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NEW DOORS OPENED IN LONDON – Part 41

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CONFESSIONS OF A GLOBAL GYPSY

By Dr. Chandana (Chandi) Jayawardena DPhil

President – Chandi J. Associates Inc. Consulting, Canada

Founder & Administrator – Global Hospitality Forum

chandij@sympatico.ca

Trust House Forte

I arrived in London during the summer of 1979 to undergo a special Management Observer/Trainee program with the largest hotel chain in the United Kingdom – Trust House Forte (THF). I had worked at their hotel in Sri Lanka, the Pegasus Reef Hotel, during my first year at the Ceylon Hotel School seven years before as a part-time bus boy. What I did not know about THF was that by 1979 it had emerged as the largest and the most profitable hotel and catering company in the world.

As required, I went to the THF Personnel Division on my first Monday in London. “I am Geoffrey Pye, the Director of Personnel for THF hotels in London. I will personally conduct your orientation to THF”, a well-dressed and kind gentleman informed me. “Meet Miss Linda Woodhouse, the new Training Officer of the Cumberland Hotel.” He introduced a young and friendly lady who was assigned to coordinate my management observation/training program.

Linda informed me that by staying at the Regent Palace Hotel I would be a guest observer there. My main assignment was at the Cumberland, a 900-room hotel located above the Marble Arch underground station. “Chandi, you are lucky to be able to understudy Mr. Bejaramo, our famous Catering Manager”, Linda told me. It was my first orientation program.

As a British-owned group, THF’s presence in the United Kingdom was clearly visible with massive contract catering operations, large restaurant chains and some of the most iconic hotels. In London, THF owned and managed some of the greatest hotels in the Commonwealth, such the Grosvenor House, Hyde Park Hotel, the Cumberland, the Strand Palace, the Browns, the Russell, and the Waldorf. THF also owned and managed the famous banquet venue – Café Royal situated very close to the Regent Palace Hotel and Piccadilly Circus.

Linda provided me with many interesting facts about THF’s history and current operations. Sir Charles Forte had become the CEO of THF in 1971. He was an Italian-born British caterer and hotelier who founded the leisure and hotel conglomerate that ultimately became known as the Forte Group in later years. When he was four years of age, Charles had migrated from Italy to Scotland with his family. After working in milk bars operated by his father in Scotland, at age 26 Charles moved to the capital city with £2,000 borrowed from his father to set up his own first milk bar in London in 1935. Having expanded his business into catering and hotel businesses, in 1970 he orchestrated a clever merger of the Forte Holdings with an older hotel and catering group, Trust Houses Ltd. That merger resulted in the formation of Trust House Forte or THF.

In Britain, THF continued its hotel expansion with various ambitious acquisitions including the 1976 purchase of the Lyons Hotel Group, a substantial assortment of first-class hotels including the Cumberland and the Regent Palace. For decades, Sir Charles attempted to take control of, arguably, the most famous hotel in the United Kingdom since 1889 – Savoy Hotel. The vision, hard work and business acumen of Sir Charles resulted in THF managing over 900 hotels in 44 countries by the year 1979.

Sir Charles’s only son, Rocco Forte, an Oxford‐educated linguist and a chartered accountant, was expected to eventually succeed his father to lead the THF empire. A subsequent acquisition of Le Meridien from Air France was a prestigious addition to the group. For decades the Forte family was successful in keeping hostile takeover bidders at bay, until 1996. I never had the opportunity of meeting Sir Charles, but in later years, as the general manager of two Forte hotels in South America, I had the opportunity of welcoming and hosting Sir Rocco Forte (he was knighted in 1995). Sir Rocco established his own company – Rocco Forte Hotels in the year 1996.

Building an International Career

In professional life, opportunities gained, contacts made and relationships nurtured can significantly and positively impact career progression. After 1979, I kept in touch with Linda Woodhouse, who helped me by arranging two more useful management observer assignments in London with THF. These were during the mid-1980s at the Grosvenor House Hotel and the Hyde Park Hotel. That exposure opened another door for me to secure a position as an internationally mobile expatriate hotel general manager of THF/Forte PLC in 1994, with special help from Mr. Bodhipala Wijesinghe, who worked at the TFH head office in London.

