The development of the Sri Lankan constitutions from 1972 was mainly based on the distrust that began to manifest itself after the system of governance introduced through the 1947 Constitution was in existence for several decades.
The government that brought about the 1972 Constitution was a coalition government which considered itself a progressive government as against what it described as a conservative government of the past. The United National Party was considered the party of the more conservative sections of society and also, only one that represented the richer elements. The three parties that constituted the coalition government considered themselves as belonging to the left and as having a programme of development of development which was different to the programmes that existed in the past.
This coalition government looked at the government bureaucracy in the civil service as well as the judiciary with suspicion. In the view of the progressive government the civil service was a more conservative apparatus and the new progressives feared the judiciary of the time as being more conservative and as having the potential of going against the moves of the coalition’s development goals. The development goals of this new government consisted of trying to achieve some rapid development on the one hand and on the other, trying to bring about some measure of social change. The government feared that the civil service and the judiciary might obstruct these moves.
Distrust transformed into a constitutional formula
In the development of the 1972 Constitution we find that these fears and the distrust are transformed into a constitutional formula and incorporated into the Constitution. The Constitution removed the Civil Service Commission which was the apparatus by which the civil service was organised from the colonial times.
Within this civil service there were certain traditions and there were also certain rules of work. There were officers that played prominent roles who were part of that system. The role of the permanent secretaries of the ministries was one of the most important positions within the service. They were usually persons with long years of experience within the civil service and therefore they represented the traditions of the civil service.
The new government wanted to ignore these rules and procedures in dealing with their development programmes. In order to do that they abolished the Civil Service Commission and took over its functions. Then persons appointed by the government took over as the heads of the various ministries. The aim in doing this was perhaps to be able to carry out the directives of the cabinet as urgently as possible with the view to achieving some development goals during their time in power so that they could stand for reelection with the claim that they had achieved some major development objectives.
However, in treating the civil service as an obstruction, consisting to some extent of persons who may deliberately sabotage some major development objectives they looked for ways to overcome this problem. This distrust of the civil service therefore, was one of the reasons to become interventionists in the making of appointments and that was the reason for the interference with the system.
Distrust of the judiciary
With regard to the judiciary the 1972 Constitution abolished the Judicial Review which had existed up to then. Through the Judicial Review it was possible to examine the legality of any law at any time in terms of the consistency of the law with the Constitution. The new government also distrusted the judiciary who they considered as being more conservative and not so sympathetic to the objectives of their government. They thought that their opponents in the opposition might utilise the courts by taking cases to the courts to challenge the legality of various laws which would thereby create uncertainty of the existing laws.
When a bill is passed, they thought it would be uncertain as to whether it would remain a law for any length of time if it was possible for the judiciary to declare them null and void on the basis of inconsistencies with the Constitution. Therefore the limited the period of examination of the legality of a law in terms of consistency with the Constitution to a shorter period before the law was passed.
The constitutional changes that were brought about in the 1972 Constitution both in terms of the limitations of the judiciary as well as the civil service was of a very fundamental nature when compared to the 1947 Constitution which was based on the principles of the British system which recognised the independence of the civil service as well as the separation of powers within which the independence of the judiciary was considered as extremely important cornerstones of governance.
More complete distrust inbuilt into 1978 constitution
In 1978 when the new constitution was made by the United National Party with 80% of the seats in the parliament. This government’s distrust was of a different nature. The president who had been in politics for a long time distrusted everyone and every institution except himself. Therefore in his constitution there was an attempt to disempower everyone else from being able to challenge his authority.
By the means of Article 35 he placed himself in a position where no law suits could be brought against him for whatever reason. On the other hand by making himself the Executive President he took upon himself all the powers of the cabinet. The 1972 Constitution took the powers of the civil service into the hands of the cabinet ministers. In 1978 the Executive President took upon himself all the powers of the cabinet. The cabinet ministers could be appointed and dismissed at will and the Prime Minister had not power of any sort.
The Prime Minister also could be appointed and dismissed at will. The parliament also could be dissolved at his wish one year after its election. Virtually in this manner the capacity of the parliament itself to interfere with his functioning was achieved.
It is a well known and well established fact that the president demanded and obtained letters of resignation from all his party members in parliament. He held these undated letters to be used as necessary. Thus the members who gave these letters, and in fact, almost all of them with a very few exceptions, submitted these letters were at his mercy.
It was a system based on the complete suspicion of everyone except for the Executive President himself. The premise on which the system has operated since 1978 is that anyone who rules the country must be able to do so by himself. There are even news paper articles written in favour of this system on the basis that culturally Sri Lankans are incapable of operating as a team.
Thus a parliamentary majority can be lost if the opposition is able to poach some of the members and thereby the government could lose its majority in parliament purely by that means. Indeed, there have been instances in the past where this has happened. Therefore there is distrust of the parliament. There is also the fear that the cabinet members might change their minds and shift their loyalties and therefore the ruler could not and should not depend on the cabinet. Instead the ruler should be able to dismiss his cabinet and keep it in dependence to himself if he wants a stable government.
The underlying principle that is associated with the Executive Presidency is that when in power, nobody can be trusted and therefore the ruler should be able to rule alone. This is why even a vice president has not been created within the constitution. There is no constitutional provision for this office in Sri Lankan as is available in, as in the United States. The vice president might be able to cause the assassination of the president and thereby take power for the remainder of the term. That is the kind of thinking that is behind the idea that only a suitable person to rule should be a single individual with the capacity to dismiss anyone else and yet remain in power.
This same argument was later developed mainly in terms of the issue of the minorities. The argument was developed by some that in a country where there is a majority Sinhalese the parliament will always take the side of the majority and therefore it is not possible to obtain any form of justice for the minorities through the parliament. The alternative suggested and one tacitly agreed with for a long time was to rely on the president rather than on parliament. For a long time this led the minorities parties to keep on supporting the president in the hope that they might be able to obtain some concessions from him which they might not be able to get from parliament.
Another factor that strengthened the idea of one man being the ruler was the ethnic conflict that developed into “a war”. An intense internal conflict remained for a long time and turned into an all out military conflict. Within that context also the more militant nationalists rallied around the president in order to demand a military solution to the problem and they found that within parliament it was not possible to achieve that objective.
This same argument is now made in relation to development. It is argued that one man is able to work better towards development than a more collective leadership.
In essence the argument in favour the executive presidency is that Sri Lankans are an untrustworthy and they can only be led by a single man in power. A system of power that is build on the basis of this vision cannot create the collective leadership needed to deal with the problems of a nation. So long as this one man theory is accepted, the type of abuse of power, the violence and irrationality has been there throughout the period of existence of this system, will remain as unavoidable consequences of such a system.