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More on wrecks and treasure of the sea off Galle

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by Somasiri Devendra

(Continued from last week)

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 (referred to last week) 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 documentation.

The drawings and measurements were tested against a computer model for acceptability, and were found to fit in well within the requirements of a vessel of her type. The net result of this was that a complete set of structural drawings was made, and her sailing characteristics determined. Today, gifted by the Ven. Dodanduve Dharmasena, the model is in the Colombo Museum.

Sunken ship’s bell

It was one but the last day of our expedition, and I had stayed behind without going to the diving base. I heard the vehicles returning and Patrick, the expedition’s Australian photographer, ambled up to me and said nonchalantly, “Somasiri, we found something interesting. Like to see it?”

The team was clustered around the van and there was this block of what looked like living coral on the ground. When I bent down to examine it, I suddenly realized that this was not coral but something infinitely richer and stranger. It was a ship’s bell, covered with teeming marine life consisting of bits of coral, colorful anemones, little scuttling crabs and barnacles, but no hint of metal. Only its shape gave the secret of its identity.

We had been diving on the site where a ship had been sunk centuries previously. It was just outside the breakwater. We had known that it was the site where a ship called the Hercules was sunk. It was marked on old charts as “Hercules Kirkopf’ (Kircopf meaning churchyard, graveyard). Mike Wilson (later Swami Sivakalki) and Rodney Jonklass had identified the site in 1956. They did a literary search as well as some diving, discovering quantities of cannon on the seabed.

An eyewitness had described the ship as a first-rate VOC East Indianian, which had been lifted up in a great swell and smashed against rocky Gibbet Island. But there was no further material evidence, and now before me was her bell.

Little by little we cleaned it. The marine creatures were removed, and the barnacles and corals chipped away. Finally, the metal emerged, and with that the letters cast on the bell; partly damaged on top and its clapper missing, it still showed the moulding on top and bottom and the words were clear: Amor vincit omnia anno 1625. “Love conquers all” was a strange motto for an armed merchantman and one that, like the Amugoda Oruwa, was conquered by the unforgiving sea.

More research was done on the Hercules site, where we had located 30 cannons and were to retrieve two sounding leads. Built in Sandam (present Zaandam) in 1655, she was one of two ships of the yacht class, the other being the Achilles. They were about 140 Dutch voet (feet) in length, carrying a crew of 220 each. The Dutch, with their bureaucratic zeal for recording facts, have left several documents on the sinking.

A fleet of four ships, the Thoolen, Angelier, Elburg and Hercules were ready to sail to Batavia and were awaiting fair weather to clear the treacherous entrance to the Bay. Conditions were ideal, with the winds blowing off shore, at six o’clock on the morning of May 22, 1661, and the commander of the city, Isbrand Godsken, had informed Admiral Rijckerslof van Goens. Van Goens had sent him to the Governor, Adriaan van der Meijde who, as it happened was fast asleep. So Godsken made the decision to send the pilot on board. Working quietly, the pilot soon had the Elburg and the Thoolen safely out of the Bay and he went on board the Hercules, while Godsken boarded the Angelier and was witness to the Hercules’ disaster.

While weighing anchor, a crosswind had struck and she had swung around. The anchor rope had caught between the hull and the rudder, making it impossible to control her. She was driven against the rocks and then broke up. She probably had her full complement of 220 on board. We can imagine how many of these lives were lost, and why the site came to be marked on charts as a graveyard. Although the whole cargo of 1,700 packets of fine cinnamon and a consignment of Canarese rice was, lost, the pilot was discharged after a board of inquiry.

The Hercules was but one of several VOC vessels recorded as being lost in Galle Bay, the others being Molen (1658), Dolfijn (1661), Vlissingen (1665-66), Landsman (1679), Gienwens (1776), Barbestijn (1735) and Avondster (1659). Each has a tale of human weakness to tell, but I shall only tell that of the last-named, on whose bones we are diving now.

The Avondster

The Avondster (Evening Star) was in the evening of her life. Originally an English ship, captured by the Dutch and modified, by 1659 she was no longer fit to undertake the arduous trip back to the Netherlands and was used on the inter-Asian trade routes radiating from Batavia. On June 23, 1659, she had taken on board cargo for Negapatnam in India, and was waiting, at her moorings off the Black Fort (Zwaart Bastion) to sail at dawn.

