by Basil Fernando
The very meaning of independence for citizens of any country is the respect achieved for the liberties of the individuals that constitute the nation. Overcoming the suppression caused to the liberty of the individuals by a foreign power is at the heart of independence. However, the mere absence of the foreign power does not mean that the citizens have gained a victory over the suppression of their civil liberties. A closer examination would show that the extent of the enjoyment of civil liberties as individuals, by Sri Lankan now is much less than those they enjoyed under the British. Terrtorial independence has been achieved. However, civil liberties have been reduced particularly since the adoption of 1978 constitution.
It is easy to illustrate this. Take the case of habeas corpus. This is the most basic legal protection that is available to an individual against the arbitrary power of the state. Under the British Empire this legal protection was available even during the situation of a war. This was illustrated by famous Bracegirdle case- The Bracegirdle judgment was based on the principles of the Magna Carta. As stated by Abraham CJ,
“There can be no doubt that in British territory there is the fundamental principle of law enshrined in Magna Carta that no person can be deprived of his liberty except by judicial process. The following passage from The Government of the British Empire by Professor Berriedale Keith, is illuminating and instructive. In Chapter VII of Part I., he discusses ‘The Rule of Law and the Rights of the Subject’ p. 234. He says: -
‘Throughout the Empire the system of Government is distinguished by the predominance of the rule of law. The most obvious side of this conception is afforded by the principles that no man can be made to suffer in person or property save through the action of the ordinary Courts after a public trial by established legal rules, and that there is a definite body of well known legal principles, excluding arbitrary executive action. The value of the principles was made obvious enough during the war when vast powers were necessarily conferred on the executive by statute, under which rights of individual liberty were severely curtailed both in the United Kingdom and in the oversea territories. Persons both British and alien were deprived legally but more or less arbitrarily of liberty on grounds of suspicion of enemy connections or inclinations, and the movements of aliens were severely-restricted and supervised; the courts of the Empire recognized the validity of such powers under war conditions, but it is clear that a complete change would be effected in the security of personal rights if executive officers in time of peace were permitted the discretion they exercised during the war, and which in foreign countries they often exercise even in time of peace.’”
This is not the case in Sri Lanka anymore. The capacity of legal protection under habeas corpus lies with power of the court to intervene against the decisions of the executive. This power today is much less available than it was under the British Empire. In the Bracegirdle case an Australian citizen who acquired sympathy for the independence struggle of the Sri Lankan people was disliked by the colonial administration and the governor issued an order for his immediate deportation. This was challenged in the courts. The courts not only vacated the governor general's order and nullified it but also stated the obligation of the courts to intervene when the liberties of the individual are curtailed as a right of the courts which is not limited even during the conditions of war.
However that power that the court had to nullify an order of the governor general representing the British crown is not available today to nullify an order of the executive president of Sri Lanka. The executive president of Sri Lanka enjoys a power which is very much more than a power enjoyed by a governor general representing the British crown in the suppression of the liberties of the individual. The courts are powerless when the president acts. Under the constitution the president represents the executive power of the state.
Today in actual fact all the major actions of the executive is done under the name and direct involvement of the president. This is also true of the execution of all issues relating to public security. If those actions violate the civil liberties of the individual there is nothing that the courts can do about it.
Independence means little when the power of the courts is reduced. If the courts do not have the power to protect the liberty of the individuals there is no other component of the government that is capable of doing that task. Therefore the citizens of Sri Lanka today do not have the protection of the courts to safeguard their civil liberties and by that token they have no ultimate authority to turn to for protection.
Can the citizens who have less protection under the law be referred to as citizens of an independent country? The protection of the individuals that constitute a country is the very essence of the meaning of independence. The absence of that protection virtually takes away the meaning and notion of independence.
Even under the colonial empire the administration recognised the rights of the labour unions to organise themselves and to function freely. In fact, the independence trade union movement grew within Sri Lanka during the time of the colonial powers. With independence have come far greater restrictions on the capacities of the labour movements to organise themselves. With the enactment of the 1978 Constitution a structure was created within which any action could be taken to crush the legitimate struggles of the working people. The way in which the 1980 general strike was crushed and the manner in which 40,000 workers were deprived of their employment due to their participation in the strike symbolises the deprivation of the liberty that has become a hallmark of the way a citizen is treated in this independent nation.
The same can be said for the rights of peasants, farmers, students and all marginalised sections of society. And this of course, includes sections of the minorities. Today's minorities are without any kind of protection before the law. They also do not have the protection that goes with the powers that should be provided to their local representatives. The weakening of the minorities has become a boast of the political party in power.
Can the weakened citizens claim that they are enjoying the benefits of an independent nation? Of course, this is not the case. The 1978 Constitution has created the situation where the liberties achieved where the freedoms created by the independence from the British Empire have been taken away by a new kind of tyranny born within the nation itself. Today, all the basic rights that the citizens gained against the colonial power have been taken away and this includes the right of franchise. With draconian limitations imposed on the capacity of Sri Lanka to have to have free and fair elections the very meaning of the election of representatives by the franchise of the people has lost much of its meaning. Voting in elections remains a façade. The substance of free and fair elections does not exist.
In short, genuine independence for the Sri Lankan is not possible as long as the 1978 Constitution remains in operation. Sometime back there was a loud claim that the crushing of the LTTE had marked the genuine independence of Sri Lanka. However, experience now shows that this is not the case. The tyranny that was created by the 1978 Constitution has even increased with the 18th Amendment to the Constitution. The tyrannical system has increased its power and the citizens have lost their civil liberties.
Liberties of personal freedoms and even property rights can today be attacked with impunity. The removal of people from their property by force is a symbol of the extent to which all protection is lost .
The struggle for independence is unfinished. The challenge remains to defeat the forces that uphold the 1978 Constitution and remove this constitution altogether and replace with a constitution that recognises the basic civil liberties of all the individuals that constitute the nation. In such a nation courts must have the power to protect the indivual from arbitrary actions of all, including the head of the state.
Until that happens all celebrations of independence will be a farce.
The day of independence is one that reminds us of the cynical manner in which a small group of people are having the last laugh when the majority of the citizens are deprived of their rights.
( W.J. Basil Fernando is a Sri Lankan born jurist, author, poet, human rights activist, editor. He can be reached at basil.fernando@ahrc.asia)
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