In that capacity I managed three of their hotels – Forte Crest/Guyana Pegasus Hotel, Timberhead Eco Resort in the Amazon Rainforest and Forte Grand/ Le Meridien/Jamaica Pegasus Hotel. In 1994, out of nearly 1,000 hotel general managers in the group, only four came from developing countries, and I was one of them. Sri Lankan accountant and hotelier, Ranjan Nadarajah (Nada) who passed away last week in UAE was another. In the year 1998, the two hotels managed by Nada and I became the first hotels to be awarded ISO 9002 certifications in our two regions (The Middle East and North America). Nada was a very nice colleague, and I did a short mystery shopper assignment for him at Le Meridien Dubai in the year 2000.

I also did the General Manager’s Foundation study program at the Forte Academy in the UK. I shadowed some of my peers, general managers of sister Forte Hotels in the UK, Barbados, the Bahamas, Bermuda, USA and Canada. In 1998, the group kindly arranged for me to have a two-year sabbatical leave in order to complete my doctoral studies in the UK. “This is a very unusual request! You are one of our best GMs, so why do you need a PhD?” a confused Human Resource Vice President of the corporate office of Forte PLC asked me, prior to approving my request for the sabbatical leave.

After successfully defending my doctoral thesis in London, in the early 2000s, I declined three lucrative offers from Forte PLC/Rocco Forte Hotels to work in Egypt, India and Russia. That was due to my family commitments in Canada and my new desire to pursue a second career in post-secondary education and management consulting. In 2002, I did a long mystery shopper assignment with my wife, at Le Royal Meridien King Edward Hotel in Toronto, Canada. Altogether I gained some type of work experience at 14 Forte hotels located in ten countries between 1971 and 2002. In the years 2003 and 2004, I also did a leadership development consulting assignment for Rocco Forte Hotels in England and Scotland. Thank you for all these amazing opportunities, THF/Forte PLC/Rocco Forte hotels!

A Guest at the Largest Hotel in the UK

In 1979, being the manager of the small 52-room Hotel Swanee in Sri Lanka, staying at THF as well as UK’s largest hotel (1,068 rooms), the Regent Palace was overwhelming for me. The hotel looked after me very well by providing full board accommodation on a complimentary basis for two months. Like most of the major hotels of THF chain at that time, the Regent Palace offered a carvery buffet every day. I was a frequent diner at that sumptuous carvery whenever I did not have my meals at the Cumberland Hotel where I worked.

Although it was the largest hotel in Europe when it was opened in 1915 by J. Lyons & Company, most of the rooms at the Regent Palace were very small, similar to hotels opened before or during World War I. I was surprised that some rooms did not have attached bathrooms, only wash basins. In spite of some shortcomings, I was very happy staying right in the heart of London. It was the most convenient location for me.

The Regent Palace was within close proximity to the Piccadilly Circus, Trafalgar Square, West End theatres, Leicester Square movie theatres, Regent Street shops as well as to many museums and art galleries. I was very happy to be there and walked all over London. If it was not raining, I walked to the Marble Arch to work. On rainy days I took the subway or a bus.

Some weekends I had many invitations from Sri Lankan friends, members of my family, a few former guests of Hotel Swanee, and the Swedish and Sri Lankan couple who worked at the Tjaereborg Tour Company’s office in London – Kurt Hansen and Bobby Jordan, who were my friends from Ceysands days. I had a busy social calendar during the evenings and free weekends. I also visited a few of my younger Sri Lankan friends who worked at Wimpy Bars in the West End.

Ranjith Dharmaratnam (Assistant Manager of the Village, Habarana), who travelled to London with me, was trained at the accounts department of another THF hotel – Grosvenor House. As he had family in London, he did not stay at the Regent Palace. One day I unexpectedly met a former work colleague of mine from Bentota Beach Hotel who had moved to the Pegasus Reef Hotel to be the Front Office Manager. Having noticed his potential, THF had sent Srilal Mendis (Menda) for training in London. A few years after his training Menda also became an international hotelier. Menda and I explored most of the tourist attractions in London and surrounding areas during weekends. I also travelled to Windsor, Winchester, Portsmouth and South Hampton.

The late 1970s were not always a peaceful era in the UK. I was shocked to see on TV, that the Irish Republican Army (IRA) claimed responsibility for the August 27, 1979 murder of Admiral Lord Louis Mountbatten. As the supreme allied commander for Southeast Asia, he had commanded the British troops from his base in Ceylon during the latter part of World War II. For a few days I was glued to the TV in my hotel room, watching news about that shocking assassination.

