The Constitutional Basis of Authoritarianism in Sri Lanka

The Constitutional Basis of Authoritarianism in Sri Lanka

Sri Lanka has had three constitutions since it achieved independence from Britain, and each has contributed in different ways to the erosion of the relatively liberal political system that once characterized the island’s government. Following the promulgation of the second republican constitution of 1978,  Sri Lanka has developed into a constitutionally based authoritarian state. In an era where we are told that repressive political regimes are giving way to more democratic politics, Sri Lanka provides a cautionary tale of a liberal order that has been vitiated through the constitutional process, even while regular elections were being held and power was oscillating between the country’s two major political parties.

Although the 30 year civil war, which ended in 2009, and the attendant militarization of civil society that accompanied it, provided the immediate context for the deterioration in in the quality and accountability of governance, the underlying structure of the present crisis has been a long time in the making, and should be attributed primarily to the change in the configuration of the state introduced by the constitutions of 1972 and 1978.  The repressive legislation and oppressive state practices introduced during the period of civil war could not have taken root in Sri Lankan society without the transformations in the structures of governance and the organization of the state that are the result of direct constitutional change.  I discuss in this essay what these constitutional changes were, why they came about, and what their consequences have been for governance.

Despite a robust tradition of democratic participation in government going back to 1931, Sri Lanka has evolved into a deeply authoritarian state with serious problems of governmentality. Most of the institutions necessary for good governance and a well-functioning democracy, which were present at independence—including a public service insulated from political interference, an independent judiciary enforcing the rule of law, a free media, and a competent police force—have been systematically undermined over the last 30 years. Extreme violence has grown endemic in Sri Lankan politics. The Parliament has been reduced to an even more peripheral role in the Rajapakse era than during the two earlier periods of authoritarian rule under Jayawardena and Premadasa.  Under the current constitution, parliament wields little power in relation to the executive. Corruption among parliamentarians is pervasive and endemic, in part due to the erosion of the institutions referred to above. In addition, the judiciary has been intimidated—by the brutal assault on the judge who serves as secretary to the Judicial Services Commission,[1] and by the impeachment of the Chief Justice on trumped-up charges.[2]

An all powerful presidency has emerged as the strongest institution of the state, an institution that almost every major political actor in the country, including the current President, has agreed at one time or another needed to be changed.  In a TV interview, former President Chandrika Kumaratunge even called the system of Presidential Governance “extremely dangerous”.[3]  Yet, despite this widespread agreement, such change is unlikely to happen.  This transformation in governance and in political life dates from the 1972 constitution, which compromised the integrity of the public service, but gathered force as a result of the 1978 constitution. In addition to keeping the public service wide open to politicization, the 1978 constitution centralized all state power in the hands of the President, with virtually no checks on his or her exercise of that authority, and no effective countervailing force in either the legislature or the judiciary.

From 1948 to 1977 Sri Lanka had a well-functioning democratic system. Dominated by two major parties that governed in various coalitions with minor groups, elections during this time were largely free and fair, with the politically engaged electorate regularly changing the party in power.  While electoral violence was not unknown during this period, it was not prevalent, and the forces of the state could be relied upon to respond to unrest effectively.  Since 1977 the reverse has been true.  Every government in power since has had certain members, invariably elevated to cabinet rank, whose responsibility is to organize the goon squads with which to intimidate the government’s opponents.  These people operate with impunity and without fear of police interference because they are backed at the very highest level of political authority. This is not to say that thuggery didn’t play a role in Sri Lankan elections earlier; it did.  But the role it played was a minor one, and thugs were not elevated to cabinet rank.  Elections in Sri Lanka, up to and including the general election of 1977, were largely free and fair and accurately reflected the popular will. Many elections since that date have been deeply controversial.

