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Making a new Constitution: How best? By whom?

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by Dr. Jayampathy Wickramaratne
President’s Counsel

The National Movement for Social Justice (NMSJ) has been faulted for not turning its attention to the process of constitution-making. This is far from the truth. While the NMSJ’s current proposals are on the contents of a new Constitution, it has also initiated a discussion on the process. Last month, the NMSJ organised a discussion in cyberspace on constitution-making that the writer moderated. Among the issues discussed were: merits and demerits of the present constitutional provisions on constitutional reform; the current government’s approach to making a new constitution; how best to adopt a constitution that has wide acceptance as well as legitimacy; the option of a Constitutional Convention; safeguards against majoritarian constitution-making; public participation; and the role of experts, elites and civil society.

There is presently a discourse on making a new constitution without the involvement of Parliamentarians. One argument for such a process is that when a constitution is made by Parliamentarians, they will give primacy to their own interests.

The ongoing Chilean constitution-making process has been held up as an example. Following massive public protests in October 2019, political parties agreed to a new reform process. The Chilean Constitution was accordingly amended, new Articles 130 to 143 providing for the new but one-off process. Voters were asked at a referendum whether they wished to have a new Constitution. They were also asked whether the new Constitution should be made by a Constitutional Convention composed in equal parts by popularly elected members and parliamentarians in office or made up exclusively of popularly elected members. Voters overwhelmingly opted for a new Constitution to be adopted by a Convention composed exclusively of popularly elected members. A Constitutional Convention was then elected. Men and women are almost equally represented, and the average age of members is 44.5 years. Nearly 43% are lawyers and law students. Indigenous people have guaranteed representation. The new Constitution requires to be passed by a two-thirds majority and approved by the people at a plebiscite where voting is mandatory.

The writer agrees that a constitution adopted by a Constitutional Convention elected specifically for the purpose is the best option. But for such a process, too, a constitutional amendment would be necessary, as in the case of Chile. Getting Parliamentarians to agree to such an amendment will not be easy but not impossible. After all, the Seventeenth and Nineteenth Amendments were passed with cross-party support and near-unanimity.

A question raised is whether a Constitutional Convention could be set up through a referendum or based on an electoral mandate without following the amendment process set out in an existing Constitution. The Sri Lankan Constituent Assembly process of 1970-72 that was ‘extra-constitutional’ vis-à-vis the Soulbury Constitution but set up following a Parliamentary election has been cited as a parallel.

It is in very extraordinary circumstances that such a process would have legitimacy. After a long period of dictatorship, it would be meaningless to go back to the ‘old’ constitution, and there would be overwhelming support for a novel process to adopt a new constitution. The same would apply to a new State that emerges after a successful war of liberation. After Bangladesh was created, a Constituent Assembly consisting of the members of Pakistan’s federal and provincial assemblies in former East Pakistan was set up.

In Sri Lanka, then Ceylon, there was growing support by the mid-sixties for a new ‘home-grown’ or ‘autochthonous’ constitution, with a complete legal break from the existing Constitution. By this time, there was a definite trend in the Commonwealth towards enacting constitutions rooted in native soil to replace those imported from the United Kingdom. In the Indian Independence Act, there was provision for continuing the Constituent Assembly process begun for undivided India even before independence. The Constituent Assembly, which also served as the first legislature, adopted the present Indian Constitution without a division.

The Ceylon Independence Order-in-Council, on the other hand, did not provide for a Constituent Assembly. The question had been raised whether Parliament could replace the British Sovereign, a source of the legal authority of the Constitution and a constituent part of Parliament. The statement by Lord Pearce in the Privy Council in Bribery Commissioner v Ranasinghe that section 29(2) was ‘unalterable under the Constitution’, although obiter, gave added support to the move towards a complete legal break with the past.

At the General Elections of 1970, the United Front sought a mandate from the electorate to permit Members of Parliament to function simultaneously as a Constituent Assembly to draft, adopt and operate a new constitution. At the election, a high percentage of voters, 84.9, exercised their franchise. The United Front had 116 out of the 151 members elected but obtained 48.8 per cent of the votes cast. 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 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.

