Prelude to independence

Prelude to independence

by Aryadasa Ratnasinghe

(February 4, Colombo, Sri Lanka Guardian) In October 1941, his Majesty’s government in England issued a declaration recognising the urgency and importance of constitutional reforms to change the political pattern of Sri Lanka and suggesting that the position would be examined after the Second World War (1939-1945). Sir Andrew Caldecott who was the Governor of Sri Lanka, during the greater part of the War, came to the island to solve the political deadlock caused by the decision of the State Council to put an end to the Donoughmore Constitution in force then.

The Donoughmore Constitution came into operation in 1931, having being presented to the British parliament in 1928. Hardly had the first State Council started to function, when a demand was made by the Sinhala ministers for a radical change. Discussions between the Governor Sir Graeme Thomson and the Board of Ministers led to a formal statement by the governor that in his opinion it was premature to make any fundamental changes to the Constitution. Lord Donoughmore alias Dr. Drummond Shiels was a great authority on constitutional law which the Ministers knew well.

The Donoughmore Constitution gave Sri Lanka internal self-government with an elected State Council and was largely characterised by attempts to introduce amendments later to the Constitution to further the advance towards full self-government in order to free the country from foreign domination. On the other hand, the minorities, led by the late Mr. G. G. Ponnambalam insisted on ‘balanced representation’ in the legislature which he called the famous, fifty-fifty’ demand. This was the foundation for the present crisis based on the State of Eelam.

The ‘fifty-fifty’ demand was that 50% of the number of seats in the legislature should be composed of the Sinhala community, they being the majority of the island’s total population, and the balance 50% by the minority groups. After serious consideration of the issue involved, the governor sent his suggestions to Mr. Ormsby-Gore, Secretary of State for the Colonies.

The Governor Caldecott rejected the ‘fifty-fifty’ demand. Instead of ‘divide-and-rule’ policy, he was in favour of placing greater collective responsibility among the ministers whether they be Tamils, Burghers Muslims or any other community. In the meantime, the governor received instructions from the Secretary of State “to examine the political situation of Sri Lanka very carefully”, after having acquainted himself with the views of all nationalities on bona fide grounds and without exception or favour.

By the declaration of 1943, it was made known that His Majesty’s government’s post-war examination of the reform would be directed towards the grant to Sri Lanka, by Orders-in-Council, of full responsible government under the British Crown in all matters of internal civil administration, subject to certain conditions and modifications. By this declaration, it was definitely contemplated that a commission would be appointed to investigate the draft proposals of the ministers.

The Board of Ministers, therefore made a statement in 1943, through the Leader of the State Council, the late D. S. Senanayake, setting out with clarity how they understood the offer, and stating that they were proceeding to frame a constitution in accordance with their interpretations. As a result of a motion moved in the State Council by the then Member for Panadura, Mr. Susantha de Fonseka, in November 1944, a Bill, ‘An Ordinance to provide a new Constitution for Ceylon” (Sri Lanka), known as the Free Lanka Bill was introduced in the State Council on January 19 1945. The second reading was moved on February 6, 1945, and after a very lengthy debate was passed without a division on February 16, 1945.

The Bill was then referred to a Committee of the whole House, and brought up for third reading, with amendments, on March 22, 1945, when Mr G. A. H. Wille (Nominated Member) moved that “The Bill be read the third time six months’ hence.” This amendment was defeated and the Bill was passed by a majority of 33.

On July 17, 1945, a message from the governor was read in the State Council intimating that the Secretary of State for the Colonies felt unable to advise the King to assent to the Bill entitled ‘An Ordinance to provide a new Constitution for Ceylon (Sri Lanka)”. A motion of protest in the following terms was moved: “This Council protests against the rejection by his Majesty’s government of the Ceylon (Sri Lanka) Constitution bill as such rejection is a denial of the rights of the people of Lanka to freedom and to determine their own Constitution”.

The motion was seconded by G. E. de Silva (Minister of Health). W. Dahanayaka (Member of Bibile) moved an amendment to add, at the end of the motion, the words “and requests the dissolution of the present Council to enable the issue to be raised at a General Election”. The amendment was defeated, and the motion was passed the same day by a majority of 24.

With the departure of Sir Andrew Caldecott, the vacancy was filled by Sir Henry Monck Mason Moore, at a time when the goal of self-government was within sight. During the War in 1944, the strategic importance of the island, the co-operation extended by the people of the island and their leaders to the British Authorities, in the War against the Japanese in the East, were adequate to win the confidence of the British government.

Oliver Stanley, the Secretary of State, briefed the Governor Sir Henry Moore on the intentions of the Colonial Office in regard to constitutional reforms and informed his decision to appoint a new Commission under the Chairmanship of Lord Soulbury. The Commissioners arrived in Sri Lanka in December 1944. Besides Lord Soulbury, others who came with him were Sir Frederick Rees, Principal of the University of South Wales and Sir Frederick Burrows who was later the Governor of Bengal.

