Uncertain sovereignty: Ceylon as a Dominion 1948–1972 

Rehan Abeyratne

International Journal of Constitutional Law, Volume 17, Issue 4, October 2019, Pages 1258–1282, https://doi.org/10.1093/icon/moz079

21 January 2020

Abstract

This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon’s Dominion period (1948–1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less attention from legal scholars. This article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges’ undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

Issue Section:

 Symposium: New Dominium Constitutionalism

1. Introduction

There was no fight for . . . freedom which involved a fight for principles, policies and programmes . . . No. It just came overnight. We just woke up one day and we were told, “You are a dominion now.”

—S. W. R. D. Bandaranaike, Ceylon Prime Minister (1956–1959)¹

On February 4, 1948, Sri Lanka (then Ceylon)² achieved “fully responsible status within the British Commonwealth of Nations.”³ This phrasing was deliberate. On one hand, there were concerns that “Dominion status” would be mistrusted in Ceylon, as it connoted being subordinate to Britain.⁴ On the other hand, merely conferring “fully responsible status” would also “probably be both misunderstood and misrepresented as something less than Dominion Status.”⁵ The latter phrase was selected, but doubts over the precise meaning of “fully responsible status” and whether it truly connoted self-rule persisted after 1948.⁶

Uncertainty over Ceylon’s sovereignty was a hallmark of the Dominion period (1948–1972). In part, this derived from the fluid conception of Dominion status, which appeared in slightly different avatars across Commonwealth nations over time. While initially a means to maintain British control, Dominion status eventually came to be a mechanism for effecting self-rule.⁷ Dominion status was also an undertheorized concept, serving as a “halfway-house between colonial and independent status.”⁸ Thus, it was flexible in application, covering the gamut from loyal “settler” Dominions of Australia, New Zealand, and Canada, to the more rebellious Ireland, and the “Tropical Dominions” of South Asia.⁹ The drawback was that such a nebulous and protean concept did not assure former colonial subjects that Dominion status actually conferred sovereignty.

This skepticism was strong in Ceylon. Unlike India and Pakistan, which experienced protracted and violent struggles for independence, and then appointed constituent assemblies to draft indigenous constitutions, Ceylon remained loyal to the British government in the 1940s. It achieved Dominion status through constitutional reforms negotiated by anglicized—and largely Anglophile—political leaders. This elite-driven process aimed to engender goodwill from the British government that would lead to greater concessions, culminating in the Ceylon Independence Act, 1947, which entrenched Dominion status.

The principal instrument for constitutional governance in the Dominion period was the Ceylon (Constitution) Order in Council of 1946, which, perhaps tellingly, is known as the “Soulbury Constitution.”¹⁰ It emerged from the recommendations of a commission on constitutional reform, led by Lord Soulbury, who became Ceylon’s first governor-general. The Soulbury Commission’s recommendations were largely based on a Ministers’ Draft Constitution, whose drafter and principal theorist was the British constitutional scholar Sir Ivor Jennings.

Thus, the drafting process lacked any broad-based deliberative process involving the various political and ethnic groups in Ceylon. The Soulbury Constitution essentially imported Westminster to Ceylon. And, as with Britain’s unwritten Constitution, constitutionalism in Ceylon’s Dominion period was to be flexible and governed by convention. The nature and precise scope of “fully responsible status” were, therefore, not subject to scrutiny in the drafting stage and not defined within the Soulbury Constitution.

As a result, doubts about Ceylon’s sovereignty persisted after independence in 1948. The locus of uncertainty was section 29 of the Soulbury Constitution, which prohibited Parliament from enacting discriminatory legislation and set forth constitutional amendment rules. The Ceylon Parliament did not enjoy supremacy in the Westminster sense. And because it lacked the unfettered powers of its British counterpart, its sovereignty—and Ceylonese sovereignty—was questioned throughout the Dominion period.

The events leading up to Ceylon’s independence and the sociopolitical effects of the Soulbury Constitution are well known. Ceylonese leaders’ shrewd negotiations to achieve Dominion status,¹¹ their neglect of minority rights and representation,¹² and their failure to anticipate the rise of Sinhalese-Buddhist nationalism and violent Tamil opposition¹³ have been the subject of in-depth study.

Dominion status in Ceylon has not been as fully explored from a legal perspective and this article hopes to fill that gap. It analyzes the Ceylon Supreme Court and Judicial Committee of the Privy Council (hereinafter Privy Council) judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes.

On fundamental rights, both the Supreme Court and the Privy Council adopted a cautious approach, declining to invalidate legislation that discriminated against minority communities. This reluctance to entrench fundamental rights resulted, in part, from judges’ undue deference to the Ceylon Parliament, which was viewed like its all-powerful British progenitor. In other words, Ceylon’s Parliament was treated as if it were sovereign, when, in fact, the Soulbury Constitution limited its exercise of legislative authority.

On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council—as a foreign judicial body intervening in Ceylonese affairs—stoked concerns that Ceylon was not sovereign, which ultimately led to the repeal of the Soulbury Constitution and the end of Dominion status.

2. The road to dominion status

Ceylon became a Dominion in 1948 following negotiations between local political elites and the British government. The legal and institutional framework for this “fully responsible status” began to crystallize in the Ministers’ Draft Constitution of 1944.

2.1. The Ministers’ draft

The Ministers’ Draft Constitution formed the basis of the Soulbury Constitution. However, it is misleadingly titled, as it did not so much reflect the Board of Ministers’ consensus on constitutional principles as the views of future Prime Minister D. S. Senanayake’s constitutional advisor, Sir Ivor Jennings.¹⁴ Senanayake’s inner circle, the “breakdown gang,” would dominate negotiations with the British government from 1943 to 1947. It consisted of Senanayake, Jennings, and Sir Oliver Goonetileke, the Civil Defence Commissioner and later governor-general of Ceylon. Jennings described their respective roles in these terms: ‘[T]he three of us might have been described as the nucleus of a reform ministry, with Mr. Senanayake as Minister, Sir Oliver as Permanent Secretary, and myself as the constitutional advisor “on tap”. ‘¹⁵

While Jennings credited Senanayake and Goonetileke for shepherding Ceylon toward fully responsible status,¹⁶ he played a central role in determining the constitutional form that government would take. Jennings was the driving force behind the Ministers’ Draft Constitution.¹⁷ On the most important constitutional questions, his handiwork is apparent.¹⁸ Three of Jennings’s contributions became especially significant during Ceylon’s Dominion period.

First, on parliamentary sovereignty, Jennings had distinguished himself as a constitutional scholar by challenging the long-standing orthodoxy of A. V. Dicey. Dicey famously argued that the British Parliament had “the right to make or unmake any law whatever.”¹⁹ Thus, no Parliament could enact laws that bind future parliaments. This meant that constitutional laws did not attain special status—like any other laws, Parliament was free to repeal or supersede them. It also meant that judicial review, or at least strong-form judicial review, had no role in the British Constitution, as Parliament retained the final say on the legality of any legislation.²⁰

Jennings took a different view. For him, Parliament could set forth procedures to limit the “manner and form” in which future parliaments could amend or repeal legislation without affecting parliamentary sovereignty.²¹ This would become significant in the Ceylonese context, as the Soulbury Constitution, based on Jennings’s recommendations in the Ministers’ Draft,²² included manner and form limitations on the lawmaking authority of Ceylon Parliament—limitations that called into question the sovereignty of both Parliament and Ceylon itself.

