Rehan Abeyratne<\/strong><\/a><\/p>\n\n\n\n International Journal of Constitutional Law<\/em>, Volume 17, Issue 4, October 2019, Pages 1258\u20131282, https:\/\/doi.org\/10.1093\/icon\/moz079<\/a><\/p>\n\n\n\n 21 January 2020<\/p>\n\n\n\n This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon\u2019s Dominion period (1948\u20131972). 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\u2019 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\u2014as a foreign judicial body intervening in Ceylonese affairs\u2014stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.<\/p>\n\n\n\n Issue Section:<\/p>\n\n\n\n Symposium: New Dominium Constitutionalism<\/a><\/p>\n\n\n\n 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, \u201cYou are a dominion now.\u201d<\/p> \u2014S. W. R. D. Bandaranaike, Ceylon Prime Minister (1956\u20131959)1<\/sup><\/a><\/p><\/blockquote>\n\n\n\n On February 4, 1948, Sri Lanka (then Ceylon)2<\/sup><\/a> achieved \u201cfully responsible status within the British Commonwealth of Nations.\u201d3<\/sup><\/a> This phrasing was deliberate. On one hand, there were concerns that \u201cDominion status\u201d would be mistrusted in Ceylon, as it connoted being subordinate to Britain.4<\/sup><\/a> On the other hand, merely conferring \u201cfully responsible status\u201d would also \u201cprobably be both misunderstood and misrepresented as something less than Dominion Status.\u201d5<\/sup><\/a> The latter phrase was selected, but doubts over the precise meaning of \u201cfully responsible status\u201d and whether it truly connoted self-rule persisted after 1948.6<\/sup><\/a><\/p>\n\n\n\n Uncertainty over Ceylon\u2019s sovereignty was a hallmark of the Dominion period (1948\u20131972). 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<\/sup><\/a> Dominion status was also an undertheorized concept, serving as a \u201chalfway-house between colonial and independent status.\u201d8<\/sup><\/a> Thus, it was flexible in application, covering the gamut from loyal \u201csettler\u201d Dominions of Australia, New Zealand, and Canada, to the more rebellious Ireland, and the \u201cTropical Dominions\u201d of South Asia.9<\/sup><\/a> The drawback was that such a nebulous and protean concept did not assure former colonial subjects that Dominion status actually conferred sovereignty.<\/p>\n\n\n\n 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\u2014and largely Anglophile\u2014political 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.<\/p>\n\n\n\n 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 \u201cSoulbury Constitution.\u201d10<\/sup><\/a> It emerged from the recommendations of a commission on constitutional reform, led by Lord Soulbury, who became Ceylon\u2019s first governor-general. The Soulbury Commission\u2019s recommendations were largely based on a Ministers\u2019 Draft Constitution, whose drafter and principal theorist was the British constitutional scholar Sir Ivor Jennings.<\/p>\n\n\n\n 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\u2019s unwritten Constitution, constitutionalism in Ceylon\u2019s Dominion period was to be flexible and governed by convention. The nature and precise scope of \u201cfully responsible status\u201d were, therefore, not subject to scrutiny in the drafting stage and not defined within the Soulbury Constitution.<\/p>\n\n\n\n As a result, doubts about Ceylon\u2019s 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\u2014and Ceylonese sovereignty\u2014was questioned throughout the Dominion period.<\/p>\n\n\n\n The events leading up to Ceylon\u2019s independence and the sociopolitical effects of the Soulbury Constitution are well known. Ceylonese leaders\u2019 shrewd negotiations to achieve Dominion status,11<\/sup><\/a> their neglect of minority rights and representation,12<\/sup><\/a> and their failure to anticipate the rise of Sinhalese-Buddhist nationalism and violent Tamil opposition13<\/sup><\/a> have been the subject of in-depth study.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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\u2019 undue deference to the Ceylon Parliament, which was viewed like its all-powerful British progenitor. In other words, Ceylon\u2019s Parliament was treated as if it were sovereign, when, in fact, the Soulbury Constitution limited its exercise of legislative authority.<\/p>\n\n\n\n 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\u2014as a foreign judicial body intervening in Ceylonese affairs\u2014stoked concerns that Ceylon was not sovereign, which ultimately led to the repeal of the Soulbury Constitution and the end of Dominion status.