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Greatest ‘Lovers’ Quarrel’ of all time

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Mahinda-Richmond Big match – 1972

By Captain Chandra
Godakanda Arachchi

It was 50 years ago that the beautiful port city of Galle witnessed the 67th Mahinda-Richmond “Lovers’ Quarrel”, on 24 and 25 March 1972. A 33-year-old batting record, set by a batsman from Mahinda College, in 1939 was broken by a Richmondite, on the first day of play, and then the new record was smashed the following day by a Mahindian. The two-day event was full of drama, thrills, fun, and excitement.

There couldn’t have been a better setting for the game played on a matting wicket prior to the turf wicket days, ably prepared by the veteran George and Peter, ground staff of the Galle CC, with the Dutch Fort in the backdrop, adjacent to the beautiful Galle bay, with no buildings, other than the historic Galle Cricket Club on the Northern flank of the ground, with a white picket fence, Gamini Football Club too was on the Northern side more towards the Railway station, and the scoreboard towards the eastern side of the ground. It was a practice from the colonial era to put up cadjan thatched huts, on the Western side of the ground by both schools, for the students, academic staff, invitees, old boys and other supporters, with the regulars having a few temporary tents on the Southern flank of the ground. Renowned Principal of Richmond College (1906 to 1922) Rev W. J. T. Small, who officiated the big match in 1907, was in the Richmond tent. (Rev Small officiated the big match in 1907, with another renowned, former principal of Mahinda College Frank Lee Woodward). The eastern side of the ground accommodated people from all walks of life, in Galle, some seated on the boundary line while others standing just outside.

With this beautiful setting for the game, the two captains, Ivan Kariyawasam and Prasad Kariyawasam (interestingly captains bearing the same surname only for the second time in the Galle big match history) walked to the middle for the toss of the coin to the accompaniment of rapturous cheers from boys from both schools, and supporters with black and gold flags, as well as red and blue flags, flying high in both camps. Richmond captain having won the toss decided to take the first lease unsurprisingly and quite rightly as the outfield was very dry and expected to be fast due to the prevailing dry weather.

Mahinda

Ivan Kariyawasam (Captain) PHKH Ranasinghe (Vice Captain) Saliya Samaranayake, Gamini Karunanayake, Ananda Wijegunawardane, D.L. Stanley De Silva, Gamini Amendra, D.Jayantha Mendis, Jagath Ariyaratne, K.G. Wanigaratne, and Mervin Wickremaratne

Coach: Frank Guruge Master in charge: D E Jayanetti

Richmond

Prasad Kariyawasam (Captain) Dudley Dias (Vice Captain) Hema Dissanayake, Wasantha G Meegoda, L. Dias, Ravi Arunthawanathan, P. Ranatunge, S. Amarasiriwardane, Ranjan Jayasinghe, U. Hemalal and A. Abeyratne, Coach: Marcus Jayasinghe Master in charge: Mahindapala De Silva.

Mahinda was considered the underdog, with Richmond having performed better during the season, though it is a tradition of Mahindians to leave any statistics behind and get on with the job as best as they could. Captain Ivan led his team to the field, followed by Richmond opening batsmen Hema Dissanayake and Wasantha Meegoda. The match started with D L Stanley De Silva bowling the first over with Hema Dissanayake facing the first ball, followed by P H K H Ranasinghe bowling from left arm leg spin in Fort end. It was the first time in big match history that a spinner opened bowling. Later Hema Dissanayake was caught by Ivan Kariyawasam off the bowling of Mervyn Wicramarathne when the Richmond score was 43 with Mahinda camp jumping up in joy. Prasad Kariyawasam walked to the middle, amidst cheers from Richmondites and their supporters, not long after L K Munasinghe (Loku Mune), an old boy of Mahinda providing entertainment for the boys with Mahinda flag flying high in his hand sprinted along the boundary line towards where K. G. Wanigarathne was fielding at deep fine leg as the ball skied by Prasad towards Wanige, only to be disappointed when the ball sailed through the gap between his body and the hands and there was pin drop silence in the Mahinda camp. Prasad hadn’t even opened his account then. It was a sitter never to be missed, and the fileder had ample time to take the catch. In lighter vein, this incident would go down cricketing history of Mahinda College as the most crucial dropped catch in the 20th century. Loku Mune started walking back muttering to himself.

