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Jungles, ruins and shipwrecks

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by Somasiri Devendra

Jungles fascinate me. It was a fascination that had been kindled by my father, as well as John Still, both of whom were archaeologists and writers. But, somehow, I never became one who trod the forest ways regularly. The jungle spoke to me in a different idiom – to my heart rather than my head.

Father, a teacher before turning archaeologist, became our teacher in English literature. Our text was John Still’s The jungle tide and, from the beginning, both the teacher and the author held the class spellbound. The slow progress made through the opening chapter describing a rain forest only served to stamp more deeply in my mind the world that was the jungle.

Years later I read Leonard Woolf’s haunting description of the dry zone jungle in Village In The Jungle. I always think of these two kinds of jungle – rain forest described by Still and secondary scrub by Woolf – in their words.

Trips with an archaeologist

Not long after he interpreted Still to us, father joined the Archaeological Survey of Ceylon, as it was then. He loved the work and found every excuse to go on circuit, leaving his desk. Each time he came back, he was brimful of experiences and what we learnt from him round the dining table was more than anything a university could teach.

His interests were eclectic and the tale would flit effortlessly from treasure hunters at a ruined dagoba, to a dung beetle at work, the cult of Aiyanar, a bungalow-keeper’s encounter with a wild elephant, the migrant birds, the gaemi-kavi of village pilgrims seeking male progeny from Kalu Devatha Bandara (the guardian-deity of the Sri Maha Bodhiya), and the man who manufactured sarvagna dhathu.

Being then in the class preparing for an examination, I could go with him only occasionally, but even that was wonderful. Striking inland from Puttalam, on the way to Anuradhapura, the road was, in season, bordered by weera trees in bearing and we would stop to break down the most reachable branches and strip off all the berries. He would nonchalantly remark that this was elephant country and they, too relished these berries.

Passing through the Kurunegala route, we never went past the Aiyanar jungle shrine, a mere tree, without plucking off a twig and offering it to this mysterious deity. The tree-shrine, thankfully, is still there.

Ambitious development schemes were afoot and father went to inspect work at Gal Oya, where bulldozers were turning back the jungle tide. The impact of these behemoths must have made a strong impression on him: I still have his photographs of trees being pulled down. Perhaps, it was this that prompted him to induct us into our fast disappearing cultural and environmental heritage.

Veddha songs

He took us to see the Veddahs, who were old men in the late 1940s. They sang us their songs swaying to a rhythm of their own. It was hardly music to our ears but, definitely, a far cry from what is touted as Veddah music today. Among father’s favourite verses were a gaemi kaviya in praise of Sorabora Wewa (which Seligman attributed to the Veddahs, though this is unlikely).

The verses begin with –

Paalu rata-i Vanni-ye etha-nin oha ta

Golu gene panithi veli-hinniyo aenga ta

Seru avith dive-kelinaa sonde ruwa ta

Yaa-lu thopith giyado horabora weva ta?

“It’s waste land in the Vanni from here onwards, Screaming, the she-bear will pounce on you

And the seruwas sport in the water, pleasing the eye And you, friend, have you, too, been to Sorabora lake?”

and end thus:-

Horabora waevey weva degodey vananrata rey

Kapaa gal kaanu egodata eliya ke ley

Nelaa mal pahan veherata eganthe rey

Horabora wewa n

udutu aes motada pin ke ley?

“Deep in the forest on either bank

Sluices cut in the rock tap the water.

You offer flowers and light lamps at the shrine on the other bank

But of what use is merit to you, you eyes that have not seen Sorabora lake?”

Rantembe

Another jungle trek in Veddah country was from Aluthnuwara, through the jungle to Rantembe. All this must be under water now with the construction of the Rantembe resovoir, but it was thick jungle then and we had to go in single file. If the nade gura or leader found a rock on the path he warned galak (stone), and the one behind him repeated the warning. which went drawn the single file till it reached the last man, our driver, who duly repeated it to whoever was behind him, hoping nobody was!

The rapids of Rantembe were worth every aching muscle to see. The sheer power, the roar of the Mahaveli forced into a narrow gorge was reward enough. You cannot see any of this now: so our induction to the vanishing loveliness of Lanka was something worthwhile.

“Elephant” at Tantirimalai

Another day, we were following a footpath to Tantirimale, a temple in the jungle which was famous for its unfinished reclining Buddha statue, pre-historic drawings in a cave and an ancient bo tree growing out of a crack in a slab of rock.