Second, Jennings did not support substantive limitations on legislative power. Whatever disagreements he had with Dicey over procedural limitations, Jennings favored the flexibility and limited judicial role found in the British Constitution.²³ As Mara Malagodi put it, Jennings disliked “Indian-style entrenched charters of fundamental rights patrolled by courts with extensive judicial review powers.”²⁴ The Ministers’ Draft and the Soulbury Constitution, therefore, contained neither a scheme of fundamental rights nor a mechanism to enable individuals to obtain judicial redress for constitutional violations. In these respects, the Soulbury Constitution would reflect continuity in the Westminster tradition and diverge sharply from the Constitution of India (1950).²⁵

Third, Jennings was not prepared to support meaningful minority representation in the Draft Constitution. Since entrenched minority rights were off the table, the alternative was communal representation. Jennings was well aware of the communal problem in Ceylon, but his abiding faith in the Westminster system and “relentless focus on the inherent virtues of modernity” prevailed.²⁶ On minority representation, Jennings said, “Communal representation . . . encourages communalism; and what a self-governing country must develop is . . . common loyalty.”²⁷ D. S. Senanayake agreed, believing that any formula they devised for communal representation would unnecessarily complicate independence negotiations. Jennings recounted their exchange as follows:

When I asked if I was to give the Ceylon Tamils increased representation Mr. Senanayake replied: “I don’t care if they’re all Tamils provided they are elected as Ceylonese. . . . He did not want a numerical formula like ‘fifty-fifty’, or ‘sixty-forty’, or anything of that kind, because everybody would haggle about it and it would be Communal haggling.”²⁸

In the end, the Ministers’ Draft eschewed communal representation in the form of reserved seats or separate electorates but included weighted representation in the Northern and Eastern Provinces (the majority Tamil areas), which granted those provinces additional seats to compensate for their relatively low population.²⁹

2.2. The Soulbury Constitution and “fully responsible status”

The Ministers’ Draft Constitution was completed in February 1944. Senanayake immediately asked the British government for its approval.³⁰ However, the Ministers’ Draft met with immediate resistance from minority groups. Prominent Tamil lawyer G. G. Ponnambalam, whose vocal opposition continued throughout the negotiation process, was the main antagonist.³¹ Ponnambalam’s criticism was primarily procedural. He objected to the lack of consultation in the drafting process, which had been confined to the Board of Ministers, and, in practice, to Senanayake and his breakdown gang.³²

(a) The Soulbury Commission

In July 1944, the Colonial Office appointed a Commission, led by Lord Soulbury, to propose constitutional reforms in Ceylon. In response to the concerns raised by Ponnambalam and others, the terms of the Commission’s mandate were widened to include consultations with minority communities and other interested groups.³³ The Soulbury Commission faced demands for communal representation from the Ponnambalam-led All Ceylon Tamil Congress, but also from the Ceylon Moors’ Association, the Dutch Burgher Union, and the All-Ceylon Scheduled Castes’ Federation, among many others.³⁴

Senanayake and the Board of Ministers objected strongly to the Commission’s widened mandate and staged an official boycott of the Commission in protest.³⁵ However, this did not mean that Senanayake forwent all influence on the Commission’s deliberations. On the contrary, Senanayake ensured that the Commission was “informally, but extensively briefed, on the details of the Ministers’ position.”³⁶ The prologue of the Soulbury Commission Report, published in September 1945, suggests much the same.³⁷

Indeed, the Soulbury Commission Report ultimately endorsed the Ministers’ Draft Constitution in all but a few significant respects. Regarding minority representation, the Commission recognized the communal problem in Ceylon. It said, “[W]hen a minority . . . feels itself to be forever debarred from an adequate share of the responsibilities of government it becomes particularly apprehensive of the actions of what it regards as a permanent and unassailable majority.”³⁸ But the Commission echoed Jennings’s reservations on the efficacy of substantive limitations on majority rule, noting that if the government were not willing to respect minority interests, “no safeguards that we could ever devise would in the long run be of much avail.”³⁹

Thus, minority demands for reserved seats in Parliament fell on deaf ears. Ponnambalam argued strongly for a “fifty-fifty” scheme in which 50 percent of parliamentary seats would be reserved for minority communities.⁴⁰ The Soulbury Commission rejected this demand, denying any communal representation.⁴¹ Territorial representation became the basis for parliamentary elections; though, in another nod to the Ministers’ Draft, the Commission recommended the creation of a Delimitation Commission empowered to give weighted representation to minority communities where appropriate.⁴²

The Soulbury Commission was also reluctant to alter franchise requirements in Ceylon. The most radical reform of the existing Donoughmore Constitution (1931) was to institute universal adult suffrage.⁴³ Ceylon was the first colony in the British Empire outside the “white” or “settler” colonies to be granted universal suffrage.⁴⁴ All Ceylonese men and women age 21 and older could vote on the basis of domicile—no literacy, financial, or property requirements were imposed.⁴⁵ Non-Ceylonese persons were allowed to vote if they met the high burden of literacy in English, Sinhala, or Tamil, plus certain income or property requirements.⁴⁶ This provision was designed to permit Europeans and wealthy Indian merchants and landowners to vote—and to restrict the franchise to the “Indian Tamil” community.⁴⁷

This community consisted mostly of laborers brought to Ceylon to work on tea estates. They were only permitted to vote if they obtained a certificate of permanent settlement that established their residency in Ceylon for at least five years.⁴⁸ These burdensome requirements prevented many Indian Tamils from voting.⁴⁹ The Soulbury Commission could have eased these requirements or recommended constitutional protections for the Indian Tamil community. Instead, the Commission merely said, “We recommend universal suffrage on the present basis shall be retained.”⁵⁰

As we shall see, the rights of Indian Tamils—and minorities generally—remained a thorny constitutional issue during Ceylon’s Dominion period.

(b) The 1946 Order in Council

The Soulbury Commission’s Report was published in September 1945. Following further negotiations between the British government and the breakdown gang,⁵¹ an Order in Council was enacted in May 1946. Although it was one of several constitutional documents that governed Ceylon during its Dominion period,⁵² the 1946 Order in Council is widely referred to as the “Soulbury Constitution.”

Much of the Soulbury Constitution derived from the Soulbury Commission Report. The Commission was conservative in its structural recommendations, hewing closely to the Westminster model. While the Ministers’ Draft, per Jennings, envisioned a single legislative body, the Commission recommended—and the Soulbury Constitution adopted—a bicameral Parliament consisting of a House of Representatives and a Senate.⁵³ It vested executive power in a Westminster-style Cabinet of Ministers, responsible to Parliament, who would advise the governor-general.⁵⁴ While the prime minister was given the defense and external affairs portfolios, the governor-general retained the discretion to act independently in these areas.⁵⁵ That these sensitive portfolios were placed with the Prime Minister showed the British government’s faith in D. S. Senanayake.⁵⁶ Indeed, aside from the modest safeguard of the Senate, the Soulbury Constitution simply trusted Senanayake and the ruling elite to protect minority communities. Structural protections, such as reserved seats for minority groups, and a scheme of fundamental rights were excluded.

The most contested provisions of the Soulbury Constitution would be judicial power and limitations on parliamentary authority. Part VI of the Soulbury Constitution (“The Judicature”) did not establish a separate judicial power; rather, it created a Judicial Services Commission (JSC) and set forth appointment procedures. The governor-general was to appoint Supreme Court judges and members of the JSC.⁵⁷ The JSC had the authority to appoint, transfer, and dismiss all “judicial officers.”

Limitations took on a different form than the Soulbury Commission envisioned. The Commission’s Report recommended absolute limitations,⁵⁸ but the 1946 Order in Council framed them as manner and form restrictions along the lines Jennings favored. Section 29(1) of the Soulbury Constitution empowered Parliament “to make laws for the peace, order, and good government of the island.” Section 29(2) prohibited Parliament from enacting laws infringing the free exercise of religion, and laws that privilege or disadvantage one community or religious group over another.

Section 29(3) clarified that any law contravening section 29(2) would be void. This repugnancy clause was novel—it appeared neither in the Ministers’ Draft nor in the Soulbury Commission Report. As Asanga Welikala noted, its inclusion “created a textual anomaly,” as section 29(4), which set forth constitutional amendment procedures, was not followed by a similar clause.⁵⁹

Section 29(4) required a two-thirds majority vote in the House of Representatives to approve any constitutional amendment. The Speaker of the House had to certify a two-thirds majority for an amendment to be valid. This departed from the Ministers’ Draft, which required express words to enact constitutional amendments.⁶⁰ Section 29(4) further stipulated that the speaker’s certification was conclusive and immune from judicial review.

(c) Fully responsible status

The 1946 Order in Council put into effect much of what Senanayake and his advisors demanded in the Ministers’ Draft. But it did not accomplish Senanayake’s aim of Dominion status.

