Legal battles do not often attract much public attention, particularly when about legislative amendments, however they can have momentous consequences. In retrospect the course of history may appear to have turned on the outcome of one courtroom decision. Such a battle played out before the Supreme Court of Sri Lanka on November 4, 1982, when the legality of a bill for an amendment to the constitution was challenged. The amendment, proposed by the government of the time, was to allow for a six-year extension of parliament. The petition against the amendment was rejected; the bill became law subject to referendum. A dangerous journey into colossal violence began.
That journey continues to the present day. While most people in Sri Lanka wonder how to get out of this situation, they lack answers partly because the role that this judgement played in undermining the nation’s constitutional law has yet to be seriously recognised. In Sri Lanka, constitutional disorder stimulated the chaos and violence on the streets, not the other way around. The systematic devaluation of Sri Lanka’s legal system precipitated the breakdown of its liberal democracy.
The 1978 Constitution and demise of liberal democracy
The significance of the Supreme Court’s decision can be seen in light of preceding events. In 1948, Sri Lanka gained independence from Britain and a Westminster-style parliamentary democracy took root. Periodic elections were held and governments were replaced peacefully; people expressed their will freely and usually the government in power was defeated. The principle that a government was elected only for fixed period was well established. A new constitution in 1972 did not drastically alter the structure of government, although it also did not contain any particular provision recognising minority rights, as had the 1948 Constitution.
In 1977 a new government was elected with over three-quarters of parliamentary seats. In 1978 this government again changed the constitution, but this time introduced an entirely new structure, with power concentrated around an executive president and the parliament pushed to a subordinate position. The 1978 Constitution radically altered the character of the state in Sri Lanka. Though maintaining a liberal democratic façade, suggestive of the French presidential system, it was not a liberal democratic constitution. Liberal democracy was abandoned in favour of one strong leader, thought necessary for achieving quick economic progress. In short, it introduced dictatorship. Within the year, the president spoke to the nation, telling the Tamils, “If you want war, let us have war.” Immediately people took to violence across various parts of the country. The president sent a close relative to serve as commander in Jaffna, with a mandate to wipe out terrorism completely. The crisis had begun.
The Supreme Court declines to take a stand
As it envisaged a strong presidency, the 1978 Constitution introduced a framework for governance that could not function without a parliamentary two-thirds majority. With its popularity waning, the government knew that it would be unable to get such a majority again; indeed, as the new constitution envisaged proportional representation no political party could obtain a sufficiently large majority. The strong presidency aimed for by the constitution required a legal subterfuge through which the electoral victory of 1977 could be kept alive even after the expiry date of its validity. However at that time tension between the legal concepts of the former constitution and the new one remained. Hence the amendment that gave rise to the hearing of November 4, 1982.
The Supreme Court was presented with a remarkable opportunity to challenge the legitimacy of the dictatorial 1978 Constitution and its proponents. It could have upheld the petition opposing the government’s scheme to extend its grip on power and thus threatened the mantle of authority the president had assumed by destabilising its legislative foundation. Instead it made the wrong decision and paved the way for the nation’s decent into madness. It is worthwhile to read the full text of this historic judgement. Possibly the single most important decision delivered by this institution, and one ultimately with immense consequences for the entire nation, it consists a mere paragraph:
The majority of this Court is of the view that the period of the first parliament may be extended as proposed by the draft Bill which is described in its long title as being for the amendment of the Constitution and intended to be passed with the special majority required by the Article 83 and submitted to the People by Referendum. In view of this decision this Court in terms of Article 120 Proviso (b) states that it does not have and exercise any further jurisdiction in respect of the said Bill.
Three members of this court are not in agreement with the above view.
(Case Reference: S.D.No.3 of 1982 P/Parl.)
The names of all seven judges were given below this paragraph, but those who agreed and those who disagreed were not revealed. The court gave no reason for its decision, which made the extension to the life of parliament by referendum a legal possibility.
The Supreme Court may not have been aware of the great problems it could have avoided had it made a different decision that day. It may not have realised that the whole fabric of Sri Lanka’s liberal democracy was under threat. Whatever the case, the negative outcome has proven that eternal vigilance is the price for democracy.
Aftermath of the Supreme Court’s decision
In 1982 the referendum to amend the 1978 Constitution passed amid massive violence, the deliberate use of which is no longer disputed by anyone. By coercion and force, the government extended its tenure from July 1983 to July 1989. In the first month of its new reign ¡V a month known infamously as ‘Black July’ ¡V the government organised anti-Tamil riots throughout the country. The extent of the violence was enormous, and it changed the Tamil-Sinhala relationship irreparably. The riots were condemned the world over. They created the legitimacy for the Tamil exodus to abroad and fueled support for more militant elements in the Tamil political spectrum. Faced with international criticism, the government blamed leftist groups and banned four political parties; the ban was later lifted from three, but the JVP (People’s Liberation Front) remained outlawed. As conflict grew, the government authorised law enforcement agencies to carry out extensive killings, torture and ‘disappearances’: a euphemism for extra-judicial killings. From 1988-92 between 30,000 (official figure) to 60,000 (independent estimates) disappeared.
