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Replacing constitutions in a revolutionary struggle

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By V. K. Nanayakkara

Can the 1978 Constitution of Sri Lanka be replaced without recourse to article 82 of the existing Constitution? In other words, can it be replaced extra-legally and extra constitutionally? Yes, it is possible in certain circumstances. Revolutionary constitutionalism is possible where it is connected with a political struggle. Have any countries adopted extra-legal Constitutions? Yes, there are plenty of examples.

First, what is a revolution? It is a successful attempt by a large group of people to change the political system of a country by force. The leaderless, spontaneous uprising – the Galle Face aragalaya (along with struggles all over the country) that surprised everyone, simply aims at that.

Who represents the sovereign popular will in Sri Lanka today? Is it the elected 225 MPs in Parliament or people in the street (Galle Face dissidents)? Three basic functions are common to all parliaments, namely lawmaking, representation and control of the executive. But the elected MPs do not represent the opinions and interests of the people as evidenced by the deliberations of the past few months. A majority of MPs represent the executive (the President and the cabinet) rather than the people. They do not represent the “Gota Go Home” universal call. Unfortunately, there is no right of recall in Sri Lanka and we are stuck with the corrupt and inept lot of 225 MPs.

Secondly, let us clarify what revolutionary constitutionalism is, and how it differs from non-revolutionary constitutionalism. The drafting of a new constitution by a self-appointed constituent assembly or convention works as a non-legal but politically expedient method of replacing constitutions in authoritarian regimes. We witness today the degeneration of the Sri Lankan polity into tyranny and anarchy through the concentration of power in the hands of a single person or family – a condition ripe for revolutionary constitution making.A Constitution can be replaced when it fails to work or when its design prevents competing political interests from accommodating to changing environments. According to this viewpoint, a Constitution is likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design.

What happens when constitutional paradigms change? Should a new constitution always be authorised or based on an existing Constitution? Revolutionary constitution-making is possible where a struggle (a revolutionary movement, headed by a charismatic leader or not) – where the leadership having engaged in a prolonged struggle against an authoritarian or tyrannical regime steadily wins the support of the people through its commitment. Ultimately, the uprising topples and replaces the government, then adopts the revolutionary principles in a new founding document. Extra-constitutional occasions are usually confined to emergency situations, such as revolutions, coup d’etat, and martial rule.

We do not have to go very far to discern extra constitutional means of introducing new Constitutions. Sri Lanka illustrates the extra constitutional approach to making a constitution. In 1972, deriving a people’s mandate, a Constituent Assembly comprising all MPs drafted and adopted a new constitution in accordance with its own procedures, rather than following those set out in the 1946 Constitution that it replaced. The First Republican Constitution of Sri Lanka was unconstitutional as per the existing 1946 Constitution. In adopting the new Republican Constitution, the Soulbury Constitution was not repealed in accordance with the provisions for repeal in section 29 (4). It was adopted and enacted by a body meeting outside the Parliament. But, in reviewing the position, however, the Sri Lankan Supreme Court upheld its legality with respect to the mode of adoption and composition of the assembly and declared the Constituent Assembly free to decide on the content of the new constitution. Evidently, the First Republican Constitution of 1972 did not owe its existence to a prior law. British sovereignty over Sri Lanka was not ended constitutionally.

Another instance of a new Constitution adopted and validated without prior legal authority is the Constitution of Bangladesh, 1972. East Pakistan was governed by the Constitution of Pakistan. However, East Pakistan (present Bangladesh) adopted the new Constitution extra legally by setting up a Constituent Assembly comprising a few representatives who had been elected to the National Assembly of Pakistan from the former East Pakistan and some of whom had been elected to the Provincial Assembly of East Pakistan. The constitution-making body of Bangladesh was not provided for in prior law.

Examples of constitution-making through irregular conventions established outside legal authorisation abound in Latin America. Irregular conventions have been typical during revolutions, independence processes, and regime transitions, because in these contexts the preexisting legal order was suspended or no longer considered to be legitimate.

