The SL Constitution – 45 Years on: The evolvement of consolidation of authoritarianism in the service of capital
BY Sanjaya Wilson Jayasekera
Sri Lankan working people have a rich history of fighting for democratic rights against all odds, persecutions, repressions and political betrayals.
The past half a century of Sri Lankan history is the history of two written Constitutions: the Constitution of 1972 of Prime Minister Sirima Bandaranaike’s coalition Government and the Constitution of 1978 of President J.R. Jayewardene of the United National Party Government. During this period, under these two republican Constitutions, Sri Lankan working people and the poor of all ethnicities bore the brunt of two insurgencies that were crudely crushed, and one racist civil war that lasted close to three decades, victimising the lives of hundreds of thousands, not to mention a series of instances of discrimination and violence against ethnic minorities and the working class who fought for better living conditions. A student of comparative constitutionalism would learn that Sri Lankan constitutional history is an example of how written constitutions could be instruments of power for authoritarian regimes and near dictatorships, serving the interests of the market.
Sri Lanka was recognised as a republican constitutional democracy in 1972. A constitutional democracy is supposed to be a form of government where the powers of the government are limited by a constitution, and the rights and freedoms of individuals are protected.
1972 marked a significant turning point in Sri Lanka’s political history. Prior to that, the country was known as Ceylon and was a dominion within the British Commonwealth. With the passage of the Ceylon Independence Act in 1947, Ceylon had its political power transferred from the British colonial monarch to the local bourgeoisie, which transition is often referred to as “Independence”.
The 1972 Constitution declared Sri Lanka as a sovereign republic and changed the country’s name from Ceylon to Sri Lanka. The adoption of this Constitution marked a shift towards a more independent and self governing nation under the hand of the local bourgeoisie.
A notable discriminative and non-secular characteristic of the 1972 Constitution was the elevation of Buddhism to the position of the State religion. Under Article 6 thereof, the Constitution recognised Buddhism as “the foremost religion” in Sri Lanka and granted it special privileges and protection, notwithstanding the historically pluralist character of the Sri Lankan society.
Article 7 of the Constitution also declared Sinhala, the language of the majority ethnic Sinhalese, as the sole official language of Sri Lanka, replacing English. This marginalised the Tamil speaking minority population and contributed to growing ethnic tensions in later years. The 1972 Constitution weakened certain minority rights compared to the previous Constitution. The removal of safeguards for minority communities led to their discrimination and unequal treatment. This issue became a significant factor in later ethnic conflicts and demands for constitutional reforms, especially by the Tamil nationalist bourgeoisie.
While the 1972 Constitution introduced a ceremonial President, it did not establish an Executive Presidency with extensive powers as seen in the 1978 Constitution, which is its bedrock. The President’s role was largely symbolic, with limited Executive authority vested in the Prime Minister and the Cabinet of Ministers.
The 1978 Constitution of Sri Lanka, also known as the second republican Constitution, introduced significant changes to the governance structure of the country. It replaced the previous Constitution of 1972 and established a Presidential system of Government.
The backbone of the 1978 Constitution was the establishment of an Executive Presidential system, enabling one man/woman to wield Governmental power at his/her will. This marked a shift from the previous Parliamentary system to a Presidential system, where the President became both the Head of the State and the Head of the Government. The President was directly elected by the people and held significant powers, including the ability to appoint and dismiss Ministers, dissolve the Parliament, and declare a state of emergency. He is also the appointing authority of Superior Courts Judges, the Attorney General, the Inspector General of Police, the Governor of the Central Bank, and the heads of the independent commissions. Having installed a super powerful Presidency, while being a written Constitution, it lacked fundamental characteristics that liberal constitutionalism advocates.
This Constitution also carried forward the non-secular and ethnic discrimination provisions of the previous Constitution. In an attempt to address ethnic tensions and promote the devolution of power, Provincial Councils were introduced in the 13th Amendment to the Constitution. These Councils were intended to grant limited autonomy to the Provinces in certain matters such as education, health, and agriculture. However, though Police and land powers were under Provincial lists, they were never devolved in practice.
The 1978 Constitution granted the President draconian emergency powers to declare emergency regulations, declare curfew, and essential services, among others. These powers allowed for the suspension of certain Fundamental Rights (FRs) during a state of emergency. Sri Lankan Presidents have used this power on many instances against the people and, significantly, during the period of the civil war that ended in 2009, the Island was largely under emergency rule, which was normalcy.
