The Philosophy and Legitimacy of Sri Lanka's Republican Constitution

by Dr. Nihal Jayawickrama, FederalIdea, March 1, 2008

I am deeply honoured to have been invited to participate in this workshop which is part of the programme organized by the Ministry of Constitutional Affairs to celebrate the centenary of the birth of Dr Colvin R de Silva, and to pay tribute to a generous and warm-hearted human being; a unique and dominant personality of our time.

I was a young schoolboy, living and growing-up in the home of his close friend and colleague and my uncle, Mr. T. S. Fernando QC, when I first came to know him and first heard that unmistakable stentorian voice. I worked as a junior in his chambers after I joined the legal profession, and later shared the services of his illustrious clerk, Mr. Perera.

I recall the first occasion I accompanied him to the Supreme Court when, after the judge had allowed the appeal, he stood up to say that his entire argument had been based on the work done by his learned junior. He was not merely the greatest criminal lawyer of his time; I was his junior when he appeared before a bench of five judges and successfully argued a partition appeal against an array of the best civil lawyers in the country without once referring to the conflicting judgments that had led to the reference to a full court, or to any judgments at all, but solely on the basis of first principles. He was my referee when I made the usual application to join the Attorney-General's Department, and he proposed the toast when my wife and I were married.

Of greater relevance to the subject of today's discussion, I was proud to have been a part of his team that was able to steer successfully through a minefield of legal and constitutional obstacles and nightmares to enable this country to make that unique unilateral declaration of independence. The problem was neither the Queen nor the British Government who were only too happy to facilitate the proposed legal revolution. The great legal debates of the 1960s between Professor C.F. Amerasinghe and Mr. H.L. de Silva on whether or not the Parliament of Ceylon could repeal the 1946 Constitution had lost their relevance. The Privy Council had been replaced by our own Court of Final Appeal, and Parliament had already abolished one of its constituent units, the Senate. The real problem was our own judiciary, Mr. C. Suntheralingam, and the impending trial of the JVP leadership on the charge of having waged war against the Queen.

Dr. Colvin R de Silva would not consider the perfectly practical option of terminating Ceylon's link with the British Crown through the exercise of the open-ended legislative power conferred on Parliament by an Order-in-Council issued from Buckingham Palace, and was about to commence waging war against the Queen himself. It was a time when the executive did not communicate with the judiciary on such matters, and therefore we had no way of knowing how the latter would respond.

It is to him, and to him alone, that the credit for that bold, idealistic, even romantic and eventually successful exercise in autochthony must go. It must surely have been the vindication of that consistently principled stand that he and all his colleagues in the Marxist movement have always taken in the political life of this country. Dr Colvin R de Silva was a politician who looked beyond the art of the possible and dreamed of the impossible, and in achieving that dream transformed himself into a statesman.

I have been out of Sri Lanka, intermittently, since Parliament, on the report of the infamous Special Presidential Commission of Inquiry, imposed civic disabilities on me and stripped me of my civic rights some 27 or 28 years ago. While some may regard that as a disqualification to comment on events in Sri Lanka, I believe that the perspective of one who has lived and worked in countries both in this region and outside it and observed how rapidly and steadily much of the world outside has developed and advanced while his own country either remained stagnant or perceptibly deteriorated, would probably be useful.

Whether a country can develop or not is influenced, if not determined, by the prevailing system of governance in that country. For example, despite its horrendous heritage of apartheid, South Africa has emerged as the foremost state of that continent due to the enlightened framework of governance that Nelson Mandela established for that country. The economic strength and the spirit of tolerance and respect for human rights that marked the early years of the new republic of Zimbabwe are non-existent today following the structural changes that President Mugabe has foisted on that unfortunate country in the twilight years of his political career.

The resilience of British institutions, despite the absence of a written constitution, has ensured a political culture in that country that is able to respond positively to contemporary phenomena such as multi-ethnicity. On the Indian sub-continent, we have been witnessing year after year what irreparable damage military intervention has done to the governance of two countries, while the third which preserved intact its democratic institutions and its respect for the rule of law has achieved near super-power status. In that traditionally apolitical colonial territory of Hong Kong, I was able to observe, and sometimes even contribute towards, the development of laws and institutions that have helped to preserve its unique economic, political and legal status despite being integrated into an enormous state with diametrically opposing values and beliefs.

