The Sri Lankan Constitution

by M. Nadarajan

The Constitution of a country is a set of fundamental principles according to which a country is to be governed. The Supreme power of governance rests with the people, who through their representatives,draft the Constitution, which is subsequently approved by the parliament or other governing body. In the US, for example, the Founding Fathers drafted the first Constitution. Since every situation cannot be foreseen, amendments are periodically approved by the people's representatives.

The first Constitution of Ceylon was drafted by the colonial power at the time of independence, Britain. Representations were made to the Soulbury Commissioners by various interests from amongst the people. One group which made representation were the minorities who requested safeguards to be provided to them, including more representation, to protect their interests from domination by the majority community.

The Constitution drafted by the Commissioners contained the following safeguards for minorities:

(1). A second chamber called the Senate.
(2 . An appeal against the decisions of the local courts to the British Privy Council.
(3). Section 29, which prevented discrimination on the basis of a person's ethnicity, language or religion.

There was also an agreement under which the British government had certain powers over the ports and airports of Ceylon.

Obviously, Constitutions are not cast in stone, and can be amended or changed by the holders of supreme power, the people. Entire Constitutions have been changed many times, as in the case of France and Thailand, sometimes by the will of the people, and other times by the armed forces following coups. In Ceylon, a country with a Sinhalese population of 74%, and where rampant communalism has existed, Sinhalese have been able do whatever they wanted, under the rule of one-man, one-vote.

When the1948 Constitution was in force, repeated violations of Sec.29 took place; several acts of Parliament contrary to Sec. 29 were passed; communal attacks on Tamils by Sinhalese took place in 1956, 1957,1961, assisted at times by the security forces; an army of occupation was in Tamil areas during  the two years of 1961 and 1962; the armed forces carried out shelling, strafing, and bombing indiscriminately, carrying out a scorched earth policy; Tamil Parliamentarians were jailed for six months; search and destroy missions were carried out; torture rape and killings took place with impunity, with few investigations carried out; and at times the perpetrators being rewarded with promotions and even when fines were imposed on them by the courts, these were paid by the government.

In 1957 and 1965, the Tamil leader Chelvanayagam signed pacts with the then current Sinhalese leader of each of the two major parties. If one party signed the pact, the other carried out demonstrations against it, and both pacts were unilaterally torn up by the Sinhalese party which had signed it.

In1972, the Sinhalese party in power wanted to change the Constitution and converted the Parliament into a Constituent Assembly. Tamil leaders proposed some amendments, which were not accepted and they withdrew from further participation in the Constitution-making process. The Tamils, therefore, did not accept the 1972 Constitution as a valid constitution applicable to them.

In the new Constitution, the following changes were made:

(1) Changed the name of the Country to Sri Lanka
(2) Abolished the Senate
(3) Deleted Sec. 29, which had given some protection to minorities
(4) Abolished appeals to the Privy Council
(5) Gave prominence to the Buddhist religion, giving it a predominant place, making it virtually the State religion and
(6) Abrogated the defense agreement with Britain.

In the run up to the 1977 general elections, J.R.Jayawardena, after having listed the problems faced by the Tamils and promising to redress them, led his party to win elections to 7/8th of the Parliamentary seats.

Jayawardene, thereafter, introduced a new Constitution, calling the country "The Democratic Socialist Republic of Sri Lanka." Again the Tamil representatives after having been denied proposals brought by them, did not participate in the act of Constitution-making.

An all-powerful Executive President elected by the people was introduced in this new, 1978 Constition. Jayawaredena, on having been elected President, said that he had powers to do anything except to change a man to a woman.

Other changes made were to introduce a proportional system of elections, replacing the first-past-the-post system.

The Tamils again did not accept the new Constitution as a valid Constitution applicable to them.

Thus far, seventeen (17) amendments have been passed to this 1978 Constitution, which is still in force.

As pointed out earlier in this article, Constitutions can be amended, as has been done to the current one at least 17 times. Constitutions can also be replaced in their totality, as Ceylon has now done twice since Independence. 

If someone, either inside or outside government does not want to do something, they usually make the excuse that the Constitution does not permit it, that it is 'unconstitutional.' Often they even go to court for a verdict emphasizing their point. Since the judiciary system in Sri Lanka has been called one of the most corrupt in the world, and is also subject to political influence because judges are appointed by the president with little review process, decisions even by the Supreme Court are hardly impartial..

If the party in power wants to do or not to do something, it should not use
the Constitution as an excuse.

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