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The Knuckles Range



by Dishana H. Uragoda

My first jungle trips were made with the family. The very first, as far as my memory goes, was in the mid 1970s, when we travelled in an Austin A 60 car to Lahugala, Ampara, Batticaloa, Polonnaruva and Sigiriya. I was probably five years old at the time. Since then there were a number of such long trips we made as a family, until 1984 when we joined Mr. Meryl Fernando and his traveling companions on a trip to Rakwana.

It was on this trip that I made my first memorable jungle hike, which was to the famous Waulpane cave. Since that trip, we made a number of trips to Yala where we based ourselves at the Palatupana bungalow run by the Wildlife and Nature Protection Society. We used to make those trips in Uncle Meryl’s Mitsubishi J40 jeep and trailer, driven by the dear driver Simon, whose nephew Wimaladasa was in charge of the bungalow at Palatupana.

During this period, another anchorman to our trips stepped into our lives. He was Senath Abeygunawardena, who was a close friend of my brother. In subsequent years, we made many trips with a group of friends whom he introduced to our family, such as Bimal Perera, Niranjan Perera and Imaran Seneviratne. In fact, we still continue to go on trips with them, together with my sister’s father-in-law, Dr. Walter Gooneratne, Air Vice Marshall Paddy Mendis and the Vernon Edirisinghe family. In between, there was another group with whom I made a number of trips during the early 1990s, and it is one of these that I wish to elaborate on.

It all began when I joined an institute in Colombo to read for a degree in computer science in August 1990 shortly after leaving school. Here I came across a bunch of boys who developed a keen interest in sharing the thrills of traveling in Sri Lanka. Their interest may have been partly created by their seeing my photographs and listening to my narrations of interesting incidents of trips undertaken with my family. The interest so created resulted in altogether five trips being made during end-of-semester holidays to interesting places, namely Adam’s Peak, Horton Plains, Namunukula, Anuradhapura and the Knuckles. These trips were filled with laughter, gossip, bullying and idle talk. They were all budget trips leading a frugal existence, and that made them all the more interesting. After our three years at the institute, almost all of us joined universities in the USA and are now dispersed round the world, yet most of our links and friendships remain as before.

Planning the trip

At the institute we had two weeks holidays in between semesters, and had to squeeze in all the action and relaxation we could think of within that period. On this particular occasion, we decided on the Knuckles region as our destination. I had some experience of the area, having been there twice before on family trips, one of which was a successful attempt at reaching the famous Nitre Cave. The other trip was a total disaster, with heavy rains, strong winds, earthslips, floods and leeches. We planned the present trip in order to avoid the rainy season.

On one of these earlier visits, I happened to obtain the address of the Village Headman of Kumbukgolle off Meemure. He was Heenbanda alias Polgas Seeman Aiya, who was a respectable-looking, small built, lively man in his 50s. My brother and his friends had spent a few nights with him some years earlier on one of their trips; hence I knew we had a chance of spending a few nights with him. After a letter or two of correspondence, we were assured of a place to spend the nights. Our targets were the Nitro Cave and Lakegala Peak of the Knuckles range.

The former could be reached by using Heenbanda’s home as the base, but to get to Lakegala, we had to find accommodation in the more famous village of Meemure. Since we did not have any contacts there, we were considering either the school or the temple as our base. As a backup plan, we were contemplating the possibility of camping out. We had no idea where to camp, but we knew the river Heen Ganga wound through Mimure and it would be practical to camp on its bank.

Six persons agreed to make the trip, and they were Azard Barie, Chandima Wimalasena, Nishantha Nawalage, Tharaka de Silva, Udara Gunawardena and myself. We tried very hard to convince a regular member of our team, Lakshita Surasinghe as well, but he opted out with a trivial excuse. Looking at this list of names today, they have all turned out to be Information Technology professionals of different flavours based around the globe. One sad fact is that our dear friend Azard Barie is no more. He passed away in the UK in January 2003. As would be expected, we were all bachelors then, but now are either fathers, fathers-to-be, separated, fiances, singletons or playboys.

