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Constitution making:

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5 years ago

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A layman’s view

by ROHANA R. WASALA

‘At least since Rousseau’s Social Contract and the end of the divine right of kings, the state has been seen as party to a contract with the people – a contract to guarantee or supply the necessary order in society. Without the state’s soldiers, police and the apparatus of control, we are told, gangs or brigands would take over our streets. Extortion, rape, robbery and murder would rip away the last threads of the “thin veneer of civilization.”’ – Alvin Toffler, Powershift, 1990.

The late Alvin Toffler (American writer, journalist, educator, and businessman) says this while reflecting on the nature of power as one of the most basic social phenomena. ‘Power……implies a world that combines both chance, necessity, chaos and order.’ According to him, we humans ‘share an irrepressible, biologically rooted craving for a modicum of order in our daily lives, along with a hunger for novelty. It is the need for order that provides the main justification for the very existence of government’.

Sri Lankans are currently experiencing, in the raw, a taste of the evils that Toffler says the absence of order would breed, which makes constitution making interesting for them. But what is a constitution? Google offers a simple definition of the term: ‘a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed’.

Now, Professor Jayadeva Uyangoda (‘A very wrong approach to Constitution-making’/The Island/September 29, 2020) opines that the proposed 20A has ‘several major defects’. One key fault, according to him, is that the approach adopted for drafting the amendment is ‘very wrong’. JU offers a number of reasons to explain this alleged wrongness of the ‘approach’: the ‘sponsors and framers’ (I suppose the phrase means the politicians and the legal experts behind the drafting of 20A) refuse to learn ‘constructive lessons from past constitutional reform experiments’, but they have learned some ‘partisan, narrow-minded, politically short-sighted ones’. What he probably means by this becomes clear (not clear enough though) in the rest of his article, but it is doubtful whether his sense of right and wrong in the context is shared by many outside the now diminished anti-nationalist coterie, who occupied the parliament for four and a half years and hexed it with the controversial 19A.

It is not necessary to read further into JU’s article to be able to infer where his own inexcusable biases lie. He is obviously in favour of 13A and 19A forced on the nation from outside, and is against the present government’s sincere effort to remove the obstacles placed on its path by the departing yahapalanaya through its ill-conceived constitutional mixed bag that is 19A, where what is bad is by choice, and what is good is by chance. This is not to argue that the new 20A is perfect in comparison. I share many objections raised in different quarters against the proposed 20A, but I believe that the moot points will be satisfactorily sorted out by the present leaders before they manage to get it through parliament.

The Opposition critics of 20A quite well know that it is, after all, only a stopgap measure to clear the way for the unhindered implementation of the government’s development plans. The government will introduce a completely new Constitution within a year or two. JU’s advice as a political scientist will come in handy then.

The proposed 20A is not an arbitrary piece of legislation that the government is introducing behind the back of the people. There is considerable opposition to some of its articles even within the government ranks. Unlike in the case of 19A, the passage of 20A will be a democratic, above-board affair. The Minister of Justice on behalf of the government issued it as a draft bill for public view and review in all three languages on September 2, 2020. The document clearly specifies what is to be amended, repealed, or replaced. The yahapalana constitutional fraud in the form of 19A is not being repeated. Over this four-week period, some thirty-nine petitions have been filed challenging 20A’s constitutionality before the Supreme Court and they were being heard for the third day (October 2) by a bench of five judges, at the time of writing. The government has already declared that it will abide by the court decision by duly adjusting its response to it. JU’s alarms and warnings are uncalled for.

By the phrase ‘past constitutional reform experiments’, JU must be referring to the making of the first and second republican Constitutions (of 1972 and 1978 respectively) and the substantial number of opportune as well as ad hoc amendments introduced by successive governments since, some of them questionable and controversial, where 19A stands in a class by itself as the best example of the worst type of constitutional reform introduced in Sri Lanka to date. What prompts him to describe them as experiments is probably the fact that he is a political scientist with his indispensable toolkit of academic analysis. My interest as a lay citizen, modestly informed of the original construction and subsequent reform of a constitution, is concerned with how good it is going to be for the largest number of the people of the country, as its supreme law, in the context of the more or less stable social and political realities that are prevailing.

