Opinion
1972: Another in a history of missed opportunities
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.
The ability of expressing our fundamental right to breathe clean air is over. The Global Commons of air is rapidly being impacted, in addition to an increase in the concentration of Carbon Dioxide and a decrease in Oxygen concentration. The concentration of toxic gasses and airborne particulate matter in the atmosphere is increasing. While a global compact on the quality of air as a fundamental right, is urgent consideration of its impact on health must also become a matter of concern. he most essential thing for our existence is the ability to breathe. The air that we take for granted is like an invisible river of gasses considered a part of the ‘Global Commons’ or those resources that extend beyond political boundaries. The Commons of air is composed of a mix of gasses, the dominant being Nitrogen at about 78%, followed by Oxygen at 21%. Carbon Dioxide that is contributing to climate change accounts for only 0.04% and demonstrates how small changes in the concentration of gasses in the atmosphere can bring about massive changes to those that live in it.
The Oxygen component of the air we breathe was made by those earliest plants, the Bryophytes, which colonized land from 470 Ma onwards. This land colonization increased atmospheric oxygen to present levels by 400 Ma. The fire-mediated feedbacks that followed have stabilised high oxygen levels ever since, shaping subsequent evolution of life. Oxygen is the most crucial element on earth for the aerobic organisms that depend on it to release energy from carbon-based macromolecules. The current stocks have been maintained over millions of years by plants, terrestrial and oceanic. To sustain a gaseous concentration at around 21% of the air we breathe. This level is required to maintain a healthy body and mind. A lowering of this concentration has consequences. At 19% physiologically adverse effects begin. Impaired thinking and attention, reduced coordination, decreased ability for strenuous work is experienced, at 15% Poor judgment, faulty coordination, abnormal fatigue upon exertion, emotional upset Levels below this lead not only to very poor judgement and coordination but also impaired respiration, lung and heart damage. The question often arises: ‘If the atmospheric Oxygen concentration is 21% how can it vary so widely in different areas ? The answer is that ‘when you add other gasses, smoke and aerosols into the atmosphere, the concentration of atmospheric gasses will decrease in concentration. In some cities like New Delhi or Mexico have Oxygen concentrations measured at about 18% or lower.
There has been a clear decline in the volume of oxygen in Earth’s atmosphere over the past 20 years. Although the magnitude of this decrease appears small compared to the amount of oxygen in the atmosphere, it is difficult to predict how this process may evolve, due to the brevity of the collected records. A recently proposed model predicts a non-linear decay, which would result in an increasingly rapid fall-off in atmospheric oxygen concentration, with potentially devastating consequences for human health.
The free Oxygen in the atmosphere is 1.2×1015 tonnes (12,000,000,000,000,000 t), but it is unstable in our planet’s atmosphere and must be constantly replenished by photosynthesis in green plants. Without plants, our atmosphere would contain almost no O2. An important thing that needs international address is the fact that the system that replenishes the Oxygen of our atmosphere is under threat. We remove the vegetation that produces the Oxygen at a prodigious rate. According to Global Forest Watch we fell about 15 billion trees each year. With one tree one tree producing about 120Kg of Oxygen per year, the loss of Oxygen production through deforestation is massive. The impact on the oceans is becoming just as serious.
As human activities have caused irreversible decline of atmospheric O2 and there is no sign of abatement, It is time to take actions to promote O2 production and pay for industrial use and consumption of O2. Vehicular traffic in cities with poor air flow design transforms molecular oxygen O2 into Ozone O3. Ozone is good when it is high up in our atmosphere. It protects us from sunburn. Ozone is bad when it is near the ground where we can breathe it in. You can’t see ozone in the air but bad ozone levels is sometimes called smog. It is formed when chemicals coming out of cars and factories are cooked by the hot sun. Breathing in ground-level ozone can make you cough. It can also make it harder for you to breathe. Ozone might even make it hurt to take a breath of air. When you breathe in ozone, it makes the lining of your airways red and swollen, like your skin would get with a sunburn.
All this becomes even more pressing with the discovery of the “human oxidation field” a beneficial chemical microenvironment formed around the body’s surface that helps protect it from volatile organic compounds (VOCs). This field is generated by the reaction of ozone with oils and fats on our skin, especially the unsaturated triterpene squalene, which constitutes about 10 percent of the skin lipids that protect our skin and keep it supple. The reaction releases a host of gas phase chemicals containing double bonds that react further in the air with ozone to generate substantial levels of OH radicals. As the Ozone levels as in cities rise, the individual ‘human oxidation field’ looses its ability to maintain skin health.
