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Reminiscing of Pengiriwatta, hundred hours later!

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A file picture of the recent Mirihana protest near President Gotabaya Rajapaksa’s private residence

By Austin Fernando

The 31 March afternoon protest at the Jubilee Post against the high cost of living, various shortages, etc., initially caused by a dollar shortage, gathered momentum by the evening. By late evening it grabbed the headlines both nationally and internationally; the protesters’ slogans changed from a demand for redress to their grievances to a strident call for President Gotabaya Rajapaksa’s resignation. By the following morning—on April Fool’s Day—the Presidential Media Unit (PMU) sought to make the protest out to be an uprising engineered by ‘extremists’. It was no April Fool’s joke; the PMU was dead serious although their claim was laughable.

The intelligence services would have got wind of the 31 March event beforehand.  This fact was borne out by special security arrangements at the Pengiriwatte Road that night. However, the man who lectured the police personnel and urged them to be tolerant of protestors, according to later reports, was found at the Kalubowila Hospital the following morning.

I have seen a video showing a person burning an Army bus when hundreds of military, police, and Special Task Force personnel were at the site. This man is a courageous ‘extremist’ for what he did in full view of the armed police and military personnel. I hope he is in custody and has been indicted for destroying public property.

Otherwise, immediate action should be taken against the security personnel who were on duty at the time for two reasons. The destruction of public property is illegal, and the offence was apparently committed with the connivance of the security personnel, as suggested by social media, which alleged that the arson attack had been aimed at facilitating the imposition of a curfew and the declaration of Emergency. However, the people defied the curfew and emergency regulations and protests continued.

Managerial weaknesses

Most commentators gave either a political or economic twist or a combination of both to the incident. I consider it essentially a managerial issue concerning the President, and his government.  Let me look at these issues from a different perspective.

Everyone, except the President and the ruling party, says that the dollar crisis is due to the government’s financial mismanagement. The blame game continues with those in power holding their predecessors responsible for the economic crisis, and vice versa. As former Prime Minister Ranil Wickremesinghe said, at the rate the buck was being passed, the blame would have to be laid at the feet of Prince Vijaya.

If the crisis has developed under successive governments why didn’t people during the Yahapalana or Suba Anagathyak, or Ranil- Sirisena Alliance, Chandrika Kumaratunga, JR Jayewardene, and R Premadasa regimes storm Ward Place, Gunasinghepura, Horagolla, Temple Trees, or Paget Road? Even during Prime Minister Sirimavo Bandaranaike’s tenure (1970-77), the people experienced hardships, albeit not to the same extent as today, but they did not besiege Tintagel, at 65 Rosmead Place, shouting, “Sirima go home!” The lady that she was, Mrs. B might have chucked up if such a thing ever happened!

The reaction of the government exhibits a lack of moral courage to accept guilt, accountability, and responsibility for its inefficiency and ineffectiveness in keeping with good governance. If it had demonstrated such courage, the people would have appreciated the President’s strength of character. They expected that of the President, who claimed to be apolitical in the run-up to the 2019 presidential election.

Negative constitutional responses

Firstly, the government’s disregard for legislative control over public finance caused the breakdown of financial management. The President, his government, and even the Speaker of the House have shown a callous disregard for Article 148, which gives Parliament the authority over public finance. In a way, why hold All-Party Meetings (APMs) when all parties in the Parliament could discuss all issues in the House?

There may have been a reason why the President did not want to expose the Minister of Finance to Parliament, but the half-witted responses from the State Minister of Finance Semasinghe only made an already bad situation worse.

The constitutional authority has a much larger implication too. The 20th Amendment enables the President to override other stakeholders including Ministers, State Ministers, any public officials, or even the Prime Minister. The fear of the President or his powers has taken a heavy toll on the other state institutions and their performance. The government is beset with demands for a referendum and elections.

It is imperative that the 20th Amendment be abolished and the 19th Amendment reintroduced with necessary improvements. Former President Maithripala Sirisena and Leader of the Opposition Sajith Premasada demanded this on 05 April 2022, in Parliament.

Respect for the rule of law is a cornerstone of good governance. The laws have not been passed by Parliament to promote the interests of the governments in power. Successive governments have disregarded the rule of law, but that does not mean it should continue.

The Opposition has been calling for a discussion of financial status, and agreements reached with foreign powers. But the government has not respected parliamentary traditions, and the Opposition’s request has not been granted. If securing the cooperation of other political stakeholders was uppermost in the minds of the government leaders, they should have cooperated by respecting parliamentary traditions and practices.

Management style

Secondly, the President’s military style of management – ‘Comply and complain’, which gives administrative leeway in decision-making, does not fit the public administration systems, especially in a troubled situation when large numbers are affected, and consultation and consensus-making pay better. “Treat verbal orders as circulars” (Hindu 26-9-2020) is not the accepted norm in public administration. Probably this difference in approach must be creating irritation and anxiety in the President when action is not taken on his verbal directives. This has led to a hierarchic system failure, evolving from Weberian times.

Preparedness

 Thirdly, what we are facing is a national crisis, there should have been solutions proposed by the ‘greats’ in Viyathmaga, consisting of intellectuals who claim to be capable of ushering in prosperity. Unfortunately, this outfit has failed to live up to the people’s expectations. Those self-proclaimed experts should have had the courage to own up to their non-performance. For example, on the carbonic agriculture issue, serious studies were treated with disdain. Litro Gas managed by a top Viyathmaga member failed miserably.

They should also have called for support from other stakeholders. It is a managerial collaboration. The President and the government were elected by the people and all political parties should have done their best to solve the crisis because it is the people who suffer. I find this commitment lacking also in the Opposition.  Both the government and the Opposition have put power politics before the interests of the people.

