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Aitken Spence goes public, LOLC takes off and July 1983 riots hit

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by Charitha P. de Silva

1982 was an historic year for Aitken Spence. It was the year that we went public. Earlier in the years I had received a lot of prominence as a result of my photo appearing on the cover of “Asian Business,” a Hongkong-based magazine. I had been invited to deliver a lecture in Hongkong on “How a Traditional Agency House was converted into a Conglomerate”.

The business tycoon Upali Wijewardena had also been invited to speak at the same forum. Unfortunately, he and a small group of his key men went down in the Malacca Straits in his private Lear Jet. There was a lot of speculation that the accident had been engineered in some way. The upshot of this unfortunate accident was that the meeting in Hongkong was canceled.

It was with some misgivings that I promoted the idea of our going public. There were undoubted tax and financial advantages in going public. However, we would lose our privacy and some of our freedom and the feeling of being a close-knit family. In balance, it was a good move and well timed because we had grown to be one of the three biggest conglomerates in the country – the other two being John Keells and Hayleys who were friendly rivals. They were already public companies.

I consulted my good friend M.T.L. Fernando, senior partner of Ernst & Young (a leading firm of auditors) and he looked at our accounts and thought that we should revalue our assets (which had not been done for many years) and have a three for one bonus share issue to existing shareholders before we offered our shares to the public. During the 10 years that I had been Chairman any shares that became available had not been appropriated by the directors. At my urging they were distributed at par to senior executives on a paternalistic basis.

We – Michael (Mack), Norman (Gunawardene), GC (Wickremasinghe) and I – decided who would get the shares and how many each would get. That itself was a generous action because we were a private company and had every right to appropriate the shares ourselves. There was nobody to question us.

Looking back I realize that I must have exercised considerable moral authority over my senior co-directors because they never once demurred at my proposals which involved sacrifice on the part of all of them.

The most extraordinary suggestion I made was when we were planning the Bonus Issue. It struck me that the junior directors, Stanley Wickremaratne, Ratna Sivaratnam and Lal Karunanayake had much fewer shares than the senior directors. I therefore suggested that we should sell them one tenth of our shares before the Bonus Issue. And what was unbelievable was that I suggested that we sell them at par! This was the very antithesis of Insider Dealing. Here was I suggesting that we give them a huge gift before a Bonus Issue! What is incredible is that not one of my senior co-directors protested or demurred! I remember Walter Wimalachandra telling me later that he was thrilled to see, in my actions, the finest principles of Buddhism being implemented.

I had a major decision to make myself. As a private company with a special set of Articles of Association we had a special class of shares called Management Shares. Each Management Share carried a hundred times the voting strength of an Ordinary Share. It thus gave total control of the Company to the holders of Management Shares. This would have been a device that the British owners had adopted to protect themselves. It happened that as a result of the departure of Roy Hinton and Eldsworth Van Langenburg and the death of Louis Samarawickrema, I was the holder of the largest number, by far, of Management Shares.

As they had the same dividend rights as an Ordinary Share and the question of votes had never arisen in the past I had never paid any attention to the fact that I had virtual control of the company. My style of control was based on my ability to persuade, and we had always made all our decisions on a consensual basis. I realised that if the voting rights of Management Shares were ever brought into play it would have been the end of the unity and camaraderie that I had built up over 10 years completely wiping out the memory of the attempted coup by Michael and Norman in 1972 when I was elected Chairman.

Now I was faced with the problem of how the Management Shares should be valued before we went public after which there would be only one class of shares – Ordinary Shares. It might easily have been argued that each Management Share was worth a hundred Ordinary Shares. Such a thought did not even strike me. I would have found it embarrassing. Looking back I cannot but realize that my attitude was positively saintly, and completely unbusiness like. Detractors would say that I was foolish – in the extreme! I decided that without any attempt to have the shares professionally valued I would place a value of eight times that of an Ordinary Share. There was no reaction from my co-directors. They may have secretly thought I was a little soft in the head.

