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1972: Another in a history of missed opportunities

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‘That 'legitimacy deficit' of the 1972 Constitution no doubt helped J. R. Jayewardene, who succeeded the liberal-minded Dudley Senanayake as the leader of the UNP, to impose his own will in turn in the form of the 1978 Constitution with which the country is still straddled.’

1972 Construction in Retrospect – II

By Dr. Jayampathy Wickramaratne,

President’s Counsel

In the two earlier parts of this article, the writer dealt with the Constituent Assembly process that led to the First Republican Constitution and how the Constitution led to constitutionalising majoritarianism in multi-cultural Sri Lanka. In a country with a history of missed opportunities, 1972 was another.

Fundamental rights

A noteworthy feature of the 1972 Constitution is the recognition of fundamental rights. Principles of State Policy contained in another chapter were to guide the making of laws and the governance of Sri Lanka. But these Principles did not confer legal rights and were not enforceable in a court of law.

The fundamental rights guaranteed by the 1972 Constitution, however, were mainly civil and political rights: equality and equal protection, freedom from arbitrary deprivation of life, liberty and security of person, freedom of thought, conscience and religion, freedom to enjoy and promote one’s culture, freedoms of assembly, association, speech and expression, movement and residence and freedom from discrimination in appointments in the public sector. But all these rights were subject to such restrictions as the law may prescribe in the interests of national unity and integrity, national security, national economy, public safety, public order, the protection of public health or morals or the protection of rights and freedoms of others or giving effect to the Principles of State Policy.

Thus, even the freedom from arbitrary deprivation of life and the freedom of thought, conscience and religion could be restricted. While Principles of State Policy did not confer legal rights, fundamental rights could be restricted to give effect to such principles. In several cases, the Constitutional Court held that impugned provisions of Bills that were prima facie inconsistent with fundamental rights were nevertheless for the purposes of giving effect to Principles of State Policy. It is hard to see the rationale for permitting fundamental rights, which bind all organs of government, to be restricted in the interests of Principles of State Policy which are only for guidance in law-making and governance and are not enforceable.

Much has been said about the new constitution not having a provision equivalent to section 29 (2) of the Soulbury Constitution. While the fundamental right to equality and equal protection was a safeguard against discrimination, it was subject to wide restrictions, unlike section 29 (2), which was absolute. Also, section 29 (2) was in the nature of a group right. Although it was not as effective as it was expected to be, as was demonstrated by the failure to invoke it to prevent the disenfranchisement of hundreds of thousands of Hill-Country Tamils, numerically smaller ethnic and religious groups nevertheless felt comfortable that it existed, at least on paper. They saw its omission from the 1972 Constitution as a move towards majoritarianism, especially in the context that Sri Lanka was declared a unitary state, Buddhism given the foremost place, and Sinhala declared to be the only official language.

With the ‘Republic pledged to realise the objectives of a socialist democracy’, the non-inclusion of second-generation human rights based on the principles of social justice and public obligation is puzzling. Important examples of such rights that could have been included are the right to just and favourable conditions of work, equal work for equal pay, right to rest and leisure as an employee, right to free elementary education, right to food, clothing, housing, medical care and necessary social services and right to special care and assistance for mothers and children.

Section 18 (3) of the 1972 Constitution provided that all existing laws shall operate notwithstanding any inconsistency with fundamental rights. This was in sharp contrast to the Constitution of India, which provides in Article 13 (1) that all laws in force before the commencement of the Constitution, in so far as they are inconsistent with fundamental rights, shall, to the extent of such inconsistency, be void. The 1972 Constitution did not provide for a special jurisdiction of a court for the enforcement of fundamental rights against the executive arm of the State. Theoretically, fundamental rights could have been enforced through writs in public law as well as through actions for damages, declaratory actions and injunctions in civil courts. There is only one known fundamental rights case under the 1972 Constitution, Gunaratne v People’s Bank, a declaratory action arising out of the famous bank strike of the 1970s.

Constitutionality of legislation

A significant feature of the 1972 Constitution was that, unlike under the Independence Constitution, a law could not be challenged for constitutionality. Post-enactment judicial review of legislation was thus taken away. Chapter X provided for pre-enactment judicial review. A Bill could be challenged in the Constitutional Court within a week of it being placed on the agenda of the National State Assembly (NSA).

A Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest shall be referred to the Constitutional Court which shall communicate its advice to the Speaker as expeditiously as possible and in any case within twenty-four hours of the assembling of the Court.

An argument against post-enactment judicial review is that there should be certainty as regards the constitutionality of legislation. However, no serious problems have arisen in jurisdictions where post-enactment judicial review is permitted. To mitigate hardships that may be caused by legal provisions being struck down years later, the Indian Supreme Court has used the tool of ‘prospective over-ruling,’ limiting the retrospective effect of a declaration of invalidity in appropriate cases. Section 172 of the South African Constitution expressly permits such limitation.

Post-enactment judicial review is an essential tool to prevent infringement of constitutional provisions by legislative action. The effect of most legislative provisions is felt only when they are being enforced. Another argument in favour of post-enactment judicial review is that the people are able to get the benefit of the latest judicial interpretation of a constitutional provision. There have been many instances of obviously unconstitutional provisions going unchallenged. Provisions relating to urgent Bills have been abused by successive administrations. An urgent Bill is referred directly to the Supreme Court by the President even without a Gazette notification. Such a Bill is not tabled in Parliament before such reference and even Members of Parliament would not know the contents of such a Bill.

Judiciary

Under the Independence Constitution, the Chief Justice, the Judges of the Supreme Court and Commissioners of Assize were appointed by the Head of State, on the advice of the Prime Minister. The 1972 Constitution made no change in that regard.

In relation to other judicial officers, however, the provisions of the new constitution were very unsatisfactory.

Since 1946, the appointment, transfer, dismissal and disciplinary control of judicial officers had been vested in a Judicial Service Commission consisting of the Chief Justice, a Judge of the Supreme Court and another person who is or has been a Judge of the Supreme Court.

The 1972 Constitution provided for a five-member Judicial Services Advisory Board (JSAB) and a three-member Judicial Services Disciplinary Board (JSDB), both headed by the Chief Justice. A list of persons recommended for appointment as judicial officers and state officers exercising judicial functions would be forwarded by the JSAB to the Cabinet of Ministers, which was the appointing authority. The Cabinet reserved for itself the right to appoint a person not recommended by the JSAB, subject to the proviso that the full list of JSAB-recommended names and the reasons for non-acceptance of anyone so recommended were tabled in the NSA. Dismissal and disciplinary control were exercised by the JSDB, which was required to forward a report to the Cabinet through the Minister of Justice and a copy transmitted to the Speaker. A judicial officer could also be removed for misconduct by the President on an address by the NSA. J.A.L. Cooray considered the changes effected by the 1972 Constitution to be hardly compatible with the independence of the judicial function. (Constitutional and Administrative Law of Sri Lanka, 2nd edn, 69).

Public service

Under the Independence Constitution, the Permanent Secretary of each ministry was subject to the general direction and control of the Minister in exercising supervision over the departments coming under the ministry. The 1972 Constitution made no change to this position except to include institutions, such as corporations, within the ambit of the relevant provision.

Before 1972, the appointment, transfer, dismissal and disciplinary control of public officers were vested in a Public Service Commission appointed by the Governor-General. This position was changed, and the powers were taken over by the Cabinet of Ministers. Appointments were made after receiving recommendations from a State Services Advisory Board. The power of appointment could be delegated to the Minister concerned or by the Minister, in turn, to any state officer. The power of disciplinary control and dismissal was exercised after receiving a recommendation from the State Services Disciplinary Board.

The UF no doubt considered the bureaucracy to be obstructionist and wished the public service to be available to the government to accelerate socio-economic development. This is understandable. As Radhika Coomaraswamy has argued in Sri Lanka, The Crisis of the Anglo-American Constitutional Traditions in a Developing Society, the framers of the 1972 Constitution considered the checks and balances contained in the 1947 Constitution appearing to obstruct decision-making, perpetuating a status quo of privilege and domination. But rather than including appropriate constitutional provisions to ensure that political decisions were carried out by the bureaucracy, the entire public service was placed under the control of the political executive, eroding the independence that it enjoyed.