A few factors conspired to eventually realize this aspiration. First, Ceylon’s reputation as a “model colony,”⁶¹ characterized by relative peace and economic prosperity,⁶² proved to be a great asset. Throughout the early twentieth century, constitutional reform in Ceylon had progressed without major incident, negotiated by an intercommunal political elite. The fact that Ceylon was granted universal suffrage in 1931—just three years after Britain—demonstrated the British government’s faith in Ceylon’s ruling class, which was largely able to coexist in the pursuit of greater autonomy.⁶³ The Soulbury Commission expressed this faith explicitly. At the end of its Report, it declared: “It must be borne in mind that a number of the political leaders of Ceylon have been educated in England and have absorbed British political ideas. . . . [W]hat is good enough for the British is good enough for them.”⁶⁴

A second and related factor that enabled Dominion status was that Senanayake’s breakdown gang leveraged this model reputation to great effect and established the trust of the British government. In his 1945 correspondence with Colonial Secretary George Hall, Senanayake reminded the Secretary that “There has been no rebellion in Ceylon, no non-cooperation movement, and no fifth-column: we were among the peoples who gave full collaboration while Britain was hard-pressed.”⁶⁵ He added that if Britain were to grant Ceylon Dominion status, it would “show the dependent peoples all over the Empire . . . that it is possible for a people which, a hundred years ago, was almost completely lacking in education facilities and was compelled to live on a very low standard of life [could achieve Dominion status].”⁶⁶ As Harshan Kumarasingham argues, it is difficult to imagine Nehru or Jinnah writing so obsequiously to the British government, but Senanayake achieved the same ends without the bloodshed that marred the Indian Independence Movement and Partition.⁶⁷

With civil unrest in Ceylon on the rise in 1945–1946, stirred up by Marxist parties, the British government was keen to keep power out of the hands of “extremists.”⁶⁸ A liberal, pro-British government led by Senanayake seemed a much better alternative, even if the price was full Dominion status. The geopolitical context was especially relevant here. As Kumarasingham put it, “As the Cold War enveloped international thinking Senanayake was shrewdly able to dangle the socialist sword of Damocles over Britain’s head.”⁶⁹

Third, and perhaps most important, Ceylon had to be given Dominion status because of promises made to its more belligerent neighbors. It was not so much the decision to grant Dominion status to India but to Burma that made Ceylon’s case almost assured.⁷⁰ In January 1947, the Attlee-Aung San agreement was signed to give Burma Dominion status leading to full independence. Ceylon’s case for Dominion status was sponsored by the new Colonial Secretary, Arthur Creech Jones, Lord Soulbury, and senior staff in the Colonial Office. Their argument, as the historian K. M. De Silva outlined, was a simple one: if Burma, which opposed the British war effort and collaborated with the Japanese, was granted independence, “Whitehall could hardly refuse the same status to Sri Lanka.”⁷¹

In early 1947, the British government decided to grant Ceylon Dominion status. But there remained the question of how this status would be framed. Sir Oliver Goonetileke, a member of Senanayake’s breakdown gang, warned against calling it Dominion status. His caution emerged from the “persistent belief” in Ceylon that this phrase “connoted a status lower than that of ‘independence.’”⁷² In correspondence with D. S. Senanayake, Colonial Secretary Creech Jones accepted Goonetileke’s explanation and additionally conceded that Dominion status was not a self-explanatory term, particularly in the absence of statutory definitions.⁷³

Creech Jones proposed the alternative of “fully responsible status within the British Commonwealth of Nations.”⁷⁴ He made clear to Senanayake that this status was equivalent to Dominion status in all relevant respects. Most importantly, it would confer on the Ceylon Parliament the powers possessed by the legislatures of the “white” Dominions provided in the Statute of Westminster, 1931,⁷⁵ and by the legislatures of India and Pakistan as per section 6 of the Indian Independence Act, 1947.⁷⁶ This meant that the Colonial Laws Validity Act, 1865 would no longer apply to Ceylon, and, therefore, no Ceylonese law could be rendered void for contravening British law.⁷⁷

Senanayake agreed with this phrasing, leading to its use in the official announcement of Ceylon’s independence in June 1947.⁷⁸ In December, the Ceylon Independence Act, 1947 and the accompanying Independence Order in Council were issued and “fully responsible status” was conferred on Ceylon.⁷⁹ However, the new choice of phrase did not resolve confusion as to Ceylon’s actual status vis-à-vis the British Empire. If anything, avoiding mention of “Dominion status” only heightened confusion and fueled distrust of the political elites, led by Senanayake, who accepted this outcome. If India and Pakistan, and all the prior Dominions, were explicitly given Dominion status, why was Ceylon given something different? As Jennings conceded, “[F]ully responsible status was frequently represented as something less than Dominion status, even after the Ceylon Independence bill was passed.”⁸⁰

Thus, Ceylon’s independence negotiations lacked serious engagement with the meaning of Dominion status or how it would apply. Moreover, by transplanting the Westminster parliamentary system and failing to specify the nature and scope of judicial power, the Soulbury Constitution left ambiguous how judges should approach judicial review.

3. Fundamental rights and judicial restraint

As it turned out, both the Ceylon Supreme Court and the Privy Council exercised judicial review cautiously in the Dominion period. Neither was prepared to question acts of the Ceylon Parliament that discriminated against minority groups.

3.1. Indian Tamils and the franchise

Ceylon officially obtained Dominion status on February 4, 1948, and immediately passed legislation to strengthen the ruling elite. The Citizenship Act, No. 18 of 1948 (Citizenship Act), largely disenfranchised the Indian Tamil community. Indian Tamils were primarily brought to work on tea estates in the central provinces of Ceylon, and their citizenship status had been left unresolved by the Soulbury Commission and in subsequent independence negotiations. The Citizenship Act emerged from demands of the Kandyan Sinhalese community, whose members feared that Indian Tamils would constitute the majority in their electoral districts if given the vote.⁸¹ It was also motivated by concerns of a socialist uprising, as Trotskyite Opposition Leader Dr. N. M. Perera had strong support among the Indian Tamil community.⁸²

The Ceylon Supreme Court weighed in on the constitutionality of this Act in Mudanayake v. Sivagnanasunderam.⁸³ This was the Court’s first chance to interpret section 29(2) of the Soulbury Constitution, which, inter alia, prohibited the Ceylon Parliament from passing legislation that imposed “disabilities or restrictions” on any community that were not imposed on other communities.⁸⁴

In Mudanayake, two petitioners filed writs of certiorari alleging that the Ceylon (Parliamentary Elections) Amendment Act, No. 48 of 1949 (Franchise Act), read with provisions of the Citizenship Act constituted a “communal restriction” on the Indian Tamil community, violating section 29(2). The Franchise Act provided that no person could be added to the elector registry if she were not a citizen of Ceylon. Sections 4 and 5 of the Citizenship Act set forth the requirements for Ceylonese citizenship by descent—requirements that became more onerous if born outside Ceylon or if one’s father was not a Ceylonese citizen.

That these provisions had the effect of denying the franchise to many Indian Tamils was not in dispute. For the Court, however, such discriminatory effects were irrelevant to the constitutionality of these laws. It adopted a rule of interpretation from “several English cases of high authority.”⁸⁵ The rule was that legislative intent can be “legitimately ascertained” from express words in the relevant statute or by “reasonable and necessary implication.”

By choosing this rule, the Court foreclosed any inquiry into the consequences of the Citizenship and Franchise Acts. The petitioners cited several American cases in which judges looked beyond the text to ascertain legislative intent, including Yick Wo v. Hopkins,⁸⁶ a landmark U.S. Supreme Court case that held San Francisco city ordinances unconstitutional for discriminating against Chinese immigrants. The ordinances were facially neutral—they made it unlawful to operate a laundry in the city without the consent of the Board of Supervisors. The Court held that these ordinances nonetheless violated the Fourteenth Amendment to the U.S. Constitution, as they unjustly discriminated against the Chinese community, who were the chief proprietors of laundry businesses.

The Ceylon Supreme Court distinguished this case on the dubious grounds that evidence of discrimination against the Chinese community in San Francisco was not used to gauge the meaning of the ordinances but simply to establish that, in their operation, they infringed a constitutional right. Why couldn’t a similar rationale be used in the Ceylonese context? Perhaps section 29(2) of the Soulbury Constitution, unlike the U.S. Constitution, did not enumerate individual rights, and, therefore, could be read more narrowly. The Court did not explain. Instead, it dismissed the American cases with the following rationale:

[These cases] do not support the proposition . . . that it is proper to travel outside the language of the impugned enactments and to take evidence as to whether or not, in their ultimate effect, they are of a discriminatory character. . . . [W]e have come to the conclusion that if [the Citizenship and Franchise Acts], . . . [do] not offend against S. 29 . . . it does not matter what effects they produce in their actual operation.⁸⁷

Armed with this narrow rule of interpretation, the Court upheld the constitutional validity of the impugned acts. The fact that “a large section of Indians are disqualified” from voting was “irrelevant,” as this was not a necessary legal effect flowing from the Act’s express language.

