And a possible remedy for it from the U.S. Constitution
Introduction
The United States is increasingly being accused of exporting only belligerence, war, and destruction to the rest of the world, instead of more positive and pleasant things. For instance, conservative commentator Paul Craig Roberts, writing in Counterpunch magazine, has said, “US government officials routinely criticize other governments for being undemocratic and for violating human rights. Yet, no other country except Israel sends bombs, missiles, and drones into sovereign countries to murder civilian populations. The torture prisons of Abu Ghraib, Guantanamo, and CIA secret rendition sites are the contributions of the Bush/Obama regimes to human rights.”[1] No doubt there is a great deal of truth in what he says. As for me, being a Sri Lankan, I like to leave criticism of America to Americans. My interest in America is simply this: I want to know what aspect if any in the American system can be instructive or helpful in improving my own country. Having lived in the United States for many years, I am convinced that there is at least one invaluable resource in that country, which can be of immense benefit to other countries, namely, the US Constitution, certain core principles of which Americans themselves seem to have forgotten. The purpose of this paper, therefore, is to highlight one such principle.
The present Sri Lanka Constitution was enacted in 1978, and is generally termed a “hybrid,” meaning that it combines elements from the British, French, and American systems.[2] The British influence is on the structure and powers of Parliament. The French influence in on the Executive Branch, i.e. a Strong Executive, and the American influence, purportedly, is with respect to separation of powers. In my view, the problem with the “hybrid” is that what the Constitution-makers have really done is to replicate primarily the British system, characterized as it is by a “Supremacy of Parliament,” without also importing the traditional safeguards that accompany that concept and its application in England.
In other words, in Sri Lanka, as far as the making of laws, there really is no “check” on Parliament. Such a situation, when combined with a Strong Executive deriving from the French tradition, is a recipe for disaster because if the Executive manages to bring the legislature under his sway, he can get any law passed, and thereby rule without any Constitutional or legal impediment. This is where the American notion of “Separation of Powers” is supposed to come in. The claim and perhaps also something of the intent, was to ameliorate the deficit with regard to the failure to import the British safeguards by substituting a separation of powers scheme akin to the American system. But this, in fact, has not happened, and the American notion has been imported only in form and not in substance. Thus, the “fatal flaw” in the Sri Lanka Constitution is its lack of a meaningful separation of powers i.e. a meaningful systems of checks and balances between the three branches of government, which leads to the legislature, and through that the Executive, having untrammeled powers.
Any Constitution worth its name has to impose controls on Government. Therefore, it cannot be that Sri Lanka’s Constitution-makers failed to devise such controls. So what has gone wrong, and why? To find out, one would have to first understand the controls the Constitution-makers did create, or conceptualize, and then compare it with the controls in the two models on which they drew for inspiration—in this case, the British system, for “Supremacy of Parliament,” and the American system, for “Separation of Powers.” One would then be able to isolate inadequacies and shortcomings in the “hybrid.” So this is what this paper proposes to do. The paper is comprised of four sections. Section One briefly explains the provisions in the Constitution that create the problem. Section Two is devoted to discussing the issue of “Separation of Powers,” and consists of four parts. Parts 1-3 discuss the “rationales” underlying the systems of governance, respectively, of Sri Lanka, Great Britain, and the United States, with respect to “checks” on Government. Part 4 consists of a brief comparative analysis of all three.
Section Three is devoted to discussing the recent 18th Amendment to the Constitution, enacted through the expedient of an “Urgent Bill.” In my view, this Amendment is as perfect an example as any of the practical consequences—indeed, the predictable end—of the flaw inherent in the Sri Lanka Constitution, and is therefore the best means possible to appreciate the sad state of affairs to which Sri Lanka has been reduced as a result of the aforementioned flaw. In the course of this Section, I also propose to present an interesting argument against the 18th Amendment, one, to the best of my knowledge, that has never before been used. It is now too late to be of any effect against the 18th Amendment itself due to restrictions placed by Article 80(3) of the Constitution. Nevertheless, it is something valuable for Sri Lankans to have in hand, in case the government tries to resort to the same tactic again. Finally, in Section Four, I discuss “solutions.”
Although the focus of this paper is Constitutional Law, and that also Constitutional Law of Sri Lanka, I believe it can nevertheless be relevant to a general audience, particularly one with interests in US foreign policy. This is because the ideas raised here suggest certain new, or under-utilized, ways in which America and Americans can engage with the rest of the world, and vise versa, for the mutual benefit of both. In my view, the types of core principles to be discussed here, if properly imported, can really help bring stability and peace to a lot of countries, particularly in the “Third World” and the “Second World”—countries precisely like Sri Lanka—whose perennial problems include, among other things, tendencies towards chaos and internal violence, especially based on ethnic, religious or linguistic differences. Readers from different countries can apply ideas discussed here to contexts important and relevant to their own respective countries, if they detect similarities between the latter contexts and any of the matters raised with regard to Sri Lanka’s predicament.
