The crisis and constitutional violations

The constitutional violations by the Executive, the Legislature and the Judiciary, jointly and separately, have become an important factor affecting the deterioration of the Constitution, the system of 

governance and the overall wretchedness of the country – Pix by Shehan Gunasekara 

Sri Lanka was in a deep and complex crisis even before the outbreak of the Easter Sunday attacks. Now, in the wake of the Easter Sunday attacks, the country has plunged into a deeper and bigger crisis, which is more complex than it was before.

The economy of the country was on a downward trend heading for virtual bankruptcy even before the Easter Sunday bomb attacks. Now the downturn of the economy has aggravated further, reaching a level which is two to three times worse than it was. 

The tourist industry is in dire straits of almost collapse. Nearly one million people depend on the tourist industry. Most of them are now in a miserable state in which their means of income has completely depleted. The process of contraction in the industrial and trading sectors has aggravated speedily. 

The rapid decline in the economy will invariably render the very survival of not only the poor people but also those of middle class and well-to-do segments, more difficult and miserable. 

Socio-political implications of the crisis 

Sri Lanka has been able to avoid large-scale reprisals against Muslim community in the aftermath of the deadliest bomb explosions on Easter Sunday. Nevertheless, the social division between Muslim and non-Muslim societies which lay underneath, have assumed a character of fossilised social divisions with the possibility of erupting at any moment in the form of a violent explosion.

The Easter Sunday attacks have also aggravated manifold the confusion prevailing in the political arena. The recent incident, apart from intensifying the disappointment of people in political parties and the leaders, has generated a strong protest as well as a deep contempt for them. 

The comical nature of political leaders of the country was well reflected in their behaviour in the aftermath of the Easter massacre. Not even a mark of woe or remorse was to be seen in their faces. There was hardly any difference between their behaviour and that of the blue flies swarming around decomposed corpses. 

The people perceive this tragedy as an outcome of irresponsible and opportunistic behaviour of political leaders, which could have been avoided, if timely measures had been taken. 

It is now being revealed that the origin of the Islamic terrorist organisation responsible for these attacks goes back to about seven or eight years and Muslim society itself had made complaints against this organisation but neither the present Government nor the previous Government had taken them seriously and imposed laws against this terrorist organisation for narrow political gains and other selfish advantages.

The crisis is now flowing liberally, destroying the spate of recognition of all political leaders. It can be said that all political leaders, while becoming a laughing stock in the eyes of people at times and vessels of their contempt at other times, are being pushed in to the waste-bin of history while ushering a new era which can be for good or bad. 

Apparently, the present state of confusion and crisis is a growing phenomenon that is likely to aggravate and persist rather than being contained soon. When one crisis is contained, it is possible for another crisis, which had been suppressed, to raise its ugly head again. 

The public sector salary issue has reached explosive heights. Micro credit issue of rural women has also reached a similar stage. The economic pressure exerted on overall society by the downturn of the economy too will reach explosive heights. Moreover, it might impact adversely on the election timetable also while adding to the prevailing unrest and uncertainty in the country.  Holding of elections at this moment would not be a solution to this crisis; it might rather intensify the crisis. If the existing crises are to be overcome, what the country needs first and foremost is an overall structural transformation of the entire system before embarking on any other issues and recreating the Sri Lankan State and Sri Lankan society. 

Sri Lanka’s crisis 

The present crisis in Sri Lanka, which has reached into an optimum level at the moment, is not something that fell from the sky, all of a sudden. It can be considered a scenario which commenced since independence and gradually developed over a long period of nearly 71 years before reaching the present heights.

Independence gained by Sri Lanka cannot be considered an outcome of a strong social struggle. It can be treated as an independence achieved through trickery and deceptive means. Had it been gained through a strong social struggle against colonial rule, it would probably have been possible to integrate the nation and build the modern nation by minimising the recognition accorded to ethnicity, caste and religious differences. It was without building the modern nation that we gained independence. Even after independence there had been no interest to build the nation. 

Building of a modern nation is an essential prerequisite for the healthy survival of a modern nation state. In that sense, Sri Lanka has built the modern nation state without creating a strong foundation required for promoting internal harmony. Ethnic, caste and religious differences had their impact not only on society but on the leaders of the country as well. 

Since independence, the rulers have governed the country without an appropriate and far-reaching vision for the country. The national leaders of Sri Lanka were not mature people who had emerged through strong independent movements. The parochial, short-sighted policies adopted by them have contributed largely to widen social differences and divisions in the country. 

Sri Lanka, which gained independence without shedding even a drop of blood, 30 years after independence has turned out to be a land swimming incessantly in a river of blood for a long period of nearly 30 years. Ethnicity, caste and religion, all three factors have had an impact on the violent conflicts that broke out from time to time. 

