by Eric. J. de Silva
I came into close contact with Prime Minister Sirimavo during my second spell in the Ministry of Defence and External Affairs unlike during the previous period. Mr. Jayasinghe (whom I shall refer to as WT for convenience) was an excellent boss to work with. One of his outstanding qualities was to let his officials take on responsibility, give them enough space to show their abilities, and avoid taking all the credit for the good work they do.
This no doubt enabled the Prime Minister to make an independent judgment of her officials without them being constantly overshadowed by the overall boss. What became clear to me during these interactions was that the P.M. did not want her officials to say ‘yes’ to everything she said, and that she wanted them to say what they honestly felt about a matter to enable her to take what she considered was the right decision.
Contrary to popular belief, she was always amenable to good advice and was prepared to listen to the pros and cons of a matter, once she knew that the advice was well meant. The Bavataranaya episode which I describe below was one instance where I was able to help the government to avoid making what would have been a historic blunder – namely, banning the last work of fiction that the doyen of our writers, Martin Wickremesinghe, wrote while in his eighties.
Although not a straight-forward Defence matter, any banning had to be done under Emergency Regulations then in operation, and as a result came under the purview of my Division. Let me now quote verbatim what I wrote to The Island Sat Mag of May 29. 2010 on the occasion of the 120th birth anniversary of Martin Wickremesinghe.
“Bavatharanaya was Martin Wickremesinghe’s last major work He wrote it when he was 83 years of age. In the introduction to its first edition written in 1973, he said that he wrote it in fulfillment of an idea he got into his head at a very young age that he should one day write the life story of the Buddha, rescuing it from the aura of mysticism that had been woven round it during the post-Asokan period in Indian history, under the influence of resurgent Hindu and Brahminical tradition that the Buddha himself had discarded.
“By the time its second edition came out in four months’ time, large sections of the Buddhist public led by some highly respected members of the Sangha like the famous scholar monk Ven. Yakkaduwe Pragnarama Thero of the Vidyalankara Pirivena and Ven. Pallevela Saddhatissa Thero of the Vidyodaya Pirivena mounted a campaign against Bavataranaya claiming it was disrespectful, if not derogatory, of the Buddha.
“Many lay Buddhist leaders like Sir Senarath Gunawardhana and Sir Cyril de Zoysa as well as leading Buddhist organizations like the BTS (Buddhist Theosophical Society) and the Colombo YMBA joined in the campaign.
“Not all Buddhists were of the same view. Leading literary figures like Prof Ediriweera Sarachchandra and Gunadasa Amarasekara argued equally vehemently that there was nothing in the book that was disrespectful of the Buddha. Even more importantly, a number of well-known members of the Sangha like Ven. Akuratiye Amarawansa Thero, head of the Vidyaloka Pirivena in Galle (my own home town), Ven. Moratuve Sasanaratana Thero, Head of the Buddhist Philosophy Department in the Vidyalankara Campus of the University of Sri Lanka publicly came out in support of the book.
“However, the uproar against both Bavatharanaya and its octogenarian author was so deafening that it easily drowned the voices of those who spoke in support. The Executive Committee of the YMBA which met under the chairmanship of Sir Cyril de Zoysa in March 1974 took a decision to demand that the government bans Bavatharanaya, failing which to hold meetings against the government island-wide.
“Around the same time, a three person committee was appointed by the Ministry of Cultural affairs to go into the matter, consequent on representations made to Prime Minister Sirimavo Bandaranaike by the Mahanayake Thero of Asgiriya.
“With many others joining in, the campaign against Bavatharanaya gathered further momentum and reached a crescendo as the year (1974) progressed. It did not take much time for it to gain support from political parties or groups opposed to the government as a means of embarrassing it or ‘putting it into a corner’ as the game of politics constantly demands.
“Government parliamentarians who were being pressurized by the anti-Bavatharanaya campaign were in turn pressurizing the Cabinet and the Prime Minister to ban the book. The Aganuvara Eksath Bauddha Bala Mandalaya went to the extent of asking that the author be taken into custody under the Emergency Regulations and put behind bars for the sacrilege he had committed.
“Bhavatharanaya had been the subject of debate even in the Colombo Municipal Council where a UNP member claimed that Martin Wickremesinghe started writing disparagingly about the Buddha after consuming vodka during his visit to Russia. Not been content with that, he added a new chapter to the octogenarian author’s life story by saying that he had been a Buddhist monk until he obtained his ‘upasampada’ and thereafter returned to lay life.