Somehow, the old ship slipped her moorings and started to drift. The boatswain’s mate and the steward went to rouse the skipper, who was asleep below (like the Governor in the case of the Hercules!). The latter came after a quarter of an hour to order that another anchor be dropped, but the ship struck bottom and broke her back. The skipper and mate were less lucky than the pilot of the Hercules, for they were arrested, tried, convicted and ordered to pay for the loss.

The Avondster rested on the seabed for centuries. Alternating monsoons shifted the sand layer above the rocky bottom every year in unwavering rhythm, sometimes covering, sometimes exposing her. Loose artifacts were washed away by the currents rolling over the seabed, to be picked up by local divers and sold in curio shops. Being so close to land, a blanket of silt gradually settled over it, burying and preserving her. Finally, there was no hint of a ship to be seen.

Under early British rule, Galle became less important since the treacherous rocks claimed many a ship, including the steel-hulled steam ships that supplanted the wooden ones. The decision to develop Colombo was taken and Galle became a backwater. In the 1960’s, there was a call to do something about this backwater. An ambitious marine drive was built, followed by a fisheries harbour. Yet Avondster slumbered under the waves.

The new constructions, though, brought about a subtle change in the current flow, forcing it to veer round the new obstacles in their path and seek new routes. Consequently, the Avondster’s shroud of silt gradually began to be eroded and bits of the wreck began to appear. That was when she was shown to us.

We had a dirty site to work on. Most of the time visibility was limited to a few feet or less. There was a sewer emptying into the Bay not far away, and obviously someone was slaughtering chicken and dumping the unwanted bits into the sewer. All around us were floating chicken feet and other unmentionable stuff. Before we had identified the ship, we had already named it “Chicken foot site”!

But it turned out to be one of our most important sites – and we have located 25 others in the Bay.

As archaeologists, our interest was the site itself and the ship, and not in isolated artifacts. But some of the latter bring the past vividly to life. Such items include remains of the ship’s galley (kitchen) built of brick and lead sheeting, coils and coils of the rope and cordage which were so essential on board sailing ships, pulley-blocks and other ship’s accessories, wine bottles of the period, contents of the medicine cupboard (one jar contains mercury, then used to combat syphilis), ivory combs, parts of a gun carriage, earthenware jars and fragments of ceramic wares.

A combination of materials from east and west, namely Chinese, Dutch and South-East Asian is also interesting. From the perspective of nautical archaeology, the details of her hull construction and planking are giving us new information. The work still goes on and this site will, some day, become one of Sri Lanka’s major attractions.

Hindu icon and other finds

Under the waters of Galle we found more than Dutch shipwrecks. Among other discoveries was a Hindu icon with, strangely, the Roman numerals “XIV” scratched upon it, possibly the catalogue number of a collection. From its location, which was a 19th century mooring, it may have been part of a collection of antiques that was being shipped out of the country by ship, but which had fallen overboard in loading from boat to ship.

Perhaps its owner was Sir Alexander Johnston, Chief Justice. We know that he admits to having shipped out an invaluable collection on board the East Indianian Lady Jane Dundas, which sank in 1809 before reaching England. Galle was the premier port then and it is likely that this is the only artifact of that collection that did not leave Sri Lankan waters. This ship, on March 14, 1809, in company with fellow East Indiamen Calcutta, Bengal and Jane, Duchess of Gordon detached from the rest of the ships in convoy at Mauritius and was never heard of again.

Near the same location, we found several pieces of, and one complete 820 kg Arab-Indian stone anchor, complete with wooden fittings. This type is common in many Arabian Sea locations but this so far is the farthest east one has been found. The wooden pieces helped us to date it to 1310-1640, making it the oldest artifact to have been found in Galle, on land or sea. The stone itself was identified as of Omanese origin.

At the same anchorage were other types of anchor, including one of the so-called Mediterranean types, but unfortunately one cannot date stone and so we have no idea of its age. Recently, fishermen at Godawaya, another ancient port south of Galle, found another of that type pointing again to the possibility of Roman ships voyaging round the island on their way to the Coromandel coast of India. Large hoards of Roman coins and trade goods along the Ruhuna coast support this.

Again there is a Sung dynasty ceramic bowl, almost identical with the one found in Yapahuwa, with only a small chip missing and found by itself. Zheng-He (Chengho) touched at Galle and set up his now famous tri-lingual inscription in 1410 or so. Could it have been from one of his ships, or may be it fell off any one of the ships that called at Galle on their east-west trading voyages. Truly, many are the surprises the seas can spring on us.

(To be continued)

(Excerpted from Jungle Journeys in Sri Lanka edited by CG Uragoda)



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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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