Soulbury Commission report was published in 1945, and the Colonial Office offered the new Constitution “as a foundation upon which may be built a future Dominion of Ceylon”. A White Paper embodying the decisions of the Commission was published a month later, i.e., on October 31, 1945. D. S. Senanayake was invited to England by the Secretary of State for the Colonies to discuss the matter further in detail.

D. S. Senanayake, Minister of Agriculture and Lands and Leader of the State Council, on his return from England having discussed the reforms, moved in the State Council that “This House expresses its disappointment that His Majesty’s government has deferred the admission of Ceylon to full dominion status, but in view of the assurance contained in the White Paper of October 31, 1945, that His Majesty’s government will cooperate with the people of Ceylon so that such status may be attained by this country in a comparatively short time, this House resolves that the Constitution offered in the said White Paper be accepted during the interim period.”.

This motion, which was formally seconded by S. W. R. D. Bandaranaike, Minister of Local Administration, was passed, after a two-day debate, by a majority of 48. Mr Bandaranaike speaking in the course of the debate said “I am sure that in dealing with a subject of this importance, the House expects all of us to be entirely frank, to be entirely sincere…”

The final draft of the new Constitution was prepared by the legal advisers to the Secretary of State, of whom Sir Kenneth Roberts-Wray was the chief. They were assisted by two officials from Sri Lanka, i.e., the Legal Secretary Sir Barclay Nihill, and the Financial Secretary, Sir Oliver Goonetilleke. The new Constitution was approved by the King of England on May 15, 1946.

Meanwhile, elections took place and D. S. Senanayake, as Leader of the largest party in the House of Representatives was called upon to form a government. The agreements were signed in Colombo on November 11, 1947, by the Governor Sir Henry Monck-Mason Moore on behalf of the United Kingdom and Mr Senanayake on behalf of Sri Lanka. The Independence Bill was passed by the British Parliament before the year ended.

The British Parliament presented to Sri Lanka House of Representatives a Speaker’s Chair and Mace. At 07.30 a.m., on February 4, 1948, Sir Henry Monck-Mason Moore, whose office as Governor had ceased to exist at midnight, took his oaths as Governor-General. Sir Charles Jeffries, the Deputy Under Secretary of State, who participated in the arrangements for the transfer of power, said: “It had been Mr Senanayake’s wish and recommendation that Sir Henry should be the first holder of the new office”.

On February 10, 1948, the Duke of Gloucester, as representative of his brother, King George Vl, formally opened Parliament conveying the following message from the king: “I know that my people in Ceylon are ready to make a full and rich contribution to the association, of free peoples, and I am confident that you will carry your responsibilities ably to this end. My good wishes go out to you on this great day, and I pray that Ceylon may enjoy peace and prosperity in full measure. May God bless you all and guide your country through the years that lie ahead”.

D. S. Senanayake making his address said “Today we shall celebrate a momentous event in the history of Sri Lanka. It will mark the birth of our freedom. In the long history of our island, the attainment of political freedom is, perhaps, only second in importance to the message of spiritual freedom which Lord Buddha delivered 2500 years ago.”

“After several centuries of domination, we have regained our birthright which our little island enjoyed from time immemorial. Freedom can only survive and advance the cause of human happiness among a people prepared to receive it and in a peaceful world. But in the world of today, despite its war weariness, the seeds of discord threaten it with destruction. It behoves all nations, big and small, to strive ceaselessly to propagate the gospel of peace and to inculcate harmony not only within their territories but also among themselves.

“The rebirth of freedom in Sri Lanka, while making the end of one struggle, is but the beginning of another and a greater struggle. For we must transform this newly won freedom into an instrument of happiness for the people of prosperity for our country, and of advancement of peace in the world.

“Whatever disagreements we may have had with the British in the past, we are grateful for their goodwill and co-operation which has culminated in own freedom, and I hope and trust that the seeds of voluntary renunciation which they have sown will grow into a stately tree of mutual and perpetual friendship.

“May this era of freedom be one of great prosperity to Lanka and happiness to her people.”

http://www.island.lk/2004/02/04/featur03.html



Constitutional Reform: Wijeyadasa’s Errors

By Nihal Jayawickrama –

Dr Nihal Jayawickrama

The lengthy article by Dr Wijeyadasa Rajapakshe PC on constitutional reform published in the newspapers recently appears to contain several errors of fact and of law. I have no wish to argue with the former Minister of Justice on his views on the legality of the current constitutional reform process in which he participated until his removal from office. However, any debate should proceed upon the basis of accurate information and correct statements of the law.

1. Dr.WR: “We gained Dominion Status which did not amount to full independence with Soulbury Constitution and Ceylon Independence Ordinance in 1947/48.”

