SRI LANKA: A Simple Way Out Of The Constitutional Trap

An Article by the Asian Human Rights Commission

By Basil Fernando

Two crises overlap in Sri Lanka. One is the economic crisis which preoccupies everyone at the moment. However, in seeking a solution to the economic crisis, another crisis stands against any real solution. That is the constitutional crisis.

However, this aspect has not received very much attention during the discussions which are taking place, in the media as well as throughout the country, particularly in places where public protests are taking place in an overwhelming manner.

However, there are a few who have been pointing to this crisis consistently. One such person is the former Auditor General, Gamini Wijesinghe. In numerous interviews, he has repeatedly stated that a reinstatement of the supremacy of the law is the key to finding any solution to the economic crisis. He has also pointed out that even at the International Monetary Fund (IMF) and other discussions, this issue is bound to figure prominently.

This problem is indirectly discussed in the revival of the debate as to whether the 19th Amendment to the Constitution should be revived and the 20th Amendment to the Constitution should be displaced. There are those who speak about the 19th Amendment to the Constitution Plus or the 19th Amendment to the Constitution Plus Plus.

However, if the reinstating of the supremacy of the Parliament is agreed upon, then the way to do it is much simpler than bringing about any other amendment.

What needs to be done is to introduce a pause to the Constitution at an appropriate place, stating that “the overriding principle that runs through the entirety of this Constitution is the supremacy of the law”. It may also be added that “any provisions of the existing laws including that of this Constitution will seize to be valid in law if such provisions are inconsistent with the principles of the supremacy of the law.”

In order to introduce this amendment, it is not necessary to have a two thirds majority in the Parliament or a referendum. The reason is that Sri Lanka is a Democratic, Socialist Republic. All the three words imply the acceptance of the principle of the supremacy of the law. A republic in essence is the opposite of a monarchy. As it was stated by the great writer Thomas Paine regarding the United States (US) Constitution, that “in England, the king is the law and in the US, the law is the king”. That is the spirit that is prevalent in all modern republics. A paramount principle of a republic is that the law is supreme.

Sri Lanka is also a democracy. Democracy by its very definition is a concept which poses the supremacy of the law. By stating that Sri Lanka is Socialist, what is meant is also that it exists for the benefit of the people, which means that once again, the supremacy of the law is an essential condition of creating the welfare for the people.

Therefore, by introducing a clause that the supremacy of the law is the overriding principle of this constitution, no new idea is introduced. Instead, an idea which is already implied is being expressed more clearly. Similar expressions have been done in the past. For example, when the Supreme Court declared that the right to life is implied in the Constitution. The constitutional provisions on the Fundamental Rights had not directly included the right to life. However, when the matter came up before the Supreme Court, the Supreme Court held that although not expressly mentioned, the right to life is implied in the Constitution and therefore is a part of the law of Sri Lanka. That did not require any new legislation being passed or a new amendment being made to the Constitution. It was done purely by way of judicial interpretation of what was implied within the Constitution.

Perhaps an appropriate place to include the above mentioned provision of the supremacy of the law as the overriding principle running through the entirety of the law in Sri Lanka is immediately after the provision on the sovereignty of the people. The Constitution states that the people in Sri Lanka are sovereign. It could immediately be stated thereafter that the sovereignty of the people is expressed through the supremacy of the law and that the supremacy of the law is the overriding principle that runs through the entirety of the Constitution.

The adoption of these approaches will make it much easier to resolve some of the problems that have been besetting the Sri Lankan constitutional debates over a several decades now. One of the most pressing issues that have come up over and over again is how to bring the Executive President under the rule of law.

By declaring that the supremacy of the law is the overriding principle that runs through the entirety of the Constitution, this problem can easily be resolved. It would mean that any power that is given to the Executive President which is inconsistent with the principle of the supremacy of the law will thereby seize to be valid in law.

This could also apply to the various powers given to the Ministers. Under certain provisions of the Constitution, the Ministers are sometimes raised above the law and the decisions that they make are not subjected to be questioned before a court of law. It has been pointed out by experts that such leads to many arbitrary forms of the use of power and it particularly gives rise to corruption.

One of the major demands of the people who are taking up protests in an overwhelming manner throughout the country is that there should be empowerment of a law that is really capable of dealing with corruption and bringing corruption to an end. It is not possible to bring corruption to an end without reinforcing the principle of the supremacy of the law. It is only the law that could allow actions to be taken in order to criminalize or in other ways to declare it wrong to engage in any kinds of corrupt activity and bring the culprits who violate that law to courts. Thus, if one of the major demands of the present time, which is to eliminate corruption, is to be dealt with in a serious manner, it is essential to reinstate in the strongest possible way, the principle of the supremacy of the law and it could be done in the manner that has been suggested above.

There are many other issues which are intertwined with the issues of the supremacy of the law. One is that if the credibility is to be won with the IMF as well as others whose confidence needs to be won, if the restructuring of debts in Sri Lanka is to be achieved, it would be essential to reassure to the world that the supremacy of the law is victoriously enforced in Sri Lanka. Without that assurance, it is not possible to create the confidence that today everyone agrees should be created if Sri Lanka is to win back the credibility of those whose cooperation is required in the overcoming of the debt crisis.

Above all, the people who are protesting in the streets need to be assured that they have the protection of the law. It is this loss of faith in the law that has created the kind of disillusionment and demoralization in the country which in turn has created the loss of faith in governance.

A further question that needs to be resolved is how the country could regain the lost confidence among the people. The confidence in the Judiciary and associated institutions such as the Attorney General’s Department was lost due to the undermining of the principle of the supremacy of the law. Therefore, the empowerment of the Judiciary by giving it the power to annul any provisions of the law including those of the existing Constitution which are inconsistent with the supremacy of the law, can empower the Judiciary to play a more active role in the protection of the principle of the supremacy of the law as well as the principle of the protection of the people. If the Judiciary plays an active role in promoting the principle of the supremacy of the law, many of the problems that are associated with the judicial system could be overcome in this manner. Further, this will also apply to the functioning of the law enforcement agencies. The law enforcement agencies have come to the present state of affairs, a great deal due to the politicization processes which have taken place in the recent decades. This process could be reversed by the inclusion of provisions into the constitution as one that is suggested by bringing about very clearly within the Constitution itself that the overriding principle in the Sri Lankan Constitution is the supremacy of the law.

The adoption of this approach will not only resolve many of the problems, it will also provide a much easier way to overcome besetting problems than any other amendment to the Constitution. This way, resolving the problem will be less complicated and also more empowering.

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