The Latin American democracies used national conventions outside the legislature to replace their constitutions. They came into conflict with the legislature. An extra constitutional but legal constitution was adopted in Ecuador in 1997-1998. Extra constitutional but illegal constitutions were adopted in Colombia 1990-1991, Ecuador 2007-2008, Venezuela 1998-1999. The non-constitutionalist revolutions led by Lenin, Mao, Castro, and Ayatollah Khomeini brought about revolutionary Constitutions not sanctioned by the prevalent law.

Although extra-constitutionality seems a slippery slope, the principle of “necessity” which enabled the courts of a democracy, such as Canada or Cyprus to prevent a breakdown in the legal system can also be employed to legitimate a coup d’etat, as in Pakistan, Uganda, the Seychelles, Nigeria and Grenada. The Constitution of Russia in 1993 is a further example of extra-constitutional constitution making.Here are some examples from the US. The State of Virginia called, and 12 states, staffed the 1787 constitutional convention outside the Articles of Confederation. And in 1861, seceding southern states called and staffed a constitutional convention in Montgomery, Alabama.

Both of these Constitutions were extra-constitutional. The right of revolution safeguarded in the Declaration of Independence is the American people’s ultimate extra-constitutional remedy.

Conclusion

Can we reach a popular consensus to resolve the existing impasse? The problem is resolved by those who believe that political/revolutionary constitutionalism in contrast to legal constitutionalism consults popular views directly. The entrenched Second Republican Constitution could be repealed and replaced either by the prescribed supermajority of the elected representatives or by the people as a whole in a direct expression of the popular will. The legitimacy of a Constitution thus established outside the pre-existing legal order is admirably summed up by M. J. A. Cooray. To quote: “In non-legal language, it may be said that the validity of a constitution is initially a political fact and legality is derived from acceptance of the Constitution by the people, the courts and the administration.” (Cooray: 1982. Judicial Role under the Constitutions of Ceylon/Sri Lanka, p. 220)

Are the pre-conditions for revolutionary constitutionalism ripe in Sri Lanka?

First necessary precondition of a revolutionary opportunity is the widespread and increasingly visible, loss of authority of the old regime. Second, there should be a genuine form of mass mobilisation, in which the raw, constituent power of the people is directly engaged. These pre-conditions are manifest in Sri Lanka today.

Extra-constitutional constitution-making should always be just a last resort. Compared to the present Parliament, a people’s assembly specially commissioned to write a Constitution is better able to reflect citizens’ preferences. Exceptional responses may be necessary to deal with the crisis in the present exceptional circumstances. There is nothing wrong in bringing to a successful conclusion the aragalaya—the mass uprising with the adoption of a revolutionary Constitution at the Galle Face Green rather than at Diyawanna Oya.

(V. K. Nanayakkara, formerly of the Sri Lanka Administrative Service authored the book, In Search of a New Sri Lankan Constitution, a comparative analysis of the three post war Constitutions of Sri Lanka)



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An opportunity to move from promises to results

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The local government elections, long delayed and much anticipated, are shaping up to be a landmark political event. These elections were originally due in 2023, but were postponed by the previous government of President Ranil Wickremesinghe. The government of the day even defied a Supreme Court ruling mandating that elections be held without delay. They may have feared a defeat would erode that government’s already weak legitimacy, with the president having assumed office through a parliamentary vote rather than a direct electoral mandate following the mass protests that forced the previous president and his government to resign. The outcome of the local government elections that are taking place at present will be especially important to the NPP government as it is being accused by its critics of non-delivery of election promises.

Examples cited are failure to bring opposition leaders accused of large scale corruption and impunity to book, failure to bring a halt to corruption in government departments where corruption is known to be deep rooted, failure to find the culprits behind the Easter bombing and failure to repeal draconian laws such as the Prevention of Terrorism Act. In the former war zones of the north and east, there is also a feeling that the government is dragging its feet on resolving the problem of missing persons, those imprisoned without trial for long periods and return of land taken over by the military. But more recently, a new issue has entered the scene, with the government stating that a total of nearly 6000 acres of land in the northern province will be declared as state land if no claims regarding private ownership are received within three months.