Significantly, the Court provided an additional justification for its ruling: judicial restraint grounded in Ceylon’s sovereignty. The Court did not inquire into the purpose of Section 29 or any of the political events surrounding the drafting of the Soulbury Constitution. Rather, it stated:

It seems to us that the inherent power of a sovereign state to determine who citizens should be . . . [is] more germane to the issues . . . than a perilous expedition into the political controversies of the past. After reading the Soulbury Commission Report and the connected Sessional Papers [one of the petitioners] . . . seems to have formed the opinion that section 29 was intended to be a safeguard for minorities.⁸⁸

To the contrary, the Court declared that the Ceylon Parliament “has the power to alter the electoral law in any manner it pleases . . . subject to the narrow limitation in Section 29.”⁸⁹

On appeal, the Privy Council upheld this judgment in Kodakan Pillai v. Mudanayake.⁹⁰ The Privy Council issued a short opinion that largely echoed the Supreme Court’s reasoning. It provided two main justifications: (1) that it is a “perfectly natural and legitimate function of the legislature of a country to determine the composition of its nationals”;⁹¹ and (2), that the negative effects of the two Acts on the Indian Tamil community “have nothing to do with them as a community.”⁹² On the second point, the Council referred to the Soulbury Commission Report, which confirmed the “migratory habits” of the Indian Tamils that made them unsuited to citizenship.⁹³ Furthermore, the fact that citizenship laws might disproportionately harm the illiterate and the poor were irrelevant, as neither was a “community” within section 29(2).

The Privy Council’s reasoning is revealing both in its disregard for the rights of the Indian Tamil community and its endorsement of the Supreme Court’s narrow interpretation of section 29(2). As discussed, this interpretation emerged from a series of English cases, which were decided vis-à-vis a sovereign legislature. A highly deferential judicial approach was appropriate in the British context, for under the prevailing Diceyian theory of parliamentary sovereignty, Parliament was unfettered in its lawmaking. But this was not the case in Ceylon where, per Jennings, the Soulbury Constitution imposed manner and form limitations on legislative authority. The Citizenship Act, therefore, should have been invalidated for transgressing constitutional bounds. Unlike in Britain, the Constitution attained a higher status than ordinary legislation in Ceylon.

3.2. Ceylon Tamils and the Sinhala-Only Act

Mudanayake laid the foundation for undue judicial restraint that the Ceylon judiciary would follow in future cases involving discrimination against minority communities. As discussed, the Soulbury Constitution did not entrench fundamental rights or provide for communal representation in government. Rather, it placed its faith in Westminster institutions and the singular figure of D. S. Senanayake to protect minority rights.

Senanayake, to his credit, made sincere efforts to temper communal tensions both in his rhetoric and in his cabinet appointments. Shortly before independence, he reached out to minority groups in a speech to the State Council: “For centuries the Sinhalese and the Tamils have lived together in peace and amity. . . . We all know and admire [the minority communities’] . . . special qualities. They are essential to the welfare of this Island, and I ask them to come over and help us.”⁹⁴ As prime minister, Senanayake ensured that his cabinet proportionately represented all minority groups. He even brought Ponnambalam, his erstwhile rival, into the cabinet as Minister of Industries, Industrial Research, and Fisheries. As political scientist A. J. Wilson put it, the “unexpressed premise” of the Soulbury Constitution was an “agreement between the English-educated elites of all the island’s principal groups” to govern cooperatively.⁹⁵

However, this tacit agreement could not be sustained without the “enormous personal prestige and consummate statecraft” of D. S. Senanayake, who passed away in 1952.⁹⁶ In 1956, S. W. R. D. Bandaranaike was elected prime minister after running a divisive campaign that promised to privilege the Sinhalese-Buddhist majority over minority groups.⁹⁷ The most consequential legislation Bandaranaike’s government enacted to fulfill their electoral pledge was the Official Language Act, No. 33 of 1956 (Sinhala-Only Act), which made Sinhala the only official language of Ceylon. The Act’s implications were far-reaching. It ensured that Sinhala would be the only language used for all administrative purposes, with a view toward increasing Sinhalese representation—and reducing Tamil representation—in the public services.⁹⁸ Regulations issued in 1960–1961 required all public servants to pass three Sinhala proficiency tests within three years.⁹⁹

The Sinhala-Only Act and these regulations were challenged in Attorney General v. Kodeswaran.¹⁰⁰ The plaintiff, a Tamil public servant, was a member of the General Clerical Service who had been promoted to the Executive Clerical Class. Members of this class were required to pass the Sinhala proficiency tests. The plaintiff refused to sit for these tests, resulting in a pay suspension. He then filed suit for lost wages, alleging that the test requirement and the Official Language Act violated section 29(2) of the Soulbury Constitution.

The Supreme Court’s judgment in Kodeswaran is a long-winded—and often incoherent—exercise in judicial restraint. The Attorney General’s principal submission was that a public servant had no right to sue the Crown for the recovery of his wages. Chief Justice Fernando, who authored the opinion for the Court, dealt with this issue in two stages. First, he explored whether Roman-Dutch law or English law governed the “relationship between the Crown and its servants.”¹⁰¹ After a long historical survey, the Chief Justice concluded that English Law governed this case. He then found that no common law precedent established that the Crown could be sued for civil damages in the absence of a statute. Since neither the Soulbury Constitution nor any Ceylonese statute established a public servant’s right to recover damages, the plaintiff had no legal recourse.

Kodeswaran concludes with a very brief discussion of the plaintiff’s principal claim: that the Sinhala-Only Act and accompanying regulations violated section 29(2) of the Soulbury Constitution. Here, the Chief Justice simply reverted to judicial restraint, noting “the reluctance of the American and Indian Supreme Courts” to decide constitutional questions.¹⁰² He cited Thomas Cooley’s landmark treatise on constitution limitations for the proposition that “the fallibility of human judgment” should prevent judges from invaliding legislation.¹⁰³ He further cited two American cases—though no Indian cases—that established the now well-worn doctrine of constitutional avoidance: namely, that constitutional questions should only be addressed when absolutely necessary and that, if possible, cases should be decided on statutory grounds.¹⁰⁴

However, for three reasons, Kodeswaran ventures beyond traditional judicial restraint toward complete deference and a reluctance to question Parliament. First, as the Chief Justice made clear, there was no statute relevant to this case. If such a statute existed, the Court would not have needed to conduct a historical survey of civil servants’ common law rights against the Crown. The constitutional question, therefore, should have been addressed.

Second, the Sinhala-Only Act was the archetypical discriminatory legislation that section 29(2) was designed to protect against. It plainly “privileged” the Sinhalese community and imposed a “disability” on all non-native Sinhala speakers, particularly on the Ceylon Tamil community, which was strongly represented in the public services. The Citizenship Act at issue in Mudanayake could at least be defended on the grounds of facial neutrality—it imposed general limitations on citizenship that clearly harmed Indian Tamils but did not explicitly favor one community. Moreover, the issues raised in that case fell within the realm of immigration and citizenship in which the legislature is entitled to a measure of deference and, correspondingly, judicial restraint is more appropriate. The same could not be said about the constitutional issues raised in Kodeswaran. Legislation that hindered a class of Ceylonese citizens from obtaining or maintaining employment in the public services does not warrant any such deference and is not worthy of judicial restraint.

Third, and most directly relevant, the district court had held the Sinhala-Only Act unconstitutional for violating section 29(2). Yet, the Supreme Court did not even ask the Attorney General to submit arguments on this question. Chief Justice Fernando said he would reserve this issue for a bench of five or more judges—a two-judge bench heard this case—given the “extraordinary importance and great difficulty” of the issues raised.¹⁰⁵ In the end, he refused to refer the case to a larger bench, claiming that it was unnecessary.

The case reached the Privy Council, which reversed the Supreme Court on the question of a public servant’s contractual rights to sue the Crown.¹⁰⁶ It held that Roman-Dutch law, and not English law, governed this case and permitted the plaintiff to recover lost wages. More significantly, the Privy Council, too, declined to express a view on the constitutionality of the Sinhala-Only Act. It remanded the case to the Supreme Court to consider this question on the merits. However, with the formation of a Constituent Assembly to draft a republican constitution, the Court postponed the rehearing and never produced a judgment on the merits.¹⁰⁷

4. Sovereignty and the judicial power

Mudanayake and Kodeswaran exemplify the Ceylon Supreme Court’s overly deferential and restrained approach to constitutional rights adjudication. By grounding its judgment on Ceylon’s sovereign right to legislate on immigration, Mudanayake also set the foundation for a different line of cases. These cases addressed structural issues concerning the separation of powers, the scope of judicial power, and the nature of the limitations placed on parliamentary lawmaking by section 29 of the Soulbury Constitution. Two broad themes emerge from this jurisprudence. First, sovereignty is haphazardly invoked, often conflating parliamentary supremacy with independence from Britain. Second, while the Ceylon Supreme Court persevered with judicial restraint in the face of an increasingly unconstrained Parliament, the Privy Council was less deferential. It reversed the Supreme Court in landmark judgments, imposing limits on legislative authority and clearly delineating an independent judicial role. That these rulings emanated from a British judicial body, however, reinforced doubts as to whether Ceylon was truly sovereign.