Legality and legitimacy of the Constitution

1972 was undoubtedly a legal revolution. According to L. J. M. Cooray, the question of the legality of the process followed does not arise. ‘One might just as well ask: Was the American War of Independence legal? The Constituent Assembly of Sri Lanka was part of a revolution, which aimed at overthrowing the existing constitution.’ As to the ‘legality’ of the new Constitution, Cooray stated: ‘It could be answered by posing the question: Does the stigma of illegality apply to the United States Constitution or to the Bill of Rights and the Acts of Settlement which followed the 1699 Revolution [of Britain]?’ A constitution becomes legal in the course of time if it is accepted by the people, the courts and the administration. This requirement was fulfilled in respect of the 1972 Constitution, Cooray opines. Constitutional Government in Sri Lanka, 1796-1977 (Lake House 1984) 246-247.

Legality apart, did the 1972 Constitution have the necessary legitimacy? With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But, instead, the United Front imposed upon the country a constitution of its choice.

Rather than impose its will on the Constituent Assembly, the UF should have accommodated the views of the various parties that answered its call to take the Constituent Assembly route. Such accommodation would have given greater legitimacy to the 1972 Constitution. That ‘legitimacy deficit’ of the 1972 Constitution no doubt helped J. R. Jayewardene, who succeeded the liberal-minded Dudley Senanayake as the leader of the UNP, to impose his own will in turn in the form of the 1978 Constitution with which the country is still straddled.

Concluding remarks

While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.

1972 was also a historic opportunity to accommodate the diversity and pluralism of the people of Sri Lanka in state power and resolve the language question, an opportunity that tragically was missed. If the United Front had met the Federal Party halfway, the history of this country might have been significantly different.



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Opinion

An open letter to 6.9 million

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Basil Rajapaksa has recently said that the Rajapaksas are not responsible for the dire situation in the country. He told the journalists not to pass the ball to him and he passed the ball to the people, especially to the 69 lakhs who voted the “Pohottuwa” into power.

So, my dear 6.9 million citizens,

You are my brothers and sisters. The Rajapaksas may blame you for the dire situation in the country but I do not blame you. I do not condemn you. For everybody makes mistakes. We are frail human beings. Now I am a senior citizen and in my life time I have been pickpocketed three times. It cost me three purses, a few thousand rupees and two ID cards to learn the lesson. But dear 6.9 million brothers and sisters your present political lesson cost all of us national bankruptcy, millions unemployed, unending queues for petrol, diesel, kerosene, cooking gas and passports, exorbitant price hikes of essentials, lack of essential medicines, looming starvation, anarchy, destruction and terrifying death. I hope you have learnt the lesson, at least by now.

Do you realise what kind of image you have shown to the world of our people, of us? Out of courtesy they will not voice it but they consider us damn fools.

Didn’t you know about the Rajapaksas and the tsunami funds? Didn’t you ever wonder how his three brats were spending like nothing and living it up like playboys? Have you never heard of Siriliya? Have you never heard of the deals between the Krish and the Rajapaksas? Didn’t you ever realise what an enormous amount of money has been wasted on useless white elephants, like the Lotus Tower, the Sooriyawewa Stadium, the Mattala Airport and the Hambantota Conference Hall? Why is it that the murderers of Thajudeen and Lasantha Wickrematunga can never be discovered? The latest revelation, from circumstantial evidence, is that Adani Group probably has dealings with the Rajapaksas. The Pandora Papers expose has raised the Rajapaksas to the notorious status of International Crooks. This is only the tip of the iceberg; if you scratch the garbage heap you’ll find more.

I cannot understand how the 69 lakhs got so thoroughly fooled by the Rajapaksas. You believed scandalous tales about infertility Kottu, infertility garments and Muslim doctors making Sinhala mothers sterile, etc. Everybody knows but nobody says who the brains behind the Easter Sunday massacre are. I guessed who it was quite soon. In any crime, the prime suspect is the one who profited most from it. Ask any police detective. The monks, intellectuals, professionals, and artistes were taken for a ride. Therefore, I do not blame you, the 69 lakhs. But the world was surprised that the citizens of Sri Lanka have such low IQ and can be so easily fooled.

