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BEST TWO YEARS – Part 43

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CONFESSIONS OF A GLOBAL GYPSY

By Dr. Chandana (Chandi) Jayawardena DPhil

President – Chandi J. Associates Inc. Consulting, Canada

Founder & Administrator – Global Hospitality Forum

Strengthened the Foundation of CHSGA

In 1979, I was elected Treasurer of Sri Lanka’s largest professional body for hoteliers – Ceylon Hotel School Graduates Association (CHSGA). Together with two leading hotel managers – Malin Hapugoda of Bentota Beach Hotel (President) and Mahinda Ratnayake of Neptune Hotel (Secretary), I contributed to strengthening the foundation for CHSGA. This would inspire future generations of hoteliers to continue building a dynamic association.

Our honorary work for CHSGA at that time, focused on financial stability, fund raising, industry recognition, image building and registration of CHSGA as a company. Having studied the membership grade system of the Hotel Catering & Institutional Management Association (HCIMA) during my visit to the UK in 1979, I proposed a similar system for CHSGA. This resulted in membership grades such as Fellows, Members, Licentiates and Associates with relevant professional titles such as FCHSGA after their names. Forty-two years later, when I regularly see these titles in Sri Lanka used on business cards and for professional work, it reminds me of that memorable day in 1980 when I enjoyed the unanimous approval of my proposal by my peers.

On October 16, 2021 via Zoom, I attended another annual general meeting (AGM) of CHSGA. At that event, both CHSGA and I celebrated 50 years in hospitality. As a Past President of CHSGA (1985-1986) I am proud of the work done by all my six predecessors and 27 successors. The current executive committee includes many of my past students of the Ceylon Hotel School (CHS). They have taken the association to an unprecedented level of professionalism, efficiency and innovation. Considering the humble beginnings of CHSGA in 1971 at the CHS hostel with fewer than 50 members, it is impressive that CHSGA now has over 1,300 professional members and continues to strengthen.

Happiest Internal Customers at Swanee

Our innovative initiatives at Hotel Swanee such as time slot for all of the staff to take part in the New Year’s Eve dinner dances, improved employee relations. Our other initiatives to improve relationships with the trade union and internal customers (staff) focused a lot on sports. We organized a cross country marathon and a cycle race for staff. There were weekly events such as guests vs. staff games of volleyball and football. We also organized cricket games only when large groups of British guests arrived. Encouraged with the popularity of these events, we organized a large-scale staff sport meet during the off season of 1980. Many guests volunteered to officiate the events of this meet.

“Sir, how about a large staff event to celebrate the sixth anniversary of our hotel?” the Union President asked me, soon after the successful sports meet. As I did not consider the sixth anniversary as a significant milestone, I asked him to justify such an event. “Sir, as we are so pleased with the manner in which our hotel progressed to break all records, we thought that we should celebrate it while you are the manager of Hotel Swanee” he said. I suspected that he had heard rumours that John Keells Group was considering to promote me to a corporate position at the head office. “If you approve our suggestion, we will raise funds and organize the whole event. We just need your approval” the union leader gently pushed me. So, I gave the green light.

The union and a few members of the management team worked together to organize a large, sixth anniversary event. It included rich and diverse forms of entertainment, including songs in Sinhala, Tamil, English and Hindi, dance performances and comedy acts provided free by hotel entertainers as well as by talented members of the staff. They commenced the event with a newly formed hotel choir singing the Swanee anthem that the staff had composed with the help of the music bands who performed at the hotel. All hotel guests attended the event as spectators. The organizing committee surprised me by raising tons of money from 190 advertisers (including 33 competitor hotels!) in the event souvenir booklet. The second most expensive advertisement (inner cover) was placed by the former enemy of the Hotel Swanee and now the guardian, Mr. K. Solomon Silva of Moragalla. All profits were donated to the staff welfare society.