The public Issue was a great success. At about this time LOLC also went public with Orix Corporation of Japan having 30% of the shareholding with the other large shareholders being Bank of Ceylon, National Development Bank, and Development Finance Corporation of Ceylon. Once again I gained no personal advantage from the fact that I was the first chairman of the company. My failure to look after myself can be judged from the fact that when I eventually retired in 2003 (21 years later) I owned less than 5% of the shares! This would sound incredibly foolish to any businessman. I can only attribute it to my abnormal lack of acquisitiveness, all part of my upbringing, and the example of my parents and brothers. This is my only excuse for depriving my children of the opportunity of inheriting great wealth.

Leasing became extremely popular, and a number of independent companies, finance companies and banks started leasing as a lucrative activity. What particularly attracted the banks was the fact that they could set off the depreciation on leased assets against their other income. The specialized leasing companies themselves did not have much other income against which they could set off their depreciation, so that they were in a permanent state of having taxable losses. They therefore did not pay any income tax which infuriated some tax officials who did not concern themselves with the thought that they paid large sums as Turnover Tax.

I saw the need for the leasing industry to protect itself from government action particularly in taxation. I therefore took the initiative in forming a Leasing Association. Quite naturally I was the Chairman and chief spokesman. All those involved in leasing became members. Thus there were representatives from banks in our membership, and our interests were not always congruent. I was not happy about the advantage that banks had with their ability to use depreciation (which could be set off against their other income) to make themselves more competitive.

Specialist leasing companies like ourselves were at a competitive disadvantage because we were dependent on banks for long-term funds, and we had no other income of any magnitude. I decided to do something about it. I made inquiries from the Asian Leasing Association that we had joined by that time, and discovered that Pakistan had introduced legislation that prohibited depreciation being set off against other income. Through Orix Pakistan I got the text of the legislation and wrote to our own Department of Inland Revenue strongly recommending it. It was seized on eagerly as an excellent source of revenue. The banks that had gone into leasing (like Hatton National Bank and the DFCC) were very upset, and Maxi Prelis (DFCC) and Rienzie Wijetilleke (HNB) wrote strong letters to Government attacking me and LOLC.

The Asian Leasing Association (ALA), headquartered in Singapore, had as its head, Mr Miyauchi, the CEO of ORIX Corporation that had created us and still had their representative, Mr Yoshio Ono as our Managing Director. Mr Miyauchi who had developed a healthy respect for me invited me on to their governing council.

LOLC had performed very creditably with A.F. Nizar as Ono’s deputy ever since its inception, doing much better than projected and expected. At this stage I came to the conclusion that we did not need a Japanese MD any longer. I felt that Nizar was ready to take over provided ORIX would agree to it. Under the original agreement with ORIX and the IFC (International Finance Corporation – a World Bank affiliate), ORIX which had 30% of our shares had the right to have their own MD.

When I sounded out the IFC director on our board, P.M. Mathew, he scoffed at the idea saying that Japan would never agree to it. ORIX had associate companies like us all over the world and in every one of them they had a Japanese as the MD. Ours was one of the youngest of these associate companies and it was most unlikely that they would change their worldwide policy for us. I had confidence in myself, and decided that I would broach the question with Miyauchi with whom I had an excellent relationship.

I did so on the next occasion that we met, and was not at all surprised when he agreed to my proposal that Nizar should take over from Ono when his term was over. He obviously had great confidence in my judgment, and the fact that I would be there as Chairman.

And there were obvious cost advantages to them in that they would save on Ono’s salary which would have been much, very much, more than Nizar’s. And so it came about that LOLC was the first associate company in the ORIX empire that did not have a Japanese as its MD.

Meanwhile at the ALA Miyauchi indicated that he wanted to retire. Among the other council members were representatives of South Korea, Taiwan, India, Hong Kong, Pakistan, Phillipines and the other important countries in Asia. Miyauchi wanted me to take over from him (I had been making a bigger contribution than the others at council deliberations) but thought it would be wiser not to rush it as it would appear to be nepotism and I was probably the most junior council member there. So Kenneth Lo of Taiwan was elected President. When Lo indicated that he could not go on for more than two years the Council unanimously decided that I would be President thereafter.

This was a great honour (indirectly) for Sri Lanka which was the newest and smallest country in the Association. It had of course more to do with my ability as a committee man than with Sri Lanka’s economic significance in Asia. In 1988, I took over as Chairman of the ALA and continued for two years which became the standard term.