After 1983 the conflict in the North and East grew steadily, and continues to the present. The government’s ruthless use of force has found its match in the response from rebels led by the LTTE (Liberation Tigers of Tamil Eelam). Both parties have engaged in acts that constitute war crimes. Solutions to this conflict have been seen purely in military terms.
Although the government that introduced the 1978 Constitution was finally defeated at the polls in 1994, inspite of promises by the new government that it would make amendments to the constitution it has been left substantially unchanged. With time, this government too showed its determination to retain the power structure established by the 1978 Constitution. All recent elections, including the general elections of 2000 and 2001, have been accompanied by extreme violence and have been condemned as neither truly free nor fair.
In December 2001 a new government was elected to parliament under the United National Front. The majority membership of the front is the United National Party, which introduced the 1978 Constitution. It also has promised several amendments to the Constitution. The 17th Amendment was introduced shortly before the dissolution of the old parliament and it has established a Constitutional Council and four new commissions. The Constitutional Council is to be appointed shortly, and it will in turn select the other four commissions. It is yet to be seen as to how these amendments can work within the framework of the 1978 Constitution.
Implications of the 1978 Constitution
Politicians and jurists alike have played down the drastic changes introduced by the 1978 Constitution and have tried to treat it more or less like earlier ones. Many have discussed the need to change one aspect or another, for example the executive-presidency, or even to drop the unitary character of the government. However all these have been proposed within the structure created by that constitution. The essentially dictatorial character of government within this framework has been ignored. Everyone has proceeded with trying to find a democratic solution to the civil war within a non-democratic construct.
The fundamental difference between liberal democracy and dictatorship lies in the view taken by each on the use of coercion. In his celebrated book The Constitution of Liberty, Friedrick A. Hayek states, “We are concerned with that condition of men in which coercion of some by others is reduced as much as possible in society. This state we shall describe throughout as a state of liberty or freedom.” The two constitutions of 1948 and 1972 were based on this liberal democratic premise. The 1978 Constitution, on the other hand, was inspired by the East Asian political doctrines of leaders such as Soeharto and Lee Kuan Yew, who saw the limiting of freedom as a precondition for economic development. A considerable section of Sri Lanka’s political elite ¡V in both of the major political parties ¡V shared this view then, as they do now.
This change of view on the use of coercion underpins changes to laws and regulations on the use of violence by the state. The structure created by the new constitution mandated extensive use of force; the strong presidency it envisaged could not be achieved by mere declaration. The 1978 Constitution incorporated national security provisions allowing the president to dismiss restraints written into the liberal democratic system and to use the military with greater ease, through widespread application of emergency powers. By taking advantage of every conflict that arose, new powers were acquired. The president ruled the country, with his military; the rest was of little importance. The parliament, judiciary, and even the administrative bureaucracy were sidelined. As always happens in such situations, with the course of time even the president became highly dependent on the military. The civilian police force became dependent on both. Again, as naturally happens, people saw and understood the changing situation and lost faith in institutions that maintained democratic exteriors but internally were subdued and modified to fit the changed political reality.
Under these circumstances, war has become a wholly military affair and the controls that a liberal democratic system would have offered have dissolved. Neither the parliament nor judiciary has any capacity to intervene. For all practical purposes, the military alone are the arbiters of Sri Lanka’s civil war. In response, the rebels have become equally militarised. Various peace gestures have been made under foreign pressure, and periods of tranquility have come and gone; in retrospect none of these have been serious enough to transform this situation of intense armed conflict into peaceful dialogue. The war’s outcome has been left to a military solution; that is, no solution at all.
Return to liberal democracy
The usual debates on peace in Sri Lanka, particularly those offered to the outside, depict the conflict simplistically. The government puts the blame on terrorism, and the LTTE on racial chauvinism. Propaganda obscures its root causes and reasons for its continuation. Well-intentioned exhortations for peace do not proceed beyond platitudes.
If dialogue and negotiation are to become possible, Sri Lanka’s return to a liberal democracy is a necessity. Informed discussion on peace must take into consideration Sri Lanka’s tragic political transformation away from liberal democracy. A move back into such a framework is essential for any real solution to the civil war. This means abandoning the 1978 Constitution and the state structure it has spawned. It means challenging the credibility of that legislation and its offspring; it means doing what the Supreme Court was not willing to do on that fateful day in November 1982.
Sri Lankans, both Sinhalese and Tamils, have paid a heavy price for this change of course from democracy to dictatorship. The time has come to again change direction and opt for liberal democracy. The end to civil war is irrevocably tied to renewal of this path.