At the last Human Rights Council session a spokesman for Sri Lanka suggested to the United Kingdom that it may consider holding a referendum for having a written constitution. One wonders whether the suggestion was based on the experience of having written constitutions in Sri Lanka, which the spokesman thought to be worthy of emulation in other parts of the world. It may therefore be useful to discuss the experience of written constitutions in Sri Lanka.
At the time of independence Sri Lanka adopted a constitution which was drafted by a well-known British constitutional expert, Prof. Sir Ivor Jennings, who was also the first vice chancellor of the Peradenina University. This constitution followed the same model of many constitutions that were introduced by the British Colonial Office at the end of the period of colonial power. In Sri Lanka such constitutions are deemed to be based on the Westminster Model. However, Hood Phillips, a British constitutional authority commented that, The ideas behind it were evidently conceived in the old Colonial Office, and so perhaps it would be more appropriately called the Whitehall Model. In essence what this meant was to introduce a constitution based on the separation of powers. The attempt was to introduce some concepts that were thought to be the essential concepts of the British constitutional tradition. Thus, the unwritten constitutional law principles were to be incorporated by a written constitution to the constitutional law of Sri Lanka. These principles were later further developed by many judgements of the Sri Lankan Supreme Court and also the Privy Council.
In 1972 what was called the autochthonous constitution was introduced in which an attempt was made to modify the separation of power principle through a concept called the fusion of powers, which denied to courts the power to declare invalid any law passed by the legislature. The idea was to replace what was called judicial supremacy by legislative supremacy.
The next stage was the 1978 constitution which, in fact, created what may be called a one-man system. Under this constitution the president had absolute impunity and was above the legislature as well as the judiciary. The written constitution kept the jargon of the separation of powers, independence of the judiciary and the like, however, the entire system was subjected to the control of the executive president who was under the control of no one. This executive president was not even bound to comply with the constitution. The constitution is made in a way to make all manipulations possible including the extension of the period of the parliament by way of a referendum. All doors were open to replace the power of the institutions with muscle power. The abandonment of the implementation of the 17th Amendment to the Constitution is only one glaring aspect of the power of the superman, the executive president.
If there is any illusion that a written constitution creates a better constitutional framework and process, the Sri Lankan experience makes a lie of that proposition. Perhaps whether a constitution is written or not written is not the issue at all. The issue is having independent institutions that are capable of having the checks and balances that can guarantee the functioning of a state apparatus that promotes and protects the rights of all the people in a country. At the very essence of constitutional governance is the aim to defeat absolute power. That absolute power corrupts and that absolute power corrupts absolutely is the realisation on which constitutional governance is grounded. The Sri Lankan Constitution of 1978 destroyed whatever institutional developments that Sri Lanka had achieved in the past. It made absolute power and absolute corruption possible.
Dr. Colin R Silva writing about the 1978 Constitution spoke about monkeying with the judiciary. In fact, subsequent years have shown that the Constitution has mocked all aspects of life and society of the people of Sri Lanka. Perhaps those who take it upon themselves the task of suggesting better constitutions for other countries should take a good look at themselves before the mirror. If such people spent more time in making suggestions for their own country in order to escape from the grip of absolute power and absolute corruption, their countrymen would take them more seriously.