In looking at the question of why there was such a rapid loss in the quality of air, the first study to systematically analyse the global O2 budget and its changes over the past 100 years, found that anthropogenic fossil fuel combustion is the largest contributor to the current O2 deficit, which consumed 2.0 Gt/a in 1900 and has increased to 38.2 Gt/a by 2015.
The inability to defend our fundamental right to breath seems to stem from the ability of any industry to discount the consequences of burning fossil fuels as a ‘negative externality’. Climate Change is one consequence, but the impact that lowered Oxygen concentrations will have on emerging urban populations seem disturbing. There is only one way to arrest the fall in atmospheric Oxygen, increase the rate of photosynthesis. There must be a protection of the existing stocks of photosynthetic biomass and programs that encourage increasing the standing stock of Oxygen to be able to sustain our fundamental right to breathe clean air.
by Dr. Ranil Senanayake
My brother, close on two years senior to me, was into sports – cricket, football, and athletics were his favourites. We were at De Mazenod College for our primary schooling, moved apart thereafter – he to Ananda College which had hosted all our male relatives from our father and his brothers, our mother’s brothers and all our male cousins on either side, while I was sent to Royal. He moved, thereafter, to the Royal Post-Primary which turned into Thurstan College.
There he distinguished himself at cricket and, together with his captain, Brindley Perera, provided the runs. He also had the distinction of being the first at Thurstan to pass the SSC examination. At that point he returned to De Mazenod where he won, what was called, the Senior Proficiency Prize, captained the cricket eleven, and was the senior athletics champion.
That last was witnessed by the district head of the Police and led to his being rapidly drawn into the Police force.
Following initial training at Katukurunda the new recruits were posted to distant Police Stations as Sub-Inspectors. He had spells in the Hiniduma area and in Galenbindunuweva, off Anuradhapura.
It was while he served at Anuradhapura itself that he met with an accident that almost took his life. He came out of that with a limp.
That did not prove to be a substantial handicap and he served with distinction in Kosgoda and other stations on the south western coast before he was moved to the CID. There he played a major role in solving what came to be known as ‘the Kalattawa Case’, which led to the arrest and due punishment of a wealthy producer of illicit booze – a man who had ‘pocketed’ a good many public servants who were entrusted with the enforcement of the law.
In the early 1970s, he was entrusted with investigations related to the activities of a group of agents of Lankan and foreign right-wing politics, which called itself ‘the JVP’. Among those he had arrested was a colleague of mine, Susil Siriwardena, who later managed to secure a show of incarceration in a Ward at the General Hospital (where the only luxury he enjoyed was access to some books). In due course, many years later, President Premadasa, besides other responsibilities imposed on him, related to his initiatives in Village Reawakening (Gam Udawa), put Susil in charge of the Janasaviya programme.
It is a pity that my brother and fellow officers have not placed on record their experience of that ‘April Insurgency’.
My brother served with distinction in both the CID and the CDB. When Lalith Athulathmudali was in charge of Internal Security, in the late 1970s, my brother was seconded for service in that Ministry as Director of Training. The Secretary was Denis Hapugalle, who was an Army man – and their approach to ‘training’ differed. After a year or two, Upali reverted to the Police and took early retirement to set up a Security service that served several Mercantile establishments for over 30 years.
He contributed much to the development of the Police retired senior officers organisation, which he served for many years as its Secretary and its President.
He was the most generous of men and gifted with a sense of humour that he would have inherited from our father. May he reach the bliss of Nirvana!
D G P (Gamini) Seneviratne
At present, there is a rule in (state-owned) commercial banks that prevents individuals from opening accounts if they reside in an area different from the address stated on their National Identity Card (NIC). The justification offered is that this helps prevent money laundering and the handling of illicit funds.
However, one must question the logic of this rule. How exactly does it stop such individuals? A person with ill intentions could just as easily open an account in the area mentioned on their NIC. Moreover, even if there are, say, one lakh fraudsters in the country, this rule effectively imposes restrictions on twenty lakh genuine citizens — penalising the many for the misdeeds of a few. How fair is that, and how does it encourage people to save and participate in the formal banking system?
The government constantly speaks about digitalisation and technological advancement, yet continues to tolerate outdated and impractical regulations like this.
Consider another case: a customer of a state bank urgently needed to encash a fixed deposit opened at a distant branch. When he approached the branch near his current residence, he was told to visit the original branch, as that branch must physically receive the original FD certificate upon encashment. One wonders what is the use of highly paid branch managers, fax machines, emails, and even WhatsApp, if two branches cannot coordinate to resolve such a simple issue?
Unfortunately, the customer has to travel 200 km to reach the original branch.
If the government truly wishes to build a modern, technologically advanced financial system, it must first eliminate such archaic rules and adopt smarter, technology-driven safeguards against fraudsters — without punishing honest citizens in the process.
A Ratnayake
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