As a Constitution is not holy writ, it is open to appropriate amendments from time to time, in compliance with the will of the people, as and when these realities change; a constitution specifies the legal way to reform or replace it as the case may be. The current 1978 republican constitution as amended up to 2015 (Chapter XII/Articles 82-84) specifies the procedure for amending or repealing the constitution. The people whose memory of the yahapalana misadventure is still fresh are anxiously aware of the necessity of passing the 20A.

Contrary to what JU asserts, the political leaders and the legal luminaries responsible for drafting the proposed 20A, have not forgotten the constructive lessons left by their respective predecessors in the form of Sirimavo Bandaranaike and Colvin R. de Silva (1972), and J.R. Jayewardene and J.A. Wilson (1978). Both Bandaranaike and Jayewardene cared about the country, the people, and the culture. Both displayed firm leadership in governing, and a high level of intellect in statecraft. Sirimavo Bandaranaike had her native wit, and Jayewardene possessed a good education. In April 1971, Bandaranaike nipped the JVP terrorism in the bud, not without some violence, though, that she never intended. Opposition leader Jayewardene approved of her actions, saying, ‘yes, a government must rule’. For her courage, firmness, and composure, she was described then as the only male in her cabinet. The contribution of the inspiration provided by Bandaranaike’s political leadership to the making of the first Republican Constitution, the principal architect of which was de Silva, must have been immense and indispensable. Later, hadn’t Jayewardene got Wilson to write the powerful institution of executive presidency into the second republican constitution (1978) as the main anchor to the unitary state, the sovereign Sri Lankan republic that Bandaranaike and de Silva created for the people would have disintegrated and drifted into wilderness and oblivion by now.

Back to the point.

The second alleged defect that JU asserts, without any evidence to support his opinion, is that ‘the framers of the 20A are not motivated by the broader democratic interests of all Sri Lankan people, but the ‘political self-interest’ (of someone or group that JU avoids mentioning). A third defect, JU identifies the Amendment’s supposed lack of ‘a democratic formative framework relevant to our society and its own progressive-modernist legacies of constitutionalism .. (together with the fact that).. it builds itself on one or two dreadful and destructive experiments of constitution-making in the recent past’. This is as close to clear as I can get in interpreting JU here. To illustrate the ‘one or two dreadful and destructive experiments of constitution-making in the recent past’, I think, he draws upon what he, assuming a kind of arbitrary academic license, calls the ‘relatively long history of unmaking, making, and amending constitutions’ that includes the 1972 and 1978 exercises on the one hand, and the 1978C and 18A on the other. JU’s adjectives ‘dreadful and destructive’ could be justifiably applied to the passage of 19A and other such ‘experiments’ in constitutional reform, as contained, for example, in Chapter IV of the Constitution of the Democratic Socialist Republic of Sri Lanka (As amended up to 15th May 2015) (Revised Edition – 2015) issued by the Parliamentary Secretariat. Chapter IV – Language covers Articles 18-25. One is bewildered by what the crafty, ill-meaning, ‘sponsors and framers’ have from time to time done to degrade Sinhala in its official status with the uncomprehending concurrence of some self-seeking Sinhala MPs in the House. This, of course, would be an iconic piece of constitution-making for a theorist with one’s head in the clouds.

The practical reality is that the operative meaning of any Article (whether this is legally contested or not) is implicitly embodied in the English text (though, according to the present constitution Sinhala and Tamil are both official languages, while English is the link language.). So, it is vitally important to translate the draft document that is the Constitution into precise, unambiguous, formal and legally acceptable and uncontestable Sinhala and Tamil. I detected a couple of stark discrepancies between the original English draft and the Sinhala translation (not relating to the particular context – Chapter IV – mentioned above) when I made a very random comparison between the two versions while researching an article at the time, but I don’t remember whether I dwelt on the subject long enough for it to be taken notice of by the reader as something important, though beyond the central scope of that article. Apart from this, those sufficiently informed did not fail to see how some Tamil lawmakers wanted to openly hoodwink the Sinhalas with the word ‘akeeya’ stripped of its intended original meaning of unitary, but falsely insisting that the English term ‘unitary’ was not its equivalent and was not suitable as a translation, and started talking about an ‘Orumiththa Nadu’, reminiscent of Tamil Nadu. How the question which version should prevail in case of an incongruence between the Sinhala and Tamil texts should be resolved, I can’t remember having been discussed. But the last item (58) of the published draft of 20A runs: ‘In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.’