My contention is that this erosion of governmentality in Sri Lanka should not be attributed primarily to exogenous factors like the war or the ambitions of the people in power (although they play a role) but to the structure of the rules that determine how the polity is to be governed.  Good governance depends on more than virtuous persons entering public service. It relies on sound institutions and a rule of law that can operate independent of the whims of any particular individual, one which promotes respectable governance and discourages its opposite.  Power corrupts; as we know this to be so, the powers of government ought to be distributed through the agencies of the state in such a way that they do not pool in one particular institution, and the various institutions act to check the abuse of power into which some other institution might be tempted.  This was the principle that informed the constitution of 1946.  The 1978 constitution of Sri Lanka subscribes to a different philosophy—it concentrates power in the hands of one individual, the President of the Republic, and then removes almost all the curbs that might serve to limit that individual’s exercise of power.

Sri Lanka has had three post-independence constitutions whose impacts on political life we can compare: the constitution of 1946, which was in effect from 1948 to 1972; the first Republican Constitution of 1972, and the second Republican Constitution of 1978.  It is this last constitution, in the judgment of every major political party in the island that is at the root of Sri Lanka’s present crisis of governmentality,a crisis that seems insoluble in the short term. All political parties agree, or have agreed at some point, that the current constitution is responsible for much of the country’s ills, enabling the corruption and politicization of public administration, the police force, and contributing directly to the erosion of press freedom and the general climate of violence, lawlessness, and fear.  Sri Lanka at the beginning of the 21st century is a country where the rule of law can hardly be said to exist, a fact that has been manifested in a number of highly publicized incidents, including murder, rape and assault that has involved members and supporters of the ruling party, all of which have gone unprosecuted.

The constitution is the locus of political legitimacy and authority in Sri Lanka. Understanding how a perfectly legitimate process of constitutional change can plunge a country with strong democratic traditions into authoritarianism is a necessary prelude in developing an alternative vision of what kind of constitutional structure is necessary for good governance in Sri Lanka.  This essay is a contribution towards that goal.

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The Constitution of 1946

Sri Lanka became independent with a relatively liberal constitution.  It was the product of negotiation between the British government and a small native elite that was immersed in British notions of constitutional government and administration. It did not necessarily represent the views of the vast mass of Sri Lankans, nor were they consulted during the drafting of it, but it allowed for professional and relatively clean government for two decades, especially when compared to what came later.

The constitution gave Sri Lanka dominion status within the Commonwealth, equivalent at the time to Australia and Canada. The British sovereign continued as head of state, and was represented in the island by a Governor-General, essentially a ceremonial office. The government was modeled on that of Britain, with a parliament of 101 members representing territorial constituencies elected by popular vote, and an upper house of 30 members (the Senate), half of whom were elected by members of the lower House and the remainder appointed by the Governor-General on the cabinet’s recommendation.[4]  The Senate was relatively weak, with little power to oppose legislation; those appointed to it tended to be party loyalists or “members of ethnic, religious or caste groups chosen to attract the political support of the groups to which they belonged”.[5]  The Governor-General was appointed by the Queen on the advice of the Prime Minister and continued in office essentially at the prime minister’s pleasure.[6]  Executive power was vested in a cabinet of ministers under the prime minister, and both prime minister and cabinet were members of parliament and answerable to it.

For the British, the constitution’s most essential purpose was that of protecting minority rights; the Tamils in particular were concerned about majoritarian domination of the state by the Sinhalese once the British left. The constitution responded by guaranteeing under section 29 “the free exercise of any religion” and prohibiting discrimination both positive and negative on grounds of community or religion.  This provision was one of the factors that would later be a catalyst for a new constitution; I return to this topic below.

The country also had in place a strong and professional civil service, relatively insulated from political pressure by an independent Public Service Commission responsible for the appointment and disciplinary control of public servants, provided for in the new constitution.  Government departments were organized under the various ministries and answered to the minister in charge through a Permanent Secretary, the highest office to which a member of the administrative service could hope to ascend. The minister was an elected member of the legislature.  An important aspect of the history of public administration in Sri Lanka has been the erosion of the relative insulation from political pressure enjoyed by the civil service; the thrust of constitutional developments in the country has been to politicize the public administration by bringing it directly under the control of the legislature.

