Asia: A New Book - Tragicomedy of Constitutional Autochthony - By Basil Fernando

Asia Human Rights
July 22, 2016
Reproduced with Permission
Asian Human Rights Commission

Many of the essays published in this booklet were initially published in several publications, such as Ceylon Independent, The Nation, and Colombo Telegraph. All these articles are linked to a common theme, which is the need for recognising that the legal system in Sri Lanka, and in particular the criminal justice system, is facing the threat of being alienated from the people, to an extent that they are losing confidence in it altogether. This, in turn, threatens the moral and social fabric of Sri Lanka, as no nation can remain together if its legal system is itself in serious peril.

That the legal system is faced with such a crisis is something acknowledged virtually everyone. However, despite this acceptance, there is very little conversation in Sri Lanka on how to face this challenge, and what are the priority areas that need attending, to turn the ship around.

These short essays, together with several other publications that I have published in the recent years, are products germinating from the desire to get this problem to the attention of the whole nation, as the most important problem facing the nation.

Often, it is argued that while many problems such as the legal system crisis do exist, the main priority at the moment should be economic development, and these other problems should wait till such a development takes place in the economy. However, the premise, on which the reflections contained in these essays is based, is that no significant economic development can take place in Sri Lanka if it does not first address the crisis of its legal institutions.

My hunch, however, is that talking about the economic development as a priority is only a pretext. The actual reason for unwillingness to address the legal system issue is because considerations about justice have lost significance in Sri Lanka.

What seems to be written in large letters across the sky in Sri Lanka is that the poor and the ordinary folks do not deserve justice; and the affluent and the richer people do not need justice as they have other means for dealing with their disputes. The consequence of this perspective is that matters of justice and matters of law can be dismissed as unimportant.

With independence, when the local people became the rulers of their own destiny, they found that the legal system that was built mainly by the British was too cumbersome. What we see, with the introduction of the 1972 and 1978 constitutions, is a claim that a new approach to constitutionalism is needed and these attempts were described as the creation of an autochthonous constitution.

Now, looking at it in hindsight, what becomes clear is that what was meant by "autochthonous" was the abandonment of general principles and rules, which were enshrined in the Soulbury Constitution, and paving the way to follow an ad hoc approach to the making of a constitution and laws, not guided by any kind of general principles and rules.

In Sri Lanka, when the 1972 Republican Constitution was introduced, the then constitutional affairs minister, made the following remark, which revealed the drastic nature of change which was intended by the introduction to this new constitution, which implied the replacement of all the basic notions on which the Soulbury Constitution was based:

"This is not a matter of tinkering with some Constitution. Nor is it a matter of constructing a new superstructure on an existing foundation. We are engaged in the task of laying a new foundation for a new building which the people of this country will occupy."

With the introduction of the 1978 Constitution, the meaning of an "autochthonous constitution" was clearer, when J.R. Jayawardene, who was elected as the Prime Minister, drafted and adopted a tailor-made constitution, and made himself the Executive President. What was meant by "the executive presidency" in Sri Lanka was that the Sri Lankan President would not be bound by any general principles relating to democracy or the rule of law. He, in fact, would become the maker of the principles and the rules, without the hindrance of having to conform to what are known as the tried and tested rules of democracy and the rule of law.

While the Indian Supreme Court found a way to entrench these basic, general principles and rules as an unalterable part of their constitution, and named it the "basic structure" of the constitution, the Sri Lankan Supreme Court did not rise to the occasion. They did not protect constitutionalism by obstructing any attempt to displace the basic principles of democracy and the rule of law.

The direct consequence of this emerged soon: emergency laws became the law of the land, displacing the normal laws under which the country was governed. The very meaning of "emergency law" under international law is that these are laws that temporarily suspend some aspects of the ordinary laws of the land due to some exigencies. However, in Sri Lanka, what happened was not a temporary suspension but a permanent replacement.

Among the basic principles that were displaced was the most basic principle of a democracy and a rule of law system - that it is the duty of the State to protect the individual liberties of the citizens. The notion of individual liberties was relativized and trivialised, though there was a nominal section on fundamental rights in the Constitution. What the executive presidential power meant was absolute power, which is what democracies were created to prevent.

The actual consequences of this are well known, by way of the terror that was unleashed without any hindrance or constitutional obstruction. The most glaring example of what an executive president can do is the experience of large-scale enforced disappearances in Sri Lanka, which were made possible through emergency laws and regulations, and anti-terrorism law, which removed some of the basic safeguards for the right to life and liberty.

Aldous Huxley predicted that due to changes in technology and communication systems in the world, new kinds of dictatorships can emerge, which would use new modes of propaganda for adjusting people's minds to authoritarian rule. This prediction came through in Sri Lanka by the use of tongue twisting doublespeak words like autochthonous, and in the creation of a mental attitude among the people that Sri Lanka should reject what was categorized as colonial and Western ideas.