Chairman of John Keells Group, Mr. Mark Bostock, in his souvenir message stated, “It is all very well to plan and invest in bricks and mortar, swimming pools and kitchens, but when it comes down to brass tacks, it is the staff of the hotel who really make a success of a venture such as this.” In my message, in addition to thanking the event organizers, I summarized the recent success of Hotel Swanee as, “During the summer (off season) of 1980, we enjoyed an occupancy of 87% and we are hoping to achieve the target of 94% by end of this financial year.”

Organizers also obtained a message from the longest staying and one of the oldest guests of Hotel Swanee, Marta Duchstein of West Germany. She was like a mother to all of us. When she heard that I would be visiting Düsseldorf for business, she insisted that I visit her and stay a couple of nights in her house in Essen. When I pointed out to Marta that I had no plans to visit Essen, she said, “The efficient German express train from Düsseldorf airport will bring you to Essen in 33-minutes and I will pick you from there.” As she did not accept any further excuses from me, I spent two days at her house. She was an excellent host and proudly gave me a tour of Essen. Marta’s message to the souvenir included, “The main reasons why I always return to the Hotel Swanee are the excellent service and friendly atmosphere. The young and charming staff usually bring out my motherly instincts.

Using some profits from the sixth anniversary event and some donations from the hotel profits I approved as a group bonus, we took most of the staff on two ‘around the island’ trips. Our stops included the most scenic spots in Sri Lanka including waterfalls, tea estates and beaches. We also visited some top hotels to gain a little industrial exposure. These ‘fun-filled’ trips further enhanced our industrial relations.

Running successful resort hotels is easy, if the management focuses on three simple strategies:

1. Keeping the internal customer (staff) happy

2. Making the paying customers (guests) happy, and

3. Focusing more on revenue generation (increasing sales volume and creative pricing).

Unfortunately, most hoteliers and their financial controllers focus more on cost cutting and controls. Although important, to me such aspects deserve secondary focus in the context of profit optimization, compared to the three simple strategies I always used.

Crisis Management – Fighting an Angry Ocean

One day Mr. K. Solomon Silva visited me early in the morning. One this occasion, in his panic mood, he did something he had never done before. He came to my apartment with the night receptionist and woke me up around 5:00 am. “Sir, I must warn you about something Mother Nature did to this village about twenty-five years ago during the monsoon period.” After catching his breath, he continued, “It is a warning of a curse when the flow of the river mouth reverses from around the small island on the river mouth. The sea then gets exceptionally rough on Moragalla beach. We may lose the entire beach within a day and the sea erosion can affect the hotel buildings drastically.”

I quickly went to the beach with Solomon and understood the imminent danger. I sought his advice as well as the staff who were from the village. In crisis management, the situational leadership must be delegated to trustworthy people who understood the local crisis better. After listening to their advice, I had emergency meetings, first with the management team and then with all of the staff. We ordered 1,000 strong bags to be filled with sand to create a strong barrier to protect the hotel buildings from the ocean becoming rougher with unprecedented high tides. On my request, all staff and some hotel guests volunteered day and night to protect Hotel Swanee. I called it a ‘Shramadana’ (a concept of donating time and effort practiced in Sri Lankan villages).

When the big, ruthless waves arrived, these affected all of the hotels in the area. Due to our well-timed preventive actions on this occasion, Hotel Swanee was the least affected. Thank you, Solomon! The beach came back by the end of the monsoon period and the 1980/1981 tourist season commenced with a bang. Unfortunately, that scary incident in 1980 was quickly forgotten. Twenty-four years later, during the Boxing Day Tsunami in 2004, sadly most parts of the Hotel Swanee were destroyed and the hotel was never opened again. Every year, when I spend a month in Sri Lanka, I visit most of the hotels I worked at during my early career for nostalgic reasons, but after 2004, I never went back to Morogalla beach. It would be too sad for me to see the ruins of Hotel Swanee, where I had two memorable years.