We were about to climb up an incline, which was really the bund of an abandoned tank, when we suddenly saw a man on a bicycle atop the bund. He was wearing sunglasses in the jungle gloom. Seeing us, he let out a yell, dropped his bike and took to the trees! When we had rescued him still trembling, he had an explanation to offer: “I thought your jeep was an elephant”. Therein lay the moral: do not wear sunglasses in the jungle!

Farewell circuit

The year I graduated from Peradeniya and started work as a teacher at Kegalle father gave me HCP Bell’s Kegalle report to make me get my historical bearings. He also decided that he would retire from the Department – though not archaeology. He set about planning a long circuit, a final good-bye to all his beloved sites, as well as to follow up reports of some new finds. This time, I went with him.

Again, I remember the barely cleared monastic site of Arankele with its long, long sakinan-maluwa (pathway for meditation). On the way we stopped at a living forest hermitage, Ruwangirikanda, where we saw many a hermit and understood what moved a man to seek the solitude of the forest. Near Arankele was Gala-pica-gala (rock-upon-a-rock) where I learnt the principles of wind erosion. And so we went from one jungle ruin to another.

Off Polonnaruwa, we went towards Dimbulagala, which was dubbed Gunner’s Quoin by sailors at sea who used to take their bearings from it. On the way we trekked to a group of boulders entirely surrounded by forest, but not yet excavated. This was Pulligoda Gal-ge (gal-ge = cave). On one of its sides was a beautiful fresco of a group of celestial beings. I was told that these were either the earliest or the only examples – I forget which – of the use of the halo on beings other than the Buddha.

Walking back to where we had parked the car, we came upon a site called Kos-gaha Ulpotha. It was a jungle spring of beautifully clear water.

At Dimbulagala, a man seeking a place for meditation had come to live in a cave. His mission was to destroy the paintings. He would comb the forest for buffalo dung and, in the nights dissolve it in water into a paint-like consistency and using a broomstick as a brush, paint over all the ancient paintings. By the time his act became known, it was impossible to remove the offending layer without destroying the paintings under it. The chemists were yet working on the problem. We saw the damage, but what could one do?

A lucky escape

I had another adventure in those parts. It was twenty years or so later, when I was working in Trincomalee. Kantalai was fully colonized by then. One day, friends visiting my brother, then the Government Agent, offered me a ride to Colombo. Gallantly, they gave me the front seat of the absolutely new car. We had passed Kantalai tank and the light was beginning to fade. There was a wide curve in the road and Joe, who was driving, asked me to switch off the tape-recorder so that he could switch on the lights.

I did not know how to do it, so he leaned over and did it. At that moment, an elephant thundered out of the jungle, where people were clearing a chena, and ran across the road. Joe promptly stood on the brakes but, before he could bring the car to a dead halt, another elephant, only about six6 to seven feet in height, ran in front of us. We hit him broadside, between the front and hind legs.

Caught in mid stride, he fell over; legs rolling up under the impact. Joe did a quick gear change and we took off like a rocket, swerving round the prone animal, just as the rest of the herd ran out of the jungle behind us. We kept going at top speed for about ten minutes, before getting out to assess the damage The radiator grill had caved in but, luckily the headlight and radiator itself were unharmed and we could go on. We reported the incident at the Habarana Police Station and carried on.

Flood relief

In 1958, we had torrential rains and floods in the country, including the least expected areas in the dry zone As was usual in such instances, all and sundry began collecting contributions for the flood victims and we teachers at Ananda College, too collected a sizeable stock. We were advised not to hand over the money but to adopt one of the affected villages and rehabilitate it. Our village was Hiriwadunna, some miles before reaching Habaran from Colombo. Apart from looking after the immediate needs of the villagers, we teachers in the upper forms used the village as a field laboratory, taking groups of student on various surveys that brought to life history, geography, botany, and the way of life in a village. What an experience it turned out to be! Probing old men’s memories turned out to be a great learning adventure.

Something the villagers said would have made eminent sense today. They were able to trace the water that came to their tank from its source: “When a tank overflowed, that water came to another tank, and when that too overflowed, it went to a third” and so on, tracing the route traversed by the water in their own tank from the beginning to the very end.

Decades later, when the cascade system was understood by our irrigation engineers, I related this concept to some of them and they admitted that they had never tapped the villagers’ reservoir of oral history.

When I asked the old folk whether there were ruins in the jungle around them, they undertook to show them to me. So I trekked with them to a thickly forested spot not far away, and came upon the remains of a small monastery. There were columns and slabs pushed aside by the living trees as they grew, and yet untouched by the archaeologist. I could not find any inscription to copy, but came upon a stone cistern, made of four slabs of stone, about waist high. Three of these were still upright, forming three sides of a square, and the fourth was lying flat on the ground. It showed two grooves chiseled for the other slabs to fit in snugly. This fit was good enough to last many centuries. I wonder how many ruins, like this one, are hidden in the forest.