The Ceylon (Constitution) Order in Council 1946 granted full self-government to Ceylon based upon a draft constitution that had been approved in the State Council by 51 votes to 3, including the affirmative votes of members belonging to the Tamil, Muslim and Burgher communities. That Constitution provided for a Governor and established a House of Representatives and a Senate. The Ceylon Independence Act 1947, enacted by the Parliament of the United Kingdom and the Ceylon (Independence) Order in Council 1947, both of which came into force on 4 February 1948, granted “Dominion Status” to Ceylon.  From that day, Ceylon was “fully independent”, except that the Queen was the Head of State and was represented in Ceylon by the Governor-General who was appointed in consultation with and thereafter acted on the advice of, the Prime Minister of Ceylon.

This is a misinterpretation of the law. Section 29 of the 1946 Constitution stated explicitly that “Parliament may amend or repeal any of the provisions of this Order”. The exceptions were that “(a) no law could prohibit or restrict the free exercise of any religion; (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions were not made liable; (c) confer on persons of any community or religion any privilege or advantage which was not conferred on persons of other communities or religions; or (d) alter the constitution of any religious body except with the consent of the governing authority of that body”.  That restriction on legislative power was the compact between the majority and the minority communities, and the basis upon which Independence was granted to Ceylon. It was the condition precedent to Independence.  Subject to that restriction, Parliament had the power to repeal and replace every other provision of the Constitution. The power to “amend or repeal” necessarily includes the power to replace.  In fact, in 1970, the Judicial Committee of the Privy Council was replaced by our own Court of Final Appeal, and in 1971 Parliament abolished one of its constituent units, the Senate, and chose not to replace it with another second chamber.

3. Dr.WR: “Dr Colvin R de Silva, with his wisdom realizing the legal barriers of the Soulbury Constitution to replace it, advised to form the said Constituent Assembly outside the Parliament.” . . . “Since the Soulbury Constitution had not provided the authority and a procedure to adopt a new constitution by repealing the existing one, the government elected in 1970 had no option but to establish a Constituent Assembly operating outside Parliament”.

This is not a correct statement of fact. The Common Programme drawn up by the SLFP, LSSP and CP in early 1968, in anticipation of forming a government at the next general election, stated quite explicitly that “A Constituent Assembly will be established, and a new Constitution will be introduced. This Constitution will declare Ceylon to be a free, sovereign and independent Republic”.  There was no legal impediment to Parliament enacting the necessary legislation to declare Ceylon to be a Republic, a course which several other Commonwealth countries had already followed. Nor was there any legal impediment to Parliament establishing a Constituent Assembly as India had done. However, Dr Colvin R de Silva refused to consider the perfectly practical option of terminating Ceylon’s link with the British Crown through the powers conferred on Parliament by the British Crown.  He argued that freedom should be asserted by free people through a body constituted outside the legal order established by the British Crown. This was a principled stand by one of the twentieth century’s greatest lawyers who had consistently refused to apply for “silk” since he had no wish to be one of “Her Majesty’s Counsel Learned in the Law”.  That exercise in autochthony – in establishing a new legal order that sprang from our own native soil – was a bold, idealistic, exciting, even romantic, experience not only for those of us who steered it through possible legal pitfalls, but also for a great many constitutional lawyers and academics worldwide for whom this legal revolution was a rare precedent.

4. Dr.WR: “The draft of the constitution made by the constitutional assembly was presented to the Parliament and it passed with a majority of 2/3 on 22nd May 1972 by replacing the Soulbury Constitution.”

5. Dr.WR: “When Mrs Sirimavo Bandaranaike and Mr J.R. Jayewardene wanted to enact new constitutions in 1970 and 1977 respectively, they did not seek advice of any overseas experts or spend public funds in millions on expert advice. If the members of the legislature are not competent or have the capacity to make the laws necessitated for the country, what is the use of maintaining such a Parliament?”.

None of our constitutions was “drafted” by members of the legislature. The drafting history of the 1946 Constitution is too well known to require recounting here. The 1972 Constitution was drafted by a 12-member Drafting Committee consisting of lawyers, academics and political scientists (in which I had the privilege to serve), and thereafter channelled through a Ministerial Sub-Committee and a Steering and Subjects Committee to the Constituent Assembly. The Assembly then divided itself into eleven committees, with each committee examining a chapter in detail and receiving oral public representations, after which the Drafting Committee prepared the final draft for submission to the Assembly. The 1978 Constitution was also drafted by “experts” (believed at the time to have included Gamini Dissanayake and Mark Fernando). It was tabled at the final meeting of a Select Committee of the National State Assembly that had been appointed to consider the revision of the 1972 Constitution. The Committee had held several meetings, some of which I attended as an advisor to the Opposition Members on it, Mrs Bandaranaike and Maithripala Senanayake. It had heard oral representations, and then considered draft revisions, including a new chapter on fundamental rights that I prepared for submission by the SLFP. Much to our astonishment, it became apparent that what the government had in mind was not the revision of the existing constitution through the Select Committee, but its repeal and replacement by a wholly new constitution prepared outside the Select Committee.

