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The taste of freedom

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by Bhikkhu Bodhi

(Courtesy Access to Insight – BCBS Edition)

The clarion call of our present age is, without doubt, the call for freedom. Perhaps at no time in the past history of mankind so much as at present has the cry for freedom sounded so widely and so urgently, perhaps never before has it penetrated so deeply into the fabric of human existence.

In response to man’s quest for freedom, far-reaching changes have been wrought in almost every sphere of his activity — political, social, cultural and religious. The vast empires which once sprawled over the earth, engulfing like huge mythical sea-monsters the continents in their grasp, have crumbled away and disintegrated, as the peoples over whom they reigned have risen up to repossess their native lands — in the name of independence, liberty and self-rule.

Old political forms such as monarchy and oligarchy have given way to democracy — government by the people — because every man demands the right to contribute his voice to the direction of his collective life. Long-standing social institutions which kept man enthralled since before the dawn of history — slavery, serfdom, the caste-system — have now disappeared, or are rapidly disappearing, while accounts of liberation movements of one sort or another daily deck the headlines of our newspapers and crowd the pages of our popular journals.

The arts, too, bear testimony to this quest for greater freedom: free verse in poetry, abstract expression in painting, and atonal composition in music, are just a few of the innovations which have toppled restrictive traditional structures to give the artist open space in his drive for self-expression. Even religion has not been able to claim immunity from this expanding frontier of liberation. No longer can systems of belief and codes of conduct justify themselves, as in the past, on the grounds that they are commanded by God, sanctified by scripture, or prescribed by the priesthood. They must now be prepared to stand out in the open, shorn of their veils of sanctity, exposed to the critical thrust of the contemporary thinker who assumes himself the right to free inquiry and takes his own reason and experience for his court of final appeal. Freedom of speech, freedom of the press, and freedom of action have become the watchwords of our public life, freedom of thought and freedom of conscience the watchwords of our private life. In any form in which it obtains, freedom is guarded as our most precious possession, more valuable than life itself. “Give me liberty or give me death,” an American patriot exclaimed two hundred years ago. The succeeding centuries have echoed his demand.

As though in response to mankind’s call for wider frontiers of freedom, the Buddha offers to the world His Teaching, the Dhamma, as a pathway to liberation as applicable today as it was when first proclaimed twenty-five centuries ago.

“Just as in the great ocean there is but one taste — the taste of salt — so in this Doctrine and Discipline (dhammavinaya) there is but one taste — the taste of freedom”: with these words the Buddha vouches for the emancipating quality of His doctrine.

Whether one samples water taken from the surface of the ocean, or from its middling region, or from its depths, the taste of the water is in every case the same — the taste of salt. And again, whether one drinks but a thimble-full of ocean water, or a glass-full, or a bucket-full, the same salty taste is present throughout. Analogously with the Buddha’s Teaching, a single flavor — the flavor of freedom (vimuttirasa) — pervades the entire Doctrine and Discipline, from its beginning to its end, from its gentle surface to its unfathomable depths. Whether one samples the Dhamma at its more elementary level — in the practice of generosity and moral discipline, in acts of devotion and piety, in conduct governed by reverence, courtesy, and loving-kindness; or at its intermediate level — in the taintless supramundane knowledge and deliverance realized by the liberated saint, in every case the taste is the same — the taste of freedom.

If one practices the Dhamma to a limited extent, leading a house-hold life in accordance with righteous principles, then one experiences in return a limited measure of freedom; if one practices the Dhamma to a fuller extent, going forth into the homeless state of monkhood, dwelling in seclusion adorned with the virtues of a recluse, contemplating the rise and fall of all conditioned things, then one experiences a fuller measure of freedom; and if one practices the Dhamma to its consummation, realising in this present life the goal of final deliverance, then one experiences a freedom that is measureless.

At every level the flavor of the Teaching is of a single nature, the flavor of freedom. It is only the degree to which this flavor is enjoyed that differs, and the difference in degree is precisely proportional to the extent of one’s practice. Practice a little Dhamma and one reaps a little freedom, practice abundant Dhamma and one reaps abundant freedom. The Dhamma brings its own reward of freedom, always with the exactness of scientific law.