The extension of the legislature also served as a precedent for President Jayewardene to follow and extend the 1977 Parliament by six years with the ‘approval’ of the people at the infamous referendum of 1982. The manner in which the referendum was manipulated also serves as a lesson on how a referendum could be used for majoritarian constitution-making.

There is great danger in adopting a process that bypasses the one that is mandated by an existing Constitution. Just imagine the kind of constitution that would have emerged if President Gotabaya Rajapaksa had called a referendum soon after his election and set up a Constituent Assembly!

The writer reiterates his support for a Constitutional Convention set up after the due amendment of the provisions of the present Constitution relating to constitutional reform. At the NMSJ discussion on the mechanics of constitutional reform, a senior lawyer with international experience and a prime mover of the collective urging the setting up of a Constitutional Convention, clarified that the present Constitution needs to be amended to provide for such a Convention.

The writer proposes engagement with political parties and citizens’ organisations on the desirability of setting up a Constitutional Convention. However, any discussion on reform must not be limited to the process of reform; it is essential that we do not get bogged down on process but also focus on content.



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Sheer rise of Realpolitik making the world see the brink

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A combined US-Israel attack on Iran.(BBC)

The recent humanly costly torpedoing of an Iranian naval vessel in Sri Lanka’s Exclusive Economic Zone by a US submarine has raised a number of issues of great importance to international political discourse and law that call for elucidation. It is best that enlightened commentary is brought to bear in such discussions because at present misleading and uninformed speculation on questions arising from the incident are being aired by particularly jingoistic politicians of Sri Lanka’s South which could prove deleterious.

As matters stand, there seems to be no credible evidence that the Indian state was aware of the impending torpedoing of the Iranian vessel but these acerbic-tongued politicians of Sri Lanka’s South would have the local public believe that the tragedy was triggered with India’s connivance. Likewise, India is accused of ‘embroiling’ Sri Lanka in the incident on account of seemingly having prior knowledge of it and not warning Sri Lanka about the impending disaster.

It is plain that a process is once again afoot to raise anti-India hysteria in Sri Lanka. An obligation is cast on the Sri Lankan government to ensure that incendiary speculation of the above kind is defeated and India-Sri Lanka relations are prevented from being in any way harmed. Proactive measures are needed by the Sri Lankan government and well meaning quarters to ensure that public discourse in such matters have a factual and rational basis. ‘Knowledge gaps’ could prove hazardous.

Meanwhile, there could be no doubt that Sri Lanka’s sovereignty was violated by the US because the sinking of the Iranian vessel took place in Sri Lanka’s Exclusive Economic Zone. While there is no international decrying of the incident, and this is to be regretted, Sri Lanka’s helplessness and small player status would enable the US to ‘get away with it’.

Could anything be done by the international community to hold the US to account over the act of lawlessness in question? None is the answer at present. This is because in the current ‘Global Disorder’ major powers could commit the gravest international irregularities with impunity. As the threadbare cliché declares, ‘Might is Right’….. or so it seems.

Unfortunately, the UN could only merely verbally denounce any violations of International Law by the world’s foremost powers. It cannot use countervailing force against violators of the law, for example, on account of the divided nature of the UN Security Council, whose permanent members have shown incapability of seeing eye-to-eye on grave matters relating to International Law and order over the decades.

The foregoing considerations could force the conclusion on uncritical sections that Political Realism or Realpolitik has won out in the end. A basic premise of the school of thought known as Political Realism is that power or force wielded by states and international actors determine the shape, direction and substance of international relations. This school stands in marked contrast to political idealists who essentially proclaim that moral norms and values determine the nature of local and international politics.

While, British political scientist Thomas Hobbes, for instance, was a proponent of Political Realism, political idealism has its roots in the teachings of Socrates, Plato and latterly Friedrich Hegel of Germany, to name just few such notables.

On the face of it, therefore, there is no getting way from the conclusion that coercive force is the deciding factor in international politics. If this were not so, US President Donald Trump in collaboration with Israeli Rightist Premier Benjamin Natanyahu could not have wielded the ‘big stick’, so to speak, on Iran, killed its Supreme Head of State, terrorized the Iranian public and gone ‘scot-free’. That is, currently, the US’ impunity seems to be limitless.