It is not a reflection on our own abilities to seek the wisdom of others in fulfilling our responsibilities. When we drafted the Administration of Justice Bills of 1974 and 1975, we benefitted greatly from the reports and recommendations of the Law Reform Commissions of Canada, United Kingdom and Australia. When I was drafting the Bill to abolish the right of appeal to the Judicial Committee of the Privy Council, I sought the experience of countries that had already done so, and found their contributions to be extremely valuable.

6. Dr WR: “In 1940 people of Korea never aspired or dream to divide Korea. But the United Nations was instrumental in dividing it into South Korea and North Korea”… “UN was instrumental in dividing Kosovo from Serbia, and also dividing Sudan in 2011”

This is a serious misreading of contemporary world history, apparently intended to denigrate the United Nations and its perceived “interference” in Sri Lanka’s “domestic affairs”. At the end of the Second World War, upon the surrender of Japan, the Korean peninsula was divided into two zones, with the north being occupied by the Soviet Union and the south by the United States. The United Nations had not even been formed at the time. Kosovo, which since the Ottoman Empire had been a part of Serbia, declared its independence from Serbia in 2008. Although recognized by 111 states so far, Kosovo is not yet a member state of the United Nations. The Republic of South Sudan was formed following a referendum in which 83% of the population voted to secede from Sudan.  The UN was not instrumental in “dividing” Sudan, as claimed by Dr Rajapakshe.

8. Dr WR: “Whose need is to have a new constitution devolving powers enabling the conversion of this country to a federal state with the right of self-determination for Tamils in North and East and also by removing the foremost place and protection given to Buddhism? . . . The question that has arisen is whether a new constitution should be promulgated just to satisfy 2.5 million votes of the minority communities, ignoring 9.4 million votes of the Sinhalese. . . Laws must be enacted with the majority opinion; not with the minority opinion.”

It is sad when a person who is educated, both in law and in ecclesiastical matters, expresses such lack of respect for communities other than his own. It is socially obnoxious, politically reckless, and economically ignorant to cheapen the presence of any community in one’s country. As a distinguished jurist has observed, “it is only the weak-minded people incapable of comprehending the origins of the modern state, its philosophy, its instruments, and its edicts, that resort to such approaches in managing the expression of disagreement”. The strength and beauty of Sri Lanka lie, not in its rivers and its mountains, but in its people: multi-ethnic, multi-religious and multi-linguistic.  That is what creates the mosaic of one nation.

I am compelled to repeat what I stated 21 years ago, in the Felix R. Dias Bandaranaike Memorial Lecture, since the sentiments I expressed then are, unfortunately, as relevant today as they were then:

“Constitution-making becomes a meaningless exercise if it does not respond to the evolving aspirations of the people of the country. The voice of the minority communities in the North and East have 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 to do that which the law and common-sense demand.”

Therefore, it seems to me that, whatever agreement may be reached on governance at the periphery, it is vital and fundamental that there should be power-sharing at the centre.  That cannot be achieved by the inclusion of Colombo-based unelected Tamils in the Cabinet, such as C. Kumarasuriar and Lakshman Kadirgamar, who represented none but themselves. Power sharing at the centre is a requirement that should be incorporated into the Constitution. Whichever political party forms the government, it should be mandatory for the different ethnic groups to be represented in the Cabinet, at least in proportion to the number of such members elected to Parliament. Thereby, the minority communities will be constitutionally guaranteed not of token but of genuine representation, both in the legislature and in the government. Policy formation will then be by consensus of the different ethnic groups, which is how it should be if multiculturalism is accepted, recognized, and celebrated; not brushed under the carpet as a canker on the body politic.

Constitutional Reform: Wijeyadasa’s Errors

My experience has been that constitution-making in Sri Lanka is a political exercise indulged in by politicians to secure their political objectives.. Any public consultation is designed only to legitimize the process. In 1970, during the constitution-making process, I was informed by the Minister of Constitutional Affairs that several of my proposals had been rejected by the “top committee”. When I asked the Prime Minister why the “top committee keeps rejecting every suggestion without any explanation, her reply was that if there was such a committee, she was certainly not a member of it! In fact, the Prime Minister wrote to the Minister expressing her view that certain provisions of the 1946 Constitution be retained. That request was ignored.

