Introduction

We have seen in recent years, the phenom enon of the 'mad cow' epidemic and its deadly effect on cattle. However, there is yet another parallel development that has become evident in regard to constitutional developments in many countries, which could be appropriately referred to as 'mad constitutional disease.'  This has been as deadly, in its impact on systems, institutions and individuals as the 'mad cow disease' has been in regard to the physical well being of human beings. In the past, the best known example of this former disease was the insanity indulged in by the dictator, Bokassa of the Central African Republic. But there are so many other examples around the world. Sri Lanka is also experiencing this disease in its various manifestations since the introduction of the 1978 Constitution.

A 'crazy' constitutional experiment: Montesquiean vs. Bokassan

The transformation achieved through the constitution promulgated in 1978 created a political system in which the executive (President) was the core. This was a complete change from the broadly Montesquiean approach of the previous constitutions, to a Bokassan model. This tremendous transformation has not been adequately examined and subjected to critical scrutiny in Sri Lanka as yet. Only the Constitutional Affairs Minister of the former regime, Dr. Colvin R de Silva, pointed this out immediately after Prime Minister Jayawardene transformed himself into the Executive President in the same style in which Jean-Bedel Bokassa1 crowned himself as emperor. Dr de Silva's comments were illuminating in this regard as when he wrote in an essay titled 'New-Style President' that;

"The example of Emperor Bokasso (Bokassa) of somewhere in Africa is now available. And Africa seems to be the source of the new-style President ideal."

The similarity between the two situations was not just in the manner of appointment but in the very substance of the model of governance that was introduced into the country. The separation of the branches of the government as executive, legislative and judicial remained only in name; the wielder of the real power was just one man, the Executive President.

However, there is yet another parallel development that has become evident in regard to constitutional developments in many countries, which could be appropriately referred to as 'mad constitutional disease.' This has been as deadly, in its impact on systems, institutions and individuals as the 'mad cow disease' has been in regard to the physical well being of human beings

Perpetrating False Analogies Regarding the French style of Governance

With an overwhelming majority that the President's party had in Parliament, there was hardly any opposition manifested against this transformation of the constitutional system. Even worse, many legal luminaries joined in the chorus that sung praises in response to the constitutional changes. There were also political scientists who energetically promoted this constitution, on the basis that there was now a constitution that combined the elements of the de Gaullean model with the Westminster Model.

These pundits envisaged the Executive President as someone wearing nice clothes and demonstrating the higher aspects of constitutionalism; thus the Bokassan face of the Executive Presidency was well disguised. Sri Lanka hereby entered into a primitive era of governance, and with this transformation began all the nightmares that were to bedevil the country in the decades to come. Tragically, the nightmare continues.

In this new system however, the absolute powers of the President depended on having a parliament with a two-thirds majority to rubber-stamp whatever the Executive President wanted. In 1977, this was still possible in terms of the numbers but as the years went by it was quite clear that the numbers game was going to change. The Executive President had to preoccupy himself in fighting and eliminating all those who could damage the position he had in parliament. This meant suppressing elements from within his party itself, which he did through many  unscrupulous methods, including obtaining undated resignation letters from party members in parliament. He also had to suppress the major opposition, which emanated from the next most established party, the Sri Lanka Freedom Party. These attacks have been well recorded and documented.

The need for violence

However, when opposition to the Executive presidency deepened with the years, its defensive strategies required the extensive use of violence. Thus emerged one of the most violent periods in Sri Lankan history. There was one difference as far as the Sri Lankan Executive President was concerned, when compared to Bokassa: Bokassa declared himself the lifetime ruler of the Central African Republic, which the Executive President in 1978, was not in a position to do. However, the ambition and scheme towards achieving this objective was clearly evident.

To achieve this end gradually, he had to keep the majority in parliament; therefore, for this purpose he deliberated a referendum in which the people were asked to give a further period of life to the parliament without an election, creating further confusion and resistance throughout the country. Such a move could only be achieved through widespread violence and for this purpose the ruling party itself was transformed into a physical fighting force which spread into the remote corners of the country. The natural consequence was that anyone else who had political ambitions had to organize themselves in a similar manner. The capacity for violence and counter violence became the mode of existence within the country.

Such violence was not accidental: when a political model that people have been accustomed to, is abruptly transformed into something completely different, its very survival depends on the possibility of maintaining a high state of confusion within which rational debate and a rational settling of disputes becomes impossible. Thus, the more the violence deepened, the more it helped the Executive Presidency to survive.

Corruption

Violence also helped the Executive President in another way. It helped to create a new layer of friends who would want the Bokassan style of governance to continue. These were the elements that preferred 'free play' for their corrupt practices. The Executive President broke all the laws that in the past, had controlled corruption. In fact, the presidency of that time treated a psychological mode in which the corrupt were rewarded and encouraged. It is reported that many letters of complaint were received against those in the regime who were corrupt. These complaints were sent directly to the persons against whom they were made, giving them the opportunity to take revenge against the complainants. Impunity for corruption was no longer hidden, rather, it was one of the fundamental facts of life which anyone who was wise had to learn and live with.