Moreover, the evidence is that the Western bloc is reuniting in the face of Iran’s threats to stymie the flow of oil from West Asia to the rest of the world. The recent G7 summit witnessed a coming together of the foremost powers of the global North to ensure that the West does not suffer grave negative consequences from any future blocking of western oil supplies.

Meanwhile, Israel is having a ‘free run’ of the Middle East, so to speak, picking out perceived adversarial powers, such as Lebanon, and militarily neutralizing them; once again with impunity. On the other hand, Iran has been bringing under assault, with no questions asked, Gulf states that are seen as allying with the US and Israel. West Asia is facing a compounded crisis and International Law seems to be helplessly silent.

Wittingly or unwittingly, matters at the heart of International Law and peace are being obfuscated by some pro-Trump administration commentators meanwhile. For example, retired US Navy Captain Brent Sadler has cited Article 51 of the UN Charter, which provides for the right to self or collective self-defence of UN member states in the face of armed attacks, as justifying the US sinking of the Iranian vessel (See page 2 of The Island of March 10, 2026). But the Article makes it clear that such measures could be resorted to by UN members only ‘ if an armed attack occurs’ against them and under no other circumstances. But no such thing happened in the incident in question and the US acted under a sheer threat perception.

Clearly, the US has violated the Article through its action and has once again demonstrated its tendency to arbitrarily use military might. The general drift of Sadler’s thinking is that in the face of pressing national priorities, obligations of a state under International Law could be side-stepped. This is a sure recipe for international anarchy because in such a policy environment states could pursue their national interests, irrespective of their merits, disregarding in the process their obligations towards the international community.

Moreover, Article 51 repeatedly reiterates the authority of the UN Security Council and the obligation of those states that act in self-defence to report to the Council and be guided by it. Sadler, therefore, could be said to have cited the Article very selectively, whereas, right along member states’ commitments to the UNSC are stressed.

However, it is beyond doubt that international anarchy has strengthened its grip over the world. While the US set destabilizing precedents after the crumbling of the Cold War that paved the way for the current anarchic situation, Russia further aggravated these degenerative trends through its invasion of Ukraine. Stepping back from anarchy has thus emerged as the prime challenge for the world community.

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A Tribute to Professor H. L. Seneviratne – Part II

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A Living Legend of the Peradeniya Tradition:

(First part of this article appeared yesterday)

H.L. Seneviratne’s tenure at the University of Virginia was marked not only by his ethnographic rigour but also by his profound dedication to the preservation and study of South Asian film culture. Recognising that cinema is often the most vital expression of a society’s aspirations and anxieties, he played a central role in curating what is now one of the most significant Indian film collections in the United States. His approach to curation was never merely archival; it was informed by his anthropological work, treating films as primary texts for understanding the ideological shifts within the subcontinent

The collection he helped build at the UVA Library, particularly within the Clemons Library holdings, serves as a comprehensive survey of the Indian ‘Parallel Cinema’ movement and the works of legendary auteurs. This includes the filmographies of directors such as Satyajit Ray, whose nuanced portrayals of the Indian middle class and rural poverty provided a cinematic counterpart to H.L. Seneviratne’s own academic interests in social change. By prioritising the works of figures such as Mrinal Sen and Ritwik Ghatak, H.L. Seneviratne ensured that students and scholars had access to films that wrestled with the complex legacies of colonialism, partition, and the struggle for national identity.