To understand why the first republican constitution survived for only six years, and why the second has proved to be an intolerable burden which the people of this country have had to bear for nearly thirty years, I think one must begin by sparing a moment to reflect on that which preceded them - the 1946 Constitution of Ceylon. Incidentally, it is interesting to recall that the draftsmen of our three constitutions were born within the space of one year between 1906 and 1907; were contemporaries in the same school, Royal College; and were members of the same profession - two having been called to the English Bar at the same time and the third having qualified through the Ceylon Law College. I refer not to Sir Ivor Jennings but to Mr. Bernard Percival Peiris who, contrary to popular belief and despite what we were all taught in school and university, was the actual draftsman of the Independence Constitution; and to Dr Colvin R De Silva and Mr. J R Jayewardene who oversaw the drafting of the 1972 and 1978 Republican Constitutions and ensured that these reflected accurately and precisely their respective ideologies, philosophies and imperatives.

The 1946 Constitution had no ideological basis. It professed no economic or social objectives. It was only concerned with establishing the essential framework for democratic governance by creating the principal institutions and defining their powers. That was traditional constitution-making. Under that Constitution, it was possible for both right-wing and left-of-centre political parties to be elected to office, and for them to implement their respective programmes unhindered. It was possible for both free market and regulated economies to be practised. The parliamentary executive system of government it provided was flexible enough to withstand the tremors caused by the attempted military coup d'etat in 1962, and strong enough to survive the whiplash of the 1971 insurgency.

In seven successive general elections held under that Constitution, the electorate demonstrated a growing political maturity when it voted in increasing numbers to change governments on five occasions, and the politicians demonstrated their ability to accept the popular will when they effected peaceful transfers of power on each of those occasions. The provisions of that Constitution were successfully invoked to challenge the language legislation of the 1950s, as well as the attempts made in the next decade by parliament, perhaps unwittingly, to encroach on the powers vested by the Constitution in the judiciary.

The Liyanage Case, the Ranasinghe Case, the Kodeeswaran Case and the Aseerwatham Case raised the stature of the judiciary to its high-water mark. The parliament was the acknowledged forum for great debates on policy. The civil service possessed both the integrity and the capacity to help formulate, and then to implement, policy, whatever the complexion of the government in office. Despite the tradition of street agitation introduced by the Marxist parties, and the belief insidiously inculcated among several thousand young idealistic men and women by the JVP that political power could be wrested from the establishment by the simple technique of attacking all the police stations in the country on a single night, the dominant political culture of the times was based on a widespread acceptance of the rule of law.

Of course, the 1946 Constitution had its shortcomings, and one that was identified very early was the lack of an enforceable Bill of Rights. Prime Minister S.W.R.D Bandaranaike attempted to remedy that omission through a select committee which was representative of every major ethnic, caste, and religious group, and in which his ruling party was in a minority. But the public consultative process he set in motion was aborted when his party began to fragment and he was laid low by an assassin's bullet. If some of the institutional safeguards for minorities proved ineffective, it was because successive governments willed it to be so. The Senate, for example, was transformed into a haven for unsuccessful politicians, and the higher judiciary glossed over sensitive issues such as citizenship and language.

I would submit that the 1946 Constitution reflected the popular will to a far greater extent than either of the other two that followed. B.P. Peiris states in his recently published memoirs that his instructions came in the form of three documents: (1) The Ministers' Draft which contained a constitutional scheme that had been approved in the State Council by an affirmative vote of 51 to 3, with both Tamil and Muslim members voting in favour; (2) The Soulbury Commission report formulated after extensive consultations over a period of three and a half months at sittings held throughout the country, during which evidence was recorded at public sessions and information gathered in private discussions; and (3) The British Government's Declaration on Constitutional Reform.

In contrast, the elected representatives of the Tamil community neither participated in the preparation, nor voted for the adoption, of the two republican constitutions. Having been associated in the processes that led to the preparation and the adoption of those two constitutions, I can state quite unequivocally that despite the sometimes highly publicised public consultation exercise that preceded both, the actual public contribution towards their content or substance was minimal, if anything at all. It could not have been otherwise because, as the Minister of Constitutional Affairs himself asserted, the Basic Resolutions upon which the 1972 Constitution was drafted were “completely in accord with the United Front and Government policy”, and the party whip was applied to secure the passage of government business in the constituent assembly. In 1978, notwithstanding extensive proceedings in the parliamentary select committee on the revision of the constitution, at which I too participated on behalf of the Sri Lanka Freedom Party, the report of that committee had attached to it a draft constitution which was said to be in accord with “the Basic Principles accepted by the 1975 Party Sessions” of the United National Party.