Political consensus

Fourthly, the crisis has existed for nearly twenty months, and an All-Party Meeting (APM) was held only a fortnight ago. Some in the Opposition boycotted it, probably suspecting the intentions of the government. At that event too, the approach of the Governor of the Central Bank Ajith Nivard Cabraal was antagonistic, and the President had to apologise to former Premier Ranil Wickremesinghe. It only showed the Governor’s attitude towards coping with a national crisis, which requires a concerted effort by both the government and the Opposition.

I do not blame the President personally for such weaknesses because as publicly acknowledged by him, he lacks political experience and comparatively expediency, and probably PM Mahinda Rajapaksa and others in the government are au fait with APMs. However, what is demonstrated is a lack of focus, positive attitudes, and preparedness as a team.

Failed communication

Fifthly, the Pengiriwatta protest was a response to the cumulative effect of several decisions of the government—the unplanned production and use of carbonic fertilizer, controversial tax concessions given in 2019, the mishandling of international sovereign bonds, the wrong prioritisation of development projects, alleged disposal of public assets to foreigners, etc. Some of these were resisted even by former President Maithripala Sirisena, Opposition parliamentarians, economists, academics, and business tycoons. But their concerns were pooh-poohed by the President, government spokespersons, and by the then Governor of CBSL. Therefore, it amounted to a failure in communication with stakeholders, reducing managerial cooperation.

The current wave of mass civil disobedience and public protests show what could happen when communication and the cause of natural justice (the right to be heard, a respected managerial/ legal principle) is ignored. This will be a lesson for everyone, inclusive of the protesters who aim to bring to power a new set of ‘undeclared leaders’.

Failed bureaucracy and advisors

 Sixthly, senior bureaucrats and advisors have also failed. I remember how Presidents J. R. Jayewardene, R Premadasa et al respected their advisors and senior bureaucrats. I had the personal experience with President Maithripala Sirisena heeding even very critical decisions made by me along with the then-Attorney General. This was the case even with President Jayewardene as well. There were instances where we failed to convince ministers and the President, but we must continue to make representations. Overall, there was no retaliation as such, so much so that I was appointed a Secretary a short time after I had refused to carry out an irregular request made to me by President Jayewardene. There were also exceptions. Under Pohottuwa the best example of contradiction was how Secretaries of Agriculture were replaced, for reasons best known to them. We will hear about what the public officials are undergoing at present when they write their memoirs.

If views and proposals are not taken on board, it either shows their inability to convince the political authorities, or politicians’ unwillingness to heed wise counsel. Two cases in point are how financial experts advised the President and others on the need to restructure International Sovereign Bonds worth 500 million dollars and green agriculture experiments. Both were disregarded. Experts, researchers et al were removed from the planning and management system, and a medical trade unionist and a politically-affiliated priest replaced them in deciding on the fertilizer issue.

Weak coordination

Seventhly, a coordinated approach to management is lacking. The best example is how solutions are adopted in an ad hoc manner. Conflicting views end with Ministers resigning due to weakened policy implementation. The Ministry of Finance and the Governor of the Central Bank, who has now resigned, used to make contradictory statements.

Although it appears that the government wishes to go to the International Monetary Fund (IMF) and letters are probably being exchanged through our Mission in Washington, it is not publicly supported by relevant stakeholders. It is unknown whether groundwork has been done to suit the operation such as the appointment of an advisory experts’ committee in Sri Lanka, the hiring of international consultants, lawyers, approaching the Paris Club and the London Club (both informal groups of creditor nations who engage in finding workable solutions to payment problems faced by debtor nations), meeting a group of helpful countries for short-term bridging finance, and other relevant institutions that matter. Preparing a roadmap is of the essence.

The IMF operation will require tough fiscal management and foreign exchange rate management, undertaking serious reforms for which the government will have to find a consensus with the Opposition and negotiations should commence thereon.

Conclusion

It is easy for me to make these observations. These weaknesses are not easy to rectify. Besides commitment, the task requires other things such as managerial skills, serious study, etc.

Using accepted systems of planning, organising, directing, staffing, coordinating, and reviewing, adjusting budgets to suit the best financial management must be adopted. Programmes such as the ‘distribution’ of nearly Rs. 220 billion to party-men a month after the passage of the national budget must be scrapped. However, hard decisions should be made, especially if a new IMF agenda is to commence. These issues are not easy to tackle.

They may include revenue generation, expenditure rationalisation, reviewing the operation of loss-making state-owned enterprises, reviewing, and restructuring the public service, addressing the subsidies for the affected poor, coordinating with many institutions here and abroad, structural changes, and focusing on new inclusive financing avenues, etc. Hard times are projected and a united effort is required.

The public demand for recovering stolen public assets may need new legal interventions under principles of recovery, for which assistance from the UN could be obtained.

The government must consider the importance of its obligation to its electors. The Opposition must also realise it will be its turn to face the guillotine will also come if the country continues battling.

        The problem is gargantuan and we should find ways and means of overcoming the daunting challenges. Essentially, we must depend on ourselves as efficient and effective operatives. Dhammapada – Stanza 160, provides us with a guide:

Atta hi attano nathoko hi natho paro siyaattana hi sudantenanatham labhati dullabham.

(One indeed is one’s refuge; how can others be a refuge to one? With oneself thoroughly tamed, one can attain refuge, which is so difficult to attain.)

In the wake of Pengiriwatte, let the government be urged to work on its managerial weaknesses. It is our responsibility- the Government and the Opposition, to work together as a nation. Others cannot be a refuge; they could only be a prop.  However, whether public protests continue or fizzle out, the government and other stakeholders must act fast to avoid disaster.



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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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