By 1970 I was convinced that s.29 will not protect minority ethnic or linguistic communities. The Citizenship Act and the Indian and Pakistan Residents (Citizenship) Act clearly discriminated against the Indian Tamil community, but both the Supreme Court and the Privy Council held that they did not. When District Judge Kretser applied s.29 to the Official Language Act, Chief Justice H.N.G. Fernando found a way to circumvent the issue, dismiss that case of a technicality, and thereby deny Kodeeswaran the benefit of s.29. It seemed to me then that a comprehensive and enforceable Bill of Rights was preferable to s.29. Unfortunately, that was inconceivable in the context of a legislature that was to be “the supreme instrument of state power”.

The debate today should move from the unit of devolution (which is secondary) to power-sharing at the centre (which is fundamental). The constitution should make it mandatory for the different ethnic groups in Parliament to be proportionately represented in the cabinet, whichever party forms the government.


Impact of constitutional developments on nation – making

by D. L. Ubeywarna

Ever since we become independent from British rule, it has become customary to commemorate Independence one way or the other, with or without much celebrations. Under the Ceylon Independence Act, 1947, all authority of the United Kingdom Parliament to legislate for Ceylon (now Sri Lanka) ceased from 4 February 1948, from which date Ceylon was an ‘autonomous’ ‘nation’ in the Commonwealth.


Anagarika Dharmapala – for national revival

As recorded by John D ‘Oyly in his diary, the last King Sri Wikrama Rajasinghe was captured by some people of Dumbara in association with armed men sent by Ehelepola (who had a resentment against the king) and handed over to the British who deported him (the king). Governor Robert Brownrigg’s troops marched on Kandy on February 12, 1815.

Annexation of the Kandyan Provinces to the British Empire took place with the signing of the Kandyan Convention on March 2, 1815, by the Governor on the one part and the chiefs on the other.

(Article 5 of the Convention declared that Buddhism was inviolable and its rites, places or worship etc were to be maintained and protected).

The chiefs were disappointed and disillusioned with the way the British either disregarded or abrogated some provisions of the Convention and their privilege curtailed.

The rebellion which broke out in Vellassa in 1817 spread (its ‘tentacles’) over the Kandyan territory in 1818. The rebellion collapsed and the heroic leader Keppetipola was executed.

Proclamation

Proclamation of 1818 delegated the general executive and judicial authority to the Board of Commissioners thereby enormously reducing the powers of the chiefs in the Kandyan Province.

The Constitution of 1833 followed by the recommendations of the Colebrooke Commission created Executive and Legislative Councils.

The first Executive Council was composed of the Governor who was chairman and five “official members”, while the Legislative Council consisted nine official members and six unofficial members who were nominated by the Governor.

Although the two Councils were purely advisory bodies to the Governor, the 1833 Colebrooke (Cameron) Constitution was an important landmark which contained the seeds of representativeness and responsibility which were to germinate in the future.

During the intervening period from 1833 up to the rebellion of 1848 which was crushed by Governor Torrington, strange as it may seem today, the people who agitated for constitutional reforms were mainly the European and Burghers.

Leaders of the 1848 rebellion, Gongala Goda Banda and Puran Appu were convicted of treason. Ven. Kudapola Thera was shot on a charge of failing or refusing to divulge information relevant to arrest of a rebel etc.

Reform of 1889

In 1889, a reform was made in the Legislative Council by increasing the number of unofficial members to eight by the addition of two members to represent the Kandyan Sinhalese and the Muslims.


Keppetipola – national hero

In the latter part of the 19th century and towards the dawn of the 20th century, the agitation carried on by highly respected patriotic national leaders like Anagarika Dharmapala for a national, cultural and religious revival and rejuvenation had a tremendous positive impact on the movement seeking constitutional reform.

Further, indigenous, patriotic, intelligent national leaders in association with native reformists returned after university education abroad spearheaded the agitational campaign for constitutional reforms.

Constitution of 1910 reconstituted the Legislative Council to consist 11 official and 10 unofficial members. Of the 10 unofficial members, 4 were to be elected.

Constitution of 1920 (Manning Constitution), for the first time, increased the Unofficial Membership of the Legislative Council to 23 while the Official Membership was increased slightly from 11 to 14.

Constitution of 1923 (1924) constituted a new Legislative Council consisting of 12 official members and 37 unofficial members of whom 3 were nominated by the Governor and the rest (34) were elected.

Donoughmore Constitution 1931 is a very significant landmark in the constitutional history, introduced many far-reaching changes beneficial to establishing democracy. Universal Adult suffrage was recommended by the Commission under the Chairmanship of Lord Donoughmore.

Several members of the Commission being Fabian socialists, they believed that a wider franchise was needed for social progress and economic development. In the report of the Commission issued on June 2,6, 1928 they suggested replacement of the hitherto existing Legislative Council by a representative State Council and the abolition of the Executive Council.

Donoughmore constitution

The Donoughmore Constitution which emerged in 1931 made provision for the State Council to have fifty members elected on universal adult (suffrage) franchise, eight nominated members appointed by the Governor and three Officers of State.