The declaration on land to be taken over in three months is seen as an unsympathetic action by the government with an unrealistic time frame when the land in question has been held for over 30 years under military occupation and to which people had no access. Further the unclaimed land to be designated as “state land” raises questions about the motive of the circular. It has undermined the government’s election campaign in the North and East. High-level visits by the President, Prime Minister, and cabinet ministers to these regions during a local government campaign were unprecedented. This outreach has signalled both political intent and strategic calculation as a win here would confirm the government’s cross-ethnic appeal by offering a credible vision of inclusive development and reconciliation. It also aims to show the international community that Sri Lanka’s unity is not merely imposed from above but affirmed democratically from below.

Economic Incentives

In the North and East, the government faces resistance from Tamil nationalist parties. Many of these parties have taken a hardline position, urging voters not to support the ruling coalition under any circumstances. In some cases, they have gone so far as to encourage tactical voting for rival Tamil parties to block any ruling party gains. These parties argue that the government has failed to deliver on key issues, such as justice for missing persons, return of military-occupied land, release of long-term Tamil prisoners, and protection against Buddhist encroachment on historically Tamil and Muslim lands. They make the point that, while economic development is important, it cannot substitute for genuine political autonomy and self-determination. The failure of the government to resolve a land issue in the north, where a Buddhist temple has been put up on private land has been highlighted as reflecting the government’s deference to majority ethnic sentiment.

The problem for the Tamil political parties is that these same parties are themselves fractured, divided by personal rivalries and an inability to form a united front. They continue to base their appeal on Tamil nationalism, without offering concrete proposals for governance or development. This lack of unity and positive agenda may open the door for the ruling party to present itself as a credible alternative, particularly to younger and economically disenfranchised voters. Generational shifts are also at play. A younger electorate, less interested in the narratives of the past, may be more open to evaluating candidates based on performance, transparency, and opportunity—criteria that favour the ruling party’s approach. Its mayoral candidate for Jaffna is a highly regarded and young university academic with a planning background who has presented a five year plan for the development of Jaffna.

There is also a pragmatic calculation that voters may make, that electing ruling party candidates to local councils could result in greater access to state funds and faster infrastructure development. President Dissanayake has already stated that government support for local bodies will depend on their transparency and efficiency, an implicit suggestion that opposition-led councils may face greater scrutiny and funding delays. The president’s remarks that the government will find it more difficult to pass funds to local government authorities that are under opposition control has been heavily criticized by opposition parties as an unfair election ploy. But it would also cause voters to think twice before voting for the opposition.

Broader Vision

The government’s Marxist-oriented political ideology would tend to see reconciliation in terms of structural equity and economic justice. It will also not be focused on ethno-religious identity which is to be seen in its advocacy for a unified state where all citizens are treated equally. If the government wins in the North and East, it will strengthen its case that its approach to reconciliation grounded in equity rather than ethnicity has received a democratic endorsement. But this will not negate the need to address issues like land restitution and transitional justice issues of dealing with the past violations of human rights and truth-seeking, accountability, and reparations in regard to them. A victory would allow the government to act with greater confidence on these fronts, including possibly holding the long-postponed provincial council elections.

As the government is facing international pressure especially from India but also from the Western countries to hold the long postponed provincial council elections, a government victory at the local government elections may speed up the provincial council elections. The provincial councils were once seen as the pathway to greater autonomy; their restoration could help assuage Tamil concerns, especially if paired with initiating a broader dialogue on power-sharing mechanisms that do not rely solely on the 13th Amendment framework. The government will wish to capitalize on the winning momentum of the present. Past governments have either lacked the will, the legitimacy, or the coordination across government tiers to push through meaningful change.