Having outlined the lessons to be learnt from constitution-making, -unmaking, and -reforming exercises up to 18A, JU moves on to the many lessons that he thinks may be drawn from the ‘much maligned’ 19A. He identifies four key lessons. The first lesson he mentions is that wide public consultation is useful, and helps ‘improve the level of democratic health in the polity’. I cannot agree with him that this was true about the drafting of 19A. It was claimed that the constitutional experts including Jayampathy Wickremaratne, presumably its principal drafter, toured the country meeting with individuals and representatives of many minority civil groups during a short period of two or three months. They had to rush the job, they said, as they were in a hurry to finish it within a stipulated time frame. About two thousand people were consulted nevertheless, they claimed. It was obvious that they roamed the country making it their main aim to pay more attention to the minorities that they had decided were discriminated against by the majority Sinhalese, as they wanted the meddling foreign powers to believe in order to justify their interventionist excesses in the internal and external politics of the country. Meanwhile they paid only symbolic attention to the Sinhalese majority. Wickremaratne, the chief architect of the fraudulent document, is now rumoured/reported to have found or is seeking political asylum in Australia or somewhere (though there is absolutely no possibility of his being targeted for persecution in Sri Lanka). He has reportedly admitted that 19A is problematic.

The second lesson that JU asserts he can learn from the making of 19A is that it is ‘better to build consensus across all political parties in Parliament for a major amendment or a new Constitution’. If he means that 19A set a negative example of that principle, then he has a case. But in actuality, 19A destroyed the burgeoning interparty consensus in Parliament and the growing intercommunal goodwill in the broader society that the MR government achieved in the wake of victory over terrorism. It was because of this that ‘for partisan political reasons, some might later withdraw from the consensus’ as JU laments.

I agree with JU on the third lesson he derives from his seemingly iconic amendment, which is that ‘If the consultation and consensus-building in constitution-making is not politically managed with clarity of purpose, the overall goals of the constitutional compromise may run the risk of producing a constitutional scheme with potentially harmful internal anomalies and contradictions’. Yes, in other words, 19A is a very good illustration of a very bad constitutional amendment.

The fourth lesson that 19A offers, according to JU, is that ‘a democratic constitution-making exercise today needs, more than ever, an unwavering political leadership to champion it through to the end by innovative and imaginative democratic means’. In my opinion, this is what the pre-2015 government achieved. 19A, by dismantling it, demonstrated how ill the nation fared in the absence of such unwavering, innovative, and democratic leadership. Then, JU starts chewing his own tail, by suggesting a ‘paradoxical’ reason: ‘Alternatives to democracy are also competing with democracy, with enormous material resources, to gain popular support and loyalty through democratic means. In this age of right-wing populism, media-manufactured popular consent and manipulation of public perceptions through information pollution, post-democratic alternatives tend to gain easy currency and public legitimacy’. Frankly, I can’t make head or tail of this, but it makes me wonder whether JU is trying to make light of the very real persecution of the majority community that is hardly recognized by most mainstream politicians, who feel obliged to find refuge behind political correctness.


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Opinion

Thoughts for Unduvap Poya

Published

3 days ago

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2025/12/4

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Arrival of Arahant Bhikkuni Sangamitta

Unduvap Poya, which falls today, has great historical significance for Sri Lanka, as several important events occurred on that day but before looking into these, as the occasion demands, our first thought should be about impermanence. One of the cornerstones of Buddha’s teachings is impermanence and there is no better time to ponder over it than now, as the unfolding events of the unprecedented natural disaster exemplify it. Who would have imagined, even a few days ago, the scenes of total devastation we are witnessing now; vast swathes of the country under floodwaters due to torrential rain, multitudes of earth slips burying alive entire families with their hard-built properties and closing multiple trunk roads bringing the country to a virtual standstill. The best of human kindness is also amply demonstrated as many risk their own lives to help those in distress.