My Best Two Years

My two years at Hotel Swanee was a non-stop, fun-filled joy ride. We had parties throughout the two years. Any occasion such as a birthday of a manager or a tour leader became an excuse for us to organize another exciting party at my pool-side and sea-front apartment. During the tourist season we worked very hard while having fun making our guests happy.

On the quiet days when we didn’t have any celebrations, I invited managers of neighbouring hotels with their wives to visit us in the evenings. As some of these managers were relatively new to the hotel industry, they liked to chat with us and observe how we did innovative things to make customers happy. I used to entertain them with dinner in the garden while listening to the rhythmic sound of the ocean waves. We developed excellent relations with our competitor hotels, all managed by much older hotel managers.

On the days that we did not have a late-night event or a party, all members of my young management team and senior supervisors proceeded to my apartment after dinner. We then played a ‘very competitive’ form of monopoly close to mid-night while eating chocolates, sipping coffee and liqueur. Then we went for a sea bath followed by a dip in the swimming pool. After an aggressive, water polo game, we returned to my apartment for another game of monopoly, 304 cards or a fast chess tournament until about 2:00 am. All the other managers lived in management living quarters close to my apartment. Even though we played hard till lat

e, we were still back at work by breakfast time to look after our guests.

One morning, an older guest who appeared to be tired and annoyed, came to see me with a serious complaint. He said that there were some noisy hooligans at the pool after midnight. He added that neither he nor his wife could fall asleep with all that disturbance. He requested me to investigate and take corrective action. I assured him that I would find the culprits and ensure that no one made any more noise after midnight. After that we limited our late-night activities to quiet fun things without going into the pool after midnight.

On his departure, that guest praised me for promptly solving his problem. He said, “I was never disturbed after I complained to you, Chandi. Thank you very much for sorting that hooligan problem.” When I said, “You are most welcome, Mr. Müller. My team and I look forward to welcoming you next year”, his response surprised me. “What next year? My wife and I will be back from Germany at Hotel Swanee in three months’ time for another three weeks. This is our second home, Chandi. We love you and your team”, he said. I was happy about that news, and happier that he never guessed who the real ‘Noisy Hooligans’ were.

Out of the 50 years I spent in hospitality (operations, management, education and consulting), my two years as the Manager of Hotel Swanee were the most enjoyable. During the time of my mid-career when I was the General Manager of seven, large five and four-star hotels, I was too busy to be fully involved in guest relations as I did during my two years at Hotel Swanee. In larger hotels, unfortunately, guests become just numbers, and hoteliers focus more on dollars than guests. If we focus on satisfying the internal customer (employees) they usually make sure that the external customer (guests) is happy, thus resulting in good revenues and profits. When I look back, we certainly did the right thing in 1979 and 1980.

Emotional Farewells

Towards the end of 1980, on my 27th birthday, I received a call from my boss, Bobby Adams, Director Operations of the Hotel Management & Marketing Services Limited, the John Keells subsidiary company who managed all seven hotels of the group. “Chandi, get ready to hand over Hotel Swanee to your Assistant Manager. The John Keells Board has agreed with me to promote you as my deputy and transfer you to the head office in two months’ time”.

Solomon rushed to meet me when heard the news about my transfer to Colombo. Although he tried to act tough in most situations, on this occasion, he was somewhat emotional. I assured him that in my new corporate position, I will be overlooking Hotel Swanee and will be visiting Beruwala periodically. After that, whenever I stopped at Hotel Swanee, Solomon was the first to rush to greet me. Every time we met, if he was dressed in a folded sarong, he promptly unfolded his sarong up to his ankles as a mark of respect common in those villages. Solomon had become a reliable friend of mine and a loyal supporter.

The Hotel Swanee staff organized a series of farewell events. On my last day at the hotel, they presented me with a gold chain and a gold ‘C’. When I heard that each of those lower income employees had contributed their personal service charge money (which was often higher than their salaries) to buy that expensive chain for me, I shed a tear.



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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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