| by Basil Fernando
( January 13, 2013, Hong Kong, Sri Lanka Guardian) Today, with the President of Sri Lanka signing the removal notice of the Chief Justice of Sri Lanka, Dr. Shirani Bandaranayake, the 1978 constitution came to be fulfilled.
The 1978 constitution is a representation of the conflict between the rule of law and the absolute power of the executive president. The historical circumstances in 1978 were not right for the fulfillment of this constitution. 34 years later, with the progressive deterioration of all the positive factors of the previous period, the final fulfillment of the 1978 constitution has come. Now the rule of law as a logical system has no ground to stand on as the two basic principles, the separation of powers and the independence of the judiciary, can no longer be practically implemented.
In 1978, despite of the weakening of the system by the 1972 constitution, there were still many forces which were vigorously supportive of the rule of law system. First of all, and above all, there was the sentiment among the people that was formed by long enduring practices of respect for the rule of law. The British introduced the law as the organizational principle of the Sri Lankan society. They introduced laws to almost all aspects of life and these laws constituted the railroads on which all the institutions of Sri Lanka ran.
Over a period of 34 years, Sri Lankans witnessed the collapse of all the basic institutions in their society. The collapse of these institutions means that the basic principles of law on which these institutions were organized and operated have been seriously disturbed. Among the institutions which so collapsed were Sri Lanka’s policing system, the public service commission, the election commission, the system of controlling bribery and corruption, and the department of the Attorney General. The collapse of those institutions were recognized by the Sri Lankan parliament when they made a limited attempt to give some life back to these institutions by way of the 17th amendment. When the 18th amendment was passed, that rescue attempt was abandoned and the very possibility of the survival of the multiparty system and the possibility of a genuinely elected legislature was brought to an end.
In 1978, there was also the necessary critical intellect that could support the rule of law system. The judges were still those of ‘the good old tradition,’ and so were the lawyers. However, during the last 34 years, there has been the deliberate undermining of the judiciary in many ways, which are well documented and commented on by many authors. As the judiciary was undermined, the lawyers experienced the nature of earthquake that was taking place and those who still wanted to survive had to adjust to the new environment.
However, the factor that undermined the judiciary and the legal practice more than any other was the active cooperation of President Chandrika Kumaranatunge and the then Chief Justice Sarath Nanda Silva to undermine the legal system in favor of the arbitrary power of the executive president. S N De Silva dealt the death blow to the whole system by unscrupulously manipulating every aspect of the judicial practice in Sri Lanka. He ignored the procedural aspect of law in a diabolical manner, and the rule of law rests as much on the procedural aspect as on the substantive aspect of law. All the nuts and bolts were loosened so that the system could not run anymore.
However, officially, lip service was done to the principle of the independence of judiciary and, while the internal system was in great jeopardy, a façade of respect for the system remained.
With the impeachment and then manner of its conduct, this screen was lifted. Belatedly realizing that the final hour has come, the Supreme Court and the Court of Appeal, in what will remain as historical judgments, made an attempt to come to the rescue of the system.
The lawyers and judges also rallied with the kind of solidarity that has never been witnessed before. It was as if all relatives were gathering together on realizing that one of their dear ones was now critically ill. They tried to make a proverbial last minute intervention.
However, those who wanted the system to be dead wanted it to be dead sooner than later. The same hand that crushed the rescue operation by way of the 17th amendment has now decisively signed the declaration of death of the independence of judiciary and the rule of law.
What the Sri Lankans will face now is a completely new situation. In previous statements and articles we have tried to sketch what is waiting for the Sri Lankan society as whole, in all Sri Lankan institutions.
The question that will remain to be answered is as to how the people of Sri Lanka will find their way to a living under a system of law that will protect their liberties.
The system that was based on the ideas of John Locke, Baron de Montesquieu, Jean-Jaques Rousseau and others, which were the basis of French, British, American and all the best constitutional traditions of liberty, has come to an end today.
The experimentation of authoritarianism, which also has traditional foundations from around the world, will be what Sri Lanka experiences now.
The way out is for the present and future generations of Sri Lankans to work out if they are to enjoy the protection of their liberties by the state again.
However imperfect ‘the good old tradition’ was, it was one based on the global tradition of liberty. What is to come will be the opposite of that tradition.
Perhaps a source for hope could be Tolstoy’s short story, “What Men Live By”, which is a good read for an occasion such as this.
For an extensive discussion on 1978 constitution, kindly read Gyges’ Ring – The 1978 Constitution of Sri Lanka, which is available on the internet.