If one compares the 1972 Constitution with that of 1946, what one finds is that the basic structure of government remained intact. In fact, I recall that the early work of the drafting committee (in which I participated for some time) concerned the conversion into written law of the applicable and relevant British constitutional conventions. If one leaves aside the emotive words, terms and phrases such as sovereignty, unitary, and principles of state policy, and the references to Buddhism and the Sinhala language, all of which had little or no meaning, but were capable of raising aspirations and arousing primeval prejudices, and some of which, as I now recall, did not appear to interest Dr Colvin R de Silva very much, the significant changes made in 1972 were the following:

1. The second chamber, which was intended to serve the minorities as an instrument for impeding precipitate legislation, as well as a forum for handling inflammatory issues in a cooler atmosphere, was omitted;

2. The independent Public Service Commission, which was intended to guarantee strict impartiality in all matters affecting public service appointments, was omitted;

3. The Judicial Service Commission, which was intended to guarantee the independence and integrity of the judiciary, was omitted;

4. Nominated members in the legislature, who were intended to represent unrepresented interests, were omitted;

5. The judicial review of legislation was expressly prohibited; and

6. The prohibition on discriminatory legislation, contained in section 29, which the Privy Council had described as representing “the solemn balance of rights between the citizens of Ceylon: the fundamental conditions on which inter se they accepted the Constitution, and are therefore unalterable under the Constitution” was omitted.

The 1972 Constitution introduced five significant innovations:

1. The unicameral legislature - now called the National State Assembly was described as the “supreme instrument of state power”. This was a phrase then commonly used (but not any longer) in the constitutions of the communist states of Eastern Europe.

2. Public servants and judges - now called “state officers” - were brought under the control of the Cabinet of Ministers in respect of their appointment, transfer, disciplinary control and dismissal, and no court could call in question any decision of the Cabinet in that regard.

3. The Permanent Secretaries to the Ministries - “ now called “Secretaries” - were made subject to the “direction and control” of their respective ministers in the performance of their constitutional duties, whereas previously they had been subject only to the “general direction and control” of the relevant minister, meaning thereby general policy directions.

4. The constitutional Head of State - now called “President” - would no longer assent to or decline to assent to Bills passed by the legislature. That function would be performed by the Speaker.

5. Specific reference was made to the situations and circumstances in which the Prime Minister shall be deemed to have resigned her office.

In effect, therefore, what the 1972 Constitution did was to strengthen the legislature by removing any judicial review of its acts; invest the Cabinet with additional power while reducing the discretionary powers of the Prime Minister; increase the powers of the Ministers with respect to administrative matters, and especially over the permanent secretaries who were appointed by the President on the recommendation of the Prime Minister, sometimes with no prior consultation with the minister concerned, and who were being increasingly perceived by some ministers as being the channel through which the Prime Minister exercised influence, if not control, over some of the ministries. But the most far reaching of the consequences was that all the safeguards for the minorities incorporated in the constitutional settlement of 1946, on the basis of which the Tamil and other minorities had agreed to subject themselves to majority rule in independent Ceylon, were removed.

The 1978 Constitution, in effect, re-enacted the 1972 Constitution with a few more emotive words, such as that Sri Lanka is not only “free, sovereign and independent”, but also “democratic and socialist”. To the non-enforceable “Principles of State Policy”was added a new, also non-enforceable, statement of “Fundamental\ Duties” of the citizen. With uncanny foresight, the 1978 Constitution chose to omit in its expanded statement of fundamental rights the right to life of a citizen of this country. The two significant changes which were made in 1978 were:

1. Proportional representation became the basis of election to the unicameral legislature - “ now called the Parliament - and the composition of Parliament was frozen as on the date of election by the device of expelling a member who was no longer a member of the party through which he or she was elected, and by replacing that member with another belonging to the same party.

2. The offices of Head of State and Head of Government were combined in one individual who would be elected by the people to hold office for six years. Because of the scissors and paste nature of the exercise in respect of many of the provisions of that Constitution, the President continued to be “responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law”. It is inexplicable why this overriding power of Parliament was not invoked in the single instance extending over two years when the President had lost political control over Parliament.

Both these changes were designed to achieve the opposite effect from that of 1972, namely to strengthen the executive to the detriment of the legislature and the judiciary. The true extent of the strength of the executive presidency was demonstrated during the Jayewardene administration when it was possible to extend the life of the frozen majority from six to twelve years without recourse to a general election.