We planned to be out for three nights and hence the food had to be anything that lasted without refrigeration for a few days. We knew we would be provided with food at Heenbanda’s, but we had to stock ourselves with some for the balance period, the easiest being instant noodles, sliced bread, tinned fish, butter, jam and some biscuit packets. We expected to obtain water of pristine purity from the streams found in the Knuckles. While this settled the food problem for me, there were protests from the rest of the boys, who were all heavy eaters and seekers of comfort. They had a notion that I knew somewhat better than they regarding trips and went on with my recommendations, but now I feel they made a mistake!

Backup plan of camping was a favourable option to putting up at a school or temple, and we decided to prepare ourselves for it. We required two tents, a portable kerosene cooker, and at least one kerosene lantern. I had two tents which we regularly used on our family trips. We bought a kerosene cooker, and a few of us obtained lanterns from home.

The next step was to figure out the route to be taken. I obtained some help from my father who knew these areas better than we did. We decided to go to Kandy, and then to Hunasgiriya, where we were to turn towards Looloowatta Estate and reach the beautiful Corbet’s Gap, where the road branched off west to Mimure (3 km) and east to Kumbukgolla (3 km). The next major hurdle was organising transport. In all our previous college trips we used public transport, but this trip required a vehicle. For our good fortune, Chandi’s father allowed us the use of his Toyota Lightace van, and all was set to go.

Trip at last

Departure was set for Wednesday, August 12, 1992, and return was three nights later, on Sunday 15th. The dates were selected to take advantage of the full moon of Nikini poya, which fell on the 13th. All food items, provisions, tents, a large haversack, kettle, kerosene cooker, lamps and other paraphernalia were packed in Chandi’s van the previous night. Early next morning, along with our personal items, we left Colombo. It was a great start despite the short delay and the rather harsh rock music that blared into my ears at the back of the vehicle. The two experts who provided the music were Chandi and Nish. Their preferences were a far cry from the peaceful pop or country music that I appreciated, but for my luck Nish had brought a few cassettes of my flavour.

Many of us had brought sandwiches for breakfast, which we had whilst on the move. The idea was to lose as little time as possible by way of wayside stops. As expected, the van was in an explosive atmosphere with much chattering and laughter. After a while, we began trying out our singing skills. Tharaka knew much of the “Big match” style of Sinhala songs, while Azard and I were somewhat proficient in regular baila songs. Nish was an expert of English pop songs to which we would listen with admiration.

The drive was rather slow and comfortable with Chandi at the wheel. We reached Kandy around 10 am, and we decided to wander around the town and eventually break journey by going to the house of Nish’s aunt for snacks and drinks. After delaying a short time in Kandy, we again took the road. Though the road conditions were not at their best, it was quite a scenic route. We passed the Victoria reservoir, where the water level was low at the time, and reached Hunnasgiriya around 2.30 pm. There, with the help of directions from a wayside villager, we proceeded north towards Looloowatta Estate.

Road conditions became less comfortable and we had to proceed quite slowly, with the van bouncing along. For our luck, there was no rain although it was pretty overcast. By 3.45 pm or so we reached Looloowatta Estate, and though all were now hungry, there was no time to waste as our overall plan of reaching Kumbukgolla in time was of higher priority. With the cloudy sky, it turned out to be slightly chilly.

At the small town of Looloowatta, we stopped for directions once again, and there we were asked if we could give three hefty men a lift to Mimure. We did not think it was a good idea to overload the vehicle. Then two of them explained to us that the third member was the officer in charge of the Police Station at Mimure, and requested us to oblige by giving only him a lift. We agreed and put him in the front seat. Chandi wanted me to take the wheel. One reason was his being tired, and the other was his thinking that I was better at keeping the guest company.


