[Since the decolonisation of Ceylon, the constitutional status of the legislature, executive and judiciary have undergone transformation due to proclamations of the two native constitutions in 1972 and 1978. These two constitutions were made in order to accommodate the demand of the people of the ethnic majority, as well as to adopt the political doctrine of the ruling parties of the time. They wanted the parliament with absolute lawmaking power and important constitutional status for Buddhism and Sinhala language. The Tamil nation, which had lost its sovereign entity and territory to colonial rulers, was unable to restore its due status when the island was decolonised. Their struggle for space in the public life, preservation and protection of their socio-ethnic identities has dominated the state of affairs of Sri Lanka. In the journey for achieving the goals of self-rule, autonomy and federalism, the Tamil people have walked through parliamentary and extra-parliamentary paths. However, they were only able to achieve a “Trial by battle”. This paper aims to explore the consequences of the constitutional experiments of the past and the challenges ahead in reaching constitutional settlements for resolving the internal conflict of Sri Lanka.]
Constitution is the fundamental legal framework of state. It creates the most important institutions of legislature, executive and judiciary while setting down procedures of governance. The socio-political forces of state lead the way forward for evolution and development of constitution in order to serve the need of the time of the country, for progress of the society and to adopt the aspirations of people of state. Since the de-colonisation of Ceylon on 4 February 1948, there were passive agitations for changing the constitution due to the fact it did not reflect the aspirations and need of the people in general and the parliament did not have sovereignty to enact law in particular. As far as the Tamil speaking people are concerned, they felt that the decolonisation only changed their masters and did not grant them independence or constitutional justice. When the British India was decolonised in 1947, two independent states namely India and Pakistan were created for the purpose of granting substantial autonomy, which was not possible under one umbrella. The both states inherited with substantial internal autonomy and regional decentralisation for accommodating socio –linguistic diversities. Although, it was pointed out in the House of Commons of the United Kingdom during the debate on the Bill for decolonising Ceylon in 1947, that the island of Ceylon was not a single political unit and it had two languages speaking regions and it was predicted that the unitary model constitution would fail democracy in Ceylon, the Ceylon Independence Act 1947 failed to decolonise the island by fulfilling the responsibilities of a colonial empire. The Tamil nation which had its own title to territory was unable to restore its lost sovereignty. The consequences of improper decolonisation are reflecting on the post colonial politics of the island. The most serious consequence of the internal conflict in which the Tamil people are victims, made the Chief Minister of the Northern Province Justice C.V. Wicknewaran in March 2015 to propose a Resolution on the crime of genocide committed against the Tamil people to draw the prompt response of the United Nations.
The decision of the Privy Council in the case of Bribery Commissioner of Ceylon vs Ranasinghe [2WLR, 1964] went on to analyse the law making powers of the Parliament of Ceylon and considered whether there were any actual limitations or restrictions could be over come by following a special procedure. The very fundamental issue of this case was whether the Bribery Commissioner( Amendment) Act 1958, which was passed by a simple majority of the House of Representatives had effectively altered the provisions of the constitution, which maintained the independence of the country’s judiciary. Lord Pearce found that the power given to the parliament of Ceylon was limited and to amend or repeal any provisions of the constitution should follow the prescribed requirement of the constitution, which should amount to not less than two thirds of the whole number of the Members of the House. It was identified that in the case of amendment or repeal of the constitution, the speaker’s certificate was necessary part of the legislative process and any bill which did not comply with the condition of precedent of the proviso and remains ,even though it receives the Royal assent , invalid and ultra vires. Further, Lord Pearce’s another finding in this case on the section 29 of the constitution which prevented discriminatory legislations affecting any socio-religious groups cannot be amendable as it was the fundamental constitutional settlement and conditions upon which were reached for granting independence. Generally the judgement of this case made the politicians of the majority community furious .Since then, the constitution in force generally referred as “Soulbury constitution” had become a subject matter of the any political platforms.
