By Basil Fernando –
I can clarify what I mean by referring to an incident that happened when I was a young lawyer. Some time after the adoption of the 1978 constitution, I attended a meeting of lawyers organized by the Bar Association of Sri Lanka. The purpose of the meeting was to discuss a public statement made by President Jayewardene to the effect that H.L. De Silva PC, then a prominent lawyer, did not understand “his” constitution. The late S.L Gunasekara, moved a resolution condemning the President’s statement and affirming confidence in the ability of Mr. De Silva.
What had irritated JR Jayewardene and prompted him to make that statement? It was the attempt by lawyers like H.L. De Silva, to interpret J.R.’s constitution using the framework of liberal democratic constitutional principles. In effect, what J.R stated wasdo not compare apples with oranges.
What was the meaning of this ‘constitution’? Hermeneutics is a theory of interpretation that aims to elicit the meaning of a text. The text may be a sentence, a paragraph, or a whole document, like a constitution.
The basic assumption behind any attempt to find the meaning is to ascertain what meaning the author was trying to convey by writing the text. Hermeneutics provides principles and techniques to be followed when trying to uncover the meaning.
It is quite another matter when the text is written purposefully to confuse or deceive. In such a situation the text has been concocted with the aim of defeating all rational attempts at interpretation or attempts to grasp a logical meaning. In short, what this 1978 constitution says to us is this: the only person who knows the meaning of this document is its author: he can interpret it in any way he likes and use it to justify whatever he does; he is not bound by any rules; this constitution has liberated him from all rules.
Thus, the 1978 constitution was created to ‘de-constitutionalize’ the state of Sri Lanka.
In this way, not only the rule of law, but law itself was displaced. Even a Chief Justice can be dismissed without any regard to established rules. Those who heard the case against her knew they were playing a practical joke on her. Although Dr. Banadaranayake and her legal team tried to play H.L De Silva’s game by trying to treat the issues as being within conventional legal rules, they received a rude treatment. A list of such devastating practical jokes played on the system of law and justice is a long one, including an extension of a parliamentary term by way of a referendum.
Examining the text of this constitution with the view towards tryng to find its meaning is like examining the prescription of a doctor who uses a term that appears to be a medical drug, but in fact is poison. The poison this time was administered to the constitutional system and the nation itself.
Two others who sat as Chief Justices, S.N. De Silva and Mohan Peiris, understood the ‘constitution’ quite well and acted accordingly.
Another rule of hermeneutical interpretation is the rational link of parts with the whole. That means different articles of the constitution must be logically linked to each other. If some articles which seem to convey a meaning of a liberal democratic concept is contradicted by several other articles which convey an authoritarian frame work, then no rational meaning can be derived from these articles. Practically no institution can function rationally, if that institution has to work under and trying to apply self-contradictory principles. Every important principle contained in the different articles of the constitution is contradicted by one or many other articles of that same constitution. This is usually referred to as what is given by one hand is being taken away by the other.
A suitable Sinhalese translation for the word, manipulation is KAPATIKAMA. This, in a Hermeneutical sense, means to manipulate a text in such way so as to prevent the possibility of eliciting any rational meaning out of it. Examples of those who tried to rationalize this Kapati document learned their lessons in a bitter way, including the late Mr. Samarakoon and Dr. Bandaranayake. This spider net has proved its deadly nature over and over again. And the worst is not yet over.
The result of living with an absurdity, is gradual disintegration. Disintegration simply means the inability to hold things together rationally.
Things begin to fall apart. That also has been happening for many years and that will not stop now.
The ultimate destiny of the disintegration of rationality, is insanity. In terms of the state of law and the constitution, Sri Lanka is currently an insane nation. At the time when the new court complex was being constructed, something a senior lawyer said was quoted by the late S.L Gunesekara to the effect that, when the new parliament was built we lost parliamentary democracy: by the time we have the new court complex, we will also lose our justice system.
The only way out of this pathetic and pitiable situation is to call a spade a spade, a spider a spider, absurdity an absurdity, lunacy as lunacy and not to confer respectability on a fraudulent document by acting as if it is a constitution of a democracy. That constitution’s real aim was to transform a democracy into an authoritarian system.