This was the first time I was driving a van, and I took off in the manner of driving the Land Rover back home. However, it did not take long to figure out that the van had much softer suspension as it bounced and oscillated frightfully. I proceeded slowly on the road going northwards towards Corbet’s Gap and admiring the beautiful mountain scenery amidst the coolness of the evening. The vegetation around and the long grass that covered the sides of the road were added attractions. I kept on chatting with the policeman, who gave relevant details of the area and pointed out the various mountain peaks, but the others at the back of the van observed silence, probably induced by hunger. We had proceeded a few kilometres down the road and I was keeping slightly to the left, as there was a deep drop into the ravine below on the right. There was plenty of grass on the roadside to the left. I enjoyed the beautiful view while driving.

Suddenly there was a loud explosion which shook the whole vehicle. I felt it strongly on the steering. There was an eerie rumble as I slowed down the vehicle to a stop. We were in a state of shock and surprise. We got down in a hurry and rushed to check what was wrong. We found the left front tyre deflated with a two-inch gash on it. It was a huge blow to us since we had a long way to go and we could not proceed without a spare wheel. I was upset as it was I who was driving Chandi’s van. We were wondering what caused the gash in the tyre as there was apparently nothing on the surface of the road to account for it. However, on closer inspection, we discovered rocks with jagged edges under the soft carpet of beautiful grass on the roadside. One of them was likely to be responsible for the damage.

It was a rude introduction to the new terrain we were in. The policeman, who was rather calm, had a look at the tyre and declared he would get it repaired so that we could collect it when we visited Mimure a day later. He sounded rather confident, and that gave us some relief. It also made us realise how lucky we were to have given him the lift. He also gave us permission to camp next to the bridge over the river Heen Ganga, a tributary of Mahaweli, that went through Meemure.

I let Chandi take over the wheel since I was feeling rather bad at what had happened. We passed the beautiful Corbet’s Gap and eventually came to the fork on the road. The road up to this point was tarred and very much motorable. But now, both branches of the fork were typical jeep tracks with large rocks on the gravel surface. The time was around 4.30 pm and it was getting late. We took the left branch going to Mimure to drop the policeman. A few of us had to literally walk with the vehicle, moving aside rocks on the road that could damage the tyres and the suspension. Driving was not getting any easier, with the eyes straining to watch out for danger spots.

We proceeded a good two km before we came to the police station, at which point the policeman got down with the damaged wheel in his care. We came back on the same route, and then went down the other branch of the fork, going west to the Kumbukgolla village. The road was no better, and we eventually came to Kumbukgolla around 6 pm.

Heenbanda’s house was only about 100 metres away, yet we had to take the van across a dry tributary of Heen Ganga that was studded with boulders. By this time, word had got round of our arrival and Heenbanda, accompanied by many villagers, was there to greet us. We were accorded a warm welcome and Heenbanda was happy to see me. We talked of our previous trips there, as well as my brother’s. Heenbanda wanted us to take the vehicle to his house and taking command of the operation, he ordered and directed the villagers around who virtually lifted the van across the difficult, large rocks.

The sun had set a good half an hour earlier, yet there was some daylight available. So we rushed into unloading only our bags and a few other essential items, as we knew we had to take off to Mimure the next day. We were getting accommodation in one huge room, which was a good portion of Heenbanda’s house. It had a neatly tiled roof, a cemented unpolished floor, white plastered walls and sufficient furniture for us to sit and make ourselves comfortable.

We were all eagerly waiting to have a wash, when we were informed that it would have to be at the river that we crossed. Since we were all dog-tired, a bathroom would have been most welcome. Now that we had to walk upstream searching for water in the dark and in cold weather, the eagerness to have a bath was somewhat diluted. Heenbanda was sending a guide with us to take us to the bathing spot, and we motivated ourselves to rush with the wash as there was still some light outside. We walked upstream about 100 metres from where we crossed the river, and there it was, water being channeled along strips of banana stems acting as a gutter. The water was quite cold, but after completing the wash with the help of kerosene lamps, it was indeed quite refreshing. We rushed back to our abode shivering and got into warmer clothes.

