Opinion

Sri Lanka: Which part of the 1978 ‘tomfoolery’ is to be retained?

The frequently asked question nowadays is whether the government hopes to create a new constitution, or whether it will amend the 1978 Constitution. It is thus pertinent to recall the statement by former Supreme Court Judge C. V. Wigneswaran (now Governor of the Northern Province), that the constitutional crisis of Sri Lanka is a product of tomfoolery with the constitution.

In several publications, the Asian Human Rights Commission (AHRC) stated that the 1978 Constitution was not based on the Gaullist model of the French Constitution, as claimed. The late Dr. Colvin R. de Silva stated that this constitution was not based on any great tradition, but is very similar to that created by Jean-Bédel Bokassa of the Central African Republic.

The Guardian (London) referred to Bokassa as

“… One of Africa’s most brutal dictators, accused of cannibalism and feeding his opponents to animals … was the self-crowned emperor of the Central African Republic (CAR) until he was ousted in 1979. He fathered 62 children and his coronation, based on that of Napoleon, cost his country’s entire GDP….”

Political madman

Simply put, Bokassa was a political madman, who abandoned every known principle of governance to suit his personal ambitions, and as a result created a great crisis for his nation, lasting for many years.

J. R. Jayewardene crowned himself President in 1978, although he was only elected to be the Prime Minister.

He displaced all the basic principles of a democratic republic, and created a sort of governance that brought about chaos that no political leader thereafter has learnt how to get rid of.

In its classical meaning, the constitution of a democratic republic is based on a set of principles interwoven with all the state’s basic institutions of governance. If any one of these principles were removed, it would no longer be a democratic republic.

President Jayewardena removed almost all the principles on which democratic governance is based. Aspiring to be a monarch, he abandoned the idea of a republic, which does not allow for the centralisation of power in the hands of a single individual.

Judicial review

He attacked and undermined the principle of separation of powers and the exercise of checks and balances by removing the powers of judicial review, and making the judiciary an inferior branch of governance. He displaced the principle of the supremacy of law and the rule of law by arrogating to himself the power to make any law he thought fit to make.

With a 5/6th vote in parliament, he boasted that the only thing he could not do is to make a man a woman, or vice versa. The political chaos that his actions led to the surfacing of violence and the collapse of the state itself.

Hence, we must reflect on whether Jayewardene’s constitution can be amended to create the foundation for a sustainable form of governance based on democratic principles.

An amendment would only mean the creation of a constitution that is a logical contradiction, resulting in even more confusion.

When something is discarded as nonsense, it should be discarded in its entirety. Partial displacement of nonsense amounts to the creation of another form of nonsense.

The tomfoolery that J. R. Jayewardene engaged in, which was continued by successive Presidents, must be brought to a halt. There is hardly anything more to debate on this matter.

The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.

Basil Fernando
AHRC