The major political parties have advocated for republican constitution with a parliament with full-fledged sovereign power while the Federal Party led by S.J.V. Chelvanayagam QC proposing a federal constitution in which the Northern and Eastern provinces would be a federal unit. The party has inherited with an electoral mandate of a federal system in order to accommodate the aspirations of the Tamil people of the provinces which they treat as their home land. Since 1956, the people of the Tamil homeland have adopted the federal system of government, self-rule and autonomy as their electoral norms by electing their majority of the MPS from the Federal Party. However, no any ruling party was able to fulfil constitutional requirement of 2/ 3 majority for amending or repealing the constitution until the end of the general election of 1970. In the election manifesto of the Mahajana Eksath Permuna [People United Front] led by SriLanka Freedom Party, it was stated as follows.
“We seek your mandate to permit the members of the parliament you elect to function as a simultaneously constituent assembly to draft and adopt a new constitution . The constitution will declare Ceylon to be a free, sovereign and independent republic pledge to realise objective of a socialist democracy “.
The front received landslide victory to comply with the 2/3 majority in the parliament and was in a legal position to repeal the existing constitution and to proclaim a new one in order to achieve the above mandate. Accordingly, after the election, Srimavo Bandranayakie then PM of Ceylon invited the MPS to participate the inauguration of the constitutional assembly to be empowered to draft and proclaim a new constitution to declare Ceylon as a republic and to rectify the grievances of the people caused by the constitution in force for 22 years. In the drafting stages of the new constitution, an amendment was proposed to the main primary draft submitted by Dr Colvin R De Silva the Minister for Constitutional Affairs by the Federal Party relying on its electoral norms formulated by the previous five general elections. In the amendment it has outlined three federal units for Sinhalese and one each for Tamils and Muslims and the to declare Ceylon as Federal Republic of SriLanka . As the result of the defeat of the amendment in the assembly, the leader of the party S.J.V Chelvanayagam QC made the following statement in the assembly prior to the party’s boycott of the proceedings.
“ —-. It sought to embody the language law of the country into the proposed constitution. At a time like this no one can deny the reasonableness of our demand that the language rights of the Tamil speaking people should be defined in the constitution. We moved several amendments regarding the nature of the constitution, citizenship rights and other fundamental rights. All these amendments have been rejected. In the circumstances we have come to the painful conclusion that as our language rights are not satisfactorily provided for in the proposed constitution ,no useful purpose will be served by our continuing in the deliberations of this assembly. By taking this step we mean no offence to anybody. We only want to safeguard the dignity of our people.”
Since then the representatives of the Federal Party have not participated in the proceedings of the assembly. They were even unable to seek legal remedy legal remedy under the constitution in force as the right to Privy Council was terminated during the drafting stage of the new constitution.
The Memorandum submitted by the All-Ceylon Moors Association:-
The All –Ceylon Moors’ Association’s memorandum has been very comprehensive and reflected the grievances of the Muslim community in Ceylon. While it favoured the unitary state, it proposed a number of amendments to the main draft of the government. It proposed a charter to guarantee a category of fundamental rights and constitutional safeguard of these rights. The memorandum also referred to the colonial grievances of the Muslim community and their lack of socio-economic development during the colonial time and proposed a provision for equality of opportunity. The Association heavily relied on a provision taken from the proceedings of the Indian Constituent Assembly as a model for protecting the rights of the Muslims in Ceylon. Although in the memorandum in a number of places it had relied on and admired the provisions of the constitution of India, it expressed the aspirations of Muslims for Ceylon as a unified country and unitary state. However, in the latter years political parties of Muslims have called for personal and regional autonomy for Muslims, in order to protect their identity.
The Proclamation of First Republican Constitution in 1972 and its important features.
The proclamation made on 22 May 1972 declared SriLanka (Ceylon) is a Free, Sovereign and Independent Republic.It created president as the head of the state ,a unicameral National State Assembly as legislature , the Cabinet of Ministers as executives and the courts and other institutions as judiciary while the National State Assembly was empowered to exercise directly the judicial powers of the people according to law. Section 6 of the constitution gave Buddhism foremost place and Section 7 endorsed the Official Language Act of No 33 of 1956 that made Sinhala only as the official language, to remain as the official language provision of the constitution while the Tamil Language (Special Provision) Act No 28 of 1958 was made clear not as a provision of the constitution and shall be deemed as secondary legislation.