Heenbanda and his wife, a nice quiet and elderly lady served us with an early dinner and we were once again rejuvenated. There was no electricity but a number of kerosene oil lamps were lit, and we were provided with woven mats, one each for the six of us to sleep on. Once bedding was arranged, we had Heenbanda’s permission to take a walk in the night. We stepped out with our torches, and it was a beautiful night with plenty of moonlight. I proudly took a branded American 3-cell torch, which was very effective and not very common at the time. We decided to walk to the riverbed to relax, and then as the ever-so-hungry or thirsty lot wanted to have coffee, I thought it best to test the new kerosene cooker. We took it out of the van with the kettle, cups, coffee, milk and sugar, and took a cool walk to the riverbed.

(To be continued)


A Majoritarian Constitution



1972 Constitution in Retrospect – II

By (Dr) Jayampathy Wickramaratne, President’s Counsel

In this the second part of a three-part article on the 50th anniversary of Sri Lanka becoming a republic, the writer submits that the 1972 Constitution paved the way for constitutionalising majoritarianism in multi-cultural Sri Lanka.

The unitary state

Although Tamil parties expressed their support for the Constituent Assembly process, they were to be disappointed by the substance of the new constitution.

Basic Resolution No. 2 proposed by the Government called for Sri Lanka to be a unitary state. The Federal Party (FP) proposed an amendment that ‘unitary’ be replaced by ‘federal’.

In a memorandum and the model constitution that it submitted to the Steering Committee of the Assembly, the FP proposed that the country be a federal republic consisting of five states made up as follows: (i) Southern and Western provinces, (ii) North Central and North Western provinces (iii) Central, Uva and Sabaragamuwa provinces (iv) Northern Province and the districts of Trincomalee and Batticaloa and (v) Ampara district. The city of Colombo and its suburbs were to be administered by the centre. A list of subjects and functions reserved for the centre, with all others going to the states, was included. Interestingly, law and order and Police were to be reserved subjects.

However, Assembly proceedings show that the Tamils were clearly for a compromise. Dharmalingam, who was a main speaker of the FP under Basic Resolution No. 2, stated that the existing constitution had failed as it was not designed for a multi-ethnic country. He pointed out that in ethnically heterogeneous countries where unitary constitutions had been in operation, concessions to the federal principle have been made to meet the demands and aspirations of the minorities. Where there has been a refusal to concede the federal principle, there have been movements for separation. The FP distanced itself from secessionists such as C. Sunderalingam and V. Navaratnam, referring to them by name, and stated that it was not asking for a division of the country but for a division of power.

Dharmalingam made it clear that the FP’s draft was only a basis for discussion. Stating that the party was only asking that the federal principle be accepted, he suggested that as an interim measure, the SLFP, LSSP and CP should implement what they had promised in the election manifesto, namely that they would abolish Kachcheris and replace them with elected bodies. He stated: “If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralising the administration, not in the manner it is being done now, but genuine decentralisation, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.”

Sarath Muttetuwegama of the Communist Party, the first political party in the country to propose federalism, in 1944, followed Dharmalingam and stated that ‘federal’ had become a dirty word not because of the federal system of government but because of what the FP had advocated. He was clearly referring to the FP’s association with the UNP and the conservative policies it had followed, such as voting against nationalisations, the takeover of private schools and the Paddy Lands Bill. Seemingly oblivious to the offer that Dharmalingam had made, he asked why the FP had not used the phrase ‘regional autonomy.’ Speakers from the UF who followed Muttetuwegama made it clear that the UF was in no mood to consider the FP’s offer to settle for much less.

Consequently, Basic Resolution No.2 was passed, and the FP’s amendment was defeated in the Steering and Subjects Committee on 27 March 1971.

