by Prof. Tissa Vitarana
May 22nd should be one of the most important days to be commemorated in the history of Sri Lanka. It is the day in 1972 on which we became a Republic, a completely independent sovereign nation. But why is it, that unlike India which has done so since 1951, we do not celebrate Republic Day? Like Sri Lanka, India also celebrates Independence Day, but on a separate day each year with equal pomp and splendour. After nearly 450 years of being a colony under the Portuguese, the Dutch and finally the British, (roughly 150 years each), formal independence was received from the British in 1948. But this was only a sham, being Dominian Status within which we remained a semi-colony.
The British monarch continued to be the head of state, the military power remained with the British, and the Judiciary too remained in British hands as the Privy Council in the UK was the final Court of Appeal. Sri Lanka neither became sovereign nor independent, but we celebrate February 4th as National Independence Day.India too got formal independence from Britain in 1947, but the national minded Indian capitalist class did not want to be subordinate to the British capitalist class and fully supported the Congress Party (led by Gandhi and Nehru) and the Media to mobilize the masses to struggle against British rule, creating a climate that enabled Dr. Ambedkar to draft the Republican Constitution in 3 short years. The LSSP which was fighting against British rule in Sri Lanka was banned and its leaders like NM, Colvin, Philip and Edmund were jailed. They broke jail to join Leslie, Vivienne and Bernard in India to form an underground party, the BLPI, which joined the Congress Socialist Party, to support the Indian mass struggle (and they were jailed in India too), in the certainty that if India got Independence Sri Lanka too would also gain independence because of the resistance that the LSSP would successfully organize.
It took Sri Lanka 24 long years to become a Republic, because it had to overcome many obstacles. The local comprador forces led by the UNP, backed by Britain and the effort to unify a people divided due to communal differences were chief among them. The UNP retained Governmental power for 19 years (out of the 24 years) by forming compradorist governments by fair means or foul (bribery, corruption, thuggery, election manipulation and misinformation) and this was one of the main reasons for the delay in becoming a Republic. Thus the Republican Constitution was drafted by Dr.Colvin R. de Silva in 1972, as the Minister of Constitutional Affairs in the SLFP/LSSP/CP Coalition Government of 1970. To effectively sever the umbilical cord that tied Sri Lanka to Britain Colvin set up a separate Constituent Assembly that sat for two years entertaining all political opinions, as well as representations from the people. This highly democratic process was reflected in the fact that in his Constitution, sovereignty was vested in the people. Thereby the people gained supreme power, and anyone could become even the head of state. e.g. Premadasa and Sirisena were able to become Presidents. In fact, Colvin had to make many compromises (Sinhala only, a non-secular state etc.), and overcome strong opposition from various political quarters, some expected, some unexpected, before completing his task in 1972. As a Minister he played a key role in the nationalization of British owned plantations and in the land reform limiting holdings to 50 acres so that the balance could be divided among the landless poor.
UNP wanted to retain the comprador features of the Soulbury Constitution which would facilitate Sri Lanka’s continued exploitation by the British capitalist class while getting commissions and other benefits for their loyalty to the UK. Colvin as a leader of the LSSP and the working people was seen as a threat. They did everything possible to impede his task. Under the Soulbury Constitution, the legacy of British rule was continued with an appointed Governor General who represented the British Monarch as Head of State. Two Britishers Moore (1948-49) and Lord Soulbury (1949-54) followed by two Sri Lankans Oliver Goonetilleke (1954-62) and William Gopallawa (1962-72) maintained the tradition. Colvin had to break these traditions and he did so by having a two year Constitutional Assembly which met outside Parliament in the Navarangahala to draft the new Republican Constitution. The Governor-General was replaced by a Sri Lankan President. The 1972 Constitution vested sovereignty in the people through an elected Parliament, which chose the Prime Minister as its head. The Senate which strengthened the power of the capitalist government was abolished. The LSSP, backed by the CP and progressives in the SLFP was able to take the SLFP/LSSP/CP Coalition Government on an anti-imperialist and anti-capitalist path.Backed by the USA, the UNP with ample funds won the 1977 General Elections and used every means, fair and foul, to break the will of the people and the unity of the progressive coalition. The local capitalist class feared the empowerment of the people and led by J. R. Jayewardene, through the 1978 Constitution all power was vested in an Executive President, himself. Power was transferred from a Parliament elected by the people who had Legislative and Executive powers, to one individual the Executive President. JR manipulated the election and got himself elected as the President. He boasted that apart from changing a man to a woman and vice versa he had complete power. The Executive Presidency together with the creation of large district-based electorate ensured that political parties backed by large amounts of funds would be able to elect the all-powerful Executive President. Thus, power once again became he preserve of the capitalist class, be it comprador or national.