Section One: The Problem
As mentioned earlier, the fatal flaw in the Sri Lanka Constitution is its lack of a proper separation of powers. Specifically, it makes the judicial branch utterly subservient to the legislative branch. The relevant provisions of the Constitution are Articles 80(3), and 4(c). I will take each in turn.
Article 80(3) is as follows:
Where a Bill becomes law upon the certificate of the President or Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.[3]
The provision is self-explanatory: once a Bill is passed, no one can do anything about it, even if the Bill turns out to be unjust or unreasonable. Under Article 121 (1), however, the Supreme Court has a chance to review intended legislation. But this is only for a short period of three weeks, and often the problem is that the full repercussions and ramifications of a piece of legislation are felt years after its enactment. We have to add to this a new wrinkle. What happens if a piece of legislation is passed circumventing even the brief period of judicial review, by pushing it through, say, as an Urgent Bill? Then, even the tiny safeguard of Article 121 is lost.
To my knowledge, no other country that purports to have separation of powers in its system of governance has as drastic a provision nullifying the powers of the court vis a vis the legislature, as in the Sri Lanka Constitution. Under the US Constitution, for instance, a citizen can challenge the constitutionality of legislation at any time. In England, meanwhile, the Judicial Branch is nothing less than a second source of law, and hence a co-equal to the legislature.
In my view, the only instance where one finds a blanket provision such as the one in the Sri Lanka Constitution is in the Apartheid-era South African Constitution. There, in the 1950’s, in response to the courts’ reluctance to endorse some of the more egregious excesses of the nationalist legislature particularly in relation to the series of cases starting with the famous Ndlwana v. Hofemeyer, which dealt with the withdrawal of franchise rights of colored people, the Senate was forced to pass an Amendment to the Constitution. The South African Amendment Act of 1956 said, in part,
No court of law shall be competent to inquire into or pronounce upon the validity of any law passed by Parliament other than a law which alters or repeals or purports to alter or repeal the provisions of sections 137 or 152 of the South Africa Act of 1909.[4]
Note that the first part of this provision is virtually identical to its Sri Lankan counterpart. But the South African Senate, to its credit, did not emasculate the judiciary completely—i.e., it did not abrogate the entrenched provisions of the Constitution, sections 137 and 152—hence, the courts still retained a role, albeit a diminished one, in holding the legislature at bay. The Sri Lanka Constitution, on the other hand, takes away every vestige of the courts’ power to review legislation. The last part of 80(3) says, for instance, that courts will not pronounce or question legislation “on any ground whatsoever.” In short, the Sri Lanka Constitution does even the Apartheid-era South African Constitution one better! So that’s the position to which Sri Lanka’s courts have been reduced by virtue of Article 80(3).
I next turn briefly to Article 4(c), which reads as follows:
The judicial power of the People shall be exercised by Parliament through courts, tribunals, and other institutions created and established, or recognized, by the Constitution, or created and established by law, etc, etc.[5]
The operative words here are “by Parliament” and “through courts.” Only one interpretation of this is possible if we go by the plain meaning of words. “By Parliament” means that the writers of the Sri Lanka Constitution intended Parliament to be the primary agent in wielding judicial power; the courts were to be merely the instruments or tools that Parliament used to carry out that power. In short, with respect to judicial power, the courts were meant to be completely subservient, indeed at the beck and call, of Parliament.
It was Yankee Dickey’s constitution that initiated this vicious cycle of undemocratic action by government after government. Again it was the British who issued these worthless papers to all of their colonies. It was them who called these papers constitution. Historically there has been no need for this island not rely on these worthless papers. The absolute monarchy governed according to Dasa Raja Dharma. This is also the period when there was no Magna Carta!
Well said, a dictatorial kingdom with fraudulent nepotism is getting created in sri lanka, while the masses are silent and celebrating triumphalism
Changes to the constitution of Sri Lanka are made to suit individuals and not necessarily the country. On 11 December 1969 the Privy Council ruled in favour of Kodeeswaran in the case of Kodeeswaran vs Attorney General. The Privy Council directed the Supreme Court to address the constitutional question of whether the Official Language Act of 1956 which made Sinhala the official language was in violation of Section 29 of the constitution, which prohibits discrimination. Dr Colvin R de Silva changed the constitution so that there will be “no more Kodeeswaran type challenges”. Can go on and on but a recent change needs mention. Till recently the constitutional requirement of two term limitation on the Office of President was removed. Why? Political interference with the judiciary is rampant. International Bar Association’s Human Rights Institute has raised concerns on this matter several times. Are the Police, armed forces, the Reserve Bank independent? The constitution will remain flawed if the rulers constantly transgress. Dharshan, have you read the Audrey Erskine Lindop’s book “The singer and not the song”?. Why did you waste so many words to intellectualize the weakness in the Lanka constitution?