In July, 1983, I was presiding as Chairman of the fifth Joint Committee Meeting of the Sri Lanka-Japan Business Co-operation Committee at the BMICH. Sejima was by my side, as Co-Chairman and we were approaching lunch time. Suneetha Jayawickrama who was joint Secretary-General came to me and whispered in my ear that Colombo appeared to be burning. The now infamous “July Riots” had broken out and smoke was visible on the skyline in the direction of Fort. We bundled our Japanese visitors into vehicles (I had Sejima in mine) and drove them to the Hilton Hotel.

I remember being stopped at the Bullers Road, Galle Road junction by bands of youth who were collecting petrol in cans for their deadly work. The meeting was aborted, but I will never forget how calm Sejima was. At a hastily summoned Press Conference he described the whole affair as “children’s fireworks”. Despite his effort to play it down, the violence in the streets made the climate for investment in this country unhealthy.

The pogrom that followed was the provocation for the formation of the Liberation Tigers of Tamil Eelam (LTTE) and the warfare that was to plague the country until 2009 when President Mahinda Rajapakse succeeded in crushing the movement militarily.

(Extracted from the Memoirs of CP de Silva)



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A Majoritarian Constitution

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1972 Constitution in Retrospect – II

By (Dr) Jayampathy Wickramaratne, President’s Counsel

In this the second part of a three-part article on the 50th anniversary of Sri Lanka becoming a republic, the writer submits that the 1972 Constitution paved the way for constitutionalising majoritarianism in multi-cultural Sri Lanka.

The unitary state

Although Tamil parties expressed their support for the Constituent Assembly process, they were to be disappointed by the substance of the new constitution.

Basic Resolution No. 2 proposed by the Government called for Sri Lanka to be a unitary state. The Federal Party (FP) proposed an amendment that ‘unitary’ be replaced by ‘federal’.

In a memorandum and the model constitution that it submitted to the Steering Committee of the Assembly, the FP proposed that the country be a federal republic consisting of five states made up as follows: (i) Southern and Western provinces, (ii) North Central and North Western provinces (iii) Central, Uva and Sabaragamuwa provinces (iv) Northern Province and the districts of Trincomalee and Batticaloa and (v) Ampara district. The city of Colombo and its suburbs were to be administered by the centre. A list of subjects and functions reserved for the centre, with all others going to the states, was included. Interestingly, law and order and Police were to be reserved subjects.

However, Assembly proceedings show that the Tamils were clearly for a compromise. Dharmalingam, who was a main speaker of the FP under Basic Resolution No. 2, stated that the existing constitution had failed as it was not designed for a multi-ethnic country. He pointed out that in ethnically heterogeneous countries where unitary constitutions had been in operation, concessions to the federal principle have been made to meet the demands and aspirations of the minorities. Where there has been a refusal to concede the federal principle, there have been movements for separation. The FP distanced itself from secessionists such as C. Sunderalingam and V. Navaratnam, referring to them by name, and stated that it was not asking for a division of the country but for a division of power.

Dharmalingam made it clear that the FP’s draft was only a basis for discussion. Stating that the party was only asking that the federal principle be accepted, he suggested that as an interim measure, the SLFP, LSSP and CP should implement what they had promised in the election manifesto, namely that they would abolish Kachcheris and replace them with elected bodies. He stated: “If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralising the administration, not in the manner it is being done now, but genuine decentralisation, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.”

Sarath Muttetuwegama of the Communist Party, the first political party in the country to propose federalism, in 1944, followed Dharmalingam and stated that ‘federal’ had become a dirty word not because of the federal system of government but because of what the FP had advocated. He was clearly referring to the FP’s association with the UNP and the conservative policies it had followed, such as voting against nationalisations, the takeover of private schools and the Paddy Lands Bill. Seemingly oblivious to the offer that Dharmalingam had made, he asked why the FP had not used the phrase ‘regional autonomy.’ Speakers from the UF who followed Muttetuwegama made it clear that the UF was in no mood to consider the FP’s offer to settle for much less.

Consequently, Basic Resolution No.2 was passed, and the FP’s amendment was defeated in the Steering and Subjects Committee on 27 March 1971.