In the name of Dr. Colvin R. de Silva, one of the five best political leaders that the country has produced, I appeal to the Government to celebrate May 22nd each year as the Republic Day and draft a new Constitution that includes many of the principles that Colvin wanted but had to exclude. He wanted devolution of power to go down to benefit the people at village level through the ‘GRAMA RAJ’ system, so as to empower the people. He also wanted a strong Cooperative Movement, that would eliminate the exploitation by the middleman, so that prices could be controlled. He wanted Workers Advisory Councils to ensure correct functioning of workplaces. The future Constitution must ensure that we retain “two languages as one people”, for saying which at a meeting a bomb was thrown at him. A comrade lost his arm to save Colvin.
TNGlive relieving boredom
Yes, indeed, the going is tough for everyone, due to the pandemic, and performers seem to be very badly hit, due to the lockdowns.
Our local artistes are feeling the heat and so are their counterparts in most Indian cities.
However, to relieve themselves of the boredom, while staying at home, quite a few entertaining Indian artistes, especially from the Anglo-Indian scene, have showcased their talents on the very popular social media platform TNGlive.
And, there’s plenty of variety – not just confined to the oldies, or the current pop stuff; there’s something for everyone. And, some of the performers are exceptionally good.
Lynette John is one such artiste. She hails from Lucknow, Uttar Pradesh, and she was quite impressive, with her tribute to American singer Patsy Cline.
She was featured last Thursday, as well (June 10), on TNGlive, in a programme, titled ‘Love Songs Special,’ and didn’t she keep viewers spellbound – with her power-packed vocals, and injecting the real ‘feel’ into the songs she sang.
What an awesome performance.
Well, if you want to be a part of the TNGlive scene, showcasing your talents, contact Melantha Perera, on 0773958888.
Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution
The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.
Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).
Applicable constitutional provisions
Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.
Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.
Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.
Violation of fundamental rights and need for a referendum
Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.
The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.
The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”
A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.
When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”
In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.
Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.
However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.
The need to refer the Bill to Provincial Councils
The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.
In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.
It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.
The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.
A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.
‘Down On My Knees’ inspires Suzi
There are certain songs that inspire us a great deal – perhaps the music, the lyrics, etc.
Singer Suzi Fluckiger (better known as Suzi Croner, to Sri Lankans) went ga-ga when she heard the song ‘Down On My Knees’ – first the version by Eric Guest, from India, then the original version by Freddie Spires, and then another version by an Indian band, called Circle of Love.
Suzi was so inspired by the lyrics of this particular song that she immediately went into action, and within a few days, she came up with her version of ‘Down On My knees.’
In an exclusive chit-chat, with The Island Star Track, she said she is now working on a video, for this particular song.
“The moment I heard ‘Down On My Knees,’ I fell in love with the inspiring lyrics, and the music, and I thought to myself I, too, need to express my feelings, through this beautiful song.
“I’ve already completed the audio and I’m now working on the video, and no sooner it’s ready, I will do the needful, on social media.”
Suzi also mentioned to us that this month (June), four years ago, she lost her husband Roli Fluckiger.
“It’s sad when you lose the person you love but, then, we all have to depart, one day. And, with that in mind, I believe it’s imperative that we fill our hearts with love and do good…always.”
A few decades ago, Suzi and the group Friends were not only immensely popular, in Sri Lanka, but abroad, as well – especially in Europe.
In Colombo, the Friends fan club had a membership of over 1500 members. For a local band, that’s a big scene, indeed!
In Switzerland, where she now resides, Suzi is doing the solo scene and was happy that the lockdown, in her part of the world, has finally been lifted.
Her first gig, since the lockdown (which came into force on December 18th, 2020), was at a restaurant, called Flavours of India, with her singing partner from the Philippines, Sean, who now resides in Switzerland. (Sean was seen performing with Suzi on the TNGlive platform, on social media, a few weeks ago).
“It was an enjoyable event, with those present having a great time. I, too, loved doing my thing, after almost six months.’
Of course, there are still certain restrictions, said Suzi – only four to a table and a maximum crowd of 50.
“Weekends are going to be busy for me, as I already have work coming my way, and I’m now eagerly looking forward to going out…on stage, performing.”
In the meanwhile, Suzi will continue to entertain her fans, and music lovers, on TNGlive – whenever time permits, she said,
She has already done three shows, on TNGlive – the last was with her Filipino friend, Sean.
Debt-ridden CEB goes ahead with shocking pay hike amidst pandemic
When shamelessness becomes a virtue
Indian fishers riled by SL moves to create new fish breeding grounds
7-billion-rupee diamond heist; Madush splls the beans before being shot
The Burghers of Ceylon/Sri Lanka- Reminiscences and Anecdotes
Unfit, unprofessional, fat Sri Lankans
Features6 days ago
‘Fertilizer Saga’ in Sri Lanka: A Considered Opinion
Sports6 days ago
Bhanuka Rajapaksa outburst and possible repercussions
Features6 days ago
Big scene for Sri Lankan in the States
Features2 days ago
What to expect in the short term and long term
news6 days ago
X-Press Pearl fire: SC moved against local agent Sea Consortium Lanka and 12 others
Features5 days ago
Luxury cars for MPs; floods, disease and death for electors
news3 days ago
Vaccinations: eminent group follows-up with Prez., PM and ministers
Features6 days ago
How to gamble with floods