A Management Trainee of a 900-room Hotel

My work at the Cumberland Hotel was mainly in the Food and Beverage department. It was much grander than the Regent Palace and had a very busy catering and banqueting operation. The public rooms, restaurants, banquet hall and grill room were located centrally. I also spent some time observing and working in the catering department as well as the kitchens, purchasing, receiving, stores, payroll and accounts departments.

I was a regular at management meetings, simply to observe. The most useful meeting I attended was a top-level meeting among managers of 20 THF hotels in London, to coordinate their Christmas and New Year’s Eve events. This was one best practice I implemented soon after returning to Hotel Swanee. I loved to talk with all levels of employees and gathered interesting, historical information of this grand hotel.

Stemming from that interest, five years later in 1984, I wrote a 100,000-word (353 pages) master’s dissertation at the University of Surrey about British five-star hotels. I did my field research at all 16 five-star London hotels. Most parts of my master’s dissertation were later published as a text book for British universities, with my supervisor, Professor Richard Kotas of the University of Surrey, as the co-author. In the early 1990’s I succeeded him as the Director of the Hotel School at Schiller International University’s London Campus.

The island site bounded by Oxford Street, Old Quebec Street, Bryanston Street and Great Cumberland Place, had been acquired around 1925, by Lyons for building the Cumberland Hotel. It eventually opened in 1933. The hotel was a pioneer by including many luxurious features at that time, such as sound-proof, double glazed windows, air conditioning and 900 bedrooms with en-suite bathrooms.

The Cumberland had been acquired by THF, two years before I did my management training there. I found that some of the old-timers from Lyons had doubts about the changes implemented by THF. During some good weather days, I spent my lunch breaks seated at the nearby Hyde Park observing birds, playful pet dogs and at times listening to speakers on soap boxes attempting to attract larger audiences. I found every corner of this great city interesting.

With my invaluable experiences of luxury hotel operations at the Cumberland Hotel, I began dreaming of one day becoming the General Manager of a large international five-star hotel. As I looked around, I was disappointed that none of the General Managers, at that time, looked like me or came from developing countries. Most of those General Managers in the London five-star hotels had the British professional qualification – Member of the Hotel & Catering International Management Association (MHCIMA). As the HCIMA head office was in London, I decided to visit them to check on my chances of becoming an MHCIMA.

Door Closed at HCIMA

HCIMA had an impressive total of 23,000 members (21,000 British) professional members. It usually took four years of undergraduate degree level studies plus five more years of post-qualification management experience to obtain the professional title of MHCIMA. Then it was the highest qualification in the United Kingdom for hospitality managers. One day, a little bit nervously I visited the HCIMA head office in South London to check my chances of becoming an MHCIMA.

The HCIMA officer who interviewed me, rejected my application, as she did not recognize my three-year diploma from the Ceylon Hotel School, as compatible to a British HND or OND. She insisted that I complete four years of studies with HCIMA, before being considered for MHCIMA qualification. To me a rejection is always a great motivator, which inspires me to do better and at times, find practical short cuts. After that meeting, I decided that I will eventually earn this qualification, to lay a stronger foundation to become the General Manager of a five-star international hotel.

After a few years of further studies and numerous communications with HCIMA, finally I managed to become an MHCIMA in 1984, and a Fellow (FHCIMA) in 1992. In 2004, after serving HCIMA Board as an elected International Zone Representative for three years, I was elected as the worldwide President of HCIMA (now the Institute of Hospitality, UK), and appointed Chairman of HCIMA Ltd, UK, the commercial enterprise of the professional association.

In those two roles, I was fortunate to get a unique opportunity to lead the world’s largest professional body for hospitality managers in 104 countries with 25 international groups and 26 British chapters. For 84 years since the inception of this professional body in 1938, all Presidents were Europeans, except when a Sri Lankan was elected in 2004.

It was exactly 25 years after arriving in the UK as a first-time visitor and a nervous management trainee in 1979, that I was elected by my British hospitality management peers, as their President. The lesson here, for aspiring young hospitality managers, is that: “Treat the sky as the limit. As long as you have a vision for the future combined with hard work and passion, you can make things seem impossible to eventually happen”. At times the light may not be visible at the end of the tunnel, but that should not be an excuse not to dream big and work hard to achieve unprecedented goals. Go, open new doors!



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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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