These films represent the ‘Parallel Cinema’ movement of West Bengal rather than the commercial Hindi industry of Mumbai. H.L. Seneviratne’s focus initially cantered on those world-renowned Bengali masters; it eventually broadened to encompass the distinct cinematic languages of the South. These films refer to the specific masterpieces from the Malayalam and Tamil regions—such as the meditative realism of Adoor Gopalakrishnan or the stylistic innovations of Mani Ratnam—which are culturally and linguistically distinct from the Bengali works. Essentially, H.L. Seneviratne is moving from the specific (Bengal) to the panoramic, ensuring that the curatorial work of H.L. Seneviratne was not just a ‘Greatest Hits of Kolkata’ but a truly national representation of Indian artistry. These films were selected for their ability to articulate internal critiques of Indian society, often focusing on issues of caste, gender, and the impact of modernisation on traditional life. Through this collection, H.L. Seneviratne positioned cinema as a tool for exposing the social dynamics that often remain hidden in traditional historical records, much like the hidden political rituals he uncovered in his early research.

Beyond the films themselves, H.L. Seneviratne integrated these visual resources into his curriculum, fostering a generation of scholars who understood the power of the image in South Asian politics. He frequently used these screenings to illustrate the conflation of past and present, showing how modern cinema often reworks ancient myths to serve contemporary political agendas. His legacy at the University of Virginia therefore encompasses both a rigorous body of writing that deconstructed the work of the kings and a vivid archive of films that continues to document the work of culture in a rapidly changing world.

In his lectures on Sri Lankan cinema, H.L. Seneviratne has frequently championed Lester James Peries as the ‘father of authentic Sinhala cinema.’ He views Peries’s 1956 film Rekava (Line of Destiny) as a watershed moment that liberated the local industry from the formulaic influence of South Indian commercial films. For H.L. Seneviratne, Peries was not just a filmmaker but an ethnographer of the screen. He often points to Peries’s ability to capture the subtle rhythms of rural life and the decline of the feudal elite, most notably in his masterpiece Gamperaliya, as a visual parallel to his own research into the transformation of traditional authority. H.L. Seneviratne argues that Peries provided a realistic way of seeing for the nation, one that eschewed nationalist caricature in favour of complex human emotion.

However, H.L. Seneviratne’s praise for Peries is often tempered by a critique of the broader visual nationalism that followed. He has expressed concern that later filmmakers sometimes misappropriated Peries’s indigenous style to promote a narrow, majoritarian view of history. In his view, while Peries opened the door to an authentic Sri Lankan identity, the state and subsequent commercial interests often used that same door to usher in a simplified, heroic past. This critique aligns with his broader academic stance against the rationalization of culture for political ends.

Constitutional Governance:

H.L. Seneviratne’s support for independent commissions is best described as a hopeful pragmatism; he views them as essential, albeit fragile, instruments for diffusing the hyper-concentration of executive power. Writing to Colombo Page and several news tabloids, H.L. Seneviratne addresses the democratic deficit by creating a structural buffer between partisan interests and public institutions, theoretically ensuring that the judiciary, police, and civil service operate on merit rather than political whim. However, he remains deeply aware that these commissions are not a panacea and are indeed inherently susceptible to the ‘politics of patronage.’

In cultures where power is traditionally exercised through personal loyalties, there is a constant risk that these bodies will be subverted through the appointment of hidden partisans or rendered toothless through administrative sabotage. Thus, while H.L. Seneviratne advocates for them as a means to transition a state from a patron-client culture to a rule-of-law framework, his anthropological lens suggests that the success of such commissions depends less on the law itself and more on the sustained pressure of civil society to keep them honest.

Whether discussing the nuances of a film’s narrative or the complexities of a constitutional clause, H.L. Seneviratne’s approach remains consistent in its focus on the spirit behind the institution. He maintains that a healthy democracy requires more than just the right laws or the right symbols; it requires a citizenry and a clergy capable of critical self-reflection. His career at the University of Virginia and his continued engagement with Sri Lankan public life stand as a testament to the idea that the intellectual’s work is never truly finished until the work of the people is fully realized.

In the context of H.L. Seneviratne’s philosophy, as discussed in his work of the kings ‘the work of the people’ is far more than a populist catchphrase; it represents the practical application of critical consciousness within a democracy. Rather than defining ‘work’ as labour or voting, H.L. Seneviratne views it as the transition of a population from passive subjects to an active, self-reflective citizenry. This means that a democracy is only truly ‘realized’ when the public possesses the intellectual autonomy to look beyond the ‘right laws’ or ‘right symbols’ and instead engage with the underlying spirit of their institutions. For H.L. Seneviratne, this work is specifically tied to the ability of the people—including influential groups like the clergy—to perform rigorous self-critique, ensuring that they are not merely following tradition or authority, but are actively sustaining the ethical health of the nation. It is a perpetual process of civic education and moral vigilance that moves a society from the ‘paper’ democracy of a constitution to a lived reality of accountability and insight.