The 1946 constitution laid down the basic structures of governance, but made no pronouncements about ideology or the direction that government policy should take; it allowed both conservatives and socialists to pursue their policies with equal latitude and similar constraints.  Its key positive features were the protection from political interference it gave the public service, which included the police, and the independence it provided to the judiciary; the untrammeled right to judicial review of legislation; the protection it sought to provide the minorities from unbridled majoritarian rule; and the vesting of executive power, following the Westminster model, in a prime minister and cabinet answerable to parliament and depending on its confidence to continue in office.

Its primary weakness was that it was not an autochthonous constitution. Though it had been mostly drafted under the direction of the Sri Lankan Board of Ministers of the pre-independence colonial government, the constitution itself had been given to Sri Lanka by the parliament at Westminster and retained a constitutional link to Britain; Sri Lanka’s highest court of appeal was Britain’s Privy Council. A second weakness was its first past the post electoral system, which led to legislatures whose composition did not accurately reflect the political will of the people.

These two factors ultimately precipitated the constitution’s demise; the first provided the rationale, and the second the means, for Mrs. Bandaranaike’s government of 1970-77 to replace it. Mrs. Bandaranaike came to power with a two-thirds majority in parliament,  but she did not, however, win a two-thirds majority of the electoral vote. Thus, concerns about the limits to the country’s sovereignty were a salient factor in the adoption of a new constitution in 1972. The need for an electoral system that would make for more representative parliaments became significant in the 1978 constitution.

The First Republican Constitution of 1972

The 1972 constitution is a bridge between the 1946 constitution and the current constitution. It retained some of the features of the 1946 constitution, though regrettably not the best ones.   The new constitution severed the island’s last ties to Britain and declared it to be a republic, with a President (in a ceremonial role) replacing the Governor-General as head of state, and the Prime Minister retaining executive authority.  Constitution making in this case, and again in 1978, were essentially exercises in majoritarian power; the constitution represented the ruling party’s vision of what the state should be like, and was not a document arrived at by consensus or with input from the minority communities.  The main forces behind it was Sinhala Buddhist nationalism, as represented by the SLFP, and the socialism of the SLFP’s left wing allies, the Communist Party and the Trotskyists of the LSSP (Lanka Equal Society Party).  It was drafted by Dr. Colvin R. de Silva, the long-standing leader of Sri Lanka’s Trotskyists.  The 1972 constitution, like its successor, was a legal instrument through which the ruling coalition could implement its vision of what Sri Lanka should be — i.e., a socialist state — with no interference from the judiciary and complete subordination on the part of the administrative service.  To that end, it made the legislature the supreme institution of government and relegated the judiciary to a subordinate role.  And for the first time, it included non-binding principles of state policy, modeled on those of the Indian constitution, which among other things made the attainment of a socialist democracy the aim of government.

The most politically significant changes were the following.  The new constitution abolished the upper house of parliament and created a unicameral legislature known as the National State Assembly. Comprising 168 members, the new body would continue to be elected on a first-past-the-post system.  Over the protests of the representatives of the Tamil people in parliament, the 1972 constitution abolished the 1946 Constitution’s protection for minority rights, which the Privy Council had declared to be entrenched;[7] this was the constraint on the country’s sovereignty that had agitated the SLFP and its left wing allies and eventually helped bring about constitutional change.  In deference to the social forces represented by the SLFP, the constitution abandoned the principle of secularism and gave to Buddhism “the foremost place” while reaffirming Sinhala as the sole official language of the country.  It also abolished the Public Services Commission and the Judicial Service Commission, both of which, in the earlier constitution, had served to safeguard the independence and integrity of the civil service and the judiciary.  Control over the administrative service was now vested directly in the cabinet of ministers.  Finally, by explicitly prohibiting judicial review of legislation, the position of the legislature as the supreme branch of government was reinforced. In place of such review, it created a constitutional court to advise the speaker of the National State Assembly on the constitutionality of legislation, with a strict time period of a week to deliver its judgment.

