What should be new in a constitution if 1978 model is to be fully rejected?

If the courts do not have jurisdiction over any person or a group of persons, then the notion of the supremacy of the law cannot operate. If that principle cannot operate, then there cannot be any other means to hold a nation together – Pic by Shehan Gunasekara

By Basil Fernando

Constitutions are made in different countries in different moments of history. They are mostly made at a point of time when significant change is taking place or when significant change is envisaged. 

For example, the unwritten constitutional tradition of the United Kingdom was developed at a time when the monarchy was to be brought to an end and the supremacy of the Parliament was envisaged to be the body that will determine the laws by which the country and the nation was to be governed for the future. That was a moment of momentous change and that change provided the foundation for the practices by which the nation has been governed for the rest of its history. 

The French Revolution marked an even more fundamental change. It also marked the end of the monarchy. However it also brought the people more directly into the process of governance. 

The making of the Constitution of the United States marked the beginning of a new nation altogether. Benefiting from the changes that had taken place in Europe, they created a system of governance where the supremacy of law was to be the key principle around which all the governance was to take place. 

The Indian Constitution was made at the beginning of the period of Independence from the British Empire and it was to mark the manner in which the Indians would govern themselves. Over a long period of time, what the Constitution would constitute of was discussed in great detail. 

The narratives of these debates show that one of the major concerns of the drafters of the Indian Constitution was to prevent the kind of arbitrary deprivation of liberties that the British were engaged in during the time of the British Raj. 

Another major concern was to establish the Judiciary as a genuinely independent institution. The manner of appointment of the Superior Court Judges was discussed thoroughly and was enshrined into the Constitution, giving the power of the selection of new Judges to the Supreme Court to the Judges themselves. This arrangement has lasted despite many attempts by politicians who were more inclined towards authoritarianism and did not want interference from the Judiciary. 

The recent Constitution of Nepal was directed towards achieving several ends. One was to end the rule by monarchy once and for all. Secondly, to end the civil war which lasted over a long period and to bring in those who were engaged in the rebellion against monarchy also into the processes of governance.

In all these Constitutions, a major concern was to bring the entire population into the process of governing themselves by following the principles of equality before the law. Whether it was a concern to end monarchy or to establish a Government after a long period of civil war, the consensus was that a permanent form of governance requires that nobody is allowed to be above the law. Implied in that conception was that nobody could be outside the jurisdiction of the courts. 

These two principles always go together. If the courts do not have jurisdiction over any person or a group of persons, then the notion of the supremacy of the law cannot operate. If that principle cannot operate, then there cannot be any other means to hold a nation together. 

When the 1948 Soulbury Constitution was adopted, it was for the purpose of marking the end of the colonial period and the beginning of a nation that will be ruled by the people themselves. When the second Constitution of 1972 was discussed, there was more rhetoric about a homegrown Constitution but what the central political idea behind the Constitution was, was not discussed at all. 

The hidden agenda behind the 1978 Constitution was to undermine the independence of the Judiciary which was done by way of the removal of the power of judicial review. Other than this, there was no other central idea in that Constitution. 

The 1978 Constitution, although not openly declared, had a very prominent single idea. It was to end the period of the supremacy of law by the creation of a position called the Executive President who was not subjected to the laws of the country and who was placed outside the jurisdiction of the court. 

Despite the maintaining of the language of the separation of powers, in fact, it was a central aim of this Constitution to displace the notion of the separation of powers by undermining the role of the Parliament which was reduced to a rubber stamping position to approve the will of the Executive President and also very deliberately undermining the role, function and the independence of the Judiciary. It was a radical departure from democracy. 

If the Nepalese Constitution marked the end of the rule by a monarch and the beginning of a system of governance where the people were supreme and the separation of powers principle played a central role, the 1978 Constitution of Sri Lanka did the opposite. Although it did not create a monarch, it gave more power to the Executive President than any other modern Constitution in a nation that claims to be a democracy. The claim of democracy and the structure of governance that was established in the 1978 Constitution are opposed to each other. 

None of the Amendments that were attempted including the 17th Amendment to the Constitution to the 20th Amendment to the Constitution altered this situation. 

As a new Constitution is being discussed in Sri Lanka at a time when the structure of governance that was established under the 1978 Constitution has proved to be an unmitigated disaster, then the central concern should be for the abolition of the 1978 Constitution altogether. 

This means first of all the reinstatement of the principle of the supremacy of the law. That implies at the same time the reinstatement of the principle of the independence of the Judiciary not only by way of a mere declaration but by restoring the role and the function of the courts. That implies the restoration of the power of judicial review. Further, this also means that all restraints that the Head of State or the Cabinet of Ministers could impose on the rights of the Judiciary to exercise its role as the guardian of the rights of the people should be negated. 

In the recent past we have experienced that many things that are considered illegal in a country that resets the rule of law has been given the aura of legality in Sri Lanka. For example, the arrest of a person by way of kidnapping, the detention of people in places outside detention centres, the torture of such persons and then killing of such persons and the disposal of their bodies were all justified by various gazettes which created conditions for such things to take place. 

Similar patterns have either been developed by way of such gazettes or by way of practices which have become a normal part of the law enforcement in Sri Lanka. The common saying that Sri Lanka is a lawless country came to be used by the people as a result of witnessing what they normally knew to be illegal being transformed into facts which began to be considered as normal and legal. 

The new Constitution that does not achieve this overall transformation from a country that has lost the principle of the supremacy of law to one where that principle is restored to the foundational principle, would not be of any use to resolve the kind of crises that the nation is faced with now. A radical restoration of the rule of law and the supremacy of the law is possible only in situations in which people themselves become the makers of their Constitution.

This role cannot be usurped by the very people who are opposed to the supremacy of the law. Thus, the moment of the making of a new Constitution must be a moment at which the people use their power of sovereignty and determine the kind of governance they want to be bound by. 

The test

The answers to the following key questions will decide whether it is the failed 1978 Constitution that is been reproduced in the new constitution;

1. Will the head of the state be above the law and outside the jurisdiction of courts? Another way of putting the same question is, will the immunity of the head of the state be same as that followed in a democracy?

2. Will all persons and authorities within the state, whether public or private, are to be bound by law and entitled to same benefits?

3. Will the law be publicly made? That the public will have full access to law making process, as is available in a democracy, without undue and unreasoned restraints?

4. Will law be publicly and sorely administered in the courts? 

5. Will the appointment of judges be done through a process presided over by judges themselves? Will the head of the state have only the power of formal approval?

6. Will the power of judicial review of legislation be restored to the Judiciary?

7. Will Parliament be an independent branch of governance, and cease to be body that has merely to rubber stamp the decisions of head of the state?