Caste origins of Sri Lanka's authoritarianism

An interview with Mr. Basil Fernando of the Asian Human Rights Commission by Nilantha Ilangamuwa of the Sri Lanka Guardian

(April 13, New Delhi, Sri Lanka Guardian) Today authoritarianism in Sri Lanka is a common topic which is very much discussed. You have written extensively on authoritarianism in Sri Lanka, particularly since the 1978 Constitution. Could you try to explain why a Sri Lanka which began its independence period as a democracy shifted to an authoritarian system?

Recently, I was explaining to an American student about Sri Lanka's special history. I was showing him a book which documented 200 years of history of the Supreme Court of Sri Lanka. He asked me this question: obviously Sri Lanka has had a very long history of trying to introduce institutions of the judiciary into the country based on a common law system. However, it has now shifted to an authoritarian model. How did that happen?

He was wondering as to whether Sri Lanka have a sufficient amount of competent, well-trained judges. Or whether this happened because of a lack of human resources to run these organisations. Of course that is not the case.

For over 200 years Sri Lanka has had well trained lawyers. People initially went to the United Kingdom and were qualified in the British universities. There were British judges in the country for a long time and other training, including that of law graduates, started with the institutions like the Faculty of Law which started in the University of Ceylon, and then other institutions were created like the Law College of Sri Lanka.

Looking into the long record of new law reports we see judgements written by judges in Sri Lanka on criminal law matters, civil law matters and also constitutional and administrative law matters, and all this indicates that there is a competency of judges in Sri Lanka. There are many persons from the legal profession and sometimes the judicial profession also who have initially started their practices in Sri Lanka and then gone into important institutions outside like the United Nations and even the International Court of Justice, and taught in international universities and played their parts in many ways and in many capacities.

So from the point of view of the basic training of lawyers in the past, and the education profession, it is not the explanation about the manner in which Sri Lanka abandoned the conception of the rule of law and professionalism in a very fundamental way and now serious erosion has entered into the very practice of the independence of the judiciary in the country.

Also it is important to note the subjugation of the judiciary to the executive which is controlled by one man. The absolute power concept has replaced the idea of rule by any kind of checks and balances. So the reason does not lie in the absence of competence. We have to look to other sources to see how in the course of 30 years a whole tradition came down.

So, how is it possible to bring down a 200 year tradition with some many competent persons within such a short time?

That is the very issue that needs to be discussed. First of all the people that did away with the system came from this section of people who had their training on the judicial system. The Jayewardene's were involved in the law business. Although J.R. Jayewardene tried to create the impression at one time that his father was a judge this has now been challenged. Anyway, his father was a senior lawyer at the time and his brother was a Queen's Counsel and a leading lawyer at the time playing a very important role as the President of the Bar Association. Many prominent personalities supported him and his party. Even the chief justice he appointed from outside the judiciary was a prominent QC, Mr. Neville Samarakoon.

Even before J.R. Jayewardene, the first attacks on the judiciary came from the coalition government which ruled from 1970 to 1977, when there also prominent lawyers were in the government. For example Colvin R. de Silva is known as one of the best criminal lawyers produced in the country and had quite a great reputation. There were others like Felix Dias Bandaranaike who was also a senior lawyer who came from a family involved in the legal profession for a long time.

So the dismantling process of the separation of power concept, attacks on the checks and balances and the attempts to replace the independence of the judiciary all came from the so-called legal elite of the country.

Then how could that happen? How could they be involved in attacking the foundation in which they themselves had their education and social status?

Once again this is all about knowledge. They knew the system very well. They knew of all the loopholes and the ways to undermine the system in much the same way an engineer might know how to demolish a building.

Someone who knows the structure of a building and the construction industry could be part of modern terrorism. For example there are talks about the 9/11 attack in the United States and how those huge buildings could have been brought down by such an attack.

The reason lies with the fact that some knew exactly where to attack in order that the buildings collapsed.

In the same manner, the Jayewardene brothers in particular, knew all the weak points of the system which was prevailing in Sri Lanka and in designing the 1978 Constitution they used this knowledge in order to undermine the very system of constitutional governance through a constitutional process.

Jayewardene made himself the first executive president of Sri Lanka with all the powers vested in him as the head of state by adopting a constitution through the formal process of passing a new constitution with the required majorities.