Dr Nihal Jayawickrama, who was the Secretary of the Ministry of Justice, under the UF Government, and played an important role in the constitutional reform process, has said that the first draft prepared under the direction of the Minister of Constitutional Affairs did not contain any reference to a ‘unitary state’. However, Minister Felix Dias Bandaranaike proposed in the Ministerial Sub-Committee that the country be declared a ‘unitary state’. The Minister of Constitutional Affairs did not consider this to be necessary and argued that while the proposed constitution would have a unitary structure, unitary constitutions could vary a great deal in form. Nevertheless, the proposed phrase found its way to the final draft. ‘In course of time, this impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogenous Sinhalese state on this island’ Dr Jayawickrama observed. ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice vol 1 (Centre for Policy Alternatives 2012) 43.

It is significant that the FP continued to participate in the Constituent Assembly even after its amendment was rejected. Records show that its leader, S.J.V. Chelvanayakam, regularly attended the meetings of the Steering and Subjects Committee.

With the advantage of hindsight, it could be said that acceptance of the FP’s proposed compromise for a division of power would have proved to be a far-reaching confidence-building measure on which more could perhaps have been built later. Moreover, such an acceptance would have ensured the continued participation of the FP in the Constituent Assembly. Even had the FP, as the UNP eventually did, voted against the adoption of the new constitution, their participation in the entire constitution-making process would have resulted in greater acceptance of the 1972 Constitution by the Tamil people.

Although they discontinued participation at a later stage, Federal Party MPs nevertheless took oaths under the new Constitution. Tamil parties soon united under the banner of the Tamil United Front (TUF), which later became the Tamil United Liberation Front (TULF). At the famous Vaddukoddai conference of 1976, the TULF embraced separatism and adopted a resolution calling for a separate state called ‘Tamil Eelam’ in the Northern and Eastern provinces. At the 1977 elections, the TULF contested on a separatist platform and swept the Tamil areas.

The place of Buddhism

According to Dr Jayawickrama, Dr. de Silva’s original proposal called for the guarantee of freedom of thought, conscience and religion to every citizen. However, the Prime Minister requested that this proposal be added with a provision for the protection of institutions and traditional places of worship of Buddhists.

Basic Resolution No. 3 approved by the Constituent Assembly was for Buddhism to be given its ‘rightful place’: ‘In the Republic of Sri Lanka, Buddhism, the religion of the majority of the people, shall be given its rightful place, and accordingly, it shall be the duty of the State to protect and foster Buddhism, while assuring to all religions the rights granted by Basic Resolution 5 (iv).’

Basic Resolution 5 (iv) referred to read: “Every citizen shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have and adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

But by the time the final draft was approved, the proposal had undergone a further change. Article 6 of the 1972 Constitution is as follows: ‘The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18 (1) (d).’ Section 18 (1) (d), in the chapter on fundamental rights, assures to all citizens the right to freedom of thought, conscience and religion.

To the question of whether constitutionally guaranteeing special status to Buddhism not available to other religions of the land might adversely affect the non-Buddhists, Dr de Silva retrospectively responded in the following manner: “The section in respect of Buddhism is subject to section 18 (1) (d) and I wish to say, I believe in a secular state. But you know when Constitutions are made by Constituent Assemblies they are not made by the Minister of Constitutional Affairs. I myself would have preferred (section 18(1) (d)). But there is nothing…And I repeat, NOTHING, in section 6 which in any manner infringes upon the rights of any religion in this country. (Safeguards for the Minorities in the 1972 Constitution (Young Socialist 1987) 10.)

Dr Jayawickrama has been more critical. ‘If Buddhism had survived in the hearts and minds of the people through nearly five centuries of foreign occupation, a constitutional edict was hardly necessary to protect it now’, he opined. (‘Colvin and Constitution-Making – A Postscript’ Sunday Island, 15 July 2007).

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



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



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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