In fact, the presidency of that time created a psychological mode in which the corrupt were rewarded and encouraged. It is reported that many letters of complaint were received against those in the regime who were corrupt.  These complaints were sent directly to the persons against whom they were made, giving them the opportunity to take revenge against the complainants.

The underworld

From such corruption rose another phenomenon with a new impetus: the underworld. The growth of the underworld to the extent that it exists in Sri Lanka today originates from the political transformation that started to take place with the new style of governance introduced into the country. All areas of life came under the influence of the underworld. In fact, everyone who vied for any social position had to surround themselves with the patronage of the underworld. Of this, the politicians of the ruling party themselves were the prominent protagonists. Whether it were the politicians who were living under the patronage of the underworld or it was the underworld that was thriving under the patronage of the politicians is hard to tell. Perhaps the more accurate version is that they were mutually dependent upon each other.

Deadening effect on policing

All these developments had a deadening effect on Sri Lanka's policing system. This system was already in need of serious reform by 1977, as pointed out by several government commissions that had studied the matter. In fact, everyone was aware of the problematic situation regarding the policing system. However, instead of reform, what happened within the Bokassan model of governance was the complete collapse of this system. The policing system was coerced into directly supporting the political system. The Bokassan political scheme could not survive with any form of an independent police force. Corruption naturally spread faster into the policing system, which is, of course, a common phenomenon anywhere. The barometer of corruption in any society is its effect on the policing system. The elimination of corruption in any society also begins with ways of controlling it within the policing system.

Controls over abuse of power

Thus, within a few years of the actualization of the political model of the 1978 Constitution, all controls that had existed within the state to limit the abuse of power had collapsed. All social arrangements of the previous years had given way to the new system. The rhetoric of the old system such as the rule of law, independence of the judiciary and the need for checks and balances was merely confined to talk amongst some liberal elements, with no relevance to the new political reality. The resulting situation was beyond anyone¡¦s control, including the Executive President.

The rhetoric of the old system such as the rule of law, independence of the judiciary and the need for checks and balances was merely confined to talk amongst some liberal elements, with no relevance to the new political reality. The resulting situation was beyond anyone's control, including the Executive President.

Polarization

As pointed out above, the new style of ruling needed much violence to keep people's minds diverted from forming opposition to the political scheme. The Executive President did everything possible to manipulate all the existing political contradictions, using these contradictions as an excuse for the application of emergency and other powers to enhance his own position.

From the beginning of his rule, war had already been declared on the Tamils. Such an ethnic camouflage was quite useful to hide the development of a dictatorship. In fact, Tamil liberals themselves looked to the Executive President as their only possible savior, as they believed that a dictatorship would be more successful in resolving the ethnic conflict than a majority ruling parliament. By 1983 however, the government itself organized a riot against the Tamils in Colombo, drawing in support from
some sections of the military. Perhaps the political impressions created by this riot went beyond anything calculated by the Executive President and actually worked to undermine the president in power at the time. It also consolidated the institution of the Bokassan style Executive Presidency in a more solid manner. The war was to divide the north and the south and the north and the east. The logic of the war was that it would preoccupy the minds of the people. With such a war milieu, any political challenge to the new political scheme was no longer possible.

The third term

Despite all this efforts, the Executive President had to preoccupy himself with what he should do in order to continue in his position when his second term of office was over, following the 1982 Referendum. There were two major problems. The constitutional limit to the presidency was two terms and an extension would require a constitutional amendment, which of course was not impossible if the parliamentary majority he had could be used to rubber-stamp the amendment.

On the other hand, even if he were to continue for a third term he would need a further extension of the parliament without an election. Under the circumstances, he toyed with the idea of imitating Bokassa fully and returning to a monarchy. Many political events of the time and many political speeches made by the incumbent President reflected this intention. During the hearing of one case before the Supreme Court for example, the then Solicitor General argued that the incumbent Executive President was the continuation of the Sri Lankan monarchy.

These developments bear witness to the projected perception of a 'return to monarchy' that the head of state was obsessed with.

International outrage and scapegoats

However, by then there were many problems facing the regime. The 1983 riots had created international outrage against the regime and there were internal disputes within the party to which the Executive President belonged, revolving around the question of succession.

The unquestioned position of leadership that he had in 1977 was beginning to erode. In order to survive, he needed more violence in the country and some unusual circumstances that would help him to survive beyond his second term.

Since the July riots of 1983, there was violence enough in the north to declare an open war. As scapegoats for the riots, the Executive President named several left-wing political parties.

The media then reported a great plot masterminded by the members of those parties, naming several individuals. Many of them were arrested and some went underground. In this manner, the scheme for massive suppression in the south was laid out.

The beginning of this scheme was the declaration of this plot, which had no basis in any factual situation; in fact, it was the ruling party that masterminded and executed the riots with the connivance of the police and security forces. This purely imaginary problem was only part of an unrealistic political ambition, which saw the Executive President emerging from the chaos in the north and the south as a lifetime dictator.