Now, having had just 10 years’ rest period after swimming for 30 years in a river of blood, the country seems to be moving towards a path of blood bath again. Unless we manage to arrest this trend and prevent the outbreak of large-scale conflicts and violence at this stage, certainly the price that the country will have to pay can be enormous. At the same time, it is also important that we understand the realistic situation of the crisis the country has faced. 

Violation of Soulbury Constitution 

Our rulers not only lacked a strong and far-reaching vision for the development of the country, they didn’t have the most needed discipline, the hallmark of good governance and leadership, to govern the country in accordance with the Constitution and the law of the country. 

The ink on the Soulbury Constitution was barely dry when D.S. Senanayake, the first Prime Minister of Sri Lanka, breached it by adopting two Acts of Parliament depriving the citizenship rights of Indian plantation workers. The issue of the Indian plantation workers should have been resolved soon after independence.

Prior to independence, all the people who lived in Sri Lanka were treated as British citizens. There were 800,000 plantation workers of Indian origin working in the estate sector. Of them a considerable number had lived for a long period in Sri Lanka continuously and they desired to stay in Sri Lanka rather than migrating to India. 

Apart from them, there was another section, equally large in number, among them who used to live temporarily working in the estate sector and going to India from time to time. The Indian plantation labour was an essential requirement for the sustenance of the estate sector economy of the country. 

The problem of plantation workers of Indian origin should have been resolved by two methods: (1) by identifying the people who had lived a longer period persistently in Sri Lanka and evinced interest to become citizens and granting them citizenship; (2) safeguarding the political rights of others who preferred a temporary stay in the country, by means of a special system of constituencies restricted only for them so that they could elect their representatives from these constituencies to represent their interests in Parliament. 

But, D.S. Senanayake, the first Prime Minister of independent Sri Lanka, looked at this problem from a very narrow political angle. While seven members had been elected to the Parliament from the Congress of the Indian Plantation Workers at the 1947 Parliamentary election, the Indian Tamils opted to vote for the candidates of LSSP wherever the Congress of the Plantation Workers had not fielded a candidate of their own. 

D.S. Senanayake regarded the leftist Lanka Samasamaja Party (LSSP) as his main rival and was angry over the Indian plantation workers as they had supported the leftist candidates in constituencies which were not contested by the Congress of the Plantation Workers at the general election.

D.S. Senanayake, as the hero of independence, anticipated an easy victory at the first Parliamentary Election. But, he was able to secure only 42 seats out of 95 seats in Parliament. Though there were seven members elected from the Congress of the Indian Plantation Workers at the General Election in 1947, they declined to support D.S. Senanayake in his attempt to form a government. They all ganged up with the Opposition. Thus, their refusal to support him and the close alliance they had developed with the LSSP met with his strong opposition. 

In this backdrop, the Citizenship Acts promulgated by the Prime Minister intended to deprive the Indian estate works of their right to vote as well as to weaken the power of the LSSP. This situation caused the Indian Tamil community which had seven members in the 1947 Parliament to remain without a single representative until 1977. 

The Sinhala Only Act, formerly the Official Language Act introduced by Bandaranaike in 1956, can also be considered a move against the Soulbury Constitution. By that time, there was a big language issue to be resolved. The recognition of vernaculars had been completely suppressed during the long period of colonial rule. There was no change in this situation even after gaining independence.

Until 1956, the text of a telegram, the most popular and essential mode of communication for many decades received by both Sinhala and Tamil peoples, was written in English, compelling the majority of them who did not know English to seek assistance of an English-educated gentleman to get the message read. 

There was a pressing need to change this unpleasant situation faced by the users of native languages, Sinhalese and Tamil. Yet, what Bandaranaike did was to make Sinhalese the Official Language, depriving the Tamil of their right to work in their language. Henceforth, Tamil people received their telegrams in the Sinhalese language, compelling them to seek assistance to have the message deciphered.

The policy that deprived the Tamil people of reasonable language rights created serious disappointment in them. Disregarding their attempts to secure their language rights within a non-violent framework can be considered a major factor that pushed the younger generation of Tamil people into a path of terrorism. 

If the compilers of the first Republican Constitution, adopted by the United Front Government in 1972 had an interest, they could have done justice to Tamils who had been deprived of their language rights. Not only did they fail to do that, they also incorporated the Sinhala Official Language ​​Act into the Constitution itself, to the consternation of Tamil people. In this sense, the Republican Constitution of 1972 can be considered as a statute which deprived Tamil people of their language rights.

Violation of constitution after 1977

The second Republican Constitution, adopted in 1978, despite being a constitution drafted with a narrow object of concentrating the entire power of the State around the Head of the State, can still be considered a relatively progressive one compared to the 1972 Constitution as far as the provisions incorporated in it to safeguard the rights of minority ethnic groups and human rights were concerned. But, it is the only constitution that has been violated the most within a short period of four decades.