Prasad took full advantage of the life given by Mahindians, making steady progress. Second wicket, Wasantha Meegoda being dismissed with the Richmond score at 99. Whilst Prasad was consolidating his innings to the merriment of Richmondites. Third wicket fell when the total was 168. Dudley Dias was out when the Richmond score was 189 with Luxman Dias following Dudley back to the dressing room soon afterwards. Prasad, still at the wicket in his nineties, was again dropped behind the wicket. It was quite unfortunate for Mahinda whilst Richmondites were over the moon. Ravi Aruthwanathan was the next batsman and he was to face left arm leg spinner Ranasinghe and was out for 12 with Prasad still needing a few more runs to achieve his goal of 156 runs, to break the 33-year-old record held by Sirisena Hettige of Mahinda since 1939. Everyone was at the edge of their seats with the Mahindians hoping for the dismissal of Prasad, who was batting so confidently.

Prasad reached the target of 156 in style to the roar of cheer of Richmondites, who invaded the pitch in joy (quite usual at big matches) with Richmond flags flying high; Prasad declared theRichmond innings when the total was 274 for five wickets. It was a moment of great pride and achievement for skipper Prasad and all Richmondites alike. Former Principal of Richmond Rev Small watching the proceedings from the Richmond tent was elated with the seemingly formidable total posted by Richmondites.

Declared for five wickets

It was Mahinda’s turn to face the music having toiled under the hot sun fielding almost all day, the strategy was discussed among the team mates with the coach, master-in- charge D E Jayanetti and a few past cricketers. It was decided to bat till close of play without losing a wicket. Prasad led his team to the field followed by Mahinda’s opening pair Saliya Samaranayake and Gamini Karunanayke walking to the middle with about one hour’s play left for the day. Mahinda openers started well facing Richmond fast bowlers Hema Dissanayake and Abeyratne though with half hour before the end of the day’s play, Saliya was caught by Prasad off Wasantha Meegoda’s bowling when the total was 19. It should not be an excuse though Saliya would have been exhausted after having kept wickets nearly the whole day and then having to open the batting. There was no such player as a night watchman at the time, P H K H Ranasinghe (Rane) was compelled to walk to the middle amidst cheers from the Mahinda camp. Rane played a defensive role until the close of play only scoring a single in the last ball of the final over. Day’s play ended with Gamini and Rane at the crease with the Mahinda total at 34 for one wicket. The day’s honours certainly belonged to Richmond captain Prasad Kariyawasam standing out.

Day 2

Rane was on old Galle CC ground floor near the stairs when the late P A D A Theodore, sports lover, the legendary teacher of Mahinda College, called Rane for a chat, inspired Rane with all the encouragement basically advising him to take his time to settle down to the business advising him that he could achieve the unthinkable. Mahinda’s strategy was reviewed, deciding first to overcome the challenge of scoring 174 runs to avoid a follow on, but the Richmondites would have had other ideas. Umpires took up their positions on day two sharp at 1000 hrs , Prasad led his team to the field followed by Karunanayke and Rane walking to the middle to face the challenge of scoring more than 175 in the first innings which was considered a very good score whilst Richmond having posted a very good total. Everyone seemed excited on day two having witnessed how the game unfolded on day one. Proceedings on day two began with different expectations from the two camps, Richmond wanting to bowl Mahindians out quickly though Mahindian’s strategy was to reach Richmond score of 174. Both Gamini Karunanayke and Rane started making progress steadily scoring runs confidently, but Karunanayake was bowled by U Hemalal for 41 runs when the total was 83. Captain Ivan was the next batsman to join Rane who was out LBW for 9 off Prasad’s left arm leg spin bowling when the total was 110 for three. This was still before lunch and it really seemed a steep curve for Mahindians to achieve what they desired to. However, three down batsman Ananda Wjegunawardane steadied the ship and he was not out with Rane at the lunch break with Rane scoring 88 runs not out batting confidently with the total of 159 runs for three wickets. Mahinda’s strategy was reviewed again at lunch as the first target of 174 runs now within easy reach, deciding for Rane to get through his century as the preliminary target, thereafter, scoring as much as possible beyond that.

Proceedings resumed post lunch steadily again with different expectations from Richmond and Mahinda with Rane continuing to bat confidently reaching his century elegantly to the cheer of Mahinda supporters. Cricket lovers who read the game correctly at the time were quite confident the way Rane played his game on the day that he was capable of regaining the record though it was not in Rane’s thoughts yet. The play continued and not long after Wjegunawardane was the next to go caught by Hema Dissanayake off a delivery from Ranathunga when the total was 221 for four wickets. Next batsman in was sixteen-year-old D L Stanley De Silva (who was a member of Sri Lanka’s World Cup team in 1979 as a fast bowler, a player with huge potential unfortunately died young following an accident riding his motorcycle) who scored a quickfire 35 runs before being bowled by Hemalal when the total was 276 for 5 overtaking Richmond’s score.