The impact of the proclamation of the constitution of 1972, made the Federal Party and the Tamil Congress led by G.G.Ponnampalam QC to form the Tamil United Front which was lately named as Tamil United Liberation Front . The front adopted a Resolution on 14 May 1976 relying on the historical events of the past three hundred years of the colonial rule. It also traces the post colonial adverse consequences and serious and systematic violations rights of the Tamil speaking people and concludes the events and practices are amounting to denial of justice. It therefore resolves that the restoration of the lost sovereignty and reconstruction of the Free, Sovereign, Secular Socialist state of Tamil Eelam based on the right to self-determination inherent to every nation. Jeyawickrama lawyer and academic described that the Vaddukoddai Resolution was the inevitable consequences of the constitution of 1972.
[It has to be noted that how the territory of the Tamil nation was amalgamated with the Sinhala territory for the conveniences of the British empire particularly for introducing lazier faire economic policy in order to transform the feudal socio economic society into society of capitalist economy. Further British administration urgently needed channels for facilitating the imports of the British capital for the plantation sector and emerging trading ventures. Britain that lost number colonies in the North America wanted to make sure “that loss” would not repeat in any part of the empire. Therefore, it was not concerned of the inter-temporal law and responsibilities of Britain as a colonial power which was bound to customary and classic international law. In these circumstances it has consolidated the Tamil territory with the Sinhalese.]
The Second Republican Constitution 
The general election held in 1977, gave an opportunity to the incoming ruling party, the United National Party [UNP] which was the opposition during the tenure of the previous parliament. Its amendments to the draft of the 1972 constitution were defeated by the pro-socialist and left lean People’s United Front which was in power. The proposals for the amendments of the United National Party were mainly on the guarantee for fundamental rights through the higher court of the land and the rights of the citizens to own properties. These were alleged as “strengthening capitalism and exploitation and reactionary in nature”. The United National Party was displeased with regard to the political economical changes that were adopted on socialist –Marxist doctrines. In order to achieve the socio-political –economic goals the previous government it proclaimed the 1972 republican constitution as seen above giving weight to socialist concept such as people’s sovereignty and absolute supremacy of parliament while liberal constitutional principles of separation of powers, rule of law and guarantee for fundamental human rights were ignored .
The United National Party in its election manifesto of 1977 had called for mandate and approval for drafting and proclaiming a new constitution. After the formation of the government, the party as the first step in the moving of its constitutional programme brought an amendment, which was the second to the 1972 constitution for elevating the presidency as executive and similar to the de Gaulle model of government. Due to the consequence of the amendment, on 4 February 1978, J.R Jeyawardene , then Prime Minister became the first executive president of SriLanka. However, many other features of the constitution remained contrary to political doctrine of the United National Party which had the majority of 5/6 in uni-cameral legislature – the National State Assembly. The government therefore introduced a comprehensive draft constitution and proceeded to proclaim the new constitution which came into force on 24 October 1978.
The Tamil United Liberation Front, the opposition in the National State Assembly, did not participate in proceedings of the constitutional drafting and debates on this subject due to the fact that its political and constitutional demands would not be accommodated. Even the UNP led new government did not take any initiatives for negotiating with the representatives of the Tamil people. The experiences of the making of the both constitutions confirm beyond any doubts that the majority community is not prepared to accommodate the legal entitlements of the Tamil people under the UN regime.