It was the Buddha who articulated the essential impermanence of things animate and inanimate. The same person cannot step into the same river twice, he said. Everything is in a constant state of flux. And so it is with the constitution of the country, even though it is the supreme and fundamental law of the state. Despite his Marxist background, Dr Colvin R de Silva recognized this fundamental truth. Addressing a seminar on the International Covenant on Civil and Political Rights that I had the privilege of organizing under the auspices of the United Nations Association of Ceylon in 1968, this is what he said:

Constitutions are made in terms of the stage of development at which any given society or country has arrived. In terms of that stage of development it looks upon things, and for any generation of people to imagine that it can so completely project itself into the infinity of the future so as to be able to decide in its own generation that it will constrain a future generation or generations for ever within the confines of its own postulates is to make the mistake of thinking that any human collectivity is the equivalent of the divinity. It is not.

In his wisdom, he provided quite explicitly that the constitution over the creation of which he presided would remain in force only for as long as the elected representatives of the people so desired. It could be amended or replaced in the traditional manner, i.e. by the affirmative votes of two-thirds of the members of the National State Assembly. He could have, if he considered the constituent assembly to be the equivalent of the divinity, have insisted that its provisions may be amended only by another constituent assembly. But he did not.

Mr. J. R. Jayewardene, however, thought otherwise. In the Constitution enacted by two-thirds of the members of the National State Assembly in 1978, it was provided that some of its provisions, such as the musical notes to be played when the national anthem is being sung; the shades of colours of the national flag; the designated national day (being not the date on which Sri Lanka asserted its independence of the British Crown, but the day on which the so-called gift of dominion status was accepted from the Duke of Gloucester); the democratic-socialist description of the country; the references to unitary state and to Buddhism, and the highly debatable definition of sovereignty, may be amended only by a two-thirds majority in Parliament followed by approval by the people at a referendum. In other words, these provisions could not be amended by Parliament alone.

This purported limitation on the powers of Parliament has been tamely accepted by successive governments, sometimes, I suspect, because it has been convenient or politically expedient to do so. But I would like to pose this question: How could the legislature have invested a law it made with a two-thirds majority with such superior status that it could not be changed by the legislature with a similar majority but would require in addition a majority obtained at a referendum? How could the National State Assembly have granted a law it made a greater authority that what it itself possessed? If it could have done so, then why is it not possible today for Parliament to make a law with a simple majority of one, and state that that law may only be amended or repealed with a two-thirds majority? Is that even conceivable? No trained legal draftsman would ever prepare a Bill on those lines. I would submit therefore that the requirement of approval at a referendum for certain constitutional amendments is nothing more than a mere embellishment, devoid of any legal status.

If I may sum up, I do not think there was any philosophy underlying either of the republican constitutions. They merely reflected the policies of the political parties under whose auspices they were drafted; or perhaps more accurately, the imperatives of the two leaders whose personalities dominated the drafting processes. Dr Colvin R de Silva and the Lanka Sama Samaj Party probably saw in the overwhelming majority which the United Front received in the 1970 general election the opportunity to introduce and implement his and its long held political beliefs, and wished to do so without obstruction from any quarter, whether it be the public service, the judiciary, or the more moderate-minded prime minister. The tragedy was that in doing so, the constituent assembly failed to hear or recognize the voice of the North, expressed so clearly at the same general election.

The Vadukkodai Resolution was the inevitable consequence of 1972. Mr. J. R. Jayewardene had for long held the view that a strong secure executive was essential for the economic development of the country. But the manner in which that objective was achieved in 1978, and the bizarre priorities he set for himself in the wake of his extraordinary victory in the general election of the previous year, created an almost unbridgeable gap not only between political parties but also between ethnic groups, and the country was torn asunder, and the people brutalized. Both constitutions have brought authoritarianism, inefficiency, corruption and divisiveness into the governance of this country. That surely is not what the people of this country, in whose name they were proclaimed, desired for themselves or for their children.

In conclusion, I would like to repeat what I said over ten years ago when I delivered the Felix R Dias Bandaranaike Memorial Lecture:

Constitution making becomes a meaningless exercise if it does not respond to the evolving aspirations of the people of this country. The voice of the minority communities in the north and east has been loud and clear in its support for genuine autonomy. They ask for space; space which they are entitled to as of right in this multicultural state of which they are an integral part; space in which to preserve their unique identities because identity is the central issue of being; space in which to keep alive their languages and their history, their legends and their stories. The identity of a community is inviolable. It is not enough to be who we are; we must also be seen and heard and respected for who we are. When that basic right is denied, by force or otherwise, peoples will struggle and fight to regain it. The space that a minority community seeks is not negotiable, and therefore ought not to be conditional upon, or indeed to await, a referendum or national consensus or even a cease-fire. The initiative rests with the government, and no all-party conferences or peace talks are required to do that which international law and commonsense demand.