The Second Republican Constitution of 1978

The Second Republican Constitution promulgated in 1978 is the most significant of the three documents because it is the constitution currently in force.  Its architect was J.R. Jayawardene, who had led the UNP to a lopsided victory in the 1977 general election with a majority of five-sixths of the seats in parliament (and 51 percent of the vote).  In hindsight, that lop-sided victory was the last and most damaging legacy of the Soulbury constitution to Sri Lankan affairs, because it was achieved under the first-past-the post electoral system that the 1972 constitution had retained. The present Sri Lankan constitution, amended 18 times, 16 times in its first decade, is a curious hybrid of the British parliamentary system and the French “imperial” presidency. The Sri Lankan political scientist A.J. Wilson called it “the Gaullist system in Asia”, and noted that behind its façade of democratic constitutional government laid political authoritarianism.[8]

Under the 1972 constitution the president’s functions were ceremonial, with executive power vested in a prime minister and a cabinet answerable to parliament. Although the redefined office of president in the 1978 constitution is contested in elections every six years, the president’s power is not meaningfully constrained or checked by parliament.  The president is head of state, head of government, and commander-in-chief of the armed forces. Though there was an initial limit of two six-year terms, under Rajapakse, the constitution has been amended to allow for unlimited terms.  The constitution also provides for a referendum, to allow the President to submit any bill rejected by parliament directly to the people.  It has been used only once in Sri Lanka’s history, and not for the purpose for which it was originally intended.  Furthermore, the President selects the prime minister and appoints the cabinet of ministers, thereby significantly reducing the role and power of both, and it also gives him or her the power to dissolve a parliament after it had been in office for a year. Chandrika Kumaratunga used this provision to dismiss the UNP government in 2004. The constitution also gives the president near total control of the public services with few constraints on his use of it.

J.R. Jayawardene was the first incumbent of the new office. He became President on February 4, 1978, the anniversary of Sri Lanka’s independence from Britain. Jayawardena was able to push through a new constitution as well as amend it 16 times because of his majority in parliament, elected under the old first-past-the post system.  This electoral system resulted, time and again, in parliaments that did not accurately reflect the support that political parties had actually received. In 1977 for instance the SLFP received 29.7 percent of the vote but won only 8 seats (4.7 percent of the total of 168) in parliament.  Conversely, the Tamil United Liberation Front, which had won 6.4 percent of the vote, received 18 seats (10.7 percent of the total). It became the largest party in the opposition.  Under the 1978 constitution, a system of proportional representation replaced the first-past the post system that had produced these anomalies; but it also made it highly unlikely that any single political party would in the future be able to get the two-thirds majority needed to amend or replace the constitution. This conventional wisdom survived until 2010, when the Rajapakse government, with the help of considerable electioneering chicanery, came within a few seats of a two-thirds majority, and was able to make up the difference with judicial inducements of the Muslim Congress.

This is the crux of the dilemma facing Sri Lanka today. It is saddled with a bad constitution that is almost impossible to amend.  The UNP’s landslide win of 1977 had been achieved with 51 percent of the vote; at no general election before or since has any political party equaled or exceeded that figure until 2010, when Rajapakse’s political coalition, riding the crest of a wave of tremendous popular support after ending what had seemed an intractable civil war, received 60.33 percent.  All but two of the amendments to the 1978 constitution came before the general election of 1989, when the UNP lost its five-sixths majority.  Rather than hold a general election in 1983, as required by the constitution, Jayawardena, anxious not to lose the means which allowed him to govern more or less as he pleased, had recourse to the device of the referendum provided for in the constitution to extend the life of the 1977 parliament by another six years.  This was the first and the last time the referendum has been used in Sri Lanka. [9]