In the struggle of life, we are attached and accumulate many things, wanted and unwanted, including wealth overlooking the fact that all this could disappear in a flash, as happened to an unfortunate few during this calamitous time. Even the survivors, though they are happy that they survived, are left with anxiety, apprehension, and sorrow, all of which is due to attachment. We are attached to things because we fail to realise the importance of impermanence. If we do, we would be less attached and less affected. Realisation of the impermanent nature of everything is the first step towards ultimate detachment.

It was on a day like this that Arahant Bhikkhuni Sanghamitta arrived in Lanka Deepa bringing with her a sapling of the Sri Maha Bodhi tree under which Prince Siddhartha attained Enlightenment. She was sent by her father Emperor Ashoka, at the request of Arahant Mahinda who had arrived earlier and established Buddhism formally under the royal patronage of King Devanampiyatissa. With the very successful establishment of Bhikkhu Sasana, as there was a strong clamour for the establishment of Bhikkhuni Sasana as well, Arahant Mahinda requested his father to send his sister which was agreed to by Emperor Ashoka, though reluctantly as he would be losing two of his children. In fact, both served Lanka Deepa till their death, never returning to the country of their birth. Though Arahant Sanghamitta’s main mission was otherwise, her bringing a sapling of the Bo tree has left an indelible imprint in the annals of our history.

According to chronicles, King Devanampiyatissa planted the Bo sapling in Mahamevnawa Park in Anuradhapura in 288 BCE, which continues to thrive, making it the oldest living human planted tree in the world with a known planting date. It is a treasure that needs to be respected and protected at all costs. However, not so long ago it was nearly destroyed by the idiocy of worshippers who poured milk on the roots. Devotion clouding reality, they overlooked the fact that a tree needs water, not milk!

A monk developed a new practice of Bodhi Puja, which even today attracts droves of devotees and has become a ritual. This would have been the last thing the Buddha wanted! He expressed gratitude by gazing at the tree, which gave him shelter during the most crucial of times, for a week but did not want his followers to go around worshipping similar trees growing all over. Instead of following the path the Buddha laid for us, we seem keen on inventing new rituals to indulge in!

Arahant Sanghamitta achieved her prime objective by establishing the Bhikkhuni Sasana which thrived for nearly 1200 years till it fell into decline with the fall of the Anuradhapura kingdom. Unfortunately, during the Polonnaruwa period that followed the influence of Hinduism over Buddhism increased and some of the Buddhist values like equality of sexes and anti-casteism were lost. Subsequently, even the Bhikkhu Sasana went into decline. Higher ordination for Bhikkhus was re-established in 1753 CE with the visit of Upali Maha Thera from Siam which formed the basis of Siam Maha Nikaya. Upali Maha Thero is also credited with reorganising Kandy Esala Perahera to be the annual Procession of the Temple of Tooth, which was previously centred around the worship of deities, by getting a royal decree: “Henceforth Gods and men are to follow the Buddha”

In 1764 CE, Siyam Nikaya imposed a ‘Govigama and Radala’ exclusivity, disregarding a fundamental tenet of the Buddha, apparently in response to an order from the King! Fortunately, Buddhism was saved from the idiocy of Siyam Nikaya by the formation of Amarapura Nikaya in 1800 CE and Ramanna Nikaya in 1864 CE, higher ordination for both obtained from Burma. None of these Niakya’s showed any interest in the re-establishment of Bhikkhuni Sasana which was left to a band of interested and determined ladies.

My thoughts and admiration, on the day Bhikkhuni Sasana was originally established, go to these pioneers whose determination knew no bounds. They overcame enormous difficulties and obtained higher ordination from South Korea initially. Fortunately, Ven. Inamaluwe Sri Sumangala Thero, Maha Nayaka of Rangiri Dambulla Chapter of Siyam Maha Nikaya started offering higher ordination to Bhikkhunis in 1998 but state recognition became a sore point. When Venerable Welimada Dhammadinna Bhikkhuni was denied official recognition as a Bhikkhuni on her national identity card she filed action, with the support of Ven. Inamaluwe Sri Sumangala Thero. In a landmark majority judgement delivered on 16 June, the Supreme Court ruled that the fundamental rights of Ven. Dhammadinna were breached and also Bhikkhuni Sasana was re-established in Sri Lanka. As this judgement did not receive wide publicity, I wrote a piece titled “Buddhism, Bhikkhus and Bhikkhunis” (The Island, 10 July 2025) and my wish for this Unduvap Poya is what I stated therein:

