by Sumi Moonesinghe narrated to Savithri Rodrigo
When Susil and I returned to Sri Lanka for good, we rented a three-bedroomed flat behind the petrol shed in Thimbirigasyaya for Rs. 600 a month. This is the home we prepared for the arrival of our firstborn. But Susil and I were both of one mind that being on rent was not the answer and so began our quest for the purchase of a house.
Upali Wijewardene was getting married to Seevali Ratwatte’s daughter Lakmani, and being very close friends of Seevali and Cuckoo, we were on the invitee list. It was a gathering of the near and dear and there we met Susil’s cousin Lalith Hewavitarane, the CEO of Don Carolis, who always had his ear to the ground. He mentioned that the official residence of the Ceylon Match Company Chairman on Jawatte Road was for sale and asked us to take a look at it.
Another commonality between Susil and me is that we know when we like something. It’s an instant decision. This house was one of those. It was lovely and we both felt in our hearts that it was a good investment. The house stood on 70 perches of land and the asking price was Rs. 350,000. Neither Susil nor I had that kind of money.
The advice I was given before I left for England – ‘Save your money, buy a car and it has to be Peugeot 504 because it has good resale value’ came in handy. We sold the Peugeot 504 for Rs. 200,000 which was a good price and Susil suggested we get a loan for the balance payment.
I had been in academics and never had a reason to venture into a bank to request a loan. So this was completely new to me. Susil decided to show me the ropes. He took me to see his friend Mohamed Moheed, who was the General Manager of the Bank of Ceylon. They started off talking niceties and my initial thought was, “This is never going to end. When is he going to ask about the loan?” Just when the conversation was about to end, Susil said, “I need a loan from BOC to purchase our house.”
The unhesitating reply was, “Ah, no problem. Consider it done.” That’s the importance of having a good network and Susil had cultivated that network to perfection. We now had the full payment for the Jawatte Road house.
Thus far, everything had been bought and paid for by me. The cars in Singapore, the furniture we had and now, the loan for the house will be my responsibility. When the deed was to be written however, Susil asked me if we could write the property in Tara’s name. Even though the property was being purchased with my money and the request may have been strange in the circumstances, I never questioned Susil and did as he wanted me to do.
The deed was not important to me; what was important was that we had our first home. In order to meet the payments of the Rs. 150,000 loan however, we decided to give the house on rent. This was a sensible decision as otherwise, I would have to find money for yet another payment that fell on my shoulders. We rented the house out to an expatriate, while continuing to stay in the flat at Thimbirigasyaya.
This was about the time that Tara was leaving for Essex University. I had never met her or spoken with her but from the time I started working in Singapore, I had saved for her education. Hence, all expenses were sorted out, including the air tickets for Susil and her to go to London, because I wanted Susil to drop her off at the university. These are those moment which parents cherish, especially fathers and their daughters and I didn’t want him to miss out on that.
Even though my initial relationship with Ganga and Tara was quite frosty, I always made sure they were looked after and Susil’s responsibilities were always met. Rents were paid, household expenses met, schooling was looked after and the car was always sent for them whenever Ganga or Tara requested for it.
I finally met Tara only in 1977, long after she was settled at university in England. Susil would always visit her whenever we got into London and on one of these visits, she asked Susil if she could meet me. I was naturally a little nervous but it turned out to be a very friendly meeting. I took her shopping and bought her dinner before she returned to Essex. It was only after this meeting that it struck me that I was just 10 years older than Tara.
While Susil was in England dropping Tara at university, my delivery date for the baby was also close at hand. My mother and Roni had moved into the flat with us in preparation for the big day. The baby’s arrival date was yet some time away but one day, I was feeling particularly uncomfortable and called Dr. Siva (Chinnatamby) who sent me immediately to St. Michael’s Nursing Home at Alfred House Gardens.
I was admitted and was settled into a room. There was strict ‘No Visitors’ policy those days and only the father of child was given access to the room. Susil was abroad but the nursing home personnel were not aware of that. Along came Susil’s brother, Anil, claiming he was the father of my child. When he needed a break, Susil’s other brother, Nimal, would walk in confidently declaring himself as the father. Subsequently, our friend, Senaka Amarasinghe, would stride in maintaining paternity. The security guard in charge of letting people through the gates was utterly confused and after seeing parade of ‘fathers’ is known to have asked, “How many fathers has this child got?”
My discomfort continued through the night and the following morning, when Dr. Siva arrived at the hospital, she decided to induce labour. Susil was also due that day from the UK and arrived at the hospital about 1 pm. He was introduced as the fourth father of my child!
Anarkali Kumari Moonesinghe was born on September 28, 1975 with little drama beyond the claim of having multiple fathers. After having been through labour and the birth, my mother and Susil both went home to catch up on some much-needed sleep. I had hired a nanny who was very helpful in getting everything organized and ready – from pre-departure to the nursing home, to being with me while I was in labour and after the baby was born.