Since the Dhamma proposes to provide a freedom as complete and perfect as any the modern world might envisage, a fundamental congruence appears to obtain between man’s aspiration for expanding horizons of liberty and the possibilities he might realize through the practice of the Buddha’s teaching. Nevertheless, despite this concordance of ends, when our contemporaries first encounter the Dhamma they often find themselves confronted at the outset by one particular feature which, clashing with their familiar modes of thought, strikes them intellectually as a contradiction and emotionally as a stumbling block. This is the fact that while the Dhamma purports to be a pathway to liberation, a Teaching pervaded throughout by ‘the taste of freedom,’ it yet requires from its followers the practice of a regimen that seems the very antithesis of freedom — a regimen built upon discipline, restraint, and self-control. “On the one hand we seek freedom,” our contemporaries object, “and on the other we are told that to reach this freedom our deeds, words, and thoughts must be curbed and controlled.” What are we to make of this astonishing thesis the Buddha’s Teaching appears to advance: that to achieve freedom, freedom must be curtailed? Can freedom as an end really be achieved by means that involve the very denial of freedom?

The solution to this seeming paradox lies in the distinction between two kinds of freedom — between freedom as license and freedom as spiritual autonomy. Contemporary man, for the most part, identifies freedom with license. For him, freedom means the license to pursue undisturbed his impulses, passions and whims. To be free, he believes, he must be at liberty to do whatever he wants, to say whatever he wants and to think whatever he wants. Every restriction laid upon this license he sees as an encroachment upon his freedom; hence a practical regimen calling for restraint of deed, word, and thought, for discipline and self-control, strikes him as a form of bondage. But the freedom spoken of in the Buddha’s Teaching is not the same as license. The freedom to which the Buddha points is spiritual freedom — an inward autonomy of the mind which follows upon the destruction of the defilements, manifests itself in an emancipation from the mold of impulsive and compulsive patterns of behavior, and culminates in final deliverance from samsara, the round of repeated birth and death.

In contrast to license, spiritual freedom cannot be acquired by external means. It can only be attained inwardly, through a course of training requiring the renunciation of passion and impulse in the interest of a higher end.

The spiritual autonomy that emerges from this struggle is the ultimate triumph over all confinement and self-limitation; but the victory can never be achieved without conforming to the requirements of the contest — requirements that include restraint, control, discipline and, as the final price, the surrender of self-assertive desire.

In order to bring this notion of freedom into clearer focus, let us approach it via its opposite condition, the state of bondage, and begin by considering a case of extreme physical confinement. Suppose there is a man locked away in a prison, in a cell with dense stone walls and sturdy steel bars. He is tied to a chair — his wrists bound together by rope behind his back, his feet locked in shackles, his eyes covered by a blindfold and his mouth by a gag. Suppose that one day the rope is unfastened, the shackles loosened, the blindfold and gag removed. Now the man is at liberty to move about the cell, to stretch his limbs, to speak, and to see. But though at first he might imagine that he is free, it would not take him long to realize that true freedom is still as distant as the clear blue sky beyond the stoned and steel bars of his cell.

But suppose, next, that we release the man from prison, set him up as a middle-class householder, and restore to him his full body of rights as a citizen of the state. Now he can enjoy the social and political freedom he lacked as a prisoner; he can vote, work, and travel as he likes, can even hold public office. But there still remains — in the form of his responsibilities, his burden of duties, his limitations of power, pleasure, and prestige — a painful discrepancy between the freedom of mastery for which he might personally yearn, and the actuality of the situation which circumstances has doled out to him as his drearisome lot. So let us, as a further step, lift our man up from this middle-class routine, and install him, to his pleasant surprise upon the throne of a world monarch, a universal emperor exercising sovereignty over all the earth. Let us place him in a magnificent palace, surrounded by a hundred wives more beautiful than lotus-flowers, possessed of limitless resources of gold, land, and gems, endowed with the most sublime pleasures of the five senses. All power is his, all enjoyment, fame, glory, and wealth. He needs only express his will for it to be taken as command, need only utter a wish for it to be translated into deed. No obstruction to his freedom of license remains. But still the question stands: is he truly free? Let us consider the issue at a deeper level.

Three kinds of feelings have been pointed out by the Buddha: pleasant feeling, painful feeling, and neutral feeling, i.e., feeling which is neither pleasant nor painful. These three classes exhaust the totality of feeling, and one feeling of one class must be present on any given occasion of experience. Again, three mental factors have been singled out by the Buddha as the subjective counterparts of the three classes of feeling and described by him as anusaya, latent tendencies which have been lying dormant in the subconscious mental continua of sentient beings since beginningless time, always ready to crop up into a state of manifestation when an appropriate stimulus is encountered, and to subside again into the state of dormancy when the impact of the stimulus has worn off.