The constitution stipulated that the State Council at its first meeting should elect by secret ballot seven Executive Committees to be charged with seven groups of subjects (such as Education) and each committee to elect its chairman (designated as Minister) by secret ballot.

Thus every member of the State Council except the Speaker and the three Officers of State was a member of an Executive Committee.

The Donoughmore Constitution, like all consti,tutions hitherto discussed, had been the subject of criticism. Nevertheless, it was flexible enough to have continued without a rupture or breakdown during the time of war as well as of peace.

With the outbreak of war in September 1939, the State Council passed a resolution assuring support to the British Government. (This resolution too may have influenced the ‘British mind’ in the matter of considering grant of Independence).

Further, the ‘Freedom Resolution’ adopted at the December 1942 Kelaniya sessions of the National Congress changing this earlier stand of attainment of Dominion Status to “Independence” too may have had an impact on later development.

A Declaration was made by His Majesty’s Government on 26 May 1943 stating that the post-war re-examination of the Reform of the Ceylon Constitution would be directed towards granting full responsible Government relating to internal civil administration and invited the Board of Ministers to submit their proposals for a New Constitution.

Soulbury commission

Henceforth, the Soulbury Commission was appointed and it travelled throughout the island from the latter part of December 1944 to April 1945. Public response was against the Commission’s recommendation to retain extensive power by His Majesty’s Government especially in regard to defence and External Affairs.

A White Paper was issued on 31 October 1945 embodying the general line of Commission’s recommendations with some modifications.

An Order in Council was issued on May 15, 1946, embodying the new constitution. The general election to the First Parliament was held in 1947. The agreement entered into between the Government and the Governor on November 1,1, 1947 was approved by the House of Representatives and the Senate.

With the Royal assent of the Ceylon Independent Act on December 10, 1947, and the five documents contained in the Sessional Paper XXII of 1947 taking effect on February 04, 1948, Ceylon became an independent country within the Commonwealth.

http://archives.dailynews.lk/2004/02/14/fea01.html


By Nihal Jayawickrama –


Dr Nihal Jayawickrama

The lengthy article by Dr Wijeyadasa Rajapakshe PC on constitutional reform published in the newspapers recently appears to contain several errors of fact and of law. I have no wish to argue with the former Minister of Justice on his views on the legality of the current constitutional reform process in which he participated until his removal from office. However, any debate should proceed upon the basis of accurate information and correct statements of the law.

1. Dr.WR: “We gained Dominion Status which did not amount to full independence with Soulbury Constitution and Ceylon Independence Ordinance in 1947/48.”

The Ceylon (Constitution) Order in Council 1946 granted full self-government to Ceylon based upon a draft constitution that had been approved in the State Council by 51 votes to 3, including the affirmative votes of members belonging to the Tamil, Muslim and Burgher communities. That Constitution provided for a Governor and established a House of Representatives and a Senate. The Ceylon Independence Act 1947, enacted by the Parliament of the United Kingdom and the Ceylon (Independence) Order in Council 1947, both of which came into force on 4 February 1948, granted “Dominion Status” to Ceylon.  From that day, Ceylon was “fully independent”, except that the Queen was the Head of State and was represented in Ceylon by the Governor-General who was appointed in consultation with and thereafter acted on the advice of, the Prime Minister of Ceylon.

This is a misinterpretation of the law. Section 29 of the 1946 Constitution stated explicitly that “Parliament may amend or repeal any of the provisions of this Order”. The exceptions were that “(a) no law could prohibit or restrict the free exercise of any religion; (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions were not made liable; (c) confer on persons of any community or religion any privilege or advantage which was not conferred on persons of other communities or religions; or (d) alter the constitution of any religious body except with the consent of the governing authority of that body”.  That restriction on legislative power was the compact between the majority and the minority communities, and the basis upon which Independence was granted to Ceylon. It was the condition precedent to Independence.  Subject to that restriction, Parliament had the power to repeal and replace every other provision of the Constitution. The power to “amend or repeal” necessarily includes the power to replace.  In fact, in 1970, the Judicial Committee of the Privy Council was replaced by our own Court of Final Appeal, and in 1971 Parliament abolished one of its constituent units, the Senate, and chose not to replace it with another second chamber.

3. Dr.WR: “Dr Colvin R de Silva, with his wisdom realizing the legal barriers of the Soulbury Constitution to replace it, advised to form the said Constituent Assembly outside the Parliament.” . . . “Since the Soulbury Constitution had not provided the authority and a procedure to adopt a new constitution by repealing the existing one, the government elected in 1970 had no option but to establish a Constituent Assembly operating outside Parliament”.