Obtaining the good will of the international community, especially those countries with which Sri Lanka does a lot of economic trade and obtains aid, India and the EU being prominent amongst these, could make holding the provincial council elections without further delay a political imperative. If the government is successful at those elections as well, it will have control of all three tiers of government which would give it an unprecedented opportunity to use its 2/3 majority in parliament to change the laws and constitution to remake the country and deliver the system change that the people elected it to bring about. A strong performance will reaffirm the government’s mandate and enable it to move from promises to results, which it will need to do soon as mandates need to be worked at to be long lasting.

by Jehan Perera

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From Tank 590 to Tech Hub: Reunited Vietnam’s 50-Year Journey

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The fall of Saigon (now Ho Chi Minh City – HCM) on 30 April 1975 marked the end of Vietnam’s decades-long struggle for liberation—first against French colonialism, then U.S. imperialism. Ho Chi Minh’s Viet Minh, formed in 1941, fought Japanese occupiers and later defeated France at Dien Bien Phu (1954). The Geneva Accords temporarily split Vietnam, with U.S.-backed South Vietnam blocking reunification elections and reigniting conflict.

The National Liberation Front (NLF) led resistance in the South, using guerrilla tactics and civilian support to counter superior U.S. firepower. North Vietnam sustained the fight via the Ho Chi Minh Trail, despite heavy U.S. bombing. The costly 1968 Tet Offensive exposed U.S. vulnerabilities and shifted public opinion.

Of even more import, the Vietnam meat-grinder drained the U.S. military machine of weapons, ammunition and morale. By 1973, relentless resistance forced U.S. withdrawal. In March 1975, the Vietnamese People’s Army started operations in support of the NLF. The U.S.-backed forces collapsed, and by 30 April the Vietnamese forces forced their way into Saigon.

At 11 am, Soviet-made T-54 tank no. 843 of company commander Bui Quang Than rammed into a gatepost of the presidential palace (now Reunification Palace). The company political commissar, Vu Dang Toan, following close behind in his Chinese-made T-59 tank, no. 390, crashed through the gate and up to the palace. It seems fitting that the tanks which made this historic entry came from Vietnam’s principal backers.

Bui Quang Than bounded from his tank and raced onto the palace rooftop to hoist the NLF flag. Meanwhile, Vu Dang Toan escorted the last president of the U.S.-backed regime, Duong Van Minh, to a radio station to announce the surrender of his forces. This surrender meant the liberation not only of Saigon but also of the entire South, the reunification of the country, and a triumph of perseverance—a united, independent nation free from foreign domination after a 10,000-day war.

Celebrations

On 30 April 2025, Vietnam celebrated the 50th anniversary of the Liberation of the South and National Reunification. HCM sprouted hundreds of thousands of national flags and red hammer-and-sickle banners, complemented by hoardings embellished with reminders of the occasion – most of them featuring tank 590 crashing the gate.

Thousands of people camped on the streets from the morning of 29 April, hoping to secure good spots to watch the parade. Enthusiasm, especially of young people, expressed itself by the wide use of national flag t-shirts, ao dais (traditional long shirts over trousers), conical hats, and facial stickers. This passion may reflect increasing prosperity in this once impoverished land.

The end of the war found Vietnam one of the poorest countries in the world, with a low per capita income and widespread poverty. Its economy struggled due to a combination of factors, including wartime devastation, a lack of foreign investment and heavy reliance on subsistence agriculture, particularly rice farming, which limited its potential for growth. Western sanctions meant Vietnam relied heavily on the Soviet Union and its socialist allies for foreign trade and assistance.

The Vietnamese government launched Five-Year Plans in agriculture and industry to recover from the war and build a socialist nation. While encouraging family and collective economies, it restrained the capitalist economy. Despite these efforts, the economy remained underdeveloped, dominated by small-scale production, low labour productivity, and a lack of modern technology. Inflexible central planning, inept bureaucratic processes and corruption within the system led to inefficiencies, chronic shortages of goods, and limited economic growth. As a result, Vietnam’s economy faced stagnation and severe hyperinflation.

These mounting challenges prompted the Communist Party of Vietnam to introduce Đổi Mới (Renovation) reforms in 1986. These aimed to transition from a centrally planned economy to a “socialist-oriented market economy” to address inefficiencies and stimulate growth, encouraging private ownership, economic deregulation, and foreign investment.