These three mental factors are lust (raga), repugnance (patigha), and ignorance (avijja), psychological equivalents of the unwholesome roots of greed (lobha), hatred (dosa), and delusion (moha). When a worldling, with a mind untrained in the higher course of mental discipline taught by the Buddha, experiences a pleasant feeling, then the latent tendency to lust springs up in response — a desire to possess and enjoy the object serving as stimulus for the pleasant feeling. When a worldling experiences a painful feeling, then the latent tendency to repugnance comes into play, an aversion toward the cause of the pain. And when a worldling experiences a neutral feeling, then the latent tendency to ignorance — present but recessive on occasions of lust and aversion — rises to prominence, shrouding the worldling’s consciousness in a cloak of dull apathy.

On whatever occasion the three latent tendencies to lust, repugnance, and ignorance are provoked by their corresponding feelings from their dormant condition into a state of activity, if a man does not make an effort to dispel them, does not strive to restrain, remove, and abandon them and bring them to nought, then they will persist in consciousness. If, as they persist in consciousness, he repeatedly yields to them, endorses them, and continues to cling to them, they will gather momentum, come to growth, and like a ball of flame flung upon a haystack, flare up from their initial phase as feeble impulses into powerful obsessions which usurp from a man his capacity for self-control. Then, even if a man be, like our hypothetical subject, an emperor over the earth, he is inwardly no longer his own master but a servant at the bidding of his own defilements of mind.

Under the dominance of lust, he is drawn to the pleasant, under the dominance of hate he is repelled by the painful, under the dominance of delusion he is confused by the neutral. He is bent up by happiness, bent down by sorrow, elated by gain, honor, and praise, dejected by loss, dishonor, and blame. Even though he perceives that a particular course of action can lead only to his harm, he is powerless to avoid it; even though he knows that an alternative course of action is clearly to his advantage, he is unable to pursue it. Swept on by the current of unabandoned defilements, he is driven from existence to existence through the ocean of samsara, with its waves of birth and death, its whirlpools of misery and despair. Outwardly, he may be a ruler over all the world, but in the court of consciousness he is still a prisoner. In terms of license he may be completely free, but in terms of spiritual autonomy he remains a victim of bondage in its most desperate form: bondage to the workings of a defiled mind.

Spiritual freedom, as the opposite of this condition of bondage, must therefore mean freedom from lust, hatred, and delusion. When lust, hatred, and delusion are abandoned in a man, cut off at the root so that they no longer remain even in latent form, then a man finds for himself a seat of autonomy from which he can never be dethroned, a position of mastery from which he can never be shaken. Even though he be a mendicant gathering his alms from house to house, he is still a king; even though he be locked behind bars of steel, he is inwardly free. He is now sovereign over his own mind, and as such over the whole universe; for nothing in the universe can take from him that deliverance of heart which is his inalienable possession. He dwells in the world among the things of the world, yet stands in perfect poise above the world’s ebb and flow. If pleasant objects come within range of his perception he does not yearn for them, if painful objects come into range he does not recoil from them. He looks upon both with equanimity and notes their rise and fall. Toward the pairs of opposites which keep the world in rotation he is without concern, the cycle of attraction and repulsion he has broken at its base. A lump of gold and a lump of clay are to his eyes the same; praise and scorn are to his ears empty sounds. He abides in the freedom he has won through long and disciplined effort. He is free from suffering, for with the defilements uprooted no more can sorrow or grief fall upon his heart; there remains only that perfect bliss unsullied by any trace of craving.

He is free from fear, from the chill of anxiety which even kings know in their palaces, protected by bodyguards inside and out. And he is free from disease, from the sickness of the passions vexing and feverish that tie the mind in knots, from the sickness of samsara with its rounds of defilement, action, and result. He passes his days in peace, pervading the world with a mind of boundless compassion, enjoying the bliss of emancipation, or teaching fellow way-farers the path he himself has followed to the goal, in the calm certain knowledge that for him the beginningless trail of repeated births and deaths has been brought to a close, that he has reached the pinnacle of holiness and effected the cessation of all future becoming.

In its fullness, the freedom to which the Buddha points as the goal of His Teaching can only be enjoyed by him who has made the realization of the goal a matter of his own living experience. But just as salt lends its taste to whatever food it is used to season, so does the taste of freedom pervade the entire range of the Doctrine and Discipline proclaimed by the Buddha, its beginning, its middle, and its end. Whatever our degree of progress may be in the practice of the Dhamma, to that extent may the taste of freedom be enjoyed. It must always be borne in mind, however, that true freedom — the inward autonomy of the mind — does not descend as a gift of grace. It can only be won by the practice of the path to freedom, the Noble Eightfold Path.