“For many, Bavatharanaya was part a diabolical Marxist plot to destroy Buddhism in this country. While all this was being said, the wise old sage remained unmoved maintaining a stoic silence, giving expression to the great Buddhist virtue of upekha”
During this period, I happened to hold the post of Senior Assistant Secretary (Defence) in the Ministry of Defence and External Affairs, which came under Prime Minister Sirimavo. In this position, I was directly responsible to the Secretary of the Ministry, Mr. W.T. Jayasinghe. All matters relating to the Public Security Ordinance, then in operation, and regulations promulgated there under (commonly described as Emergency Regulations) came within my purview. Since there was no ordinary law in the statute book under which a book could be banned, it had to be done by an order issued under the Emergency Regulations.
One day, during the height of the uproar, the Secretary called me up and said that the government was under tremendous pressure to ban the book and asked me to have the necessary papers ready for the Prime Minister’s signature in case it were to take that decision. I was simply taken aback when I heard this, and asked him whether it was a wise thing to do. His reply was that it was not and he had already pointed this out, but we had to be ready in case the government decided to do so for lack of a better option.
Since neither he nor I had read the book that we were going to ban, I enquired whether he could give me a little time to be able to read it and advise him and, through him, the Prime Minister as to whether there was anything in the book that deserved such harsh treatment. I could not see how the life story of the Buddha written by our most widely acclaimed writer and novelist could endanger public security for it to be banned under the Public Security Ordinance, and felt that the government would look utterly foolish if it took that decision. Since the matter appeared to be urgent and there was no time to be lost, I gave him the assurance that by next morning he would have on his table a note on the subject after my having read the book.
So on my way back home, I went to MD Gunasena’s in Pettah and bought a copy of the book. Having got home, I turned over the pages of the book to find that it was not going to be easy reading after a hard day’s work in office. Those who have read it will agree that Bavatharanaya is no Gamperaliya, Kaliyugaya, Yuganthaya, or any other novel written by its illustrious author.
But I had given an undertaking to the Secretary and had a tight target to keep. After an early dinner I sat down to my task in earnest having explained to my wife the nature of the ordeal I had inflicted on myself. It is no reflection on the book if I were to say it induced sleep to my weary eyes more than once despite plentiful sips of coffee, and I wondered whether this by itself was not a point in favour of not banning the book at all.
When the going got too tough, I decided to get up early in the morning and go through whatever remained unread. By the time I finished reading the book in the early hours of the morning, it was as clear as the daylight that soon began to envelop me that there was nothing in it that called for a ban. Bavatharanaya, in short, was not just another work of fiction which we usually call a novel, but a very thoughtful attempt to demystify the life of the Buddha (in fact, more than half the book deals with the life of Prince Siddhartha), which only the sophisticated reader would be able to sustain an interest in reading.
It immediately raised the question in my mind as to how many of those who demanded that it be banned would have really read it. I was convinced that banning the book would be counter-productive even from the point of view of those who wanted it banned, as people would want to get hold of a copy somehow to see what exactly led to the ban and thus increase its readership.
I put down my thoughts on paper with utmost care knowing well the dangerous ground I had chosen to tread, got to my office at Senate Square in Fort earlier than usual to be able to keep to my deadline, got it typed by the typist who had turned up in office early at my request, and placed it on the Secretary’s table so that he would see it first thing in the morning when he gets to office.
Task accomplished, I took a deep breath leaving it to higher authorities to heed my recommendation to abandon the idea of banning the book or to commit what would have been a historic error.
Later in the day, the Secretary conveyed to me the happy news that the Prime Minister had very carefully read my note and not only agreed with my recommendation but had expressed her appreciation of what I had done.
Thus, Bavatharanaya remained ‘unbanned’ and while the demand for its ban died down, it soon made its presence even in school libraries.
The above incident illustrates how much confidence the Prime Minister and the Secretary had in me as Senior Assistant Secretary.
A Peep Into The Past, a memoir of the writer)
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).
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.
An autochthonous Constitution
1972 Constitution in Retrospect – I
By Dr. Jayampathy Wickramaratne
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)
Jacqueline concerned about situation in Sri Lanka
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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