This is not a correct statement of fact. The Common Programme drawn up by the SLFP, LSSP and CP in early 1968, in anticipation of forming a government at the next general election, stated quite explicitly that “A Constituent Assembly will be established, and a new Constitution will be introduced. This Constitution will declare Ceylon to be a free, sovereign and independent Republic”.  There was no legal impediment to Parliament enacting the necessary legislation to declare Ceylon to be a Republic, a course which several other Commonwealth countries had already followed. Nor was there any legal impediment to Parliament establishing a Constituent Assembly as India had done. However, Dr Colvin R de Silva refused to consider the perfectly practical option of terminating Ceylon’s link with the British Crown through the powers conferred on Parliament by the British Crown.  He argued that freedom should be asserted by free people through a body constituted outside the legal order established by the British Crown. This was a principled stand by one of the twentieth century’s greatest lawyers who had consistently refused to apply for “silk” since he had no wish to be one of “Her Majesty’s Counsel Learned in the Law”.  That exercise in autochthony – in establishing a new legal order that sprang from our own native soil – was a bold, idealistic, exciting, even romantic, experience not only for those of us who steered it through possible legal pitfalls, but also for a great many constitutional lawyers and academics worldwide for whom this legal revolution was a rare precedent.

4. Dr.WR: “The draft of the constitution made by the constitutional assembly was presented to the Parliament and it passed with a majority of 2/3 on 22nd May 1972 by replacing the Soulbury Constitution.”

5. Dr.WR: “When Mrs Sirimavo Bandaranaike and Mr J.R. Jayewardene wanted to enact new constitutions in 1970 and 1977 respectively, they did not seek the advice of any overseas experts or spend public funds in millions on expert advice. If the members of the legislature are not competent or have the capacity to make the laws necessitated for the country, what is the use of maintaining such a Parliament?”.

None of our constitutions was “drafted” by members of the legislature. The drafting history of the 1946 Constitution is too well known to require recounting here. The 1972 Constitution was drafted by a 12-member Drafting Committee consisting of lawyers, academics and political scientists (in which I had the privilege to serve), and thereafter channelled through a Ministerial Sub-Committee and a Steering and Subjects Committee to the Constituent Assembly. The Assembly then divided itself into eleven committees, with each committee examining a chapter in detail and receiving oral public representations, after which the Drafting Committee prepared the final draft for submission to the Assembly. The 1978 Constitution was also drafted by “experts” (believed at the time to have included Gamini Dissanayake and Mark Fernando). It was tabled at the final meeting of a Select Committee of the National State Assembly that had been appointed to consider the revision of the 1972 Constitution. The Committee had held several meetings, some of which I attended as an advisor to the Opposition Members on it, Mrs Bandaranaike and Maithripala Senanayake. It had heard oral representations, and then considered draft revisions, including a new chapter on fundamental rights that I prepared for submission by the SLFP. Much to our astonishment, it became apparent that what the government had in mind was not the revision of the existing constitution through the Select Committee, but its repeal and replacement by a wholly new constitution prepared outside the Select Committee.

It is not a reflection on our own abilities to seek the wisdom of others in fulfilling our responsibilities. When we drafted the Administration of Justice Bills of 1974 and 1975, we benefitted greatly from the reports and recommendations of the Law Reform Commissions of Canada, United Kingdom and Australia. When I was drafting the Bill to abolish the right of appeal to the Judicial Committee of the Privy Council, I sought the experience of countries that had already done so, and found their contributions to be extremely valuable.

6. Dr WR: “In 1940 people of Korea never aspired or dream to divide Korea. But the United Nations was instrumental in dividing it into South Korea and North Korea”.. . “UN was instrumental in dividing Kosovo from Serbia, and also dividing Sudan in 2011”

This is a serious misreading of contemporary world history, apparently intended to denigrate the United Nations and its perceived “interference” in Sri Lanka’s “domestic affairs”. At the end of the Second World War, upon the surrender of Japan, the Korean peninsula was divided into two zones, with the north being occupied by the Soviet Union and the south by the United States. The United Nations had not even been formed at the time. Kosovo, which since the Ottoman Empire had been a part of Serbia, declared its independence from Serbia in 2008. Although recognized by 111 states so far, Kosovo is not yet a member state of the United Nations. The Republic of South Sudan was formed following a referendum in which 83% of the population voted to secede from Sudan.  The UN was not instrumental in “dividing” Sudan, as claimed by Dr Rajapakshe.

8. Dr WR: “Whose need is to have a new constitution devolving powers enabling the conversion of this country to a federal state with the right of self-determination for Tamils in North and East and also by removing the foremost place and protection given to Buddhism? . . . The question that has arisen is whether a new constitution should be promulgated just to satisfy 2.5 million votes of the minority communities, ignoring 9.4 million votes of the Sinhalese. . . Laws must be enacted with the majority opinion; not with the minority opinion.”