<\/p>\n\n\n\n Ceylon became a Dominion in 1948 following negotiations between local political elites and the British government. The legal and institutional framework for this \u201cfully responsible status\u201d began to crystallize in the Ministers\u2019 Draft Constitution of 1944.<\/p>\n\n\n\n The Ministers\u2019 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\u2019 consensus on constitutional principles as the views of future Prime Minister D. S. Senanayake\u2019s constitutional advisor, Sir Ivor Jennings.14<\/sup><\/a> Senanayake\u2019s inner circle, the \u201cbreakdown gang,\u201d 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: \u2018[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 \u201con tap\u201d. \u201815<\/sup><\/a><\/p>\n\n\n\n While Jennings credited Senanayake and Goonetileke for shepherding Ceylon toward fully responsible status,16<\/sup><\/a> he played a central role in determining the constitutional form that government would take. Jennings was the driving force behind the Ministers\u2019 Draft Constitution.17<\/sup><\/a> On the most important constitutional questions, his handiwork is apparent.18<\/sup><\/a> Three of Jennings\u2019s contributions became especially significant during Ceylon\u2019s Dominion period.<\/p>\n\n\n\n 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 \u201cthe right to make or unmake any law whatever.\u201d19<\/sup><\/a> Thus, no Parliament could enact laws that bind future parliaments. This meant that constitutional laws did not attain special status\u2014like 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<\/sup><\/a><\/p>\n\n\n\n Jennings took a different view. For him, Parliament could set forth procedures to limit the \u201cmanner and form\u201d in which future parliaments could amend or repeal legislation without affecting parliamentary sovereignty.21<\/sup><\/a> This would become significant in the Ceylonese context, as the Soulbury Constitution, based on Jennings\u2019s recommendations in the Ministers\u2019 Draft,22<\/sup><\/a> included manner and form limitations on the lawmaking authority of Ceylon Parliament\u2014limitations that called into question the sovereignty of both Parliament and Ceylon itself.<\/p>\n\n\n\n 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<\/sup><\/a> As Mara Malagodi put it, Jennings disliked \u201cIndian-style entrenched charters of fundamental rights patrolled by courts with extensive judicial review powers.\u201d24<\/sup><\/a> The Ministers\u2019 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<\/sup><\/a><\/p>\n\n\n\n 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 \u201crelentless focus on the inherent virtues of modernity\u201d prevailed.26<\/sup><\/a> On minority representation, Jennings said, \u201cCommunal representation . . . encourages communalism; and what a self-governing country must develop is . . . common loyalty.\u201d27<\/sup><\/a> D. S. Senanayake agreed, believing that any formula they devised for communal representation would unnecessarily complicate independence negotiations. Jennings recounted their exchange as follows:<\/p>\n\n\n\n When I asked if I was to give the Ceylon Tamils increased representation Mr. Senanayake replied: \u201cI don\u2019t care if they\u2019re all Tamils provided they are elected as Ceylonese. . . .<\/em> He did not want a numerical formula like \u2018fifty-fifty\u2019, or \u2018sixty-forty\u2019, or anything of that kind, because everybody would haggle about it and it would be Communal haggling<\/em>.\u201d28<\/sup><\/a><\/p><\/blockquote>\n\n\n\n In the end, the Ministers\u2019 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<\/sup><\/a><\/p>\n\n\n\n The Ministers\u2019 Draft Constitution was completed in February 1944. Senanayake immediately asked the British government for its approval.30<\/sup><\/a> However, the Ministers\u2019 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<\/sup><\/a> Ponnambalam\u2019s 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<\/sup><\/a><\/p>\n\n\n\n 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\u2019s mandate were widened to include consultations with minority communities and other interested groups.33<\/sup><\/a> The Soulbury Commission faced demands for communal representation from the Ponnambalam-led All Ceylon Tamil Congress, but also from the Ceylon Moors\u2019 Association, the Dutch Burgher Union, and the All-Ceylon Scheduled Castes\u2019 Federation, among many others.34<\/sup><\/a><\/p>\n\n\n\n Senanayake and the Board of Ministers objected strongly to the Commission\u2019s widened mandate and staged an official boycott of the Commission in protest.35<\/sup><\/a> However, this did not mean that Senanayake forwent all influence on the Commission\u2019s deliberations. On the contrary, Senanayake ensured that the Commission was \u201cinformally, but extensively briefed, on the details of the Ministers\u2019 position.