The consequence of this concentration of power in the hands of the executive has been that since 1978, governments have ruled with a degree of authoritarianism that had not been present before in the island’s politics. The Jayawardene presidency set the stage by ushering in a period of autocratic rule that significantly reduced the space for democratic dissent and contributed to the rise of militant resistance to state power by both Tamil and between 1987-1989, Sinhala youth. Jayawardene stifled the democratic opposition using a variety of tactics, including thuggery and the misuse of the police. On one memorable occasion supporters of the ruling party surrounded and stoned the residences of Supreme Court justices who had not been supportive of the government.  Intimidation of the judiciary continues today, exemplified most disturbingly in the impeachment of the Chief Justice. Thuggery and violence have become endemic to Sri Lankan politics and can be indulged in with impunity because of the extensive politicization of the public service, including the police.  In the last three years, for instance, at least 18 journalists critical of the government have been murdered; not a single case has been solved. Violence, including murder, is disproportionately perpetrated by supporters of the ruling party against the opposition. Every government in power has been guilty of this, but it has been taken to new extremes by the current regime.

The Independence of the Judiciary

Good governance requires the separation of powers or some system of checks and balances.  Although sovereignty resides in the people, in no modern state do the people exercise their sovereignty directly; they do so by vesting it in one or more agencies of the state, which exercises it on their behalf.  Because the responsibilities so delegated may be (and often are) abused or misused in ways detrimental to the people as a whole or some sections of them, in order to safeguard sovereignt

y, it must be distributed among more than one agency of the state, which may then act to limit and constrain each other’s power.  As the dictum has it, power corrupts and absolute power corrupts absolutely. The best example of this in a democracy is a legislature which is supreme and whose acts cannot be subjected to judicial review (or to only very limited judicial review). Even in a politically mature democracy such as that of the United States, however, such separation of powers may not be adequate to constrain its abuse by one of the executive agencies.  But where this has happened, this was due not to a failure of the constitution but to a failure of one of the countervailing branches of government to step up to its responsibilities.

The 1946 Constitution, being derived from the Westminster model, acknowledged this principle.  The legislature and the judiciary were separate institutions of the state, while executive authority was vested in a prime minister and cabinet that sat in parliament, answered to it, and continued in office only so long as they enjoyed the confidence of the legislature.  The constitution provided for a judicial services commission consisting of the Chief Justice and two other judges of the Supreme Court, one of whom could be a retired member.  The JSC was responsible for the “appointment, transfer, dismissal and disciplinary control”[10] of judicial officers. While the judiciary was thus insulated from political interference, it also had complete oversight of legislation to ensure that it was in accordance with the provisions of the constitution.  In short, in terms of separation of powers, independence of the judiciary, and judicial review of legislation, the 1946 constitution delivered the goods.

The weakness of the 1946 Constitution however was that it derived its validity not from the people of Sri Lanka but from the British Parliament.  In other words it had been given by the Parliament at Westminster, from whence it drew its authority, to the people of Sri Lanka.  While this had not (apparently) been a problem for the anglicized native elite that had succeeded to power in Britain’s former colony (unlike in India and Pakistan, no attempt was made in the two decades following independence to adopt an autochthonous constitution and sever the last constitutional ties to Britain), it was much less palatable to the nationalist and left wing forces that took power in 1970 with a majority large enough to effect constitutional change.