Actually, you are wrong with regard to your comments about Kodeeswaran v. Attorney General. This case is famous because it highlighted a conflict between the Roman-Dutch Law and English Law in Sri Lanka. Kodeeswaran sued the Government for arrears in pay, and the Sri Lankan Supreme Court dismissed the action, saying that under English law a civil servant had no right to remuneration that could be enforced against the State. Kodeeswaran appealed to the Privy Council, claiming that Roman-Dutch law governed the issue, and that under R-D Law, an action against the State for arrears in pay was allowed. The Privy Council said that neither English Law nor R-D Law allowed for the type of action Kedeeswaran was bringing, but that the Sri Lankan courts, over the years, had recognized such an action. In other words, what the Privy Council said was that the Sri Lankan courts had developed, through interpretation, a body of laws, and that this was what constituted the “common law” of Sri Lanka. The Privy Council therefore held for Kodeeswaran.
The issue with regard to language policy was a secondary issue in this case, and the Privy Council emphatically refused to comment on it. Here’s what the Privy Council actually said: “There are more important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships would think it inappropriate to enter into any of these matters without the considered opinion of the Supreme Court of Ceylon thereon.” (Kodeeswaran v. Attorney General (1969) 72 NLR 337, pp. 347)
What any of this has to do with the thesis I have argued in this paper—which has to do with the “fatal flaw” in the present Sri Lanka Constitution (i.e., the 1978 Constitution) and how, in my view, a proper application of the American notion of separation of powers is the only way to remedy that flaw—I really don’t know. But since you appear to be a history buff, and have thought fit to mention Kodeeswaran, I thought I’d just point out the above. It might be a more productive use of your time for you to brush up on your own knowledge of Sri Lanka history and related matters, instead of worrying about how I, or anyone else, choose to “waste” our time.
A typical writing of a true Sri Lankan. Blame the west blame the US blame everybody for all wrong doings of Sri Lankan. The problem in Sri Lanka is not constitution law or agreements etc. It is the culture of showing no respect to law and order human values human rights and any thing that is human. You can rewrite the constitution a thousand times as you have done so many times, but as long as you dont have the basic human culture and nature to abide by the constitution and law and order nothing will work.
All the constitutions and acts that has been in existence is Sri Lanka is sufficient enough to safeguard all the thousands of life that has been lost and thousands who are in jails without any charges for many years. What is the point in changing or lecturing about constitution. It is an attempt to mislead the world by buying time.
This paper is written by a Sinhalese (which are the ethnic group in conflict with Tamils). The writers opinion resonates similarly to many nationalist Sinhalese living in Sri Lanka.
A neutral stand would have taken into consideration that Tamils lived in the north and east separate from the culturally/ethnically/religiously differing Sinhalese community since before the British colonialism took place.
In fact the north and east of Sri Lanka was majority Tamils. Since Sri Lanka’s independence which resulted in unification of Sri Lanka, Tamils became minorities in their own land. Any sort of majority based rule democracy would never let Tamils express their way of living their life because they will always be outvoted by the majority Sinhalese.
Thus the unitary constitution of Sri Lanka fails due to the fact that Tamils having been a nation with a distinct culture, language, economy and territory, cannot express their democratic voice in Sri Lanka’s faulty system.
In fact, there has been documentation of various anti-Tamil laws that couldn’t be over turned because of this majority system such as the Sinhala only act, University standardization act which kept fewer Tamils into Universities, etc.
As well, many genocidal acts against Tamils have occurred by the Sri Lankan army which is almost exclusively Sinhalese. THese include the 1980’s anti-Tamil riots as well as the 2009 Mullivyaikal genocide in which atleast 40,000 to 140,000 Tamils were massacred by the military.
In such a situation, Sri Lanka’s unitary constitution would fail no matter how much its amended because Tamils will be treated unequally.