Rane was in his 120s, contemplating the possibility of regaining the batting record then deciding to bat cautiously while remaining batsmen held the fort. Gamini Amendra, last of the famous Amendra brothers was in, but out for six runs when the total was 289. Mendis was next, scoring valuable 22 runs when the score was 309. In the meantime, Rane was making ground slowly, but steadily with reaching 157 in his mind when he was dropped by Ranjan Jayasinghe at mid-off when he was on 142. With the pendulum swinging either way with everyone watching the game with excitement. What a let off when dropped 15 runs shy of the target! Jagath Ariyarathne scored 12 runs then the last man in, anything could happen Rane regaining the record or Mahindians all out. K G Wanigarathne was at the crease after the fall of Ariyarathne supported well as Rane was inching towards the target. In fact, Rane scored singles from 150 until 157 yet the scoreboard indicated 150 (those who witnessed cricket matches in Galle at the time would remember the scoreboard was manual and changes were made every 10 runs). It was a glorious moment of a lifetime Rane establishing a batting record within 24 hours after it was broken with supporters cheering loudly, some shedding tears of joy with some running to the middle to congratulate Rane, hugging him, someone bringing a white pigeon to the middle handing Rane for releasing, some dancing around him. What a scene it was! Prasad was the first to congratulate Rane though it wasn’t the practice of players in the dressing room running to the field on such occasions, Ivan and his team resisted the urge running to the field! Spectators burst into cheers when Rane reached 157 seemed like never ending! Mahinda’s first innings was declared at the tea break at 359 for nine wickets with Rane losing his wicket for 162 runs.

Declared for nine wickets

Richmond started batting in the second innings with skipper Ivan having a different strategy in terms of opening bowling combination. D Mendis was the opening bowler followed by his opening bowling partner Mervyn Wicramarathne. The trick worked well; Hema Dissanayake got out for 6 runs followed by skipper Prasad for 4 when the total was 18 and 27 respectively. Next to go was Laxman Dias, who scored just one run followed by Meegoda having scored 16 runs. At the close of play Richmond were 37 for 4 wickets and the game was drawn!

Mahinda carried trophies for the Best Batsman – Ranasinghe and Mendis were adjudged the Best bowler and Prasad winning a special award for his extraordinary performance. Mahinda’s total of 359 is a record for an innings, and a combined total of 633 from both schools is a record too. Mahinda faced 150 overs in total.

Richmond coach Marcus Jayasinghe walking to Mahinda dressing room congratulated Ivan and the team not long after the Principal of Mahinda College J. H. Gunasekara arrived in the dressing room to congratulate the team. This game had it all, filled with fun, excitement, suspense, and joy. Prasad in his batting demonstrated all the qualities a super batsman should possess and no doubt demonstrated his leadership skills too. Ivan proved his mettle by coming from behind, standing tall under tremendous pressure to deal with the situation and come out a winner for his team! Ivan was a giant in the game.

It was an outstanding performance by Vice Captain Ranasinghe beyond any words to regain the record for Mahinda within 24 hours of losing it, his ability to listen to advice and choose what’s right to take on board, commitment from the word go, patience, confidence, endurance, and skill to counter opposition strategies to get him out, a fierce competitor and a role model for any youngster. Interesting to note that both record breaking batsmen were right hand bat and left arm leg spin bowlers. The record was established by P H K H Ranasinghe stands intact to date after 50 years on!

The game was played in an era when not many facilities were available for players unlike in this day and age.

Both teams played the game in the true spirit of cricket while being competitive. Both captains led their teams from the front despite swinging fortunes and odds either way. The way the game was played strengthened the long-standing friendship between two premier schools in Galle. Cricket is a game that promotes sportsmanship, discipline, and self-respect which both teams demonstrated the qualities beyond doubt. Ultimate winner was cricket!

Thanks to Rear Admiral Ivan Kariyawasam and P H K H Ranasinghe for the valuable information. Author of this write up was a schoolboy at the time watching the game from the Mahinda tent.

Feedback: chandra.godakanda@hotmail.com



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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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