After everything turned quiet and only the nanny and I were in the hospital room, the house doctor doing his rounds lifted the sheets for a routine check and found me in a bath of blood. There was immediate pandemonium as I apparently had a cervical tear. He feared I was bleeding to death. With my blood pressure alarmingly low, I was immediately sedated and rushed to the theatre. But as the doctors tried to stitch one side of the tear, the other side would open up. They fought tooth and nail to save my life and later told me, it was touch and go.
Susil had been informed and came rushing back to hospital and was met by Dr. Siva who had come out of the theatre. “We have done everything we can,” she told him. If she lives, it’s her destiny.” Meanwhile, on hearing the gravity of the situation, our friends had got activated as well. Killi, the trustee pf Captain Gardens Hindu Kovil opened for prayers and Bri Ponnambalam kept shuttling to the Blood Bank to get me the five pints of blood I needed to keep me alive.
Many years later, Prof. Henry Nanayakkara said, “I came into the hospital and heard there was a really bad case. I did know it was you. But we don’t interfere with another doctor’s patient due to professional ethics.”
With all this drama surrounding me, my newborn daughter had been thoroughly neglected. She was in her crib but shoved into a corner as the medical personnel needed the space to attend to me. Back in the room, Dr. Siva stayed by my side and the nanny attended to the baby. I was in hospital for a month but survived to tell the tale.
So it was that my will to live saved me, but not before damaging my insides. There was always a threat that I may abort, which eventuality did come to pass. I miscarried my second child shortly after.
During Christmas of 1978, Susil, Anarkali and I were on holiday in Madras with Thanchi and Vasanta Coomaraswamy, Sivali and Cuckoo Ratwatte and the children – nine of us in all.
In those days, there were no restrictions on how many people could travel in a car and the Ambassador was the most popular car in India. So we would all pile into the Ambassador and roam all over Madras.
Cuckoo habitually takes her horoscope with her wherever she went. She wanted to see an Indian astrologer and inveigled Susil to accompany her. While reading Cuckoo’s horoscope, the astrologer looked at Susil and said, “You will have a child before the end of next year.”
Somewhat taken aback with this revelation and knowing my medical condition at the time, Susil broke the news to me as soon as he returned. The moment he told me the astrologer’s prediction, those long-held-back feelings of wanting another child came pouring out of me. Even though I had always harboured the dream of having another child, the complications of Anarkali’s birth were too fresh in my mind, in fact frightening Susil even more than me.
We returned to Colombo a few months later, the prediction came to pass. I was pregnant. I was coerced by Susil to consult Prof. Henry Nanayakkara, whom I had steered clear from when I was pregnant with Anarkali due to the large numbers I saw in his consulting room. Cuckoo and I went to see Prof. Nanayakkara but given his rather flippant bedside manner, I returned from the consultation, rather annoyed.
I told Susil that Prof. Nanayakkara was very rude and I wasn’t going to see him again. But Susil took on a new mission – to make sure that Prof. Henry Nanayakkara and I would become good friends. So, much to my chagrin, we made another appointment and this time, Susil accompanied me. Susil was allowed to sit in a chair. I was was absolutely charming when we met Henry and from then on, the ice thawed.
Given my medical history, Prof. Nanayakkara made it quite clear that he would not tolerate any nonsense. I was directed to stay in bed the full nine months and not even allowed to sit in a chair. I was fully absorbed in my work at Jones Overseas by this time and running a business while being horizontal is no joke. But unusual circumstances call for unusual solutions.
I moved my office into my bedroom and each day my Secretary, June, would sit in front of me and take down various instructions and dictation. I must say, we managed very well. In my seventh month, I couldn’t handle the inactivity anymore. Belng in bed was boring me to tears and I pressured Susil to allow me to meet the Chairman of the CWE (Cooperative Wholesale Establishment) Razik Zarook. A worried Susil tried to talk me out of it, but given my obstinacy when I wanted my way, he finally gave in and took me for my meeting.
After the meeting I decided on another detour, which again, Susil was powerless to refute. I wanted to meet Maha and apprise him of the operations at Jones Overseas. We stopped by for lunch. Susil was relieved when we got home and quickly put me to bed. But his relief was short-lived. I started bleeding and Henry was summoned. A rather infuriated Henry assured me the baby was fine, but berated me for not following his instructions, “Because it is for your own safety,” he said with finality.
As a reward for all those months of lying flat on my back, it was time for the baby’s arrival. I had made known that I desperately wanted a son, so just before I was anesthetized, I remember telling the anaesthetist, “Only wake me up if it’s a boy. If it’s a girl, give me another dose and put me back to sleep.”
But then Aushinari Moonesinghe arrived on the September 7, 1979, smiling and gurgling, pushing aside all my wishes for a boy. She completed the beautiful picture of our family. There were no complications and Henry’s excellent care made sure I got back to work very quickly too.
And just before Aushi’s birth, we created yet another milestone for our family. We divided the 70 perches of land on Jawatte Road, writing 35 perches in Anarkali’s name and the other in Tara’s, together with the house.
A Majoritarian Constitution
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).
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.
An autochthonous Constitution
1972 Constitution in Retrospect – I
By Dr. Jayampathy Wickramaratne
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)
Jacqueline concerned about situation in Sri Lanka
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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