Never mind all that; now let us talk about how to remedy the damage done to yourselves, us and the country. Here are a few methods to keep the right attitude to the current reality.

No.1: Never tolerate or get used to the hardships we are going through. If you are in a queue, curse the government loud enough so that at least the men in front and behind can hear you. The problem is not organising the queue more efficiently; the problem is there should not be any queues. The scarcity of petrol and diesel is a deliberate ploy by the heartless government to suppress the protest by the people. The only solution is a new stable and respected government and sending Rajapaksas to jail. Curse the government when the power cut begins. When you go shopping, curse the government loudly for the high prices of things or their lack. Keep the public aware of the hardships they unjustly endure. Never allow them to get used to it. Rage, rage against Gota and the 225 thieves.

No. 2: Either organise yourself or get somebody to organise small neighbourhood groups everywhere in your village, town and work place. Get in touch with someone in the Aragalaya and tell them you are ready for a final showdown.

No. 3: Write a letter of appreciation and encouragement to each one of the people who are at the Gotagogama. Or send a Thank You card for the sacrifices they are making for us and for our children. Here is their address: (Name) The Library, Gotagogama, Galle Face, Colombo 2.

No. 4: If you believe in a Universal Force or God, as I do, pray insistently with grief and groans and ask him to save our country from the rapacious scoundrels and killers who are holding our people by the scruff of the neck and robbing them clean.

No. 5: The evil government is driving us to a famine and starvation. Let us not be selfish. Let us share what we have or what little we have with those who do not have anything. Let us be always kind and considerate to our fellow citizens whoever they maybe.

Forget race, religion, language or whatever divides us. All of us are brothers and sisters in this national calamity, all children of Mother Lanka. Let us save her and ourselves together.

Down with the Ali Baba and the 225 thieves!

Aragalayata Jayawewa!
Fraternally your co-citizen,
Fr Chryso Pieris SJ

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Opinion

We will remember, and we will be grateful

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by Krishantha Prasad Cooray

For as long as the human race has organised itself into sovereign nations, no country has had a story of limitless success. Nations and empires alike have risen and fallen, over thousands of years. Every language has phrases like “it takes a village” to remind us of the limitations of individual people and the need to work together. Similarly, no nation will ever thrive in isolation. The fate of every country is dependent on its relationships with other countries, with allies who share their values and who support each other in times of need.

History is littered with examples of countries that have been beset by natural disasters, militarily crippled, ridden with diseases, targeted by terrorism or economically ruined. What separates those who overcome these challenges from those that don’t is the willingness of other countries to come to their aid.

After World War II, for example, when the Axis powers were roundly defeated, it was the countries that vanquished them who stepped in to rebuild them. Indeed, without the aid of the Allies, neither Germany nor Japan would have grown into the economic powerhouses they are today.

The Marshal Plan, an American initiative, enabled West Germany and other West European nations to rise from the ashes of war and gain rapid economic development.

Japan, on the other hand, had far fewer friends. As European victims of German aggression feared the prospect of a united Germany, Asian victims of Japanese aggression feared a remilitarised Japan. Cold War politics too played a role, with the Soviet Union accusing the United States of planning to turn Japan into a military camp against itself and China. It was only at the San Francisco Peace Conference in 1951 that a peace treaty was finally signed, ending the occupation of Japan, restoring Japanese independence, and putting the country on a path to prosperity.

At that conference, it was then Sri Lankan Finance Minister Junius Richard Jayawardena, who spoke most persuasively about the case for making peace with Japan as an independent non-occupied nation. Jayewardene reminded the audience that prior to the barbarity of World War II, Japan had long been a staunch ally of other Asian nations. “It is because of our age-long connections with her, and because of the high regard the subject peoples of Asia have for Japan when she alone, among the Asian nations, was strong and free and we looked up to her as a guardian and friend,” he reminded the assembled world leaders.

Japan has never forgotten, and even today, memorial statues and plaques across Japan mark the country’s gratitude to J.R. Jayewardene. Sri Lanka, at the time, had nothing to gain from the vanquished Japanese. But we came to the aid of a nation in need and did the correct thing. A quarter century later, when J.R. Jayewardene became President of Sri Lanka, our relationship with Japan became one of the cornerstones of Sri Lanka’s subsequent prosperity.