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A Majoritarian Constitution

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1972 Constitution in Retrospect – II

By (Dr) Jayampathy Wickramaratne, President’s Counsel

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

The unitary state

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

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

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

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

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

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

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

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

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

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

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

The place of Buddhism

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

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

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

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

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

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

Language provisions

Basic Resolution No.11 stated that all laws shall be enacted in Sinhala and that there shall be a Tamil translation of every law so enacted.

Basic Resolution No.12 read as follows: “(1) The Official Language of Sri Lanka shall be Sinhala as provided by the Official Language Act No. 32 of 1956. (2) The use of the Tamil Language shall be in accordance with the Tamil Language (Special Provisions) Act No. 28 of 1958.”

Efforts by the FP to get the Government to improve upon Basic Resolutions Nos. 11 and 12 failed. On 28 June 1971, both resolutions were passed, amendments proposed by the FP having been defeated. S.J.V. Chelvanayakam informed the Constituent Assembly that they had met with both the Prime Minister and the Minister of Constitutional Affairs, and while the meetings had been cordial, the Government had refused to make any alteration to the Basic Resolutions. He stated that the FP would therefore not attend future meetings. “We have come to the painful conclusion that as our language rights are not satisfactorily provided in the proposed Constitution, no useful purpose will be served in our continuing in the deliberations of this Assembly. By taking this step, we mean no offence to anybody. We only want to safeguard the dignity of our people.” There was not even a dramatic walk out. ‘We do not wish to stage a demonstration by walking out’, he added.

That Dr Colvin R. de Silva, who prophetically stated in 1955, ‘one language, two countries; two languages, one country’, should go so far as to upgrade the then-existing language provisions to constitutional status has baffled many political observers. In fact, according to Dr Jayawickrama, the Prime Minister had stated that it would be unwise to re-open the language debate and that the better course would be to let the ordinary laws on the subject operate in the form in which they were. By this time, the Privy Council had reversed the decision of the Supreme Court in A.G. v Kodeswaranthat a public servant could not sue the Crown for breach of contract of employment and sent the case back for a determination on other issues, including the main issue as to whether the Official Language Act violated section 29 (2), as the District Court had held. Dr. de Silva did not wish the Supreme Court to re-visit the issue. ‘If the courts do declare this law invalid and unconstitutional, heavens alive, the chief work done from 1956 onwards will be undone. You will have to restore the egg from the omelette into which it was beaten and cooked.’ He had, however, resisted a proposal made by Minister Felix R. Dias Bandaranaike that Sinhala be declared the ‘one’ official language of Sri Lanka.

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An autochthonous Constitution

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Prime Minister Sirimavo Bandaranaike at the Constituent Assembly

1972 Constitution in Retrospect – I

By Dr. Jayampathy Wickramaratne
President’s Counsel

This week marks the 50th anniversary of Sri Lanka becoming a republic. We observe the anniversary at a time when the large majority of our people are yearning for comprehensive constitutional reform – “system change,” as they put it. Many believe that, after the failure of the first and second republican constitutions, the time is right for the Third Republic.

This article, in three parts, is based on a paper that I contributed to a collection of essays, titled, Sirimavo, published by the Bandaranaike Museum Committee, in 2010. When Sunethra Bandaranaike invited me to contribute an essay on the 1972 Constitution, I told her that I would be unable to say much good about it. This, I explained, was despite Dr Colvin R. De Silva, the Minister of Constitutional Affairs of the United Front government who steered the constitution-making process, being a former leader of the Lanka Sama Samaja Party to which I belonged and my senior in several fundamental rights cases, beginning with Palihawadana v. Attorney-General (Job Bank Case), the first fundamental rights case, under the 1978 Constitution. “You can write anything”, Sunethra assured me. My friend, Tissa Jayatilleke, edited the publication.