Dr Nihal Jayawickrama, who was the Secretary of the Ministry of Justice, under the UF Government, and played an important role in the constitutional reform process, has said that the first draft prepared under the direction of the Minister of Constitutional Affairs did not contain any reference to a ‘unitary state’. However, Minister Felix Dias Bandaranaike proposed in the Ministerial Sub-Committee that the country be declared a ‘unitary state’. The Minister of Constitutional Affairs did not consider this to be necessary and argued that while the proposed constitution would have a unitary structure, unitary constitutions could vary a great deal in form. Nevertheless, the proposed phrase found its way to the final draft. ‘In course of time, this impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogenous Sinhalese state on this island’ Dr Jayawickrama observed. ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice vol 1 (Centre for Policy Alternatives 2012) 43.

It is significant that the FP continued to participate in the Constituent Assembly even after its amendment was rejected. Records show that its leader, S.J.V. Chelvanayakam, regularly attended the meetings of the Steering and Subjects Committee.

With the advantage of hindsight, it could be said that acceptance of the FP’s proposed compromise for a division of power would have proved to be a far-reaching confidence-building measure on which more could perhaps have been built later. Moreover, such an acceptance would have ensured the continued participation of the FP in the Constituent Assembly. Even had the FP, as the UNP eventually did, voted against the adoption of the new constitution, their participation in the entire constitution-making process would have resulted in greater acceptance of the 1972 Constitution by the Tamil people.

Although they discontinued participation at a later stage, Federal Party MPs nevertheless took oaths under the new Constitution. Tamil parties soon united under the banner of the Tamil United Front (TUF), which later became the Tamil United Liberation Front (TULF). At the famous Vaddukoddai conference of 1976, the TULF embraced separatism and adopted a resolution calling for a separate state called ‘Tamil Eelam’ in the Northern and Eastern provinces. At the 1977 elections, the TULF contested on a separatist platform and swept the Tamil areas.

The place of Buddhism

According to Dr Jayawickrama, Dr. de Silva’s original proposal called for the guarantee of freedom of thought, conscience and religion to every citizen. However, the Prime Minister requested that this proposal be added with a provision for the protection of institutions and traditional places of worship of Buddhists.

Basic Resolution No. 3 approved by the Constituent Assembly was for Buddhism to be given its ‘rightful place’: ‘In the Republic of Sri Lanka, Buddhism, the religion of the majority of the people, shall be given its rightful place, and accordingly, it shall be the duty of the State to protect and foster Buddhism, while assuring to all religions the rights granted by Basic Resolution 5 (iv).’

Basic Resolution 5 (iv) referred to read: “Every citizen shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have and adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

But by the time the final draft was approved, the proposal had undergone a further change. Article 6 of the 1972 Constitution is as follows: ‘The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18 (1) (d).’ Section 18 (1) (d), in the chapter on fundamental rights, assures to all citizens the right to freedom of thought, conscience and religion.

To the question of whether constitutionally guaranteeing special status to Buddhism not available to other religions of the land might adversely affect the non-Buddhists, Dr de Silva retrospectively responded in the following manner: “The section in respect of Buddhism is subject to section 18 (1) (d) and I wish to say, I believe in a secular state. But you know when Constitutions are made by Constituent Assemblies they are not made by the Minister of Constitutional Affairs. I myself would have preferred (section 18(1) (d)). But there is nothing…And I repeat, NOTHING, in section 6 which in any manner infringes upon the rights of any religion in this country. (Safeguards for the Minorities in the 1972 Constitution (Young Socialist 1987) 10.)

Dr Jayawickrama has been more critical. ‘If Buddhism had survived in the hearts and minds of the people through nearly five centuries of foreign occupation, a constitutional edict was hardly necessary to protect it now’, he opined. (‘Colvin and Constitution-Making – A Postscript’ Sunday Island, 15 July 2007).

Language provisions

Basic Resolution No.11 stated that all laws shall be enacted in Sinhala and that there shall be a Tamil translation of every law so enacted.

Basic Resolution No.12 read as follows: “(1) The Official Language of Sri Lanka shall be Sinhala as provided by the Official Language Act No. 32 of 1956. (2) The use of the Tamil Language shall be in accordance with the Tamil Language (Special Provisions) Act No. 28 of 1958.”