This way the ideas of equality, liberty, and fraternity, and the rule of law, the independence of the judiciary, human rights, and the State obligation to protect the liberties of the individual, were treated as alien concepts. Not only the substance of these ideas but also procedural laws and rules, which were considered integral to the practice of such ideas, began to be treated as alien. A laxity began to be spread into all institutions, including institutions dealing with the administration of justice. Such laxity was not regarded as hostile to the very possibility of remaining as a nation, but instead treated as part of our own ennobling way of doing thigs. What was, in fact, descent to barbarism came to be regarded as quite an honourable way of doing things in our own style. Rejection of notions labelled as Western became an integral part of national ideology.

It was a people's revolt against that system that brought about the electoral changes that replaced the Mahinda Rajapaksha regime in 2015. The slogan under which the opposition rallied was that there would be an abolition of the executive presidential system. What has been proven over the last year and a half is that, while there has been some tinkering with the original notion of executive presidency, through the passing of the 19th Amendment to the Constitution, it is not possible to replace the executive presidency, as envisaged in the 1978 Constitution, without the replacement of the general principles and rules that constitute the basic structure of a democratic form of government.

It is unfortunate that the new government has not even expressed, by way of policy, that it will completely replace the 1978 version of a constitution with a constitution that is based completely on the universally accepted norms and principles of democratic governance. What has happened so far can be compared to the clearing of muddy waters just to get a little bit of water to quench the dire thirst. There has not been any cleaning up of the water supply to ensure that it is pure water that will sustain the life of the nation. We are still drinking the muddy waters from the reservoirs created under the so-called "autochthonous approach" to the constitution.

In Sri Lanka, during the last 40 years or so, an "autochthonous constitution" came to mean a highly localised comedy. The overall ruling framework in the country became, and has remained, comic. The cynical way everything is done in every aspect of life reflects the comic nature of the country's constitutional structure. Unfortunately, neither the government, nor the country's civil society organisations, have awaken to realise that as long as this comical arrangement remains, there can be no return to good governance under a democratic framework of law.

Among the things that have become most comic are the institutions responsible for the administration of justice, namely the policing, Attorney General's Department, and judicial institutions. It is the claim of each of these institutions that they do not have adequate personnel and adequate resources to run these institutions in a manner that such institutions will fulfil the aims for which they exist.

These short essays, together with the considerable amount of similar writings, we hope will create a conversation on our present predicament, with the view to abandoning the comic ways in favour of wiser ways of ruling ourselves by creating for ourselves a structure of governance within which universally well-established principles of democracy and the rule of law will become integral. From the ashes of a period of self-destruction, we hope we would be able to re-kindle a fire, where best practices of self-governance can be established within as a short period as possible.

In the 3rd Century B.C., when Sri Lankan State was first established, Sri Lankans had the benefit of being guided by Dharmasoka's conception of statehood, in which building of social responsibility, as the corner stone of the nation, was integral. For Asoka, the spread of Buddhism was equal to the building of a society on the basis of social responsibility. The eminent Indian historian Romila Thapar, in her book, Asoka, and the Decline of the Mauryas has succinctly expressed this in the following words:

"In the past, historians have generally interpreted Asoka's Dhamma almost as a synonym for Buddhism, suggesting thereby that Asoka was concerned with making Buddhism the state religion. We propose to show that this was not his intention, although he himself, as a firm believer in Buddhism, was convinced that it was the only way to salvation. The policy of Dhamma was a policy rather of social responsibility than merely of demanding that the entire population should favour Buddhism. It was the building up of an attitude of mind in which social behaviour, the behaviour of one person towards another, was considered of great importance. It was a plea for the recognition of the dignity of man, and for a humanistic spirit in the activities of society."

The Constitution and the laws of Sri Lanka must revive social responsibility as the foundation of the nation. When this is understood as Dhamma, in the manner it was understood by Dharmasoka, there would be no incompatibility at all with the general notions of democracy and human rights, as these are understood universally. One of the direct consequences of this would be tolerance and respect for everyone.

Dharmasoka wrote the following in one of his edicts:

"… On each occasion one should honour the sect of the other, for by doing so one increases the influence of one's own sect and benefits that of the other; while by doing otherwise one diminishes the influence of one's own sect and harms the other. Again whosoever honours his own sect or disparages that of another, wholly out of devotion to his own, with a view to showing it in a favourable light, harms his own sect even more seriously. Therefore, concord is to be commended, so that men may hear one another's principles and obey them …"

It is time we immediately consider and introduce best practices of self-governance, from our own history and from wherever in the world they may originate, to build the brightest future for all citizens, while this time around remaining vigilant to those versed in doublespeak, who may use any notion to disguise ad-hoc misrule.