Replacing the Soulbury Constitution

The Independence Constitution of 1947, popularly known as the Soulbury Constitution, conferred dominion on Ceylon. The Governor-General was appointed by the British sovereign. The Parliament of Ceylon consisted of the King/Queen, the Senate and the House of Representatives. Executive power continued to be vested in the Crown and was exercised by the Governor-General. The Cabinet of Ministers was charged with the general direction and control of the government and was collectively responsible to Parliament. The form of government was in the Westminster model, which meant that the Governor-General would act on the advice of the Prime Minister. By the oath of allegiance, Senators, Members of Parliament, and all holders of office, including the Prime Minister, Ministers and heads of departments and judicial officers, swore to ‘be faithful and bear true allegiance to the King/Queen.The first move towards making Ceylon a Republic was made by S.W.R.D. Bandaranaike, who, on becoming Prime Minister, in 1956, informed the other governments of the British Commonwealth of Ceylon’s intention to become a Republic, within the Commonwealth. A Joint Select Committee of the two Houses of Parliament, on the revision of the Constitution, accepted the principle of establishing a Republic, within the Commonwealth. It was also agreed that the parliamentary form of government would continue with the President being a constitutional head of state. The President and the Vice-President would be elected by the legislature, fundamental rights recognized, appeals to the Privy Council abolished, and a court established to adjudicate constitutional matters and hear appeals from the Supreme Court.

Although sub-section 4 of section 29 of the 1947 Constitution provided that ‘in the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island’, the question whether Parliament could replace the British sovereign, who was a source of the legal authority of the Constitution and a constituent part of Parliament, had been raised, among others, by J.A.L. Cooray in his Review of the Constitution. The Privy Council stated in Ibralebbe v The Queen (65 NLR 433, 443) that the reservations specified in section 29 were ‘fundamental’ and in Bribery Commissioner v Ranasinghe that section 29 (2) was ‘unalterable under the Constitution’(66 NLR 73, 78). Although obiter (not essential for the decision), these statements gave support to a move initiated by the Left parties towards a new ‘homegrown’ or ‘autochthonous’ Constitution with a complete legal break from the existing constitutional order in preference to amending the Constitution. There was also a definite trend in the Commonwealth towards enacting ‘homegrown’ constitutions to replace those given by the United Kingdom.

The Constituent Assembly route

It was this trend towards and desire for an autochthonous Constitution that led the Sri Lanka Freedom Party (SLFP), the Lanka Sama Samaja Party (LSSP) and the Communist Party (CP) to not support the call of the 1965 government of Dudley Senanayake of the United National Party (UNP) to re-establish the Joint Select Committee on the Revision of the Constitution. The SLFP, LSSP and CP, which later combined to form the United Front (UF), whilst declining to serve on the Joint Select Committee, proposed that a Constituent Assembly be set up to adopt and enact a new constitution. At the general election of May 1970, the UF, as reflected in its manifesto, sought from the electorate a mandate to permit the Members of Parliament to function simultaneously as a Constituent Assembly. The Assembly would draft, adopt and operate a new constitution, the primary objective of which was to make the country a free, sovereign and independent republic dedicated to the realisation of a socialist democracy that would guarantee the fundamental rights and freedoms of all citizens.

At the above-referenced general election, 84.9% of the voters, a significantly high percentage even for an electorate known for its enthusiastic participation in elections, exercised their franchise. The UF won 116 out of 151 seats on offer but obtained 48.8% of the total votes cast. With the support of the six nominated members and the two independent members who won their seats with the help of the UF, the latter now commanded 124 seats in the 157-member Parliament. The UNP was down to 17 seats. The Federal Party (FP) won 13 seats while Tamil Congress (TC) won 03.

The Governor-General, in the course of delivering the first Throne Speech of the new Parliament, called upon the Members of Parliament to form a Constituent Assembly in keeping with the mandate asked for and given by the people at the general election.

That the Address of Thanks to the Throne Speech was passed without a division is also important. On 11 July, 1970, Prime Minister Sirimavo Bandaranaike wrote to all members of the House of Representatives to invite them for a meeting to be held on 19 July, 1970, to consider and adopt a resolution for constituting themselves into a Constituent Assembly.

The meeting was to be held at the Navarangahala, the newly constructed auditorium of Royal College, Colombo, and not in the chamber of the House of Representatives, signifying the intention of the UF to make a complete break from the 1947 Constitution. Dr Colvin R. de Silva, the Minister of Constitutional Affairs, emphasised that what was contemplated was not an attempt to create a new superstructure on an old foundation. It is a matter of great significance that all political parties, represented in Parliament, participated in the formation of the Constituent Assembly on 19 July, 1970.

J.R. Jayewardene, the Leader of the Opposition and Deputy Leader of the UNP, joining the debate on the resolution to set up a Constituent Assembly, reminded the UF that it had a mandate only from less than 50% of the people. Nevertheless, if both sides of the legislature, the victors and the vanquished, agreed to make common cause in enacting a new basic law through a legal revolution, that new law, if accepted by the people, will become the full expression of the hopes, desires and aspirations of the present generation.