Efforts by the FP to get the Government to improve upon Basic Resolutions Nos. 11 and 12 failed. On 28 June 1971, both resolutions were passed, amendments proposed by the FP having been defeated. S.J.V. Chelvanayakam informed the Constituent Assembly that they had met with both the Prime Minister and the Minister of Constitutional Affairs, and while the meetings had been cordial, the Government had refused to make any alteration to the Basic Resolutions. He stated that the FP would therefore not attend future meetings. “We have come to the painful conclusion that as our language rights are not satisfactorily provided in the proposed Constitution, no useful purpose will be served in our continuing in the deliberations of this Assembly. By taking this step, we mean no offence to anybody. We only want to safeguard the dignity of our people.” There was not even a dramatic walk out. ‘We do not wish to stage a demonstration by walking out’, he added.

That Dr Colvin R. de Silva, who prophetically stated in 1955, ‘one language, two countries; two languages, one country’, should go so far as to upgrade the then-existing language provisions to constitutional status has baffled many political observers. In fact, according to Dr Jayawickrama, the Prime Minister had stated that it would be unwise to re-open the language debate and that the better course would be to let the ordinary laws on the subject operate in the form in which they were. By this time, the Privy Council had reversed the decision of the Supreme Court in A.G. v Kodeswaranthat a public servant could not sue the Crown for breach of contract of employment and sent the case back for a determination on other issues, including the main issue as to whether the Official Language Act violated section 29 (2), as the District Court had held. Dr. de Silva did not wish the Supreme Court to re-visit the issue. ‘If the courts do declare this law invalid and unconstitutional, heavens alive, the chief work done from 1956 onwards will be undone. You will have to restore the egg from the omelette into which it was beaten and cooked.’ He had, however, resisted a proposal made by Minister Felix R. Dias Bandaranaike that Sinhala be declared the ‘one’ official language of Sri Lanka.

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An autochthonous Constitution

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Prime Minister Sirimavo Bandaranaike at the Constituent Assembly

1972 Constitution in Retrospect – I

By Dr. Jayampathy Wickramaratne
President’s Counsel

This week marks the 50th anniversary of Sri Lanka becoming a republic. We observe the anniversary at a time when the large majority of our people are yearning for comprehensive constitutional reform – “system change,” as they put it. Many believe that, after the failure of the first and second republican constitutions, the time is right for the Third Republic.

This article, in three parts, is based on a paper that I contributed to a collection of essays, titled, Sirimavo, published by the Bandaranaike Museum Committee, in 2010. When Sunethra Bandaranaike invited me to contribute an essay on the 1972 Constitution, I told her that I would be unable to say much good about it. This, I explained, was despite Dr Colvin R. De Silva, the Minister of Constitutional Affairs of the United Front government who steered the constitution-making process, being a former leader of the Lanka Sama Samaja Party to which I belonged and my senior in several fundamental rights cases, beginning with Palihawadana v. Attorney-General (Job Bank Case), the first fundamental rights case, under the 1978 Constitution. “You can write anything”, Sunethra assured me. My friend, Tissa Jayatilleke, edited the publication.

Replacing the Soulbury Constitution

The Independence Constitution of 1947, popularly known as the Soulbury Constitution, conferred dominion on Ceylon. The Governor-General was appointed by the British sovereign. The Parliament of Ceylon consisted of the King/Queen, the Senate and the House of Representatives. Executive power continued to be vested in the Crown and was exercised by the Governor-General. The Cabinet of Ministers was charged with the general direction and control of the government and was collectively responsible to Parliament. The form of government was in the Westminster model, which meant that the Governor-General would act on the advice of the Prime Minister. By the oath of allegiance, Senators, Members of Parliament, and all holders of office, including the Prime Minister, Ministers and heads of departments and judicial officers, swore to ‘be faithful and bear true allegiance to the King/Queen.The first move towards making Ceylon a Republic was made by S.W.R.D. Bandaranaike, who, on becoming Prime Minister, in 1956, informed the other governments of the British Commonwealth of Ceylon’s intention to become a Republic, within the Commonwealth. A Joint Select Committee of the two Houses of Parliament, on the revision of the Constitution, accepted the principle of establishing a Republic, within the Commonwealth. It was also agreed that the parliamentary form of government would continue with the President being a constitutional head of state. The President and the Vice-President would be elected by the legislature, fundamental rights recognized, appeals to the Privy Council abolished, and a court established to adjudicate constitutional matters and hear appeals from the Supreme Court.