“The landmark legal battle won by Bhikkhunis is a victory for common sense more than anything else. I hope it will help Bhikkhuni Sasana flourish in Sri Lanka. The number of devotees inviting Bhikkhunis to religious functions is increasing. May Bhikkhunis receive the recognition they richly deserve.” May there be a rapid return to normalcy from the current tragic situation.”

by Dr Upul Wijayawardhana

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Opinion

Royal Over Eighties

Published

4 days ago

on

2025/12/3

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Royal College

The gathering was actually of ‘Over Seventies’ but those of my generation present were mostly of the late eighties.

Even of them I shall mention only those whom I know at least by name. But, first, to those few of my years and older with whom speech was possible.

First among them, in more sense than one, was Nihal Seneviratne, at ninety-one probably the oldest present. There is no truth to the story that his state of crisp well-being is attributable to the consumption of gul-bunis in his school days. It is traceable rather to a life well lived. His practice of regular walks around the house and along the lane on which he lives may have contributed to his erect posture. As also to the total absence of a walking stick, a helper, or any other form of assistance as he walked into the Janaki hotel where this gathering took place.

Referencing the published accounts of his several decades-long service in Parliament as head of its administration, it would be moot to recall that his close friend and fellow lawyer, J E D Gooneratne, teased him in the following terms: “You will be a bloody clerk all your life”. He did join service as Second Assistant to the Clerk to the House and moved up, but the Clerk became the Secretary General. Regardless of such matters of nomenclature, it could be said that Nihal Seneviratne ran the show.

Others present included Dr. Ranjith de Silva, Surgeon, who was our cricket Captain and, to the best of my knowledge, has the distinction of never engaging in private practice.

The range of Dr. K L (Lochana) Gunaratne’s interests and his accomplishments within each are indeed remarkable. I would think that somebody who’d received his initial training at the AA School of Architecture in London would continue to have architecture as the foundation of his likes /dislikes. Such would also provide a road map to other pursuits whether immediately related to that field or not. That is evident in the leadership roles he has played in the National Academy of Sciences and the Institute of Town Planners among others. As I recall he has also addressed issues related to the Panadura Vadaya.

My memories of D L Seneviratne at school were associated with tennis. As happens, D L had launched his gift for writing over three decades ago with a history of tennis in Sri Lanka (1991). That is a game with which my acquaintance is limited to sending a couple of serves past his ear (not ‘tossing the ball across’ as he asked me to) while Jothilingam, long much missed, waited for his team mates to come for practices. It is a game at which my father spent much time both at the Railway sports club and at our home-town club. (By some kind of chance, I recovered just a week ago the ‘Fred de Saram Challenge Cup’ which, on his winning the Singles for the third time, Koo de Saram came over to the Kandana Club to hand over to him for keeps. They played an exhibition match which father won). D L would know whether or not, as I have heard, in an exhibition match in Colombo, Koo defeated Frank Sedgman, who was on his triumphant return home to Oz after he had won the Wimbledon tournament in London.

I had no idea that D L has written any books till my son brought home the one on the early history of Royal under Marsh and Boake, (both long-bearded young men in their twenties).

It includes a rich assortment of photographs of great value to those who are interested in the history of the Anglican segment of Christian missionary activity here in the context of its contribution to secondary school education. Among them is one of the school as it appeared on moving to Thurstan road from Mutwal. It has been extracted from the History of Royal, 1931,  done by students (among whom a relative, Palitha Weeraman, had played a significant role).

As D L shows, (in contra-distinction to the Catholic schools) the CMS had engaged in a largely secular practice. Royal remained so through our time – when one could walk into the examination room and answer questions framed to test one’s knowledge of Christianity, Buddhism, Hinduism and Islam; a knowledge derived mostly from the lectures delivered by an Old Boy at general assembly on Friday plus readings from the Dhammapada, the Bhagavad Gita, the St. John’s version of the Bible or the Koran recited by a student at senior assembly on Tuesday / Thursday.

