The Sirasa Television Service has conducted a series of discussions on the 1978 Constitution. This series has brought to focus some of the fundamental defects of this Constitution. In fact, most of the themes discussed are not new. In some groups there have been constant reflections on the defects of the 1978 Constitution and there is some literature on this issue. However, the importance of the discussion on Sirasa TV is that it is being brought to the notice of the nation and therefore the discussion on a large scale is possible on this very important issue.
In these discussions the participants were the former chief justice Sarath Nanda Silva and Uditha Igalahawa, senior consultant to the Ministry of Constitutional Affairs. They have given clarification on some of the most basic issues relating to this constitution and some background about the evolution of its provisions.
The most important discussion so far has been on the 17th Amendment. In this discussion the historical evolution of the 17th Amendment was given a prominent place. The significance of the contribution made by the British colonial administration by the introduction of the system of civil administration of Sri Lanka has been the foundation on which these reflections are based.
The British treated Sri Lanka as a model for their other colonies. The British in their own country developed a system of civil administration and they tried to model the administration that was introduced into Sri Lanka on the basis of what they had developed in their own country. The civil administration of Britain is one of its greatest strengths and this same administration has lasted even up to the present day with increasing sophistication and adaptations into various circumstances.
What happened in 1972 was basically interference into the basic administrative system that was introduced during colonial times and which was adopted and incorporated into 1947 Constitution. In 1971 the Civil Service Commission was abolished. The functions of the Civil Service Commission were incorporated into the functions of the cabinet itself. Therefore, in 1972 the cabinet ministers took over the functions of the previous civil service commission.
Among these functions the most important were the ones relating to appointments, promotions and disciplinary control of all civil servants. These were now undertaken by the cabinet. By this act there was a discontinuity caused to the traditions of the civil service that was introduced by the British.
In the British system the position of the permanent secretary of a ministry was one of the most important functions. There were great examples of permanent secretaries who have played prominent roles in shaping their ministries and therefore also shaping the traditions of the civil service.
By taking over the functions of the Civil Service Commission by the cabinet came the problem of the politicisation of the civil service. The independence of civil service was seriously damaged by direct cabinet interference into the workings of the civil service.
In 1978 while the Civil Service Commission was restored, the positions of the permanent secretaries were not restored. But, at the same time by the creation of the Executive Presidential system the functions of the ministers came under the control of the president. With this the process that began with the cabinet taking over the functions was now pushed further with the executive president having the capacity to interfere into the appointments promotions and disciplinary control and all matters relating to the civil service.
The 17th Amendment
What was attempted by the 17th Amendment was to do away with this interference by creating commissions by which such appointments, promotions, transfers and disciplinary control could once again be made independent and divorced from the executive president. In order to ensure the independence of the civil service, five commissions were appointed and they were to ensure that the system functioned with the level of independence that was required in order to have a proper civil service that was not affected by direct interference from the president. These commissions were to be appointed by an independent Constitutional Council.
What the Sirasa Discussion missed
The discussion thus far in the Sirasa TV is instructive in the presentation of the problem that is faced in the public administration in Sri Lanka. However, there was a major absence in this discussion on one fundamental aspect which would throw a greater light on the problem that exists within the Sri Lankan system now.
The British civil service was grounded on the foundations of the rule of law. The British civil service, like the entirety of the British system is based on the conception of the rule of law which is well grounded within that country. In fact, the British, perhaps unlike anyone else in the world, is a nation that has built itself on the respect for rules. The development for the respect of rules was based together with the development of the norms of the rule of law.
British justice is based on the fundamentals of the rule of law with an unsurpassed attachment to the principle of the supremacy of the law. The law is supreme and to establish that principle even a head of the king had to be sacrificed. The supremacy of the law as against the supremacy of the king or ruler was so deeply entrenched into the system of British justice and therefore also the British administration.
Thus, any discussions on the British administration and whatever the heritage that had been communicated to Sri Lanka should be discussed within the framework of the fundamentals of the rule of law. The rule of law is the mother culture within which the civil administration functions. If the whole issue of what was introduced into Sri Lanka by the British and what has been lost of late is discussed within the basic framework of the rule of law, different implications could drawn into the problems that Sri Lanka is faced with today.