Under the 1978 Constitution of Sri Lanka, what one observes is a Presidential authoritarianism, which refers to the concentration of power in the hands of the President, granting him/her extensive Executive powers and very limited checks and balances, especially imposed after the 17th Amendment to the Constitution. This constitutional frame has made democratic governance and rule of law in the country, a mockery.
Another feature contributing to Presidential authoritarianism is the immunity granted to the President from legal proceedings while in office. According to Article 35(1) of the Constitution, no civil or criminal proceedings could be instituted against the President during his/her term. This immunity can shield a President from accountability for any potential abuses of power or violations of constitutional rights.
Furthermore, the President has significant control over the Judiciary under the 1978 Constitution. It is an all-powerful President who appoints Judges to higher Courts, including the Supreme Court and the Court of Appeal, which can influence judicial independence. This control over judicial appointments, in spite of the requirement of approval by the Constitutional Council (CC), can potentially undermine the separation of powers and limit judicial autonomy.
In any event, all Government organs, including the Judiciary, are constitutionally bound to ensure that the stability and efficiency of the market economy is unimpeded and preserved at all costs.
Additionally, the President has authority over various independent commissions, claimed to have been established to ensure good governance and protect FRs, in spite of the CC mechanism introduced by the 17th Amendment. These Commissions include the Election Commission, the Public Service Commission, the National Police Commission, and the Human Rights Commission.
There have been calls for constitutional reforms within liberal circles in Sri Lanka to address these concerns and promote a more balanced distribution of power. A number of left and right wing political parties, civil society organisations, and experts have advocated for the abolition of the Presidential system for over two decades, hoping to strengthen democratic governance and ensure greater accountability.
Commenting on the nature of the administration of governance instituted by the 1978 Constitution, the constitutional expert and long time leader of the Lanka Sama Samaja Party, Dr. Colvin R. de Silva, which in 1964 joined Bandaranaike’s coalition, characterised it as follows in :
“In terms of Parliamentary democracy, it is neither fish nor fowl nor good red herring. It is not a Parliamentary system such as which the world inherited from Britain, though there is, in name, a devalued Parliament, a devalued Cabinet and a devalued Premier who has not even been allowed to act for the President, though he/she constitutionally could while the President is abroad. Neither is it in the American Presidential system in which the President, the legislature and the Judiciary set off each other in an unending balancing act. What Sri Lanka has is a near dictatorship, plebiscite and all. There is provision for a referendum by resort to which the President can override the Parliament in Parliamentary Presidential democratic trappings. The President is the near dictator.” (Dictatorship Tightens its Grip).
New constitution of, by and for the people
Sri Lanka’s Constitution is deeply integrated with the demands of financial capital. It has its origins in the neoliberal policies of United Kingdom Prime Minister Margret Thatcher and United States President Ronald Reagan and was so framed by Jayewardene to institute an all powerful central authority which can facilitate open market economy from trade, financial and labour liberalisation to mass financialisation and privatisations.
Once again I quote from de Silva, who has put this very vividly:
“The fulcrum of State power under the new Constitution is the President. In the new Constitution, there will be the Democratic Socialist Republic of Sri Lanka and there will be a Parliament. Whatever may be said of the Parliament, the new name and title of the Republic is a misnomer. Though many or most of the trappings of democracy are there, in essence the President is a dictator over all. As for socialism, the whole design is to obstruct and prevent the march of the people to socialism. The description of the so called democratic socialist society in the new Directive Principles of State Policy and Fundamental Duties makes it clear that the new Constitution is an instrument for the preservation and development of a capitalist society.” (Constitution for Dictatorship).
In these circumstances, Sri Lanka’s authoritarianism is an organic part of its economic demands, its’ never ending austerity and social counter revolution against long time gains of its labour movement for hundred years.
Sri Lanka barely needs a new constitution of the people, by the people, which, inter alia, abolishes the Executive Presidential system and the repressive laws. But, it cannot be made by a Parliament that be. A constituent assembly of the people should be established which would be representative of the broad masses of the people to bring about a constitution to establish genuine democracy and to reorganise the economy to produce and distribute for the benefit of the greater masses of the working people, and not for the profits of a financial oligarchy and monopoly capitalists. That is the need of the hour.
(The writer is an attorney and a lecturer)