 D L’s history of Royal College had followed in 2006.

His writing is so rich in detail, so precise in formulation, that I would consider this brief note a simple prompt towards a publisher bringing out new editions at different levels of cost.

It was also a pleasure to meet Senaka Amarasinghe, as yet flaunting his Emperor profile, and among the principal organisers of this event.

The encounter with I S de Silva, distinguished attorney, who was on Galle road close to Janaki lane, where I lived then was indeed welcome. As was that with Upali Mendis, who carried out cataract surgery on my mother oh so long ago when he was head of the Eye Hospital. His older brother, L P, was probably the most gifted student in chemistry in our time.

Most serendipitous perhaps was meeting a son of one of our most popular teachers from the 1950s, – Connor Rajaratnam. His cons were a caution.

by Gamini Seneviratne

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Opinion

“Regulatory Impact Assessment – Not a bureaucratic formality but essentially an advocacy tool for smarter governance”: A response

Published

5 days ago

on

2025/12/2

By

Having meticulously read and re-read the above article published in the opinion page of The Island on the 27 Nov, I hasten to make a critical review on the far-reaching proposal made by the co-authors, namely Professor Theekshana Suraweera, Chairman of the Sri Lanka Standards Institution and Dr. Prabath.C.Abeysiriwardana, Director of Ministry of Science and Technology

The aforesaid article provides a timely and compelling critique of Sri Lanka’s long-standing gaps in evidence-based policymaking and argues persuasively for the institutional adoption of Regulatory Impact Assessment (RIA). In a context where policy missteps have led to severe economic and social consequences, the article functions as an essential wake-up call—highlighting RIA not as a bureaucratic formality but as a foundational tool for smarter governance.

One of the article’s strongest contributions is its clear explanation of how regulatory processes currently function in Sri Lanka: legislation is drafted with narrow legal scrutiny focused mainly on constitutional compliance, with little or no structured assessment of economic, social, cultural, or environmental impacts. The author strengthens this argument with well-chosen examples—the sudden ban on chemical fertilizer imports and the consequences of the 1956 Official Language Act—demonstrating how untested regulation can have far-reaching negative outcomes. These cases effectively illustrate the dangers of ad hoc policymaking and underscore the need for a formal review mechanism.

The article also succeeds in demystifying RIA by outlining its core steps—problem definition, option analysis, impact assessment, stakeholder consultation, and post-implementation review. This breakdown makes it clear that RIA is not merely a Western ideal but a practical, structured, and replicable process that could greatly improve policymaking in Sri Lanka. The references to international best practices (such as the role of OIRA in the United States) lend credibility and global context, showing that RIA is not experimental but an established standard in advanced governance systems.

However, the article could have further strengthened its critique by addressing the political economy of reform: the structural incentives, institutional resistance, and political culture that have historically obstructed such tools in Sri Lanka. While the challenges of data availability, quantification, and political pressure are briefly mentioned, a deeper analysis of why evidence-based policymaking has not taken root—and how to overcome these systemic barriers—would have offered greater practical value.

Another potential enhancement would be the inclusion of local micro-level examples where smaller-scale regulations backfired due to insufficient appraisal. This would help illustrate that the problem is not limited to headline-making policy failures but affects governance at every level.

Despite these minor limitations, the article is highly effective as an advocacy piece. It makes a strong case that RIA could transform Sri Lanka’s regulatory landscape by institutionalizing foresight, transparency, and accountability. Its emphasis on aligning RIA with ongoing national initiatives—particularly the strengthening of the National Quality Infrastructure—demonstrates both pragmatism and strategic vision.

At a time, when Chairmen of statutory bodies appointed by the NPP government play a passive voice, the candid opinion expressed by the CEO of SLSI on the necessity of a Regulatory Impact Assessment is an important and insightful contribution. It highlights a critical missing link in Sri Lanka’s policy environment and provides a clear call to action. If widely circulated and taken seriously by policymakers, academics, and civil society, it could indeed become the eye-opener needed to push Sri Lanka toward more rational, responsible, and future-ready governance.

J. A. A. S. Ranasinghe,
Productivity Specialty and Management Consultant
(rathula49@gmail.com)

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