An early case discussing Ceylon’s sovereignty and its implications on legislative authority was P.S. Bus Co., Ltd v. Members and Secretary of Ceylon Transport Board (1958).¹⁰⁸ The petitioner challenged the validity of the Motor Transport Act, No. 48 of 1957. When enacting this legislation, the House of Representatives consisted of ninety-four elected members, not the requisite ninety-five members, as one member had been elected to represent two electoral districts. According to the petitioner, Parliament was not properly constituted and, hence, the Motor Transport Act was invalid.

The case came before Justice Sinnetamby of the Ceylon Supreme Court, whose opinion discussed sovereignty at length. For Justice Sinnetamby, the question of whether a court can “go behind an Act of Parliament” to investigate if it has been “duly passed”, rested on the nature of legislative power.¹⁰⁹ As he explained, in Britain, parliamentary sovereignty foreclosed judicial review into the legality of any legislation. However, the Ceylonese Parliament, like all Dominion legislatures, were “[C]reatures of statute. They are bound by the provisions of the Acts or Orders-in-Council by which they were created and cannot act in contravention of those provisions.”¹¹⁰ He relied on Harris v. Minister for the Interior,¹¹¹ which found that the Union Parliament of South Africa lacked the unfettered powers of its British counterpart. Harris held that the South African Parliament could amend the South Africa Act of 1909—enacted by the Westminster Parliament to create the Union of South Africa—as long as it complied with the procedural requirements therein. Justice Sinnetamby analogized the Ceylon Independence Act, 1947, to the Statute of Westminster, 1931. He concluded that the Ceylon Parliament was much the same as South Africa’s Union Parliament in that its sovereignty “is not absolute as in England where any enactment can be passed by a bare majority.”¹¹²

However, Justice Sinnetamby proved unwilling to pronounce the impugned act invalid. Keeping with the Court’s posture of judicial restraint, he disposed of the case on alternative grounds. He observed that ruling in petitioner’s favor would be “disastrous” because it would call into question the legality of all parliamentary legislation.¹¹³ As this would affect the “rights and liabilities of several thousands of people” and bring the government “to a stand-still,” Justice Sinnetamby ruled for the government.¹¹⁴

A few years later, in Queen v. Hemapala (1963),¹¹⁵ sovereignty arose in the context of judicial power and took on a far more nationalistic connotation. Though originally a murder case, the Ceylon Supreme Court, sitting as the Court of Criminal Appeal, focused on a more fundamental question—whether the defendant had the right to appeal his conviction to the Privy Council. Chief Justice Basanayake, writing for the Court, issued a defiant and nationalistic opinion. Tracing Ceylon’s colonial history, the Chief Justice remarked that the constitutional reforms of 1946–1947 fundamentally changed the Ceylon-Britain relationship. He emphasized the Ceylon Independence Act, 1947, and the subsequent Independence Order in Council. As discussed, these instruments, which gave Ceylon “fully responsible status,” prevented the British Parliament and the Crown from passing laws or orders that applied to Ceylon. Thus, as the Chief Justice noted, Ceylon went from a colony in the British Empire to an “equal partner” in the Commonwealth of Nations.¹¹⁶

None of these observations was novel or controversial. It was well understood that British law no longer applied in Ceylon and that Britain could not legislate for the island. But the Chief Justice then extended the logic of these reforms into the judicial realm. He concluded that because sovereignty no longer resided in the Crown, the “Queen does not enjoy the judicial prerogative” as this right “ceased when Ceylon ceased to be a colony.”¹¹⁷ The Chief Justice here conflated sovereignty with independence, calling it “unthinkable that the Queen of England would in the slightest degree impair the independence of Ceylon.”¹¹⁸ Thus, he ruled that the Privy Council’s order did not apply to Ceylon and that his Court had no corresponding power to enforce it by ordering a new trial.

What prompted this powerful assertion of Ceylon’s sovereignty? Toward the end of his Hemapala opinion, the Chief Justice observed that Canada, India, Pakistan, and South Africa had enacted legislation between 1949 and 1950 to abolish Privy Council jurisdiction.¹¹⁹ He said these developments did not compel a particular outcome in this case, but that he cited them at all is probative of his mindset. Writing this opinion in 1963, more than ten years after these countries eliminated the final vestige of colonial judicial supremacy, the Chief Justice was perhaps aggrieved that Ceylon not only retained Privy Council jurisdiction but also Dominion status, which India and Pakistan had long since abandoned. His nationalism foreshadowed political developments in Ceylon but did not dislodge the practice of judicial restraint in the Ceylon Supreme Court.

The Privy Council, led by Viscount Radcliffe, reversed the Hemapala judgment in Ibealebbe v. Queen.¹²⁰ It held that the constitutional reforms of 1946–1947, conferring Dominion status on Ceylon, did not abrogate Privy Council jurisdiction for criminal appeals. As Viscount Radcliffe noted, the fact that Britain could no longer legislate for Ceylon did not affect the judicial realm. However, in expressing this view, he repeatedly expressed the Council’s bafflement at Chief Justice Basanayake’s reasoning in Hemapala. For instance, on the separation of powers issue, he said: “Their Lordships feel no doubt that the Chief Justice’s conclusion is founded upon a misunderstanding of the nature of an appeal to the [Privy Council]. . . . Such Orders are essentially judicial acts and it only leads to confusion to treat them as if they lay in the field of legislation.”¹²¹

Viscount Radcliffe further noted the Council’s “inability to detect” how the Chief Justice’s conclusion was limited to criminal appeals as, if it rested on sovereignty, then civil appeals to the Privy Council should be abolished too.¹²² As he pointed out, both civil and criminal appeals had continued uninterrupted since 1947 and remained in the Revised Legislative Enactments of Ceylon published in 1956. Thus, the Council could not “follow the Chief Justice in his passing reference to these statutory provisions.”¹²³

While Viscount Radcliffe’s opinion is correct as a matter of law, its condescending tone toward the Chief Justice of Ceylon was misplaced. He also carelessly referred to the limitations in section 29 as “fundamental reservations,”¹²⁴ stoking fears that Ceylon might not be fully sovereign. Giving the rising nationalist tides, the Privy Council should have trodden more cautiously. As it turned out, it set the stage for an even more controversial case that saw the Privy Council defy not only Ceylon’s Supreme Court, but also its increasingly nationalist—and authoritarian—Parliament.

In 1962, senior members of the military, police, and civil service attempted a coup d’état.¹²⁵ Their motivation was to impose “liberal autocratic” rule on a state that they believed had been “rapidly disintegrating in the hands of nationalist demagogues and Communists.”¹²⁶ However, they were arrested a few hours before their plan went into operation. Soon afterward, Parliament enacted the Criminal Law (Special Provisions) Act, No. 1 of 1962 [Criminal Law Act], which targeted the accused conspirators. For instance, it displaced protections in the Criminal Procedure Code by ex post facto legalizing detention for sixty days of anyone suspected of offenses against the state and permitted this case to be tried by a special three-judge bench of the Ceylon Supreme Court.

After a long and tortuous trial, the Supreme Court in Queen v. Liyanage found eleven of the twenty-four defendants guilty of three conspiracy-related offenses.¹²⁷ They were sentenced under the Criminal Law Act to ten years’ imprisonment and had their property forfeited. Those convicted appealed this judgment to the Privy Council in Liyanage v. Queen.¹²⁸ They argued, inter alia, that their convictions offended principles of natural justice and that the Criminal Law Act unconstitutionally usurped judicial power.

Lord Pearce authored the judgment for the Privy Council. On the appellants’ first argument, he invoked sovereignty in a surprisingly anti-colonial manner. Appellants contended that because Ceylon’s Constitution was created by an Order in Council, its Parliament could not pass legislation that violated fundamental principles of natural justice inherited from the British. Lord Pearce, however, noted that since the Ceylon Independence Act, 1947, made clear that the colonial laws no longer applied in Ceylon, such “vague and uncertain” principles ceased to apply also.¹²⁹ He noted that it would be “regrettable” if Ceylon found itself so constrained after the constitutional reforms of 1946–1947 gave its Parliament “the full legislative powers of a sovereign independent State.”¹³⁰

On the appellants’ second argument, Lord Pearce held that Ceylon’s Constitution imposed limits on parliamentary authority. The Attorney General argued that the Criminal Law Act did not violate the separation of powers because the Soulbury Constitution did not establish or define the judicial power. As discussed, part VI of the Soulbury Constitution set forth judicial appointment procedures and created a Judicial Services Commission, but did not establish judicial power.