Today, Sri Lanka finds itself crippled by an unprecedented crisis. Our people are in abject financial peril. Over a quarter of the country is starving and malnourished. The economy is paralyzed and many children are unable to reach schools due to fuel shortages. Electricity has become a luxury, and essential medicines have become scarce.

This is not the doing of the people but the result of mismanagement by corrupt, incompetent and short-sighted politicians holding the reins of power for their own gain. These politicians benefited. The people suffered. They suffer as I write and will suffer for a long time more to come.

It is tragic to see a country as resilient as Sri Lanka, with a proud history, being reduced to such a state. One day, I have no doubt that my country will rise again. But we will only do so with the support of friends, who will speak in solidarity and act in support.

Sri Lanka is but the first country to see its economy collapse at the mercy of corruption and rising global food and oil prices. It won’t be the last. Before long, other poorly managed countries will also begin to waver. Each stumbling nation can be rescued one at a time, but if several countries all collapse together, the chain reaction could paralyze the economies of not just the region, but the entire world. Sri Lanka, in particular, is ripe for rescue.

The people are clamouring for serious institutional and constitutional reform. If these reforms are coupled to both humanitarian aid and commercial investments, the payoff will be not just a monetary one, but one of deep gratitude.At this time, if people, institutions and nations alike come to the aid of the Sri Lankan people, that aid is needed like never before. Doing so will help avert or minimize a humanitarian crisis like Sri Lanka has never known. Any country can make a contribution to help feed the starving, heal the sick, employ the unemployed, light up a classroom, and take other steps to help Sri Lanka to jumpstart its economy.

It was such words of support, and deeds of solidarity that helped Japan in 1951, and for which Japan has remained grateful so many decades later. Likewise, such a word, such a deed, will be remembered by Sri Lanka and Sri Lankans, those who are suffering right now, those who survive, and their children. It is a brand of gratitude that is special because it is altruistic. People will remember, ‘they didn’t have to, they had nothing to gain, but they did anyway.’ We will remember, and we will be grateful.

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Opinion

Ohe Innava ; ban on Russian tennis players; greed leads via deceptive satisfaction to disaster

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Sins of the leaders suffered by innocents

This beautiful island seems to be at a standstill and its people rather dazed, confined to homes or queues for days on end (no longer hours). Maybe, Jaffna and its southern neighbouring Vanni are better equipped mentally and stoically to withstand these vagaries of fortune and carry on their lives as they know well, through experience (1983 to 2009 and even thereafter), with inbuilt mental and physical resistance. The government that should be so very occupied looking after its people, and MPs and their bosses mandated to do so, only continue emanating hot air and cruise around in their gas guzzlers, of course, in protected areas. They feel the anger of the people: righteous, justified and ready to burst forth in flames of anarchy at the first ignition. One VIP speaks to the public of imminent arrival of ships laden full with fuel and cooking gas; and another VVIP on further necessity to tighten belts and suffer. All of us are near suffocation because of the mistakes, corruption, extravagance and bl… idiocy of those who ruled us.

The biggest man, almost daily, gathers sundry officers to his vast meeting hall and while they gaze at him, some mindlessly but none interrupting, pontificates mostly on how they should be alleviating the hardships of the population. He singlehandedly caused farmers and now us immense deprivation. He thought his mea culpa would exonerate him. The ex-PM and doing-just-as-they bid ex-Gov of CB sit out in comfort on the look out to escape. The dethroned VIP heir is creeping back to meetings where he is not justified being in. Dreams of a glorious return? Shatter them to bits, you people are NOT coming back ever to power. 20 million people, including kids, know you all too well now and the bung screwed on tight on criticism popped off, released mostly by the peaceful protesters of Mynagama and GotaGoGama. Thank goodness for them!

Cass listened to the articulation of peaceful protesters in Havelock Town carrying succinct boards and good sense and intelligence in their heads as relayed by 8.30 pm Newsline of MTV TV One on Tuesday 28 late evening. What emerged was most forceful censure of the powers that were and are. ‘Go home Gota’ they said in unison and decently. What sort of a skin does one need to enable one to stay on when disliked so intensely and shown the exit explicitly by millions here and overseas. The protective skin of the armed forces is not available, one presumes. As is said, the soldiers’ old mothers can barely make ends meet with soaring prices and fathers are in queues, so how expect them to turn against their own suffering people even though commanded to do so?

