Bokassa of the Central African Republic in jest.

Executive Presidential System--A constitutional development based on distrust

From 1972 onwards, the development of the country’s constitutions was related to the distrust of the previous system of governance, as introduced through the 1947 Constitution. The government that brought about the 1972 Constitution was a coalition government that considered itself to be progressive compared to its description of past conservative governments. The United National Party was seen as the party of the more conservative sections of society, and also the only party representing the wealthy. The three parties that constituted the coalition government saw themselves on the left and as having a programme of development different to previous ones.

The coalition government viewed the government bureaucracy as well as the judiciary with suspicion. Both were seen as conservative apparatuses, and the new progressives feared both may obstruct their goals of rapid development and social change.

These fears and distrust were incorporated into the 1972 Constitution, which removed the Civil Service Commission and the Judicial Review.

Sri Lanka’s civil service had certain traditions and rules, as well as positions of prominence and influence. The role of the permanent secretaries of the ministries for instance, was one of the most important civil service positions, usually filled by persons with many years of experience. The new government’s distrust of the civil service, viewing its personnel as persons who may deliberately sabotage its development goals, made it keen to ignore civil service rules and procedures in implementing its programmes promptly. Perhaps the government was also concerned with achieving significant development progress so it had a better chance for reelection. For this reason the government abolished the Civil Service Commission, and appointed its own persons to head the various ministries.

The Judicial Review that was abolished by the 1972 Constitution made it possible to examine the legality of any law at any time, and its consistency with the Constitution. Viewing the judiciary as conservative and not so sympathetic to its objectives, the new government worried that the opposition may use the courts to challenge the legality of laws it wanted to pass. It was concerned that the judiciary would declare new laws to be null and void on the basis of inconsistencies with the Constitution, and hence shortened the period of examination of a law’s legality.

The constitutional changes brought about with the 1972 Constitution were thus of a fundamental nature, especially compared to the 1947 Constitution, which recognized the independence of the civil service as well as the separation of powers.

Further distrust inbuilt into 1978 Constitution

The constitution of 1978 was written when the United National Party had 80 percent of the seats in parliament. This government’s distrust was of a different nature; the president, who had been in politics for a long time, distrusted everyone and every institution except himself. He therefore attempted to disempower everyone else and prevent any challenge to his authority through a new constitution.

Through article 35 of the Constitution, he placed himself in a position where no lawsuits could be brought against him for whatever reason. Meanwhile, by making himself the Executive President, he took upon himself all the powers of the cabinet. The 1972 Constitution took the powers of the civil service and placed them with the cabinet ministers. In 1978, the Executive President took upon himself all the powers of the cabinet. The cabinet ministers could be appointed and dismissed at will while the Prime Minister had no power of any sort.

The Prime Minister could also be appointed and dismissed at will, and the parliament could be dissolved at the behest of the President one year after its election. The capacity of the parliament to interfere with his power was therefore practically nil. Moreover, it is well known that the President obtained letters of resignation from all his party members in parliament. He kept these undated letters to be used as necessary; these persons were all at his mercy.

This was a system based on total suspicion of everyone except for the Executive President himself. The system operates on the premise that anyone who rules the country must be able to do so by himself. Newspaper articles have been published in favor of this system, on the basis that Sri Lankans are culturally incapable of operating as a team.

The underlying principle of the Executive Presidency is that when in power, nobody can be trusted and therefore the ruler should be able to rule alone. This is why there is no constitutional provision for the office of a vice president; he could assassinate the president and take power for the remainder of the term. Similarly, the parliament is distrusted because a parliamentary majority can be lost if the opposition can poach some of the members to its side. Cabinet members may also shift their loyalties, so the ruler should be able to dismiss his cabinet and keep it in dependence to himself if he wants a stable government.

An argument in favor of a single ruler was developed on the issue of minorities: in a majority Sinhalese population, the parliament will always take the side of the majority so the minorities cannot hope for justice through this avenue. The alternative tacitly agreed on was to rely on the President rather than on parliament. Minority parties thus supported the President for a long time, in the hope of obtaining concessions from him which they might not be able to get from parliament.

The single ruler theory was strengthened by the country’s ethnic conflict that developed into a ‘war’. The more militant nationalists rallied around the president in order to demand a military solution to the problem, finding that such an objective was not possible through the parliament. Within development discourse as well, it is now argued that one man can work better than a collective leadership.

In essence, the argument in favor of the executive presidency is that Sri Lankans are untrustworthy and can only be led by a single man in power. A system of power built on this basis cannot create the collective leadership needed to deal with the problems of a nation. As long as this one man theory is accepted, the abuse of power, violence and irrationality that has marked the existence of this system will remain as unavoidable consequences.

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Published on: 2010-04-13 (1001 reads)