President J.R. Jayewardene, the founder of the second Republican Constitution 1978, was the first culprit responsible for committing the biggest sin of violating it. The violations of the Constitution initiated by J.R. Jayewardene had always been supported by Parliament and at times by the Judiciary as well. 

Of the 16 amendments added to the Constitution during his regime, five amendments can be considered as gross violations of the Constitution. The legendary Fourth Amendment (1982.12.23) introduced, extending the official term of Parliament elected in 1977 by another six years by a referendum, can be described as the most horrendous amendment which led to distort the system of governance and the political course of the country, eventually thrusting the country onto a violent path. Up to now, this amendment has not been revoked from the Constitution.

President Jayewardene carried out all his arbitrary practices during his regime by way of amendments to the Constitution. He commanded a five-sixths majority in the Parliament which enabled him to get any amendment passed conveniently and promptly. On the contrary, during the regime of President Chandrika Kumaranatunga, she did not possess the required majority in the Parliament to bring about constitutional amendments. However, she managed to overcome the obstacle by appointing Sarath Nanda Silva, a henchman of hers, to the post of Chief Justice and obtained through him the approval of the Supreme Court for unconstitutional measures adopted by her. 

It was as a result of this practice that the system which permitted the MPs of the Opposition to join the Government without having to lose their parliamentary seats came into being. This can be described as an instance where the Constitution was violated jointly by the Parliament and the Judiciary. The aberration created by this change in the entire system of governance was enormous.

The 18th Amendment passed during the regime of Mahinda Rajapaksa can be considered another instance in which the Constitution was grossly violated. The 19th Amendment enacted thereafter, with the object of changing the presidential system of governance and revoking the 18th amendment, can be considered not only as a violation of the Constitution, but also a weird amendment that distorted the entire system of governance and rendered the Constitution a useless rag which can no longer be put to effective use.

Failure to rectify mistakes 

The uncivilised policy adopted by the rulers of the country since independence in regard to the Constitution, the supreme law of the country, alone is adequate to understand the extent of political vulgarity that prevails in the country. 

The rulers, whenever they want to achieve their political needs, violate the Constitution with the approval of the Legislature when they command the required majority in the Parliament and with the support of the Judiciary when they do not have the required level of power in the Parliament. Thus, the Judiciary, which is responsible for protecting and safeguarding the Constitution, at certain instances has failed to perform its duty properly. The distortion and the complete impotency of the present Constitution can be considered as a logical consequence of this process.

Usually, civilised countries do not attempt to violate their constitutions. The judiciary will not allow it even if the rulers wanted it. The civilised countries hold that the violation of constitution, the supreme law of the country, is the biggest sin which can be committed in political sense. 

Even if the constitution is violated in an unavoidable circumstance, the civilised countries will not allow it to be a stumbling block of the progress of the country and take appropriate measures to rectify the error. 

I wish to cite an example from India, our immediate neighbour. Indira Gandhi, who ruled India for a long period under the emergency law, presented the 42nd Amendment to the Constitution in 1976 and got it passed through majority vote of Parliament. The 42nd Amendment is regarded as the most controversial constitutional amendment in Indian history. It led to create a great anomaly in the field of Fundamental Rights enshrined in the Indian Constitution. It came largely under public protest and constituted a critical factor that led to the defeat of the Government of Indira Gandhi at the 1977 general election. 

The Janata Party Government which came to power in 1977 adopted two constitutional amendments (43 and 44) to rectify the anomaly caused by the 42nd Amendment. Some critics are of the view that though these two amendments helped mitigate the impact of the anomaly caused by the 42nd amendment, it was not possible to revoke it completely. However, the Supreme Court of India by a judgement passed (Minerva Mills V Union of India) in July 1980 annulled the 42nd Amendment completely and deprived the Legislature of its rights to pass constitutional amendments that can cause damage to the basic structure of the Indian Constitution. 

How retrogressive is Sri Lanka’s position when compared to India, its immediate neighbour, so far as the subject of constitutional amendments is concerned? Sri Lanka has not made any attempt to revoke the amendments which distorted the Constitution. No attempt has been made to abolish even the 4th Amendment that permits the extension of the official term of Parliament by a referendum. There is no difference in regard to the court decisions made distorting the structure of the Constitution.

It is important that we realise that the constitutional violations by the Executive, the Legislature and the Judiciary, jointly and separately, have become an important factor affecting the deterioration of the Constitution, the system of governance and the overall wretchedness of the country. The present terrorist threat as well as the similar threats the country had faced earlier can be considered as calamities associated with the deterioration of the State. 

The country needs a new constitution as well as a new system of governance and a complete transformation of the entire system because there is no other alternative to overcome the current state of wretchedness of the country. Accordingly, in making and adopting a new constitution and a system of governance for the country, it must be made with adequate provisions that would not leave space for the Executive, the Legislature and the Judiciary to commit such mistakes.