Lord Pearce, however, found that Ceylon’s independence had not disrupted the judiciary, which had operated continuously since the mid-nineteenth century. Thus, “there was no compelling need” to make “any specific reference” to the judicial power, as the separation of powers among the executive, legislature, and judiciary could be inferred from the structure of the Soulbury Constitution.¹³¹ With this principle established, the only remaining question was whether the impugned act crossed the line from legislative to judicial power. Lord Pearce relied here on section 29(1) of the Soulbury Constitution, which empowered Parliament to make laws for the “peace, order, and good government of the Island.” He concluded that this provision could not be read to authorize the passage of the Act, stating: “Their Lordships however cannot read the words of section 29(1) as entitling Parliament to pass legislation which usurps the judicial power of the judicature – e.g. by passing an act of attainder against some person.”¹³²

That the impugned law was, in fact, an act of attainder that imposed ex post facto liability on defendants and denied them evidentiary and procedural protections led the Privy Council to call it a “grave and deliberate incursion into the judicial sphere.”¹³³ Thus, the law was therefore held to be ultra vires.¹³⁴ The Council clarified, however, that Parliament could pass such legislation if it followed the constitutional amendment procedure in section 29(4) of the Soulbury Constitution.

Lord Pearce’s opinion in Liyanage is a masterpiece of judicial craft. It begins by affirming Ceylon’s independence and sovereignty, proceeds to entrench judicial power within a scheme of separation of powers, and concedes, adopting Jennings’s manner and form theory of limitations, that these structural limits are not beyond the pale of constitutional amendment. Politically, though, it was not well received. As Welikala put it, “For nationalist politicians in Ceylon . . . [the Privy Council’s judgment in Liyanage] was an insufferable intrusion from an illegitimate colonial institution.”¹³⁵

This frosty political reception arose not simply from Liyanage’s holding, which reversed the Ceylon Supreme Court and invalidated aspects of the Criminal Law Act, but also because it reinforced doubts about Ceylonese sovereignty. These doubts were fueled by another Privy Council judgment, Bribery Commissioner v. Ranasinghe,¹³⁶ which was published the same year and also authored by Lord Pearce.

Ranasinghe was the last in a line of cases on the constitutionality of the Bribery Act.¹³⁷ The Bribery Act established a tribunal that was empowered to try, convict, and sentence individuals accused of accepting bribes. In Senadhira v. Bribery Commissioner,¹³⁸ the Ceylon Supreme Court was asked to rule on the constitutionality of appointments to the tribunal bench. Section 55 of the Soulbury Constitution required that the Judicial Services Commission (JSC) appoint “judicial officers.” Because the governor-general, and not the JSC, appointed members of the bribery tribunal, the petitioner argued that these members could not lawfully carry out the judicial functions with which they were charged. Justice Sansoni, writing for the Court, made clear that Parliament could not constitutionally replace courts with bribery tribunals. However, given the Court’s embrace of judicial restraint, Justice Sansoni sought to sever the Act to “preserve as much of the will of Parliament as possible.”¹³⁹ Thus, he upheld the tribunal insofar as it exercised “arbitral” functions of investigation and fact-finding, but held that its exercise of judicial functions—to find individuals guilty of bribery-related offenses and impose sentences on them—was unconstitutional.

Shortly thereafter, in Piyadasa v. Bribery Commissioner,¹⁴⁰ the Court, per Justice Tambiah, held that the bribery tribunal was unconstitutional and that all its proceedings were null and void. It reached this bold conclusion after a detailed consideration of part VI of the Soulbury Constitution (“The Judicature”). According to Justice Tambiah, this part established the “independence of the judiciary,” which, citing Blackstone, he said emerged out of the “English practice that the judiciary should not be subjected to any extraneous interference.”¹⁴¹

The Privy Council in Ranasinghe affirmed the Supreme Court and held the Bribery Act unconstitutional. This judgment took on added importance, however, for Lord Pearce’s discussion of section 29. The government argued that the only limitation on parliamentary lawmaking was section 29(2), which, inter alia, prohibited legislation favoring or discriminating against any community. Recall that section 29(3) contained a repugnancy clause, which explicitly nullified any legislation that contravened section 29(2). The government contended that Parliament was empowered to enact any other legislation, even if it implicitly amended the constitutional structure. Furthermore, once Royal Assent had been provided—as it was for the Bribery Act—the judiciary could not “go behind it and must take it as law.”¹⁴²

The Privy Council disagreed. Lord Pearce began by affirming the Supreme Court’s holding that section 41 of the Bribery Act, under which the governor-general appointed the bribery tribunal’s members, was in “plain conflict” with section 55 of the Soulbury Constitution.¹⁴³ He then responded to the government’s arguments on parliamentary authority. As to whether Parliament could pass any legislation outside the confines of the section 29(2) limitations, Lord Pearce noted that section 29(4) required a two-thirds majority for constitutional amendments. He further noted that the Speaker of the House must certify this supermajority. In this case, there was no such certificate.

Lord Pearce also rejected the argument that courts could not inquire into parliamentary procedure to see if a certificate was issued. He called this argument “unsubstantial,” declaring, “[T]he court has a duty to see that the Constitution is not infringed … Unless therefore there is some very cogent reason for doing so, the court must not decline to open its eyes to the truth.”¹⁴⁴ He relied on the South African case Harris to conclude that Parliament was bound by procedural requirements within the Soulbury Constitution and judges were entitled to examine whether those requirements were followed.¹⁴⁵

As in Liyanage, Lord Pearce took pains to emphasize that the Privy Council’s ruling in this case had no bearing on Ceylon’s sovereignty. The government had relied heavily on the precedent McCawley v. King,¹⁴⁶ in which the Privy Council upheld legislation from Queensland, Australia, that had amended that colony’s constitution by a bare majority. As Lord Pearce pointed out, however, the Queensland legislature was not expressly limited in its mandate to pass this legislation, which distinguished this case from Ranasinghe. Moreover, Lord Pearce concluded that McCawley, in fact, supported the proposition that “a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of . . . whether the Legislature is sovereign, as is the Legislature of Ceylon.”¹⁴⁷ If this statement was not clear enough, Lord Pearce ended his opinion in Ranasinghe thus:

No question of sovereignty arises. A Parliament does not cease to be sovereign whenever its component members fail to produce among themselves a requisite majority. . . . The limitation thus imposed . . . does not limit sovereign powers of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority.¹⁴⁸

Still, Ranasinghe would become known for a careless dictum that appeared to undermine Ceylon’s sovereignty.¹⁴⁹ In describing the limitations in section 29(2) of the Soulbury Constitution, Lord Pearce made the following observation: “[These provisions] further entrenched religious and racial matters, which shall not be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the Constitution.”¹⁵⁰

This dictum was problematic for two reasons. First, as a matter of legal theory, it conflicted with the holding in Ranasinghe and past cases that essentially adopted Jennings’s manner and form theory of constitutional limitations.¹⁵¹ By declaring that section 29(2) entrenched substantive rights that Parliament could not amend, Lord Pearce undermined the procedural approach to section 29 that had hitherto prevailed in Ceylon.¹⁵² Second, as a political matter, it exacerbated fears that Ceylon was not fully sovereign.¹⁵³ Despite Lord Pearce’s strong defense of Ceylonese sovereignty in Liyanage and Ranasinghe, this (in)famous stray dictum, along with Viscount Radcliffe’s dismissive tone and invocation of “fundamental reservations” in Ibealebbe, were opportunistically employed by nationalist politicians towards the repeal of the Soulbury Constitution.¹⁵⁴

5. Conclusion

In August 1969, Ceylon’s Parliament debated constitutional reform toward a republican constitution. Sovereignty concerns would feature prominently in that discussion.¹⁵⁵ Trotskyite leader Dr. Colin De Silva, speaking for the opposition, argued that dicta from Ibealebbe and Ranasinghe made plain that Parliament lacked the authority to enact a new constitution unless it included section 29. As he put it, section 29 was “fundamental . . . cannot be touched. It is entrenched. . . . [I]f we try to legislate in the face of, or in defiance of, this decision under the Constitution, then any citizen can take the matter to the Privy Council.”¹⁵⁶ Thus, he argued that unless the British Parliament repealed the Soulbury Constitution—an unacceptable option at the time—the only recourse would be to appeal to the Ceylonese people for a mandate to draft a new constitution.¹⁵⁷

