The Paradox of 1978: Mixing Untrammeled Power with Rights
The argument thus far has been that the 1948 Constitution, even though it was an elite bargain, provided the longest period of democratic and political stability for the country.
Constitutional backsliding began with the 1972 Constitution that introduced parliamentary authoritarianism. Authoritarianism was strengthened by the 1978 Constitution that introduced a strong system of presidentialism. The 1948 Constitution was driven by a desire to provide a framework for a newly independent country, to ensure that Sri Lanka stayed within the framework of a parliamentary democracy, and to provide some guarantees against discrimination through Section 29.1972 provided privileges to Buddhism and the Sinhala language and strengthened Parliament and the Executive by removing many of the checks and balances of the 1948 Constitution including judicial review of legislation. 1978 accelerated the process of constitutional authoritarianism by creating a system of hyper-presidentialism, ignoring the demand for power-sharing by Tamil actors, and retaining the privilege for Buddhism.
However, the 1978 Constitution was a paradox. While on the one hand the 1978 Constitution strengthened authoritarian tendencies by giving sweeping powers to the President and blanket immunity to presidential acts, on the other, it also introduced democratising features like a bill of rights and an electoral system based on proportional representation. In this section we look at how the courts, more specifically the Supreme Court (SC), has engaged with the Bill of Rights that was introduced in 1978.
'1 he 1978 Constitution gave the SC the ‘sole and exclusive jurisdiction’ to interpret the Constitution and made the SC the first and final court for all cases alleging a violation of fundamental language rights.[1509] 'lhe Court has adopted a two-tier process, with a ‘leave to proceed stage’, often without reason, and a final determination on the merits.
The Constitution permits the Court to ‘grant such relief or make such directions as it may deem just and equitable in the circumstance’.[1510] Many fundamental rights cases are heard and disposed of within 18-24 months, and this has encouraged petitioners to present their claims in terms of rights, given the lengthy delays in other court processes. 'lhe Constitution however, preserved past law, even if it violated the chapter on fundamental rights.[1511] 'Ihis was done mainly to preserve the legality of the Muslim Law and Tesavalamai, two personal laws with a history that go back to colonial times, and that apply in limited circumstances.[1512]During the initial period the Court was cautious in its interpretation of the Bill of Rights with a large level of deference being provided to the state. This was a result of several factors. First, it was a new jurisdiction, and the Court was hesitant to develop broad interpretations of these rights. Second, the ethnic war commenced in the 1980s and the Court's interpretation of rights such as the freedom from torture and illegal arrest tended to favour the state. Third, as we noted, the Court itself was reconstituted and went through a period of upheaval with the 1978 Constitution where some judges were not appointed to the new court and others were demoted. The Constitution provided that all judges of the previous SC and High Court would cease to hold office on the commencement of the Constitution.[1513] Fourth, when the Court did hold against the state, there was intimidation on the part of the state. For example, in the Vivienne Goonewardena case, days after the court decision holding that the fundamental rights of a left politician had been violated by the police, mobs demonstrated outside the houses of the judges involved. The President spoke out against the decision, the state paid the compensation on behalf of the police officers, and the police officers involved were promoted.[1514]
Beginning around the late 1980s and early 1990s, however, interpretation of the Bill of Rights changed.
Rules of standing were liberalised, and new interpretations were developed, as petitioners experienced more success with their claims. Since then, the Court has given some important decisions on the legality of executive action.[1515] Through a process of judicial interpretation the Court has developed a right to life, a right to information, a right to a clean and healthy environment, and a corresponding right to water, drawing on the Directive Principles of State Policy in the Constitution.[1516] The Court has also upheld the right not to be sexually harassed and that held that sexual harassment at the workplace was a violation of the constitutional prohibition on sex-based discrimination.[1517] This has been supported by the use of international norms to interpret the Constitution and statutes.In the wake of serious constitutional crises in 2018, the Court delivered a significant judgment upholding the rule of law and the supremacy of the Constitution when former President Sirisena purported to sack sitting Prime Minister Ranil Wickremesinghe and to replace him with former President Rajapaksa.[1518]
The Court has made a broad range of orders including compensation against public officials and even against private actors where a nexus was established between the private actor and the action or inaction of the public official that resulted in the rights violation.52
The Court has also extended its powers of review to the legislature, in this instance unsuccessfully. In a case involving the impeachment of a Chief Justice, the Court of Appeal held that the writ jurisdiction extended to reviewing the acts of Parliament and its committees.53 However, this case was overruled by the SC on appeal which held that the power of the CA did not extend to Parliament and its Select Committees.54
The Bill of Rights then has had a transformative impact and allowed citizens and organisations to challenge the exercise of executive power using rights-based review. As Hailbronner notes, transformative constitutionalism is broad and aspirational. It wants to ‘drive state action as much as restrain it’.55
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