Transformation

Đổi Mới marked a historic turning point, unleashing rapid growth in agricultural output, industrial expansion, and foreign direct investment. Early reforms shifted agriculture from collective to household-based production, encouraged private enterprise, and attracted foreign investment. In the 2000s, Vietnam became a top exporter of textiles, electronics, and rice, shifting towards high-tech manufacturing (inviting Samsung and Intel factories). By the 2020s, it emerged as a global manufacturing hub, the future focus including the digital economy, green energy, and artificial intelligence.

In less than four decades, Vietnam transformed from a poor, agrarian nation into one of Asia’s fastest-growing economies, though structural reforms are still needed for sustainable development. Growth has remained steady, at 5-8% per year.

Vietnam’s reforms lifted millions out of poverty, created a dynamic export-driven economy, and improved education, healthcare, and infrastructure. This has manifested itself in reducing extreme poverty from 70% to 1%, increasing literacy to 96%, life expectancy from 63 to 74 years, and rural electrification from less than 50% to 99.9%. Industrialisation drove urbanisation, which doubled from 20% in 1986 to 40% now.

This change displayed itself during the celebrations in HCM, amid skyscrapers, highways and the underground metro system. Everybody dressed well, and smartphones could be seen everywhere – penetration has reached three-fourths of the population. Thousands turned out on motorbikes and scooters (including indigenous electric scooters) – two-wheeler ownership is over 70%, the highest rate per capita in ASEAN. Traffic jams of mostly new cars emphasised the growth of the middle class.

At the same time, street food vendors and makeshift pavement bistro owners joined sellers of patriotic hats, flags and other paraphernalia to make a killing from the revellers. This reflects the continuance of the informal sector– currently representing 30% of the economy.

The Vietnamese government channelled tax income from booming sectors into underdeveloped regions, investing in rural infrastructure and social welfare to balance growth and mitigate urban-rural inequality during rapid economic expansion. Nevertheless, this economic transformation came with unequal benefits, exacerbating income inequality and persistent gender gaps in wages and opportunities. Sustaining growth requires tackling corruption, upgrading workforce skills, and balancing development with inequality.

NLF flag

Tank 390 courtesy Bao Hai Duong

The parade itself, meticulously carried out (having been rehearsed over three days), featured cultural pageants and military displays and drew admiration. Of special note, the inclusion of foreign military contingents from China, Laos, and Cambodia for the first time signalled greater regional solidarity, acknowledging their historical support while maintaining a balanced foreign policy approach.

Veteran, war-era foreign journalists noted another interesting fact: the re-emergence of the NLF flag. Comprising red and blue stripes with a central red star, this flag had never been prominent at the ten-year anniversary celebrations. The journalists questioned its sudden reappearance. It may be to give strength to the idea of the victory being one of the South itself, part of a drive to increase unity between North and South.

Before reunification in 1975, North and South Vietnam embodied starkly contrasting economic and social models. The North operated under a centrally planned socialist system, with collectivised farms and state-run industries. It emphasised egalitarianism, mass education, and universal healthcare while actively preserving traditional Vietnamese culture. The South, by contrast, maintained a market-oriented economy heavily reliant on agricultural exports (rice and rubber) and foreign aid. A wealthy elite dominated politics and commerce, while Western—particularly American—cultural influence grew pervasive during the war years.

Following reunification under the Socialist Republic of Vietnam (1976), the government moved swiftly to integrate the two regions. In 1978, it introduced a unified national currency (the đồng, VND), merging the North’s and South’s financial systems into a single, state-controlled framework. The unification of monetary policy symbolised the broader ideological project: to erase colonial and capitalist legacies.

Unity and solidarity

However, the economic disparities and cultural divides between regions persist, though less pronounced than before. The South, particularly HCM, remains Vietnam’s economic powerhouse, with a stronger private sector and international trade connections. The North, including Hanoi, has a more government-driven economy. Southerners tend to have a more entrepreneurial mindset, while Northerners are often seen as more traditional and rule-bound. Conversely, individuals from the North occupy more key government positions.