\u201d36<\/sup><\/a> The prologue of the Soulbury Commission Report, published in September 1945, suggests much the same.37<\/sup><\/a><\/p>\n\n\n\n Indeed, the Soulbury Commission Report ultimately endorsed the Ministers\u2019 Draft Constitution in all but a few significant respects. Regarding minority representation, the Commission recognized the communal problem in Ceylon. It said, \u201c[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.\u201d38<\/sup><\/a> But the Commission echoed Jennings\u2019s reservations on the efficacy of substantive limitations on majority rule, noting that if the government were not willing to respect minority interests, \u201cno safeguards that we could ever devise would in the long run be of much avail.\u201d39<\/sup><\/a><\/p>\n\n\n\n Thus, minority demands for reserved seats in Parliament fell on deaf ears. Ponnambalam argued strongly for a \u201cfifty-fifty\u201d scheme in which 50 percent of parliamentary seats would be reserved for minority communities.40<\/sup><\/a> The Soulbury Commission rejected this demand, denying any communal representation.41<\/sup><\/a> Territorial representation became the basis for parliamentary elections; though, in another nod to the Ministers\u2019 Draft, the Commission recommended the creation of a Delimitation Commission empowered to give weighted representation to minority communities where appropriate.42<\/sup><\/a><\/p>\n\n\n\n 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<\/sup><\/a> Ceylon was the first colony in the British Empire outside the \u201cwhite\u201d or \u201csettler\u201d colonies to be granted universal suffrage.44<\/sup><\/a> All Ceylonese men and women age 21 and older could vote on the basis of domicile\u2014no literacy, financial, or property requirements were imposed.45<\/sup><\/a> 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<\/sup><\/a> This provision was designed to permit Europeans and wealthy Indian merchants and landowners to vote\u2014and to restrict the franchise to the \u201cIndian Tamil\u201d community.47<\/sup><\/a><\/p>\n\n\n\n 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<\/sup><\/a> These burdensome requirements prevented many Indian Tamils from voting.49<\/sup><\/a> The Soulbury Commission could have eased these requirements or recommended constitutional protections for the Indian Tamil community. Instead, the Commission merely said, \u201cWe recommend universal suffrage on the present basis shall be retained.\u201d50<\/sup><\/a><\/p>\n\n\n\n As we shall see, the rights of Indian Tamils\u2014and minorities generally\u2014remained a thorny constitutional issue during Ceylon\u2019s Dominion period.<\/p>\n\n\n\n The Soulbury Commission\u2019s Report was published in September 1945. Following further negotiations between the British government and the breakdown gang,51<\/sup><\/a> 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<\/sup><\/a> the 1946 Order in Council is widely referred to as the \u201cSoulbury Constitution.\u201d<\/p>\n\n\n\n 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\u2019 Draft, per Jennings, envisioned a single legislative body, the Commission recommended\u2014and the Soulbury Constitution adopted\u2014a bicameral Parliament consisting of a House of Representatives and a Senate.53<\/sup><\/a> It vested executive power in a Westminster-style Cabinet of Ministers, responsible to Parliament, who would advise the governor-general.54<\/sup><\/a> 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<\/sup><\/a> That these sensitive portfolios were placed with the Prime Minister showed the British government\u2019s faith in D. S. Senanayake.56<\/sup><\/a> 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.<\/p>\n\n\n\n The most contested provisions of the Soulbury Constitution would be judicial power and limitations on parliamentary authority. Part VI of the Soulbury Constitution (\u201cThe Judicature\u201d) 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<\/sup><\/a> The JSC had the authority to appoint, transfer, and dismiss all \u201cjudicial officers.\u201d<\/p>\n\n\n\n Limitations took on a different form than the Soulbury Commission envisioned. The Commission\u2019s Report recommended absolute limitations,58<\/sup><\/a> 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 \u201cto make laws for the peace, order, and good government of the island.\u201d 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.