Undoing Constitutional Tomfoolery

By Basil Fernando -

Basil Fernando

May 30, 2013 

That the United National Party (UNP) has published a few ideas on the changes to the constitution they would bring about if they come to power is an indication that a serious critique that has been made about the 1978 Constitution, can no longer be ignored. As it is good to have even an inadequate debate on vital issues rather than nothing at all, it would be better not to ignore the UNP proposals but rather to utilise the occasion to raise all the vital issues that need to be addressed if the mess created by what retired Justice C.V. Wigneswaran charaterised as tomfoolery with the constitution, is to be brought to an end.

What has to be asserted clearly and unequivocally is the fundamental elements of the basic structure of the constitution. The notion of basic structure implies that certain permanent notions are entrenched in the constitution and that attempts by any government to change that basic structure will be resisted. The tomfoolery with the constitution became possible only because there was no agreement on such a basic structure and because the judiciary did not consider it their fundamental obligation to defend and to promote such a basic structure.

The basic structure of the constitution must recognise that the inalienable sovereignty of the people is guaranteed by the recognition of the following principles:

1. That Sri Lanka is a secular democratic republic where all persons are equal.
2. That the basic structure of the government envisaged in the constitution is organised on the principles of the rule of law.
3. The recognition of the principle of the separation of powers.
4. The recognition of the independence of the judiciary and the right of the judiciary to be the final arbiter on interpretations of the law and with the power of judicial review (as it existed before the 1972 Constitution).
5. The independence of the public institutions within the framework of the rule of law.
6. The recognition of human rights as expressed in the Universal Declaration on Human Rights, with the recognition that everyone is entitled to the enforceable right to a legal remedy for violations of rights.
7. That the peoples’ right to participation is guaranteed by free and fair elections held at fixed periods and through the freedom of expression.
8. That the public accountability of all public servants must be guaranteed through public hearings before state organs created by the Constitution.
9. That the character of the welfare state will be safeguarded.

The prime importance of agreeing on the basic structure

The making of a constitution or replacing a constitution is not just a matter of writing a new essay. It is an historical act. In an historical act addressing in the clearest terms possible the fundamental errors that have led to the present impasse need to be clearly expressed. A new constitution is a clear departure as well as a clear beginning.

Therefore it would require a prolonged and a sometimes painful discussion in order to enable a clear agreement being expressed through the basic laws of the country. This does not mean that all issues can be finally settled through a constitution. A constitution is a dynamic document and the problems of a nation are also dynamic. Resolving these problems is a perpetual preoccupation. However, there are basic and fundamental areas where the people recognise that things went wrong and that these must not be allowed reoccur. Therefore a thorough reflection of the past is an essential aspect of any serious attempt to develop the country’s basic law for the future.

The UNP in entering into this area of the national debate has done itself a favour. However, in the very preamble of its declaration on the basic constitutional issues it has done great harm to the credibility of this initiative by being an apologist for the 1978 Constitution. The UNP’s credibility will be tested by its capacity to unequivocally condemn the enormous harm caused by the 1978 Constitution and the practices which developed under that constitution. Accepting full responsibility for the catastrophic consequences caused by introducing this constitution is an essential step for establishing credibility for its initiative for constitutional reforms.