I would like to correct the author on a point in which they say that, ” Sri Lanka is today embarked on a great project of reconciliation and “mending of fences,” particularly with its Tamil community, after three decades of civil war. ” THIS point is totally inaccurate. Whats happening now, as Washington Post has articulated clearly, is the building of SInhala buddhist statues in areas where TAmils live and no SInhalese live. WHats also happening is a systematic colonization of Tamil lands with SInhalese settlers using the Sri Lankan army. This is the reality. And the reality is that Tamils in Sri Lanka protest against this tyranny despite the huge military instalments and Sinhala soldiers in areas of Tamil majority population. Some say this is done to make Tamils a minority within their own traditional homeland.
Regards,
Natasha Simmons
University of Waterloo
You obviously write with conviction and sincerity, and I have to respect that. But there are so many mistakes in your argument that I really don’t know where to start. I can’t spend too much time on this, but let’s take just one example. Take your passage: “In fact, there has been documentation of various anti-Tamil laws that couldn’t be overturned because of this majority system such as the Sinhala Only Act, University Standardization act which kept fewer Tamils into Universities, etc.” Let’s say, for a moment, that those “acts” were “anti-Tamil.” So, your argument is that they never could be overturned because the Sinhalese majority would always veto such attempts. Right? Okay, what happened to these “acts?”
Sinhala Only Act (1956): Completely abolished by 1978. Tamil was made a “National Language” in 1978 and given parity of status with Sinhalese as an Official Language in 1987.
Standardization (1974): Scrapped in 1978, four years after its introduction.
We can go down the list if you want, but you’ve mentioned only these two.
In a similar manner, almost all the statements you make in your other paragraphs contain serious errors. All I can say is, since you’re already in a university, please do some research and better inform yourself.
In any event, this paper is not about the Tamils and the Sinhalese. I am trying to raise certain large issues in Constitutional Law, and how Sri Lankans, in my view, can learn certain things from the Americans. Now, whether that is the case or not, and why not, is open to debate. I am hoping that at some point, some of the people making comments, including of course you, will address those larger issues.
Sorry to nudge in. Any citizens ought to be able to look up to the government of the day to do no wrong which affect their basic rights at any time.In the “Kodeeswaran” case one has to sart with the judgement issued by judge O.L.De Kretzer in the Distict courts which held with his contention that he is entitled to his annual increments as he was an “old entrant”, meaning he joined prior to the Sinhala only Act of 1956. Treasury Circulars issued therafter regularised that decision.
Some of the Acts may have been rectified in part on paper only. The Constitution of 1978 may have regualarised what was alredy in the 1976 constitution about 3 languages -English, Sinhala and Tamil- but only after much human blood was spilt in between! Even then Tamil as a language of administration between the government and the people is still dead! It is one thing to put provisions into constitutions and quite another at implementation! It is not serious, in other words. Governments are not supposed to cheat! In other words, when, oh when, will there be serious good governance?!
Sri Lankan constitution was to give absolute powers to the president (has always been and will be a Sinhalese) marginalise the ethnic-minorities to the extent of destroying their cultural and linguistic identities without being challenged in courts. The president also has powers, which no UK or US practises to dissolve the local bodies including Provincial Councils or Chief Ministers at any time without being challenged.
Dharshan, is Zimbabwe facing a problem with the constitution or is it Mugabe? In early forties, was the constitution of Germany the problem? “It is the singer and not the song”. The title of your article implies that if the flaws in SL constitution are fixed, then Lankans will live happily ever after. We can fix the flaws till the cows come home but SL will remain in the critical group of the Failed States Index. Does this worry you? Do the IBAHRI reports on SL worry you? Did the assassination of two JVPers in Hambantota worry you? My quote on Kodeeswaran vs Attorney General was taken from Privy Council judgement. I was present at a meeting when Colvin R de Silva (after modifying the SL constitution) said “No more Kodeeswaran challenge”. By the way a renowned SL Librarian once said that one must search in the book section for information on the constitution of most countries but for SL look in the periodical section.
The article is a commendable one. It analyses in great detail the flaws in the SL constitution. It reminds readers of the facts that there r more than 1 community living in the island & the fact that all the major religions r practiced.It refers to the American constitution & points out the separation of powers between the 3 arms of the Govt.
In my reactions in the past on SL’s political matters I have been refering to the comendable separation of powers in the USA constitution and the way India is keeping together its over 1.21 billion people w/out serious political problems in its 28 states without the centre infringing on the powers of the many states & the freedom of the people on Language & religion tho they made HINDI as the official language & religion Secular.
Ours is a small island of 20m people. The Sinhala speaking majority & the Tamil speaking TAMILS & Muslims. All major religions r practiced & there is ehnic harmony. But the Singala political leaders want to make SL a Budhist & Singala speaking State. In fact it gives pride of place to Singala & Budhism in its const.