V. Dharmalingam of the FP, while questioning the need to go outside the existing Constitution, noted: “We are making common cause with you in enacting a new Constitution not as a vanquished people but as the representatives of a people who have consistently at successive elections since 1956 given us a mandate to change the present Constitution which has been the source of all evil to the Tamil people.”

The leader of the FP, S.J.V. Chelvanayakam, urged the Assembly to reach common ground on controversial issues and quoted Jawaharlal Nehru in support: “We shall go to the Constituent Assembly with the fixed determination of finding a common basis for agreement on all controversial issues.”

V. Anandasangaree, speaking on behalf of the TC, stated that his party did not wish to be a stumbling block but requested the Government to be fair and adopt the new Constitution unanimously.

Indicating the acceptance of the Constituent Assembly route towards the adoption of a new constitution by all political parties, the proposed resolution to form the Constituent Assembly was unanimously passed on 21 July 1970.

It is significant that all political parties represented in Parliament participated in the formation of the Constituent Assembly, thus giving legitimacy to the process. However, the Constitution that the Constituent Assembly adopted lacked similar legitimacy. The Federal Party discontinued participation after the Assembly decided to make Sinhala the only official language. The United National Party voted against the Constitution. With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But Assembly proceedings show that the United Front, which had a two-thirds majority but had received a little less than 50% of the popular vote, imposed a constitution of its choice. The Constitution also extended the term of the legislature by two years which had a chilling effect on Sri Lankan democracy. There is certainly a lot to learn from the 1970-72 reform process.

Retaining the parliamentary form of government

Whilst the desire of the UF was to make a complete break from the Soulbury Constitution modelled on the British system, it nevertheless considered the Westminster model of parliamentary government to be suitable for Sri Lanka.

However, J.R. Jayewardene proposed the introduction of an executive presidency, a proposal opposed even by Dudley Senanayake, a former prime minister and the leader of the UNP. Interestingly though, Jayewardene was to have the last word. After he was elected Prime Minister in 1977, the UNP he led having obtained an unprecedented five-sixths majority in Parliament, Jayewardene introduced the executive presidency through the Second Amendment to the 1972 Constitution. He followed it up with the Second Republican Constitution of 1978, based on an executivepresidency sans any checks and balances usually found in countries with a presidential form of government.

It is salutary, in the above context, to recall the words and sentiments expressed by Sirimavo Bandaranaike during the debate on the Second Amendment to the Constitution: “The effect of this amendment is to place the President above the National State Assembly. Above the law and above the courts, thereby creating a concentration of State power in one person, whoever he might be. This has happened in other countries before, and history is full of examples of the disastrous consequences that came upon such nations that changed their Constitutions by giving one man too much power. (…) We oppose this Bill firmly and unequivocally. It will set our country on the road to dictatorship and there will be no turning back. This Bill will mark the end of democracy in Sri Lanka, as the late Dudley Senanayake realized when these same ideas were put to him in the United National Party.”

Dr De Silva warned against the danger of counterposing the Prime Minister chosen by the people who are sovereign against a President who is directly elected: “Let me put it directly and more strongly. You have the Prime Minister chosen by the people who are sovereign. Then, if you have a President, chosen also by the sovereign people directly through the exercise of a similar franchise, you have at the heart and apex of the State two powers counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other.” No Constitution will be able to define adequately and satisfactorily the relationship between the two, he explained.

(Next: Part II: A Majoritarian Constitution)

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Jacqueline concerned about situation in Sri Lanka

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Jacqueline Fernandez: They need empathy and support

Jacqueline Fernandez, who is very much a part of Sri Lanka, and now a big name in Bollywood, has been in the news quite often, the past few months – for various reasons.

However, she does worry about the situation in Sri Lanka and had this to say on Instagram:

“As a Srilankan, it is heartbreaking to see what my country and countrymen are going through. I have been flooded with a lot of opinions since this began from around the world. I would say, do not be too quick to pass a judgement and vilify any group based on what is shown. The world and my people do not need another judgement, they need empathy and support. 2-minutes of silent prayer for their strength and well-being will bring you much closer to them than a comment based on a loose grasp of the situation,” she wrote.

“To my country and countrymen, I am hoping this situation comes to an end soon and through means which are peaceful and for the benefit of the people. Praying for immense strength to those dealing with this. Peace to all!” she added.

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