This mandate would be inferred from the results of the 1970 election in which Mrs. Bandaranaike (Prime Minister S. W. R. D. Bandaranaike’s widow) and her United Front coalition won an overwhelming majority in Parliament, which was converted into a constituent assembly.¹⁵⁸ Ceylon adopted its new constitution in 1972, became the Republic of Sri Lanka, and formally abolished appeals to the Privy Council.¹⁵⁹

Stepping back from these political implications, it is worth noting that Ceylon’s judiciary permitted further incursions on judicial power during the final Dominion years.¹⁶⁰ In Kariapper v. Wijesinha,¹⁶¹ the Supreme Court distinguished the Privy Council’s judgment in Liyanage to uphold an act of attainder, even though the act’s Schedule specifically named the individuals it targeted. In a further retrenchment from Liyanage, the Court upheld legislation that imposed retroactive criminal liability,¹⁶² and provisions in the Criminal Law Act that deprived criminal defendants of basic rights, including habeas corpus and trial by jury.¹⁶³

In Walker v. Fry,¹⁶⁴ the Supreme Court held, following Ranasinghe, that labor tribunals created by Parliament were improperly constituted because the JSC did not appoint their presidents. The Privy Council reversed this, ruling that labor tribunal presidents did not constitute “judicial officers” and, therefore, did not require JSC appointment.¹⁶⁵ In response, Parliament enacted legislation that explicitly deemed prior Supreme Court decisions on labor tribunals “null and void.”¹⁶⁶ When the case returned to the Supreme Court, the justices cast doubt on individual portions of the Act, but finally held that it did not usurp judicial power.¹⁶⁷

Thus, despite their outsized political influence, the Privy Council judgments in Liyanage and Ranasinghe did not ultimately have much legal effect. More broadly, by examining Ceylon’s dominion period from a legal perspective, this article has shown the long-term effects of the ambiguity attached to “fully responsible status.” Because the Soulbury Constitution failed to specify the precise nature of this status, both in terms of parliamentary-judicial and Ceylon-Britain relations, the Ceylonese judiciary struggled to assert itself as a counter-majoritarian check on Parliament and Privy Council judgments were cast as illegitimate foreign interventions. While the Supreme Court would assert itself more forcefully in fundamental rights cases in republican Sri Lanka, it never attained the status or structural independence of its Indian counterpart.¹⁶⁸ Dominion constitutionalism, characterized by excessive judicial restraint and uncertainty over national (and parliamentary) sovereignty, therefore, appears to have had lingering effects on the Sri Lankan judiciary’s approach to constitutional adjudication.¹⁶⁹

Footnotes

1

HARSHAN KUMARASINGHAM, A POLITICAL LEGACY OF THE BRITISH EMPIRE 125 (2013) (quoting E.F.C. LUDOWYK, THE MODERN HISTORY OF CEYLON 204 (1966)).

2

For clarity, I will refer to the country as Ceylon, as it retained that name until 1972 when it became the Republic of Sri Lanka.

3

CEYLON INDEPENDENCE ORDER IN COUNCIL (1947).

4

THE ROAD TO TEMPLE TREES: SIR IVOR JENNINGS AND THE CONSTITUTIONAL DEVELOPMENT OF CEYLON: SELECTED WRITINGS 156 (Harshan Kumarasingham ed., 2015).

5

Id. at 157.

6

Id. at 160.

7

Peter C. Oliver, “Dominion Status”: History, Context, and Framework, 17(4) INT’L J. CONST. L. 1173 (2019).

8

W. David McIntyre, The Strange Death of Dominion Status, 27 J. IMPERIAL & COLONIAL HIST. 193, 194 (1999).

9

See id. at 195–199; Harshan Kumarasingham, The “Tropical Dominions”: The Appeal of Dominion Status in the Decolonisation of India, Pakistan and Ceylon, 23 TRANSACTIONS ROYAL HIST. SOC’Y 223, 230–231 (2013).

10

CEYLON (CONSTITUTION) ORDER IN COUNCIL, 1946 (1946) [SOULBURY CONST.]. While several constitutional reforms were enacted from 1946 to 1947, this article uses “Soulbury Constitution” to refer to the 1946 Order in Council.

11

See generally, K. M. De Silva, Ivor Jennings and Sri Lanka’s Passage to Independence, 13 ASIA PAC. L. REV. 1 (2005).

12

See generally Asanga Welikala, The Failure of Jennings’ Constitutional Experiment in Ceylon: How “Procedural Entrenchment” Led to Constitutional Revolution, inTHE SRI LANKAN REPUBLIC AT 40: REFLECTIONS ON CONSTITUTIONAL HISTORY, THEORY AND PRACTICE 145 (Asanga Welikala ed., 2012).

13

See, e.g., NEIL DEVOTTA, BLOWBACK (2004); A. J. WILSON, THE BREAK-UP OF SRI LANKA: THE SINHALESE-TAMIL CONFLICT (1988).

14

The Board of Ministers, which included both elected and appointed members, served as a quasi-cabinet to advise the British Governor of Ceylon. See De Silva, supra note 11, at 2.

15

THE ROAD TO TEMPLE TREES, supra note 4, at 10.

16

Id. at 1–6; SIR IVOR JENNINGS, THE CONSTITUTION OF CEYLON ix (1949).

17

ROAD TO TEMPLE TREES, supra note 4, at 34–38.

18

For a detailed analysis of Jennings’s contributions, see Asanga Welikala, “Specialist in Omniscience”?: Nationalism, Constitutionalism and Sir Ivor Jennings’ Engagement with Ceylon, inCONSTITUTION-MAKING IN ASIA 112 (Harshan Kumarasingham ed., 2016).

19

A. V. DICEY, LECTURES INTRODUCTORY TO THE STUDY OF THE LAW OF THE CONSTITUTION 36 (1915).

20

Id. at 37–38 (stating that no other entity has “a right to override or set aside the legislation of Parliament”).

21

IVOR JENNINGS, THE LAW AND THE CONSTITUTION 149–153 (1967).

22

The Ministers’ Draft put forth a general limitation on Parliament to prevent the passage of discriminatory laws by ordinary legislative means. See Welikala, supra note 12, at 154.

23

SeeJENNINGS, supra note 21, at 150 (“The only function of the courts is to determine whether legislation is within the limits of . . . [legislative powers], and these powers are wide general powers, which may be called powers of government”).

24

Mara Malagodi, Ivor Jennings’ Constitutional Legacy Beyond the Occidental-Oriental Divide, 42 J. L. & SOC. 102, 122 (2015).

25

SeeINDIA CONST., Part III.

26

Welikala, supra note 18, at 116–124.

27

IVOR JENNINGS, THE APPROACH TO SELF GOVERNMENT 97 (1956).

28

ROAD TO TEMPLE TREES, supra note 4, at 35 (emphasis added).

29

Id. at 35–36; Welikala, supra note 12, at 154.

30

De Silva, supra note 11, at 8.

31

Id. at 8–14.

32

Id. at 10.

33

Id. at 9.

34

Harshan Kumarasingham, “The Jewel of the East Yet Has Its Flaws”: The Deceptive Tranquility Surrounding Sri Lankan Independence 13 (Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 72, 2013).

35

De Silva, supra note 11, at 9–11.

36

Welikala, supra note 12, at 155.

37

COLONIAL OFFICE, CEYLON: REPORT OF THE COMMISSION ON CONSTITUTIONAL REFORM 4 (1945) [hereinafter SOULBURY COMMISSION REPORT] (noting that the views of the ministers who boycotted the Commission “became well known to us through the Press and other channels”).

38

Id. at 50.

39

Id.

40

De Silva, supra note 11, at 14.

41

SOULBURY COMMISSION REPORT, supra note 37, at 68–74.

42

Id. at 75.

43

CEYLON (STATE COUNCIL ELECTIONS) ORDER IN COUNCIL, 1931, art. 6.

44

Kumarasingham, supra note 34, at 3.

45

CEYLON (STATE COUNCIL ELECTIONS) ORDER IN COUNCIL, 1931, arts. 6, 7.

46

Id., art. 8.

47

SIR IVOR JENNINGS & H. W. TAMBIAH, THE DOMINION OF CEYLON: THE DEVELOPMENT OF ITS LAWS AND CONSTITUTION 36 (1952).

48

CEYLON (STATE COUNCIL ELECTIONS) ORDER IN COUNCIL, 1931, art. 9.

