The electoral victory of Sri Lanka’s United National Party (UNP) in 1977 created what is now commonly known as ‘elective dictatorship’. This dictatorship was made permanent through the legal structure arising from the 1978 Constitution. Additionally, the transformation of democratic rule into tyrannical rule was approved by a vast majority in the parliament. Most of the UNP members of parliament were coerced into signing undated resignation letters, ensuring their cooperation with the president’s wishes. Only a very few members refused. To subsequently keep the UNP’s parliamentary majority, in 1982–one year before parliamentary elections were due–the parliament’s term of office was extended for a further six years. In this way, the parliament was used to pass absurd laws, through which a system of tyranny was legalised.
Such legalised tyranny is well described in a recent lecture given by Lord Johan Steyn, a British Law Lord from 1995 to 2005, part of which is reproduced below.
History has shown that majority rule and strict adherence to legality is no guarantee against tyranny. Hitler came to power by democratic vote. Moreover, in Nazi Germany, amid the Holocaust, pockets of the principle of legality (for what it was worth) sometimes survived. In Nazi Germany defendants sentenced to periods of imprisonment before the Second World War were left alone during the terms of their sentences. Only when their sentences expired did the Gestapo wait for them at the gates of the prisons and transport them to the death camps. So even in Nazi Germany an impoverished concept of legality played some role. The role of judges in this period is, of course, part of the Nuremberg story. But at or after Nuremberg nobody had any doubt what is torture. That at the highest levels the United States Administration has recently persistently tried to water down what is torture is deeply depressing for our times.
In the apartheid era millions of black people in South Africa were subjected to institutionalised tyranny and cruelty in the richest and most developed country in Africa. What is not always sufficiently appreciated is that by and large the Nationalist Government achieved its oppressive purposes by a scrupulous observance of legality. If the judges applied the oppressive laws, the Nationalist Government attained all it set out to do. That is, however, not the whole picture. In the 1980s during successive emergencies, under Chief Justice Rabie, almost every case before the highest court was heard by a so called ’emergency team’ which in the result decided nearly every case in favour of the government. Safe hands were the motto. In the result the highest court determinedly recast South African jurisprudence so as to grant the greatest possible latitude to the executive to act outside conventional legal controls.
Another example is Chile. Following the coup d’etat in September 1973, thousands were arrested, tortured and murdered on the orders of General Pinochet. The civilised and constitutionally based legal system of that country had not been formally altered. It was not necessary to do so. The police state created by General Pinochet intimidated and compromised the judiciary and deprived citizens and residents of all meaningful redress to law. Fortunately, despite failings, our legal system helped restore the authority of the rule of law.
Here I pause to summarise why I regard these examples of some of the great tyrannies of the twentieth century as containing important lessons. They demonstrate that majority rule by itself, and legality on its own, are insufficient to guarantee a civil and just society. Even totalitarian states mostly act according to the laws of their countries. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state [Guardian Weekly, April 28-May 4, 2006].
In Sri Lanka, an important component of the legalisation of tyranny was the absolute immunity granted to the president. The first executive president, J R Jayawardene, as well as his prime minister, J Premadasa, were well aware that judicial independence was still a valid concept within the country in 1978. For this reason, it was quite possible that judicial challenges would be made against the system of legalised tyranny, and in fact, it did on many occasions. Even the chief justice, who was appointed by the president, opposed him within a few years. However, the president had one last resort with which to attack his opponents: the constitutional provision of absolute immunity.
Absolute immunity is incompatible with the rule of law; the very essence of rule of law is that no one is above the law. As a result, the law limits immunity to the minimum level required in the performance of official duties by state officers. In its complete sense however, absolute immunity means to be bound by no law. Neither the American nor the French presidents, nor any head of a democratic country has such power. In Sri Lanka though, the executive president has this power.
Sri Lanka is therefore an example of not just a country where the president has absolute power, but also of many instances in which this power has been abused. In fact, the massive political violence that has beset the country–the South, North and East–was a result of this abuse of power. The most recent abuse of this power was by the incumbent executive president on the issue of the 17th Amendment. By appointing members to the Public Service Commission and the National Police Commission without the approval of the Constitutional Council, he blatantly violated the constitution. The government’s argument that the members of the Constitutional Council are not yet appointed and therefore the president is acting out of necessity, is the typical argument of all tyrants.
What is being covered up here is that the selection of commissioners has been taken over by the president, which is exactly what the 17th Amendment was meant to prevent. The attorney general initially advised the government against making any appointments, as they would be illegal unless made through the Constitutional Council. Now, after the appointments have been made illegally, the attorney general is arguing that since the appointments were made by the president, they cannot be challenged in a court of law.
The absolute immunity of the president therefore results in legitimating illegal and unconstitutional acts. Constitutionality becomes a matter of no consequence. And when the Constitution is a matter of no consequence, then the law itself becomes absurd. Since 1978 Sri Lanka has remained in this state of absurdity and legalised tyranny. The Jayawardene-Premadasa chinthanaya (ideology) is now continued by the incumbent president as his own chinthanaya.
In days when there is talk of creating a new Constitution, the Asian Human Rights Commission (AHRC) would like to point out that any document that does not undo the legalised tyranny of the 1978 Constitution is only another farce which will create further problems for the people.