The 1972 constitution sought to ensure the absolute domination of parliament and curtail the ability of the judiciary to review legislation.  It prohibited the courts from calling into question any law passed by the National State Assembly, as the new unicameral legislature was now called. The instance that the framers of the new constitution had in mind was on the face of it, a case that did not seem especially significant, but which one commentator has claimed was the “death warrant” of the 1946 constitution: Bribery Commissioner v. Pedrick Ranasinghe, in which the Minister of Justice’s right to appoint a bribery commissioner with the status of a member of the judiciary was challenged.[11] The argument was that members of the judiciary could only be appointed by the Judicial Service Commission, and therefore, the Bribery Amendment Act, under which this appointment had been made and which had been passed with a simple majority rather than the two-thirds majority required to amend the constitution was unconstitutional. The Privy Council agreed, in a judgment that was for the most part uncontroversial except for one disturbing paragraph, which held that article 29 (2) (in the context of a discussion of article 29, which sets out the legislative power of the Ceylon parliament) was an entrenched provision that could not be amended. [12]  This raised the question of whether in fact parliament was sovereign, and was an important contributing factor to the 1972 constitution.

The chief architect of the 1972 constitution, Colvin R. de Silva, cited both the “unalterable entrenched clauses” as well as judicial review of legislation, as acting to negate the legislature’s intentions and thus make constitutional change necessary.[13]   In lieu of judicial review, the new constitution provided for a constitutional court of five people appointed by the President, which would advise the National State Assembly whether legislation passed by it conflicted with the constitution; if the affirmative, then the legislation would require a two-thirds majority rather than a simple majority to become law.  In addition, ordinary citizens had one week from the time a bill was placed on the agenda of the NSA to move the Constitutional Court that it was potentially at odds with the constitution (1972 constitution 54 (2) e).  However, ordinary citizens could not challenge legislation deemed by the cabinet to be “urgent in the national interest”; this would go directly to the constitutional court, which was required to give its decision within two weeks of legislation being submitted for its review.

Stanley Tillekeratne, a member of the SLFP government of 1970-1977 had this to say on the constitutional provisions regarding judicial review:

We do not want three or four judges sitting over the deliberations of this Assembly after a bill has been passed and ruling it out when those judges themselves do not know the social forces that brought about the legislation.[14]

 

I would argue the opposite.  There is every need for judicial review of legislation. To believe otherwise devalues the constitution as the fundamental structuring document of the state if its provisions can be overridden by a simple majority in order to allow the government to implement policy.  From being the supreme law of the land, the constitution simply devolves into the first law among many, to bend before every prevailing political wind.  The social forces invoked by Stanley Tillekeratne do not necessarily act to promote the public good. One might recall the pre-Civil Rights era in the southern United States, when the dominant social forces in the American South were invested in keeping African Americans in a state of semi-servitude.  Arguments like this are made by politicians to expand their ability to act with as few restraints as possible in pursuit of their goals.  But in the public interest there should be restraints on their ability to act in this way, and ensuring that they abide by the framework of the constitution is not unreasonable.

Let us turn now to the present constitution and its provisions for the judiciary. Neither the Supreme Court nor the Legislature in the 1978 constitution provide adequate counterbalance to the power of the Sri Lankan presidency, for reasons I have already alluded to.  The Sri Lanka Freedom Party commented on the 1978 constitution that it “seeks to place one individual, possessed of all power, not only above, but also beyond the control of the National State Assembly [sic] and the Courts”.[15]  It was tailor made for J.R. Jayawardena, a man who had waited for 30 years to be head of the Sri Lankan state, who was determined to be unfettered in his exercise of power, and who commanded the majority in parliament that would allow him to do it. One provision of the constitution which came to be relied on later were the fundamental rights provisions, which have been used by ordinary citizens as well as government servants, in the context of a sympathetic supreme court, to seek redress from the abuse of state authority.  The fundamental rights provisions are the chief means by which the Supreme Court has sought to check the excesses of power, but they are of limited utility.