By interference into the system in 1972 and 1978 what happened was not just mere politicisation into the civil service but in fact, the abandonment of the supremacy of the law itself. The executive presidential system as envisaged by the 1978 Constitution placed the executive president above the law. The provision of article 35 as well as many provisions of the Constitution should be seen as an attempt to displace the framework of the rule of law and to give power to the president to act without following the basic norms of the rule of law.
Conflict between the Judiciary and the Executive Presidency
In fact, what has happened since 1978 is interference not only in the civil service but also in relation to the judiciary. In the discussion on Sirasa TV there was an attempt to give the impression that the interference of the executive presidential system on the judiciary was somewhat overcome by the judges themselves being in charge of the Judicial Service Commission. However, some of the more damaging aspects of the overall system of the rule of law happened through interference that was made by the executive presidential system which interfered with the norms of the rule of law and the supremacy of the law in dealing with the judiciary.
The impact of the presidential system on the judiciary could have been dealt with by the use of the concepts of the rule of law and the insistence on the supremacy of the law as the overall framework within which the 1978 Constitution should be interpreted. If this approach was adopted by the judiciary section 35 of the Constitution could have been interpreted within the framework of the rule of law.
What this means is that the absolute prohibition of bringing law suits against the president could have been interpreted by the Supreme Court as a prohibition limited to the extent that those lawsuits do not deal with instances where the presidential system has not interfered with the fundamentals of the rule of law. This means that where the fundamentals of the rule of law have been interfered with by the president then the court has the power to entertain such suits and to deal with such matters.
For example when the issue of the non-appointment of the members of the Constitutional Council by the president came before the court, the provision that the president was under the duty to make these appointments immediately should have been interpreted by the Supreme Court on the basis of an issue that is dealing with the supremacy of the law. As the non-appointments was creating a fundamental problem of the law because it was interfering with the entire system of the rule of law the court could have made the ruling on the objection that was made by the legal representatives of the executive president to on the issue of article 35.
If that was made discussions could have gone into the more fundamental issue of the supremacy of the law which could have brought the Sri Lankan president under the law like everybody else. Without dealing with the fundamental issue of whether the president himself is above the law or not, it is not possible to resolve the problems of the constitution that the country now faces.
This issue is not something that came only regarding the 17th Amendment; this issue came up the very early since the adoption 1978 Constitution. In fact the first appointment of the present without an election could have been challenged on this basis. Again when the issue of a referendum came before the Supreme Court in 1982, the issue of the rule of law and the supremacy of the law should have been discussed and the case should have been decided on at that issue. Could the Sri Lankan president do away with that election of the members of parliament and postpone it for six years even by a referendum? If that is allowed, it is a blow to the supremacy of the parliament which is the law making body and which is a fundamental aspect of the rule of law.
There is no way to ignore the fact that there is a fundamental disturbance of the very foundations of constitutionalism that was made by the 1978 Constitution. It is a blow against the supremacy of the law and the rule of law. Therefore the fundamental issue is not just about the Civil Service Commission and independent selection alone, it is about the limits of the executive and the functioning of the entire system within the framework of the rule of law.
Duty of Judiciary to protect rule of law
That issue needs to be brought to the very heart of the discussion on 1978 Constitution. If it is not discussed, then even the discussions on Sirasa TV will not touch the fundamental disturbance in the Sri Lankan system of constitutionalism itself and the functioning of the system within the framework of the rule of law.
If our public services cannot function within a rule of law system, there is no future possibility for it to be brought back for the service of people with the respect for their basic rights and entitlements since for that, the precondition is the acceptance of the rule of law and the supremacy of the law as the foundation.
If Sri Lanka’s system is based on separation of powers then it is the duty of judiciary to limit the executive power with the framework of the law. This may create a conflict with the executive, if the executive insists that it is above the law. In such a situation, the judiciary has no basis to avoid the conflict without abandoning the rule of rule of law. If the judiciary dared to face the conflict, then the people themselves would have had the opportunity to intervene, to save the rule of law system. However, when judiciary avoids this conflict, the executive can, in fact, stand above the law. This, in fact, is what had happened in Sri Lanka.
Sirasa TV should not avoid dealing with the fundamental problem of the rule of law that the country is posed with by 1978 Constitution. It was not for a joke that Dr. Colvin R. De Silva mentioned that this constitution is an imitation of the one made by Jean Bedel Bokassa of the Central African Republic.