It is sad when a person who is educated, both in law and in ecclesiastical matters, expresses such lack of respect for communities other than his own. It is socially obnoxious, politically reckless, and economically ignorant to cheapen the presence of any community in one’s country. As a distinguished jurist has observed, “it is only the weak-minded people incapable of comprehending the origins of the modern state, its philosophy, its instruments, and its edicts, that resort to such approaches in managing the expression of disagreement”. The strength and beauty of Sri Lanka lies, not in its rivers and its mountains, but in its people: multi-ethnic, multi-religious and multi-linguistic.  That is what creates the mosaic of one nation.

I am compelled to repeat what I stated 21 years ago, in the Felix R. Dias Bandaranaike Memorial Lecture, since the sentiments I expressed then are, unfortunately, as relevant today as they were then:

“Constitution-making becomes a meaningless exercise if it does not respond to the evolving aspirations of the people of the country. The voice of the minority communities in the North and East have 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 to do that which the law and common-sense demand.”

Therefore, it seems to me that, whatever agreement may be reached on governance at the periphery, it is vital and fundamental that there should be power-sharing at the centre.  That cannot be achieved by the inclusion of Colombo-based unelected Tamils in the Cabinet, such as C. Kumarasuriar and Lakshman Kadirgamar, who represented none but themselves. Power sharing at the centre is a requirement that should be incorporated into the Constitution. Whichever political party forms the government, it should be mandatory for the different ethnic groups to be represented in the Cabinet, at least in proportion to the number of such members elected to Parliament. Thereby, the minority communities will be constitutionally guaranteed not of token but of genuine representation, both in the legislature and in the government. Policy formation will then be by consensus of the different ethnic groups, which is how it should be if multiculturalism is accepted, recognized, and celebrated; not brushed under the carpet as a canker on the body politic.

Constitutional Reform: Wijeyadasa’s Errors

My experience has been that constitution-making in Sri Lanka is a political exercise indulged in by politicians to secure their political objectives.. Any public consultation is designed only to legitimize the process. In 1970, during the constitution-making process, I was informed by the Minister of Constitutional Affairs that several of my proposals had been rejected by the “top committee”. When I asked the Prime Minister why the “top committee keeps rejecting every suggestion without any explanation, her reply was that if there was such a committee, she was certainly not a member of it! In fact, the Prime Minister wrote to the Minister expressing her view that certain provisions of the 1946 Constitution be retained. That request was ignored.

By 1970 I was convinced that s.29 will not protect minority ethnic or linguistic communities. The Citizenship Act and the Indian and Pakistan Residents (Citizenship) Act clearly discriminated against the Indian Tamil community, but both the Supreme Court and the Privy Council held that they did not. When District Judge Kretser applied s.29 to the Official Language Act, Chief Justice H.N.G. Fernando found a way to circumvent the issue, dismiss that case of a technicality, and thereby deny Kodeeswaran the benefit of s.29. It seemed to me then that a comprehensive and enforceable Bill of Rights was preferable to s.29. Unfortunately, that was inconceivable in the context of a legislature that was to be “the supreme instrument of state power”.

The debate today should move from the unit of devolution (which is secondary) to power-sharing at the centre (which is fundamental). The constitution should make it mandatory for the different ethnic groups in Parliament to be proportionately represented in the cabinet, whichever party forms the government.


Constitutional Reform: Wijeyadasa’s Errors

My experience has been that constitution-making in Sri Lanka is a political exercise indulged in by politicians to secure their political objectives.. Any public consultation is designed only to legitimize the process. In 1970, during the constitution-making process, I was informed by the Minister of Constitutional Affairs that several of my proposals had been rejected by the “top committee”. When I asked the Prime Minister why the “top committee keeps rejecting every suggestion without any explanation, her reply was that if there was such a committee, she was certainly not a member of it! In fact, the Prime Minister wrote to the Minister expressing her view that certain provisions of the 1946 Constitution be retained. That request was ignored.

By 1970 I was convinced that s.29 will not protect minority ethnic or linguistic communities. The Citizenship Act and the Indian and Pakistan Residents (Citizenship) Act clearly discriminated against the Indian Tamil community, but both the Supreme Court and the Privy Council held that they did not. When District Judge Kretser applied s.29 to the Official Language Act, Chief Justice H.N.G. Fernando found a way to circumvent the issue, dismiss that case of a technicality, and thereby deny Kodeeswaran the benefit of s.29. It seemed to me then that a comprehensive and enforceable Bill of Rights was preferable to s.29. Unfortunately, that was inconceivable in the context of a legislature that was to be “the supreme instrument of state power”.

The debate today should move from the unit of devolution (which is secondary) to power-sharing at the centre (which is fundamental). The constitution should make it mandatory for the different ethnic groups in Parliament to be proportionately represented in the cabinet, whichever party forms the government.


 

About editor 1465 Articles
Writer and Journalist living in Canada since 1987. Tamil activist

Be the first to comment

Leave a Reply