When the 1978 constitution was adopted, it provided that all sitting justices of the Supreme and High Courts, 18 in number, should have their offices terminated; the new constitution provided for 6 to 10 justices, exclusive of the Chief Justice, and only six of the 18 were reappointed to the new Supreme Court.  Another five were appointed to the Court of Appeal, in effect a demotion in rank, while seven others, including the previous Chief Justice were not reappointed. In no other instance did the constitution terminate and reconstitute any other public institution, but by reconstituting the superior courts, the ruling party was able to appoint sympathetic justices.  The constitution gives the President the sole prerogative to appoint superior court justices, who need not necessarily be selected from the lower courts.  While the same practice obtains in the United States, there at least the Senate must confirm the President’s nominee.  No similar check exists under the Sri Lankan constitution on the president’s powers.  However, the Judicial Services Commission was reintroduced under the 1978 constitution, more or less in its old form, although the secretary was now appointed by the President rather than the justices themselves.  The JSC is responsible for all matters relating to the appointment and careers of judicial officers.

The above describe the formal constitutional structures that govern the judicial process and the relationship of the judicial services to other branches of government.  The Jayawardene regime demonstrated that the political party in power was prepared, when necessary to, to use violence to intimidate the judiciary, as well as its two-thirds majority to reconstitute the Supreme Court with a membership more to its taste.  The Rajapakse regime has taken this further, and, through the violence perpetrated on the secretary to the Judicial Services Commission and the impeachment of the Chief Justice,  given the judiciary notice that it is not immune from the tactics that has brought much of Sri Lanka’s civil society as well as its public administration to heel. I turn now to the manner in which constitutional change has transformed a once-efficient and competent public service.

The Question of Public Administration

Sri Lanka had an efficient Civil Service when it received its independence from Britain.  At the highest levels, this service was recruited on merit, on the basis of highly competitive exams, and shielded from political pressure by a Public Services Commission created under the provisions of the 1946 constitution.  The PSC was responsible for appointments, promotions, transfers and the general maintenance of discipline of the public service. This did not mean that public officers could act as they pleased; they had to carry out the tasks determined by government and implement its lawful policies.  However, elected politicians could not count on a pliant public service, most particularly at the level of the elite Sri Lanka Civil Service, which provided the cadre for the higher level administrative posts. This was particularly the case with Secretaries to Ministries, the highest post to which a member of the administrative service could climb, who were the intermediaries between the ministers and the departments in their ministries.  While some officials were prepared to oblige their new political masters, not all were, and could (and would) resist attempts by ministers to promote projects that were in their view unsound or impracticable or of questionable legality.  To aggravate matters further, this elite cadre was drawn from the ranks of the English-educated upper middle class, the very class whose dominance of Sri Lankan politics and society had been challenged by the election victory of S.W.R.D. Bandaranaike in 1956.  This proved irksome to politicians in successive governments and especially in the populist and left leaning governments led by Mrs. Bandaranaike, who, as one commentator has noted, “began to consider the public officers as their subordinates who had merely to abide by their biddings” [sic].[16]   When the new republican constitution was drafted in 1972, exerting greater political control over the administrative service was very much on the agenda.

The first republican constitution abolished the Public Services Commission and made the cabinet of Ministers responsible for appointing, dismissing, transferring and exercising disciplinary control over state officers.  While the rationale for taking direct political control of the public service was that it would streamline the administration to enable it to more effectively respond to the state’s development initiatives, its actual consequence was that it thoroughly politicized the administration and contributed to a precipitous decline in the quality of the public service and the personnel recruited to it.  Public servants themselves cite political interference as one of the most significant obstacles they face in getting their jobs done.[17]