49

JENNINGS & TAMBIAH, supra note 47, at 36.

50

SOULBURY COMMISSION REPORT, supra note 37, at 60.

51

SeeROAD TO TEMPLE TREES, supra note 4, at 112–146.

52

SeeJENNINGS, supra note 16, at 124–136.

53

SOULBURY COMMISSION REPORT, supra note 37, at 81–85.

54

Id.

55

Id. at 89–96.

56

Kumarasingham, supra note 34, at 9.

57

SOULBURY COMMISSION REPORT, supra note 37, at 97–108.

58

See id. at 96.

59

Welikala, supra note 18, at 127.

60

Id.

61

K. M. DE SILVA, A HISTORY OF SRI LANKA 570–589 (2005).

62

Kumarasingham, supra note 9, at 242.

63

Neil DeVotta, Parties, Political Decay, and Democratic Regression in Sri Lanka, 52 COMMONWEALTH & COMP. POL. 139, 139 (2014).

64

SOULBURY COMMISSION REPORT, supra note 37, at 109–110.

65

Kumarasingham, supra note 9, at 244.

66

Id.

67

Id. See also De Silva, supra note 11, at 15–16.

68

See Nira Wickramasinghe, Sri Lanka’s Independence: Shadows over a Colonial Graft, inROUTLEDGE HANDBOOK OF SOUTH ASIAN POLITICS 41, 46 (Paul R. Brass ed., 2010).

69

Kumarasingham, supra note 34, at 8.

70

De Silva, supra note 11, at 15.

71

Id.

72

ROAD TO TEMPLE TREES, supra note 4, at 156.

73

Id. at 158.

74

Id. at 159–160.

75

The Statute of Westminster gave these Dominions a measure of equality vis-à-vis the British Parliament to legislate for their own affairs without worry that their laws might be rendered void for conflicting with British law. See Richard Albert, Constitutions Imposed with Consent?, inTHE LAW AND LEGITIMACY OF IMPOSED CONSTITUTIONS 103, 107–109 (Richard Albert, Xenophon Contiades, & Alkmene Fotiadou eds., 2018).

76

JENNINGS, supra note 16, at 123.

77

CEYLON INDEPENDENCE ACT, 1947, Schedule I, S. 1, 2.

78

ROAD TO TEMPLE TREES, supra note 4, at 159.

79

SeeCEYLON INDEPENDENCE ORDER IN COUNCIL, 1947, Preamble.

80

ROAD TO TEMPLE TREES, supra note 4, at 160.

81

Kumarasingham, supra note 34, at 12.

82

Welikala, supra note 12, at 166.

83

(1951) 53 N.L.R. 25 (Ceylon).

84

SOULBURY CONSTITUTION, supra note 10, at § 29(2)(b).

85

Mudanayake, (1951) 53 N.L.R. at 37.

86

118 U.S. 346 (1886).

87

Mudanayake, (1951) 53 N.L.R. at 43 (emphasis added).

88

Id. at 45.

89

Id. at 46.

90

(1953) 54 N.L.R. 433 (Ceylon).

91

Id. at 439.

92

Id.

93

Id.

94

Kumarasingham, supra note 34, at 6–7.

95

WILSON, supra note 13, at 34.

96

DE SILVA, supra note 61, at 69.

97

Neil DeVotta, Politics and Governance in Post-Independence Sri Lanka, inROUTLEDGE HANDBOOK OF SOUTH ASIAN POLITICS 118, 119 (Paul R. Brass ed., 2010); A. J. WILSON, POLITICS IN SRI LANKA, 1947–1979, 14–21 (1979). For a detailed account of the 1956 election and its aftermath, see W. HOWARD WRIGGINS, CEYLON: DILEMMAS OF A NEW NATION, 326–369 (1960).

98

WILSON, supra note 97, at 15.

99

NIRA WICKRAMASINGHE, SRI LANKA IN THE MODERN AGE: A HISTORY 195 (2014).

100

(1967) 70 N.L.R. 121 (Ceylon).

101

Id. at 123.

102

Id. at 138.

103

Id. (citing THOMAS COOLEY, CONSTITUTIONAL LIMITATIONS 332 (8th ed. 1927)).

104

Id. (citing Burton v. United States, 196 U.S. 283, 295 (1905), and Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 191 (1909)).

105

Id. at 139.

106

Kodeswaran v. The Attorney General, (1969) 72 N.L.R. 337 (Ceylon).

107

See Welikala, supra note 12, at 176.

108

(1958) 61 N.L.R. 491 (Ceylon).

109

Id. at 493.

110

Id.

111

(1952) (2) S.A. 428 (S. Afr.).

112

P.S. Bus, 61 N.L.R. at 494.

113

Id. at 496.

114

Id. at 496–497.

115

(1963) 65 N.L.R. 313 (Ceylon).

116

Id. at 319.

117

Id. at 322.

118

Id.

119

See id.

120

(1963) 65 N.L.R. 433 (Ceylon).

121

Id. at 435.

122

Id. at 437.

123

Id. at 439.

124

Id. at 443.

125

For a detailed account of the attempted coup, seeDONALD L. HOROWITZ, COUP THEORIES AND OFFICERS’ MOTIVES: SRI LANKA IN COMPARATIVE PERSPECTIVE (1980).

126

Welikala, supra note 12, at n.63.

127

(1962) 64 N.L.R. 313 (Ceylon).

128

(1965) 68 N.L.R. 265 (Ceylon).

129

Id. at 278–279.

130

Id. at 279–280.

131

Id. at 281.

132

Id. at 283.

133

Id. at 284.

134

Id.

135

Welikala, supra note 12, at 63.

136

(1965) A.C. 172.

137

No. 11 of 1954 (as amended by Act. No. 40 of 1958) [hereinafter Bribery Act].

138

(1961) 63 N.L.R. 313 (Ceylon).

139

Id. at 321.

140

(1962) 64 N.L.R. 385 (Ceylon).

141

Id. at 389.

142

Ranasinghe, (1965) A.C. at 182.

143

Id. at 193.

144

Id. at 194.

145

See id. at 195–196 (citing Harris v. Minister of Interior, (1952) (2) S.A. 428 (S. Afr.)).

146

(1920) A.C. 691.

147

Id. at 197 (emphasis added).

148

Id. at 200.

149

See Cheryl Saunders & Anna Dziedzic, Parliamentary Sovereignty and Written Constitutions in Comparative Perspective, inTHE SRI LANKAN REPUBLIC AT 40: REFLECTIONS ON CONSTITUTIONAL HISTORY, THEORY AND PRACTICE 476, 499 (Asanga Welikala ed., 2012).

150

Ranasinghe, (1965) A.C. at 193–194 (emphasis added).

151

See Welikala, supra note 18, at 129.

152

Id. But cf. C. F. Amerasinghe, The Legal Sovereignty of the Ceylon Parliament, PUB. L. 65, 74 (1966).

153

See Saunders & Dziedzic, supra note 149, at 499–500.

154

See Welikala, supra note 12, at 180–184, 197–200.

155

PARLIAMENT OF CEYLON, HOUSE OF REPRESENTATIVES, PARLIAMENTARY DEBATES (Aug. 16, 1969).

156

Id.

157

Id.

158

WILSON, supra note 97, at 209–210.

159

Id. at 217, 223–225.

160

SeeL. J. M. COORAY, CONSTITUTIONAL GOVERNMENT IN SRI LANKA 1796–1977, 191–200 (2011).

161

(1966) 69 N.L.R. 529 (Ceylon).

162

See Attorney-General v. Gunawardene, (1967) 70 N.L.R. 49 (Ceylon).

163

See Queen v. Abeysinha, (1965) 68 N.L.R. 385 (Ceylon).

164

(1965) 68 N.L.R. 75 (Ceylon).

165

United Engineering Workers Union v. Devanayagam, (1967) 69 N.L.R. 289 (Ceylon).

166

INDUSTRIAL DISPUTES (SPECIAL PROVISIONS) ACT, No. 37 of 1968, § 6(a) (Ceylon).

167

See Tuckers Ltd. v. Ceylon Mercantile Union, (1970) 76 N.L.R. 313 (Ceylon).

168

See Rehan Abeyratne, Rethinking Judicial Independence in India and Sri Lanka, 10 ASIAN J. COMP. L. 99 (2015).

169

See, e.g., Radhika Coomaraswamy & Charmaine de los Reyes, Rule by Emergency: Sri Lanka’s Postcolonial Constitutional Experience, 2(2) INT’L J. CONST. L. 272 (2004).

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