<\/p>\n\n\n\n Section 29(3) clarified that any law contravening section 29(2) would be void. This repugnancy clause was novel\u2014it appeared neither in the Ministers\u2019 Draft nor in the Soulbury Commission Report. As Asanga Welikala noted, its inclusion \u201ccreated a textual anomaly,\u201d as section 29(4), which set forth constitutional amendment procedures, was not followed by a similar clause.59<\/sup><\/a><\/p>\n\n\n\n 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\u2019 Draft, which required express words to enact constitutional amendments.60<\/sup><\/a> Section 29(4) further stipulated that the speaker\u2019s certification was conclusive and immune from judicial review.<\/p>\n\n\n\n The 1946 Order in Council put into effect much of what Senanayake and his advisors demanded in the Ministers\u2019 Draft. But it did not accomplish Senanayake\u2019s aim of Dominion status.<\/p>\n\n\n\n A few factors conspired to eventually realize this aspiration. First, Ceylon\u2019s reputation as a \u201cmodel colony,\u201d61<\/sup><\/a> characterized by relative peace and economic prosperity,62<\/sup><\/a> 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\u2014just three years after Britain\u2014demonstrated the British government\u2019s faith in Ceylon\u2019s ruling class, which was largely able to coexist in the pursuit of greater autonomy.63<\/sup><\/a> The Soulbury Commission expressed this faith explicitly. At the end of its Report, it declared: \u201cIt 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.\u201d64<\/sup><\/a><\/p>\n\n\n\n A second and related factor that enabled Dominion status was that Senanayake\u2019s 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 \u201cThere 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.\u201d65<\/sup><\/a> He added that if Britain were to grant Ceylon Dominion status, it would \u201cshow 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].\u201d66<\/sup><\/a> 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<\/sup><\/a><\/p>\n\n\n\n With civil unrest in Ceylon on the rise in 1945\u20131946, stirred up by Marxist parties, the British government was keen to keep power out of the hands of \u201cextremists.\u201d68<\/sup><\/a> 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, \u201cAs the Cold War enveloped international thinking Senanayake was shrewdly able to dangle the socialist sword of Damocles over Britain\u2019s head.\u201d69<\/sup><\/a><\/p>\n\n\n\n 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\u2019s case almost assured.70<\/sup><\/a> In January 1947, the Attlee-Aung San agreement was signed to give Burma Dominion status leading to full independence. Ceylon\u2019s 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, \u201cWhitehall could hardly refuse the same status to Sri Lanka.\u201d71<\/sup><\/a><\/p>\n\n\n\n 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\u2019s breakdown gang, warned against calling it Dominion status. His caution emerged from the \u201cpersistent belief\u201d in Ceylon that this phrase \u201cconnoted a status lower than that of \u2018independence.\u2019\u201d72<\/sup><\/a> In correspondence with D. S. Senanayake, Colonial Secretary Creech Jones accepted Goonetileke\u2019s explanation and additionally conceded that Dominion status was not a self-explanatory term, particularly in the absence of statutory definitions.73<\/sup><\/a><\/p>\n\n\n\n Creech Jones proposed the alternative of \u201cfully responsible status within the British Commonwealth of Nations.\u201d74<\/sup><\/a> 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 \u201cwhite\u201d Dominions provided in the Statute of Westminster, 1931,75<\/sup><\/a> and by the legislatures of India and Pakistan as per section 6 of the Indian Independence Act, 1947.76<\/sup><\/a> 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<\/sup><\/a><\/p>\n\n\n\n Senanayake agreed with this phrasing, leading to its use in the official announcement of Ceylon\u2019s independence in June 1947.78<\/sup><\/a> In December, the Ceylon Independence Act, 1947 and the accompanying Independence Order in Council were issued and \u201cfully responsible status\u201d was conferred on Ceylon.79<\/sup><\/a> However, the new choice of phrase did not resolve confusion as to Ceylon\u2019s actual status vis-\u00e0-vis the British Empire. If anything, avoiding mention of \u201cDominion status\u201d 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, \u201c[F]ully responsible status was frequently represented as something less than Dominion status, even after the Ceylon Independence bill was passed.