Constitutions of the many countries in the world are secular. National flags r also neutral unlike the SL flag which shows a ferocios lion with a sword pointing at 2 stripes said to refer to the minority Tamils & Muslims in a threatening manner-Senator Nadesan refered to it as the work of uncivilised people.
What more can one say of this FLAWED const?
To start with I am not a lawyer, still less a constitutional lawyer. Yet I enjoyed reading your paper becasue I know pretty well the political, social and economic situatiuon of the differnt peoples that have inhabited the country for generations. Any meaningful constitution as you rightly emphasise should give intent of law and in fact for ALL the citizens of the country to be justly governed and be treated equal before the law. This has clearly not been the case due to dismal failure of governance and equally failure of the law enforcing agencies to implement the law deu to supreme political.To sidetrack the real issues and get into the type of constitution or its finer details will be purely esoteric and bound to not bear the fruits of all the labour expended in making the case.
In other words, what is suggested is also a serious and critical analyses of past constitutions, not just from 1978, which incidentally has created far more confusion and real chaos, but from 1948 at the dawn of independence of the first constitution, onwards to the endless gerrymandring with constitutions resulting in social upheavals and even mass crimes against innocent civilians of all communities.
What does all this say for the constitution makers? Pitifully not much. The grim reality is that many politicians themselves who make constitutions in SL are not educated enough either in constitution making or in the political sciences or have their own agendas that the sort of refined constitutions of the British or American models do not fit the local realm in reality. Even if it is difficult to envision voter education on constitution making at least the elected ought to be prepared for the important tasks through familiarisation and discussion processes.
Frankly I agree with your view that a new constitution is a real need based importantly on the bitter experiences and sufferings of the peoples of all races and religions ansd which must be brought to bear in any emergent background new constitution making.
In my view the first constitution of 1948 was a consensual one while the one of 1972 was the most divisive and paved the way for the dictatorial Presidential type cosntitution which according to teh founder, the late JR Jayewardene, can even “make a man out of a woman and woman out of man” (his own words)! Is this what the peoples
need? It is no wonder an elected PM was sacked in 2005 by then Presdient by a gazette notification issued overnight without any reason being advanced! That single incident advanced the zany nature of that constituion in that the PM holds office at the will and pleasure of the President alone! The creation of the 18th Amendment sounds similar in paving the way for a dictatorship like in Libya, Iraq and Egypt. No wonder there are calls for an Arab Spring!
The so-called unitary constitution is not suited to the social and economic needs of the country nor its constituent peoples, be it the Sinhala people of the South, nor Of the Kandyan hills nor the Tamil/Sinhala speaking peoples of the north and east. The Sinhala Only Act had brought about a remarkable identity crisis and ensuing social tensions but it is the order of the day. Along with this is the recognition for enhancng local development which calls for a highly decentralised political set up much like in the USA but on a smaller scale, of course, where the real drivers will be locally elected Provincial Administrations accountable to their voters.
If the US had the British form of a parliamentary system then President Obama would have lost his position when his party lost during the last mid term elections.
the US constitution has been shredded by this administration:
-amendment 4: the right to privacy has been made into a joke by the US NSA spy network.
-Amendment 10 which clearly states the limitations of the Central government is now obsolete as the powers of Washington have greatly increased.
-In the body of the Constitution an accused has the right to face his accuser. that is now a joke as machines routinely issue traffic tickets to cars. The driver has no choice in the matter and cannot contest it in court. He certainly cannot face his accuser.
-In the body of the Constitution and essential to the US government is the “checks and balances” brought up in this article. President Obama has Gone.. out…his… way to violate this. He has used the Executive office to veto bills supported by the house and senate. threatens to do so for the remaining 2 years and above all used “Executive Orders” to pass laws that are well beyond the limits of that office and more in the manner of a Dictator. I do not use that term lightly.
-President Obama has gone on a crusade to render Amendment 2 of the Constitution null and void. the right for Americans to bear arms.
Outside of these Constitutional violations President Obama has
-compromised on the integrity of the nation with his ‘open borders policy’ allowing millions of illegal immigrants enter the US and by his “Dream act” to give citizenship to millions of other illegal immigrants already in the US.
-It is inherent in the US form of governance for the President to the Congress to pass laws that DO NOT EFFECT THEM but effect those who elected them. Obama care is a health care horror that we have to bear.
– President Obama and his administration makes speeches about “global warming” and passes bills to raise our utility bills. including encouraging the US citizen to “conserve” while he is accompanied by a 45 car limousine. That also includes the first lady. they do not abide by the laws or dictates they intend the electorate to follow. Then what is the difference between the US form of Democracy and a Monarchy?