Furthermore, inbuilt into the new constitution were certain clauses which would virtually undermine the power of the cabinet by transferring its power into the hands of the president. It also undermined the parliament, virtually subjugating it to a place where it only had rubber stamping functions. It became a parliament that could not undermine the power of the president except by way of an almost practically impossible process of impeachment.

Above all, Jayewardene knew where to attack the judicial process.

With the capacity of a powerful president to direct the process of the selection of judges, purely by no other means than the choice of the president himself, is not just formality. By a process of controlling the budgets they knew that they could undermine the earlier construction of the constitution that had been in place.

This was what was done by the 1978 Constitution. Particularly by creating the position that put the president above the law.

It is a very funny way of using the constitution because usually the idea of constitution in a liberal democracy is to create the idea of the supremacy of the law over all the branches of the government, including the executive.

However, this particular constitution was made for the purpose of changing the system which accepted the supremacy of the law and replacing it with one by which the president was more powerful than the law.

That was the ultimate aim and the construction was done in such a way so as to achieve this.

We do not need to go into the details of the Constitution itself in this discussion because that has been done elsewhere. However, the question is as to how, despite of over 200 years of judicial history was it possible to displace such a system and what was it replaced with?

This really brings us the more important question about constitution making in Sri Lanka,

Particularly in the way in which the Soulbury Constitution was made, which was a law drafted by the British by a British constitutional expert Ivor Jennings, and whose operation was directed by the Colonial Office of the United Kingdom, must be examined.

What was needed was to make a constitution that was really a part of dealing with the problems of democracy as against the feudal foundations of a society.

In today's democracies like France, the United Kingdom and many others, there is a period in which there was a deliberate demolition of the feudal foundations of a state and a building of the democratic foundations of the state. No such internal political process took place in Sri Lanka. things were introduced into the country with the idea that when the new institutions were established and had been running for a long time the people would be accustomed to these new institutions and the belief that the memory of the old system would pass away. And the new system would be the ground on which the whole edifice of the social and political life of the country was built. It is this fundamental belief that was flawed. The house was built on sand whereas the inner foundation was not prepared and with a little bit of wind, in a political sense, the whole edifice could break. The social process of democratisation of a feudal society into a democratic society cannot be done purely by the introduction of institutions without an internal process. And that is what we see from the example of Sri Lanka.

Externally the processes of adult franchise was introduced, representation was introduced, the parliament was built, the laws were introduced in almost every area of life. In criminal law, there were criminal procedures and constitutional law. However, the building did not last and with a few clever tricks it was possible to bring it down.

What did we get back?

When you demolish something all you do is go back to how things were. Sri Lanka has returned to her feudal foundations. In the psyche and the minds of the elite who were educated outside, their inner minds, their inner psychosis, their inner psychological and social foundations were not changed. There is a whole process, like in the natural process, also in the psychological and social process of the evolution of thoughts, or ways which are part of a ruling. The ways of power in the country have always been authoritarian. It was the absolute power of the king and a few land owners and in the feudal pyramid. The king stood at the top and this feudal pyramid was cemented by the social organisation of caste. These are the two factors that need to be understood in Sri Lanka, the concepts of monarchy and the concept of caste. These are the things on which the power and the social control of the country have been kept over centuries. Now we have returned to this caste foundation. Instead of the monarchy we have a modern terminology, but essentially it is a power pyramid in which there is absolute in the hands of the executive president and there is nothing to control or check that power. In fact, there is the psychological and social foundations of caste and the psychology that was built through caste systems of intimidation and fear that supports this whole system.

So, what we have returned to is our origins, we have returned to our year zero. Our year zero is that zero that begins with absolute power and ends with absolute power systems. That is what we have at the moment. There is the façade of institutions but without power they are a force that has no real power today to deal with the questions of governance. The president is above the law; therefore, the courts are below him. Therefore without equal power in an abstract constitutional sense it is not possible to challenge another power. In the power dynamics, the courts, even if they do not want to despite of who the personality might be, do not have the power, the real actual power, to demonstrate a genuine independence of the judiciary that is possible within a liberal democracy with a foundation that gives considerable power to the judiciary.

When the judiciary is powerless there is very little that the individuals can do. Individuals do not matter very much in this and that is also the case of every other institution. So, we are back to the caste foundations, absolute power foundations and our feudal foundations. And it is in this area that any serious student today of politics in Sri Lanka should try to understand if we have to make some sense out of the present situation. Before we deal with solutions we have to understand the problem.

To be continued...