Studies suggest that people in the South exhibit lower trust in the government compared to those in the North. HCM tends to have stronger support for Western countries like the United States, while Hanoi has historically maintained closer ties with China. People in HCM tend to use the old “Saigon” city name.

Consequently, the 50th anniversary celebrations saw a focus on reconciliation and unity, reflecting a shift in perspective towards peace and friendship, as well as accompanying patriotism with international solidarity.

The exuberant crowds, modern infrastructure, and thriving consumer economy showcased the transformative impact of Đổi Mới—yet lingering regional disparities, informal labour challenges, and unequal gains remind the nation that sustained progress demands inclusive reforms. The symbolic return of the NLF flag and the emphasis on unity underscored a nuanced reconciliation between North and South, honouring shared struggle while navigating enduring differences.

As Vietnam strides forward as a rising Asian economy, it balances its socialist legacy with global ambition, forging a path where prosperity and patriotism converge. The anniversary was not just a celebration of the past but a reflection on the complexities of Vietnam’s ongoing evolution.

(Vinod Moonesinghe read mechanical engineering at the University of Westminster, and worked in Sri Lanka in the tea machinery and motor spares industries, as well as the railways. He later turned to journalism and writing history. He served as chair of the Board of Governors of the Ceylon German Technical Training Institute. He is a convenor of the Asia Progress Forum, which can be contacted at asiaprogressforum@gmail.com.)

By Vinod Moonesinghe

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Hectic season for Rohitha and Rohan and JAYASRI

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Rohitha and Rohan: Doing it in London … for kidney patients in Sri Lanka

The Sri Lanka music scene is certainly a happening place for quite a few of our artistes, based abroad, who are regularly seen in action in our part of the world. And they certainly do a great job, keeping local music lovers entertained.

Rohitha and Rohan, the JAYASRI twins, who are based in Vienna, Austria, are in town, doing the needful, and the twosome has turned out to be crowd-pullers.

Says Rohitha: Our season here in Sri Lanka, and summer in the south hemisphere (with JAYASRI) started in October last year, with many shows around the island, and tours to Australia, Japan, Dubai, Doha, the UK, and Canada. We will be staying in the island till end of May and then back to Austria for the summer season in Europe.”

Rohitha mentioned their UK visit as very special.

The JAYASRI twins Rohan and Rohitha

“We were there for the Dayada Charity event, organised by The Sri Lankan Kidney Foundation UK, to help kidney patients in Sri Lanka, along with Yohani, and the band Flashback. It was a ‘sold out’ concert in Leicester.

“When we got back to Sri Lanka, we joined the SL Kidney Foundation to handover the financial and medical help to the Base Hospital Girandurukotte.

“It was, indeed, a great feeling to be a part of this very worthy cause.”

Rohitha and Rohan also did a trip to Canada to join JAYASRI, with the group Marians, for performances in Toronto and Vancouver. Both concerts were ‘sold out’ events.

They were in the Maldives, too, last Saturday (03).

Alpha Blondy:
In action, in
Colombo, on
19th July!

JAYASRI, the full band tour to Lanka, is scheduled to take place later this year, with Rohitha adding “May be ‘Another legendary Rock meets Reggae Concert’….”

The band’s summer schedule also includes dates in Dubai and Europe, in September to Australia and New Zealand, and in October to South Korea and Japan.

Rohitha also enthusiastically referred to reggae legend Alpha Blondy, who is scheduled to perform in Sri Lanka on 19th July at the Air Force grounds in Colombo.

“We opened for this reggae legend at the Austria Reggae Mountain Festival, in Austria. His performance was out of this world and Sri Lankan reggae fans should not miss his show in Colombo.”

Alpha Blondy is among the world’s most popular reggae artistes, with a reggae beat that has a distinctive African cast.

Calling himself an African Rasta, Blondy creates Jah-centred anthems promoting morality, love, peace, and social consciousness.

With a range that moves from sensitivity to rage over injustice, much of Blondy’s music empathises with the impoverished and those on society’s fringe.

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