Although sub-section 4 of section 29 of the 1947 Constitution provided that ‘in the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island’, the question whether Parliament could replace the British sovereign, who was a source of the legal authority of the Constitution and a constituent part of Parliament, had been raised, among others, by J.A.L. Cooray in his Review of the Constitution. The Privy Council stated in Ibralebbe v The Queen (65 NLR 433, 443) that the reservations specified in section 29 were ‘fundamental’ and in Bribery Commissioner v Ranasinghe that section 29 (2) was ‘unalterable under the Constitution’(66 NLR 73, 78). Although obiter (not essential for the decision), these statements gave support to a move initiated by the Left parties towards a new ‘homegrown’ or ‘autochthonous’ Constitution with a complete legal break from the existing constitutional order in preference to amending the Constitution. There was also a definite trend in the Commonwealth towards enacting ‘homegrown’ constitutions to replace those given by the United Kingdom.

The Constituent Assembly route

It was this trend towards and desire for an autochthonous Constitution that led the Sri Lanka Freedom Party (SLFP), the Lanka Sama Samaja Party (LSSP) and the Communist Party (CP) to not support the call of the 1965 government of Dudley Senanayake of the United National Party (UNP) to re-establish the Joint Select Committee on the Revision of the Constitution. The SLFP, LSSP and CP, which later combined to form the United Front (UF), whilst declining to serve on the Joint Select Committee, proposed that a Constituent Assembly be set up to adopt and enact a new constitution. At the general election of May 1970, the UF, as reflected in its manifesto, sought from the electorate a mandate to permit the Members of Parliament to function simultaneously as a Constituent Assembly. The Assembly would draft, adopt and operate a new constitution, the primary objective of which was to make the country a free, sovereign and independent republic dedicated to the realisation of a socialist democracy that would guarantee the fundamental rights and freedoms of all citizens.

At the above-referenced general election, 84.9% of the voters, a significantly high percentage even for an electorate known for its enthusiastic participation in elections, exercised their franchise. The UF won 116 out of 151 seats on offer but obtained 48.8% of the total votes cast. With the support of the six nominated members and the two independent members who won their seats with the help of the UF, the latter now commanded 124 seats in the 157-member Parliament. The UNP was down to 17 seats. The Federal Party (FP) won 13 seats while Tamil Congress (TC) won 03.

The Governor-General, in the course of delivering the first Throne Speech of the new Parliament, called upon the Members of Parliament to form a Constituent Assembly in keeping with the mandate asked for and given by the people at the general election.

That the Address of Thanks to the Throne Speech was passed without a division is also important. On 11 July, 1970, Prime Minister Sirimavo Bandaranaike wrote to all members of the House of Representatives to invite them for a meeting to be held on 19 July, 1970, to consider and adopt a resolution for constituting themselves into a Constituent Assembly.

The meeting was to be held at the Navarangahala, the newly constructed auditorium of Royal College, Colombo, and not in the chamber of the House of Representatives, signifying the intention of the UF to make a complete break from the 1947 Constitution. Dr Colvin R. de Silva, the Minister of Constitutional Affairs, emphasised that what was contemplated was not an attempt to create a new superstructure on an old foundation. It is a matter of great significance that all political parties, represented in Parliament, participated in the formation of the Constituent Assembly on 19 July, 1970.

J.R. Jayewardene, the Leader of the Opposition and Deputy Leader of the UNP, joining the debate on the resolution to set up a Constituent Assembly, reminded the UF that it had a mandate only from less than 50% of the people. Nevertheless, if both sides of the legislature, the victors and the vanquished, agreed to make common cause in enacting a new basic law through a legal revolution, that new law, if accepted by the people, will become the full expression of the hopes, desires and aspirations of the present generation.