The 1978 constitution has continued the policy of direct political control over the public service.  Although the Public Service Commission was restored, it only had authority over the lower and middle rungs of the administration, and even then it could only operate with powers delegated by the cabinet of ministers.  The cabinet itself was the final authority on the appointments and dismissals of state officers, and had responsibility (which could be delegated to individual ministers) for appointing heads of departments. Secretaries to ministries were appointed by the President (they were the President’s men and could be if necessary from outside the public service).  This is a crucial point to keep in mind when we consider the extent to which power over every aspect of public life has been centralized in the hands of an all powerful executive president. A Secretary who was cooperative and who heeded his master’s voice could expect to be rewarded, for instance with a diplomatic post when he retired.  Public servants who refused to acquiesce in dubious acts could be transferred to uncongenial places or given appointments not commensurate with their qualifications and seniority or most dreaded of all, sent to the pool—a limbo in which you would continue to draw your salary but not be given a job to do and thus no longer have a career.  About the only recourse a public servant now had was to appeal to the Supreme Court under the 1978 constitution’s fundamental rights provisions, but this was a cumbersome and time consuming process and beyond the reach of most people.  Additionally, the constitution specifically prohibited judicial review, except by the Supreme Court, of decisions taken by the Cabinet, any minister or the new Public Service Commission.

Wilson, in his otherwise rather friendly analysis of the 1978 constitution, writes, “The core areas of the administrative services, the very hub of the administrative system, are vested in the control of the political executive.  Secretaries to ministries will do the bidding of their political chiefs.  Ministers may effect transfers not necessarily for administrative convenience but in certain circumstances under political pressure or for political partisan reasons”.[18]  This structure has enabled Presidents to extend their control over every branch of the public service, most significantly the police.  And Wilson concludes, “A public service, once noted for its fairly high standards of efficiency and impartiality (from 1948 to around 1965 and even up to 1970) has now been transformed into a political instrument.”[19]

Without a public service insulated from politicization, and without adequate provisions for judicial review of legislation to ensure that the acts of parliament remain within the bounds of the constitution, Sri Lanka’s crisis of governmentality will continue. Without the rule of law and without good public administration you cannot have good governance.  If Sri Lanka has anything to teach its neighbors, it is that a long tradition of democracy and a politically intelligent and literate electorate are not proof against the promulgation of bad constitutions, which promote practices of government that, because of their very constitutionality, are resistant to democratic change.

 


[1] International Commission of Jurists, “Sri Lanka: ICJ deplores attack on the Secretary of the Judicial Services Commission.” October 9, 2012. (http://tinyurl.com/cn2vxyu)

[2] See  Mariwaan Macan-Markar, “Impeaching a chief justice, Sri Lankan style.” The Hindu, December 14, 2012. (http://tinyurl.com/d3wnr8p)

[3] MTV, Newsfirst, Situation Report, November 26 or 27, 2009

[4] Robert N. Kearney, The Politics of Ceylon (Sri Lanka). Ithaca, N.Y.: Cornell University Press, 1973, p.43

[5] ibid: 44

[6] A. Jeyaratnam Wilson, “The Role of the Governor-General in Ceylon.” Modern Asian Studies, 2 (3): 193-220, 1968.

[7] Marasinghe, M L. The Evolution of Constitutional Governance in Sri Lanka. Colombo: Vijitha Yapa Publicaitons, 2007, pp. 119-123.

[8] Wilson, A J. The Gaullist System in Asia: The Constitution of Sri Lanka (1978). London: Macmillan, 1980, p. xiii

[9] The 17th amendment was passed in 2001 to establish a number of independent commissions to oversee elections, the public service, the police, human rights, corruption, finance and the delimitation of constituencies.  In addition a constitutional council was created by the amendment to oversee the appointment of members to these commissions.  This amendment was never fully implemented however.

[10] 1946 constitution, article 55(1)

[11] Marasinghe, op. cit, p. 120.

[12] Marasinghe, op. cit., p. 123.

[13] A. J. Wilson, “Ceylon: A New Government Takes Office”, Asian Survey, 11 ( 2), p. 180

[14] Quoted in Wilson, 1980, op. cit., p. 125

[15] Wilson, 1980, op. cit, p. 127

[16] MCM Iqbal, “The Public Service of Sri Lanka.”  At www.ruleoflawsrilanka.org.  Accessed November 24, 2009

[17] ibid.

[18] Wilson 1980, op. cit., p.141

[19] ibid., p. 143.

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Arjun Guneratne
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