This decline of the ‘intellectual monk’ had a catastrophic impact on the political landscape, particularly surrounding the watershed moment of 1956 and the ‘Sinhala Only’ movement. H.L. Seneviratne posits that when the Sangha exchanged their role as impartial moral advisors for that of political kingmakers, they became the primary obstacle to ethnic reconciliation. He suggests that politicians, fearing the immense grassroots influence of the monks, entered a state of monachophobia, where they felt unable to propose pluralistic or fair policies toward minority communities for fear of being branded as traitors to the faith. In H.L. Seneviratne’s framework, the monk’s transition from a social servant to a political vanguard effectively trapped the state in a cycle of majoritarian nationalism from which it has yet to escape.

H.L. Seneviratne’s work serves as a multifaceted critique of the modern Sri Lankan state and its cultural foundations. Whether he is dissecting what he sees as the betrayal of the monastic ideal or celebrating the humanistic vision of an Indian filmmaker, his goal remains the same: to champion a world where intellect and compassion are not sacrificed on the altar of political power. His legacy at the University of Virginia and his continued voice in Sri Lankan discourse remind us that the work of the intellectual is to provide a moral compass even, indeed especially, when the nation has lost its way.

(Concluded)

by Professor
M. W. Amarasiri de Silva

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Musical journey of Nilanka Anjalee …

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Nilanka Anjalee Wickramasinghe is, in fact, a reputed doctor, but the plus factor is that she has an awesome singing voice, as well., which stands as a reminder that music and intellect can harmonise beautifully.

Well, our spotlight today is on ‘Nilanka – the Singer,’ and not ‘Nilanka – the Singing Doctor!’

Nilanka’s journey in music began at an early age, nurtured by an ear finely tuned to nuance and a heart that sought expression beyond words.

Under the tutelage of her singing teachers, she went on to achieve the A.T.C.L. Diploma in Piano and the L.T.C.L. Diploma in Vocals from Trinity College, London – qualifications recognised internationally for their rigor and artistry.

These achievements formally certified her as a teacher and performer in both opera singing and piano music, while her Performer’s Certificate for singing attested to her flair on stage.

Nilanka believes that music must move the listener, not merely impress them, emphasising that “technique is a language, but emotion is the message,” and that conviction shines through in her stage presence –serene yet powerful, intimate yet commanding.

Her YouTube channel, Facebook and Instagram pages, “Nilanka Anjalee,” have become a window into her evolving artistry.

Here, audiences find not only her elegant renditions of local and international pieces but also her original songs, which reveal a reflective and modern voice with a timeless sensibility.

Each performance – whether a haunting ballad or a jubilant interpretation of a traditional hymn – carries her signature blend of technical finesse and emotional depth.

Beyond the concert hall and digital stage, Nilanka’s music is driven by a deep commitment to meaning.

Her work often reflects her belief in empathy, inner balance, and the beauty of simplicity—values that give her performances their quiet strength.

She says she continues to collaborate with musicians across genres, composing and performing pieces that reflect both her classical discipline and her contemporary outlook.

Widely acclaimed for her ability to adapt to both formal and modern stages, with equal grace, and with her growing repertoire, Nilanka has become a sought-after soloist at concerts and special events,

For those who seek to experience her artistry, firsthand, Nilanka Anjalee says she can be contacted for live performances and collaborations through her official channels.

Her voice – refined, resonant, and resolutely her own – reminds us that music, at its core, is not about perfection, but truth.

Dr. Nilanka Anjalee Wickramasinghe also indicated that her newest single, an original, titled ‘Koloba Ahasa Yata,’ with lyrics, melody and singing all done by her, is scheduled for release this month (March)

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