Wimbledon

The cricket matches between the Aussie team and a revived, zestful Sri Lankan team have been giving solace to a major section of our people. That is fine, since one needs to divert one’s mind and also grab whatever respite one can from the ongoing disaster that is our beloved country.

Cassandra is a tennis buff deriving not only sporty enthusiasm but also aesthetic satisfaction by watching good players on court. How so the latter, one may query. Just watch a good player and witness his/her playing is ballet like in postures and grace; a fine synchronization of muscle and limb. And for Cassandra the best is to watch the Wimbledon matches, the players and linesman and ball pickers all in white. Maybe Cass is conservative, a throw back on her upbringing, but discipline even in what the players wear is pleasing to her. Wimbledon times are not so inconvenient to us as matches start there at 3.30 (it was said) and so by 8.00 pm one can watch them over sports channels. It’s when the US Open is on that one has to watch into all hours of our night.

Wimbledon has banned Russian players and so men’s world number 1 Daniil Medvedev is out – banned; so also number 8 Andrey Rublev and women’s numbers 6 and 13 – never mind names, difficult to even spell. Great pity, especially regards Medvedev – almost humble on court – but again proof that sins of the leaders fall on ordinary heads. The organisers of Wimbledon decided in April to ban players from Russia and Belarus in response to Russia’s invasion of Ukraine. So, ex KGB Putin’s fear of European Union’s expansion of influence and protection, or greed for expansion of Russian controlled territory or even a desire to re-establish a sort of USSR have impacted on innocent sportsmen and women.

Greed may be satisfied temporarily but degraded shame is permanent result

‘Bollywood actress of Sri Lankan origin’ as Jacqueline Fernandez is named by S Venkat Narayan and other media persons, has again been questioned by the Indian Enforcement Directorate (ED) on the gifts of dollars and expensive items given her and her family members by billionaire conmen Sukesh Chandrashekhar. Cass is not flogging a dead horse (or much alive, lovely mare here) but quoting this tidbit from Tuesday June 28 press, wishing to impress on herself and her readers that avarice and boundless greed lead to retribution and perhaps heart searing regret. It is obvious Jackie entertained the conman, and very intimately we suppose, to be worth all those millions gifted to her. It surely cannot be love. That explanation for the close liaison is good for the fairies to narrate. She was motivated by desire for quick immense wealth. And she has landed flat on her face: passport impounded, reputation gone, and with it admirers and Salman Khan too perhaps, and sure shot no offers of further stardom. She was catapulted to be top of the beauts on par with now exclusive Aishwaria Rai Bachchan. And what has avarice brought her to?

Cass in her age earned wisdom warns young beauties not to gamble on good looks. Many are the girls who did so and surely are cast aside and also fearful now since tables have been turned on their benefactors mostly by the sensible young ones of GotaGoGama. Where’s that beauty queen whose crown was snatched as placed on her by political influence, who accompanied Lohan R to Welikada prison in short shorts to view the gallows? We heard many a chick was given jobs, sometimes double at Sri Lankan, with no English ability, etc. No wonder our airline nose-dived and is still on that perilous down swing but sustained by government monetary life lines. Many were the discards given employment in Sri Lankan.

Another point: definitely a too flogged horse: are those who plundered government money and assets by the millions, nay billions happy and leading fine lives. Nay, No and Nein! They may be safe and their stolen wealth intact and in no danger of being confiscated, but their minds? Wellbeing? They cannot have such thick hides that satisfying the five senses brings them peace of mind? Again, a thundering NO. Reputations ground to dust; friends disappeared; and the door to a return to political power shut bang. Jolly good for those damned thieves who sent our country down to the depths. We will rise, that’s for sure. We have good people in the majority.

On that rousing note of determination to rise from the depths, Cassandra wishes you bye, for now. May its enforced curtailment of normal routines; immense difficulties and future bleakness not depress you too much. We as a country can only now go upwards, hit rock bottom as we are.

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