Contemporary Constitutional crises of SriLanka. :-
The amendments made to the constitution particularly during the last decade modified the 1978 constitution in its nature and character .These changes removed the balance and checks on the executive power of the president and transformed the presidency as absolute sovereign power holder. As the result of centralising powers with president and combination of legal and political forces directed way for unprecedented political agreement between the opposition United National Party and a section of the members of the ruling SriLanka Freedom Party to oppose the constitutional amendments that made the presidency without any constitutional check and balance . The momentum further brought them under one umbrella for fielding a common candidate who was not known until the election date was announced. The presidential election held on 8 January 2015 had dominated the issues of constitutional amendment to transfer substantial executive powers to the prime minister who is accountable to parliament. In the past, whenever the constitutional amendment was presented to the parliament the ruling party was controlled by its rank and file. However ,since the presidential election in January 2015, though government was changed, it is without any control over its members as they are recruited from the historical rival parties. The SriLanka Freedom Party and the United National Party have contradictory views on the proposed electoral system on which the forthcoming general election to be held. It was reported that the number of MPs will be increased to total of 250 out of which 165 members will be elected on the basis of first pass post basis, 60 on the basis of proportional basis and another 25 of will be from the national list. Later it has been announced that there would be 260 MPs and they will be elected by combinations of the above mentioned three methods. However in respect of the proposal for transferring the executive powers of the president to the prime minister, there are no clear details available after the judgement of the apex court which acted on its jurisdiction on the question of constitution and legality of any draft bill. The Supreme Court has tendered its advice to the speaker and it was reported that few sections of the draft should be made only after the referendum for consent of the people while few sections can be amended by the parliament. The amendment in respect of power of the president has to be re- formulated and submitted to the Supreme Court for the purpose of clarity and its pronouncement that it is in accordance with the existing constitution. However, it has to be noted that the above two proposed constitutional amendments will have less impact in resolving the causes of the internal conflicts and reaching a final constitutional settlements to grant justice to the Tamil speaking people.
Good governance and constitutional Justice:-
It is the first time in SriLanka , the concept of good governance is called upon to play a functional role due to the fact there is no democratic governance and corruption and nepotism are the dominating the public life of the country. Further, Sirisena’s think tank and the team of international advisers on his election manifesto and strategy were in the opinion that the term of good governance could be used elastically to garner support of the ethnic communities and people of the war torn regions. In fact, the term good governance is multi dimensional. It includes rule of law, constitutionalism, and separation of powers and protection of individual and collective rights of peoples. In the international arena and in the UN fora, good governance is referred to force state parties to fulfil their obligations under various formulations of rights. The last decade of the island was contaminated with atrocities and serious and systematic violation as well as massive scale of corruption in the public life of the country. The political front of Sirisena, inevitably compelled to restore the country from international investigation as mandated by the Human Rights Council. Therefore, the use of the concept of good governance was very convenient for winning the last election and it gives the image of the newly elected president.
It is unfortunate that, though the momentum has once again emerged to eliminate the constitutional grievances of the people of the majority community, the leaders of the Tamil speaking people are scared and shy to formulate constitutional amendment within the context of good governance. Decentralising the public administration, by devolving powers to the regional and territorial communities to govern their day to day matters and empowering local communities to develop their culture and economy, are amounting to good governance. The time has come for the leaders of the Tamil speaking people to go forward progressively to achieve justice and constitutional settlement, in accordance with the regimes of the UN which recognise the peoples as one of its subject. It is appropriate to refer to few lines of the judgement of the Canadian Supreme Court in the Quebec Sovereignty referral case below.
A state whose government represents the whole of the people or people’s within its territory , on a basis of equality and without discrimination and respect the principles of self-determination in its internal arrangements , is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognised by other states .
Since 1997, the Labour Government of the United Kingdom carried out series of devolution programmes by enacting Scotland Act 1998, Government of Wales Act 1998 and Northern Ireland Act 1998, for the purposes of accommodating the aspirations of the peoples of the regions of the United Kingdom. Toney Blair, then prime minister stated in the House of Commons that devolution programmes of his government could be treated as “British approach to global problems”. Further, it was stated in the white paper on Scotland’s parliament as follows.
“The Union will be strengthened by recognising the Scotland, Wales, and the regions with strong identities of their own. The Government’s devolution proposals by meeting those aspirations will not only safeguard but also enhance the Union.” SriLanka, the chair of the British Commonwealth therefore has no any choice, other than learning lessons from the recent political developments of Britain and other democratic countries, for enforcing good governance through constitutional rule and deliver constitutional justice.
Dr. Sandrasegaram Paramalingam’s research interests are comparative constitutional law, international law, human rights law and conflict resolution. He has recently completed his PhD and is currently examining the subject of “The Role of the United Nations in Restoration of Sovereignty: A Focus on Issues of Internal Conflicts and Constitutions” at University of Oxford.