Provoking Violence

Among the groups that were declared as instigators of the July 1983 riots, was the JVP. It had developed into a democratic party by then,  (consequent to the armed struggle that it precipitated in the early 1970's), to which no link to any violent scheme of overthrowing the government could be established. However, as it was forced underground and hunted in consequence, the party developed modes of brutal retaliation, as did the militant elements in the north. The escalation of violence led not only to the adoption of draconian laws but also to the authorization of any form of violence by the police and security forces. In fact, the police and security forces were transformed into militia fighting against forces threatening the state. The disappearances in the south, which we are speaking of here, were a product of this authorized violence.

The JVP's alleged acts of extremely brutal violence were very well utilised as propaganda to camouflage the extensive use of violence needed for its survival by the political system. However, the actual target was not only the JVP but all those who had the potential of opposing any schemes introduced by the Executive President.

A particular comment is revealing in this regard; one constitutional expert who completed his doctorate in the early eighties on constitutional law in Sri Lanka under the tutelage of a reputed western constitutional expert later told the author of this article that, "I do not study constitutional law anymore. But, I may someday write about constitutional history."

A false explanation

This was clear by the fact that if it was only the JVP who was to be suppressed, then there would have been no need for killings after arrest. In fact, those who were arrested and had connections with the JVP would have provided the best evidence against the leaders who plotted such schemes.  Such evidence would have proved a case against the perpetrators of such violence before any court of law. Moreover, such evidence could have created a databank of political information against them.

The liberties given to the police and the armed forces however, were not for this purpose. They were not for the purpose of creating better investigative facilities and methods in a time of crisis. Rather, the powers were for the purpose of encouraging the police and security forces to operate violently and commit acts that would, in normal circumstances be  construed as criminal offences. Such criminalization of the police and security forces created the type of disappearances that occurred at this time.

Target everyone

The force of violence, once let loose, cannot even be controlled by the initiators. The force develops its own course like wildfire and destroys the very fabric of society. The target of the violence gradually includes everyone. In many of the inquiries into the cases of disappearances, parents and relatives have complained of innumerable innocent people being killed, including young boys and girls.

According to the statistics provided by the inquiry commissions, about 15 per cent of the total number of disappeared were persons below the age of 19 years. Many parents have claimed that their children were killed due to false information given by a jealous neighbour. In fact, no one who lived through this period would challenge the notion that people used those moments of chaos to take personal vengeance against others.

The sheer madness of the situation consumed innocent lives. This is no surprise. The abnormal political situation created by the Bokassan scheme and normal life could not coexist. The scheme of the Executive President ensured that the whole nation would be thrown into chaotic violence. It is impossible to seek an explanation for such violence in any way other than in connection to the political transformation that was forced upon society at the time.

Holder of office irrelevant

With such widespread violence occurring all over the country, the particular holder of the position of the Executive President was fast becoming irrelevant. The Bokassan scheme had become so consolidated within Sri Lanka that it even consumed its ambitious creator. By the end, the first Executive President had become nothing more than a pathetic figure.

Hatred was rife amongst those closest to him and a number of those who wanted to be his successor lost their lives. No name has been more cursed by people of all beliefs and ideologies than that of the first Executive President. Despite this, the political scheme that he created had become so consolidated that his surviving countrymen have found no way to escape living under a Bokassan model of governance. This trend continues with his successors to the Presidency.

Conclusion; The Retarded Imagination

of Constitutional Experts Currently, the constitutional imagination of legal and political experts has virtually dried up in Sri Lanka. While everyone - including those who openly supported the 1978 Constitution - laments over its draconian effect, no truly imaginative attempts to escape from this political and constitutional scheme are manifested among our political and constitutional elite.

Since the early nineties, those individuals who respectively held the office of the Constitutional Affairs Minister could envisage an amendment of this scheme only in a manner politically expedient to the administration of the day with the inevitable result that the necessary political consensus could not be achieved. Thus, a hated system survives because the constitutional
imagination of the country and also of those outside experts who have from time to time attempted to come to "the rescue" of the country, have not been able to generate ideas that can shake the roots of the Bokassan system.

Experts are also unwilling to come to terms with the tremendous political and constitutional transformation that resulted as a consequence of the 1978 Constitution. This would imply the abandoning of most material written since the late seventies, not only regarding law and politics in the country, but also relating to most social sciences. A particular comment is revealing in this regard; one constitutional expert who completed his doctorate in the early eighties on constitutional law in Sri Lanka under the tutelage of a reputed western constitutional expert later told the author of this article that, "I do not study constitutional law anymore. But, I may someday write about constitutional history."

Basil Fernando is Executive Director, Asian Human Rights Commission, Hong Kong

Jean-Bedel Bokassa was President of the Central African Republic from 1966 to 1979. Having come to power after a coup, he became President and Prime Minister of the Republic and declared himself President-for Life in 1972. He abolished the Constitution of 1959 and issued a constitution of his own. He crowned himself as Emperor of what he called the Central African Empire in 1977.

He was overthrown by a coup in 1979 and lived in exile in France until 1987 when he made an attempt to return. He was arrested and charged with torture, murder and cannibalism. Convicted of murdering several political opponents, Bokassa was sentenced to death but the sentence was commuted to life imprisonment. Bokassa has come to symbolise a crazy political style, making constitutions for the maintenance of his own power.