Pooneryn

In the 1960s when I was in the Navy, we were called upon to open a new camp in an area totally unknown to us, but which is familiar to many now. There was an operation on to combat illicit immigration from India to Sri Lanka.

The Navy went to reinforce the Army and the sector allocated to us was Pooneryn, off Vavuniya. It was a forested, sparsely populated area just beyond an old Dutch Fort. The base camp, which was a collection of aluminium sheds, was set up in a clearing. We had a string of small outposts along the seashore to watch for incoming boats. Small groups of men would patrol those lovely, lonely beaches. There was only the main road, but none leading to the outposts until jeeps crashed through the undergrowth making tracks that later became roads.

So little was happening there and game was plentiful, that everyone became a hunter or fisherman. Driving through the open villu, we often came upon jackals, who were not in the least perturbed by us, peacocks and elephants. I remember seeing my first Ceylon magpie. The open stretch near base camp was like a slate on which was freshly written every night the tracks of all kinds of animals which had wandered there.

The outposts had to be visited day and night. During the day, we found it easier to drive along the beach from one point to another. There was no sign of anybody else or animals, but there was plenty of bird life. The most intriguing animals were fish, which swam in the very foam of the waves. As we roared and skidded along the beach, we could see before us fish after fish diving back to the deeper waters as they sensed our approach.

At night we kept to the roads. Driving through patches of arching forest alternating with open villu, one could predict which of the two he was passing through with his eyes shut. The skin was the sensory organ, for one felt warm while traversing forests and cold in the villu. It was exhilarating to go from warmth to coldness, from bright moonlight to “tunnels of green gloom”. As always, it is the sights, sounds, smells and other physical phenomena that spell “jungle” to me.

Elephants were plentiful. We had unknowingly built one post under a large tree the elephants used to scratch their backs on. The entire tree would start shaking in the night and the human inhabitants would seek refuge on the beach! One night I remember driving back along an abandoned tank bund, which was blocked by branches torn down by elephants. There was no way of reversing, so we had to get down and clear the way. Steaming piles of elephant droppings were around us and we could hear the culprits pulling more branches. But they were not worried by our presence and both animal and man went their separate ways peacefully. Pooneryn was a wonderful place then.

Mansions of the sea

The year was 1930. The scene was Dodanduwa, the last home of the traditional three-masted sailing ships of the Sinhalese, the yathra dhoni or maha-oruwa. The occasion was the launching of a ship. Two friends, one an entrepreneur and the other a seaman, had joined forces to build and launch this vessel that, though no one knew it at the time, was fated to be the last of her breed.

Kariyavasam Patuvata Vithanage Don Siyadoris de Silva, land owner, and Punchi Sinno Marakkalaehe, mariner, hoped that their freighter, by now named Amugoda Oruva, would do brisk business with South India and the Maldives. To mark her maiden voyage to Male, verses were composed, among which was:-

Gaman yanna naekatin oruva baa geney

Saman deyiyanta puda panduru baenda geney

Viman sagarey kanu mul soya geney

Apit yamuva haema deviyanta vaenda geney

“Auspiciously have we launched our vessel

And made our offerings to the god of Adam’s Peak

Let us now worship all the gods and go In search of the mansions of the sea.”

No god, alas, heard their pious prayers and the proud ship foundered on the reefs of Male, leaving those left behind in Dodanduwa to sing her dirges:

Metaenin oruva baa laa gati varaayata

Diyamba porn sata divve tharangataya

Kopamana ruval aedalaa divvat sondata

Amugoda oruva tava naeta aave gamata

“From here was the vessel taken to the port

And many a league did she race along under sail,

But however many sails were hoisted, and however fair she sailed

Amugoda Oruva never made home again.”

Sixty years or so later I was in Galle, organizing an international group of maritime archaeologists who were training a clutch of our young archaeology undergraduates and, at the same time, compiling a data base of shipwrecks in Galle Bay. Among the group was Tom Vosmer, an Australian boat ethnographer, with whom I discussed the Amugoda Oruwa and the large 100-year old model of a yathra dhoni at Kumarakanda Pirivena, Dodanduwa, that I had been privileged to photo record.

Tom was enthusiastic, for this was the last of a type of large outrigger-equipped sailing ships which could be traced back to the time of Borobudur. Days were spent in examining the model, and measuring, photographing and making detailed drawings of structural details. Built by the young son of a ship-owner, around 1890, it had been awarded a gold medal by the Governor. Tom considered that its accuracy, both in scale and detail, made it a fairly reliable source for (????????)



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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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