\u201d80<\/sup><\/a><\/p>\n\n\n\n Thus, Ceylon\u2019s 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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<\/sup><\/a> 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<\/sup><\/a><\/p>\n\n\n\n The Ceylon Supreme Court weighed in on the constitutionality of this Act in Mudanayake v. Sivagnanasunderam<\/em>.83<\/sup><\/a> This was the Court\u2019s first chance to interpret section 29(2) of the Soulbury Constitution, which, inter alia, prohibited the Ceylon Parliament from passing legislation that imposed \u201cdisabilities or restrictions\u201d on any community that were not imposed on other communities.84<\/sup><\/a><\/p>\n\n\n\n In Mudanayake<\/em>, 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 \u201ccommunal restriction\u201d 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\u2014requirements that became more onerous if born outside Ceylon or if one\u2019s father was not a Ceylonese citizen.<\/p>\n\n\n\n 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 \u201cseveral English cases of high authority.\u201d85<\/sup><\/a> The rule was that legislative intent can be \u201clegitimately ascertained\u201d from express words in the relevant statute or by \u201creasonable and necessary implication.\u201d<\/p>\n\n\n\n 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<\/em>,86<\/sup><\/a> a landmark U.S. Supreme Court case that held San Francisco city ordinances unconstitutional for discriminating against Chinese immigrants. The ordinances were facially neutral\u2014they 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.<\/p>\n\n\n\n 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\u2019t 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:<\/p>\n\n\n\n [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<\/em>.87<\/sup><\/a><\/p><\/blockquote>\n\n\n\n Armed with this narrow rule of interpretation, the Court upheld the constitutional validity of the impugned acts. The fact that \u201ca large section of Indians are disqualified\u201d from voting was \u201cirrelevant,\u201d as this was not a necessary legal effect flowing from the Act\u2019s express language.<\/p>\n\n\n\n Significantly, the Court provided an additional justification for its ruling: judicial restraint grounded in Ceylon\u2019s 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:<\/p>\n\n\n\n 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<\/sup><\/a><\/p><\/blockquote>\n\n\n\n To the contrary, the Court declared that the Ceylon Parliament \u201chas the power to alter the electoral law in any manner it pleases . . . subject to the narrow limitation in Section 29.\u201d89<\/sup><\/a><\/p>\n\n\n\n On appeal, the Privy Council upheld this judgment in Kodakan Pillai v. Mudanayake<\/em>.90<\/sup><\/a> The Privy Council issued a short opinion that largely echoed the Supreme Court\u2019s reasoning. It provided two main justifications: (1) that it is a \u201cperfectly natural and legitimate function of the legislature of a country to determine the composition of its nationals\u201d;91<\/sup><\/a> and (2), that the negative effects of the two Acts on the Indian Tamil community \u201chave nothing to do with them as a community.\u201d92<\/sup><\/a> On the second point, the Council referred to the Soulbury Commission Report, which confirmed the \u201cmigratory habits\u201d of the Indian Tamils that made them unsuited to citizenship.93<\/sup><\/a> Furthermore, the fact that citizenship laws might disproportionately harm the illiterate and the poor were irrelevant, as neither was a \u201ccommunity\u201d within section 29(2).<\/p>\n\n\n\n The Privy Council\u2019s reasoning is revealing both in its disregard for the rights of the Indian Tamil community and its endorsement of the Supreme Court\u2019s narrow interpretation of section 29(2). As discussed, this interpretation emerged from a series of English cases, which were decided vis-\u00e0-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.<\/p>\n\n\n\n Mudanayake<\/em> 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.<\/p>\n\n\n\n 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: \u201cFor centuries the Sinhalese and the Tamils have lived together in peace and amity. . . . We all know and admire [the minority communities\u2019] . . . special qualities. They are essential to the welfare of this Island, and I ask them to come over and help us.\u201d94<\/sup><\/a> 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 \u201cunexpressed premise\u201d of the Soulbury Constitution was an \u201cagreement between the English-educated elites of all the island\u2019s principal groups\u201d to govern cooperatively.Abstract<\/h2>\n\n\n\n
1. Introduction<\/h2>\n\n\n\n
2. The road to dominion status<\/h2>\n\n\n\n
2.1. The Ministers\u2019 draft<\/h3>\n\n\n\n
2.2. The Soulbury Constitution and \u201cfully responsible status\u201d<\/h3>\n\n\n\n
(a) The Soulbury Commission<\/h4>\n\n\n\n
(b) The 1946 Order in Council<\/h4>\n\n\n\n
(c) Fully responsible status<\/h4>\n\n\n\n
3. Fundamental rights and judicial restraint<\/h2>\n\n\n\n
3.1. Indian Tamils and the franchise<\/h3>\n\n\n\n
3.2. Ceylon Tamils and the Sinhala-Only Act<\/h3>\n\n\n\n