V. Dharmalingam of the FP, while questioning the need to go outside the existing Constitution, noted: “We are making common cause with you in enacting a new Constitution not as a vanquished people but as the representatives of a people who have consistently at successive elections since 1956 given us a mandate to change the present Constitution which has been the source of all evil to the Tamil people.”

The leader of the FP, S.J.V. Chelvanayakam, urged the Assembly to reach common ground on controversial issues and quoted Jawaharlal Nehru in support: “We shall go to the Constituent Assembly with the fixed determination of finding a common basis for agreement on all controversial issues.”

V. Anandasangaree, speaking on behalf of the TC, stated that his party did not wish to be a stumbling block but requested the Government to be fair and adopt the new Constitution unanimously.

Indicating the acceptance of the Constituent Assembly route towards the adoption of a new constitution by all political parties, the proposed resolution to form the Constituent Assembly was unanimously passed on 21 July 1970.

It is significant that all political parties represented in Parliament participated in the formation of the Constituent Assembly, thus giving legitimacy to the process. However, the Constitution that the Constituent Assembly adopted lacked similar legitimacy. The Federal Party discontinued participation after the Assembly decided to make Sinhala the only official language. The United National Party voted against the Constitution. With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But Assembly proceedings show that the United Front, which had a two-thirds majority but had received a little less than 50% of the popular vote, imposed a constitution of its choice. The Constitution also extended the term of the legislature by two years which had a chilling effect on Sri Lankan democracy. There is certainly a lot to learn from the 1970-72 reform process.

Retaining the parliamentary form of government

Whilst the desire of the UF was to make a complete break from the Soulbury Constitution modelled on the British system, it nevertheless considered the Westminster model of parliamentary government to be suitable for Sri Lanka.

However, J.R. Jayewardene proposed the introduction of an executive presidency, a proposal opposed even by Dudley Senanayake, a former prime minister and the leader of the UNP. Interestingly though, Jayewardene was to have the last word. After he was elected Prime Minister in 1977, the UNP he led having obtained an unprecedented five-sixths majority in Parliament, Jayewardene introduced the executive presidency through the Second Amendment to the 1972 Constitution. He followed it up with the Second Republican Constitution of 1978, based on an executivepresidency sans any checks and balances usually found in countries with a presidential form of government.

It is salutary, in the above context, to recall the words and sentiments expressed by Sirimavo Bandaranaike during the debate on the Second Amendment to the Constitution: “The effect of this amendment is to place the President above the National State Assembly. Above the law and above the courts, thereby creating a concentration of State power in one person, whoever he might be. This has happened in other countries before, and history is full of examples of the disastrous consequences that came upon such nations that changed their Constitutions by giving one man too much power. (…) We oppose this Bill firmly and unequivocally. It will set our country on the road to dictatorship and there will be no turning back. This Bill will mark the end of democracy in Sri Lanka, as the late Dudley Senanayake realized when these same ideas were put to him in the United National Party.”

Dr De Silva warned against the danger of counterposing the Prime Minister chosen by the people who are sovereign against a President who is directly elected: “Let me put it directly and more strongly. You have the Prime Minister chosen by the people who are sovereign. Then, if you have a President, chosen also by the sovereign people directly through the exercise of a similar franchise, you have at the heart and apex of the State two powers counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other.” No Constitution will be able to define adequately and satisfactorily the relationship between the two, he explained.

(Next: Part II: A Majoritarian Constitution)

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Jacqueline concerned about situation in Sri Lanka

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Jacqueline Fernandez: They need empathy and support

Jacqueline Fernandez, who is very much a part of Sri Lanka, and now a big name in Bollywood, has been in the news quite often, the past few months – for various reasons.

However, she does worry about the situation in Sri Lanka and had this to say on Instagram:

“As a Srilankan, it is heartbreaking to see what my country and countrymen are going through. I have been flooded with a lot of opinions since this began from around the world. I would say, do not be too quick to pass a judgement and vilify any group based on what is shown. The world and my people do not need another judgement, they need empathy and support. 2-minutes of silent prayer for their strength and well-being will bring you much closer to them than a comment based on a loose grasp of the situation,” she wrote.

“To my country and countrymen, I am hoping this situation comes to an end soon and through means which are peaceful and for the benefit of the people. Praying for immense strength to those dealing with this. Peace to all!” she added.

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