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THE SRI LANKAN REPUBLIC AT FORTY: REFLECTIONS ON THE CONSTITUTIONAL PAST AND PRESENT

Image courtesy Daily News

Forty years ago this week, at the auspicious time of 12:34 p.m. at the Navarangahala on 22nd May 1972, a new constitution was signed into law, creating the Republic of Sri Lanka. This was the first time in the history of the island that the republican form of state was established, discounting the period under which parts of the littoral were controlled by the Dutch East India Company during the time the Netherlands were a confederated republic. Given that the political history of the island spans over two millennia from its mytho-historical origins, four decades might not seem like a long time. But looking back to 1970-72, the country and the world in which the first republican constitution was created seems very different from the present, although the continuing resonance of many of the dominant themes of that era are still felt in today’s Sri Lanka.

In the Third World, it was the epoch of anti-colonialism and nationalism, of non-alignment and nationalisation. Many still regarded Marxism-Leninism seriously as a viable prescription for the political and economic organisation of newly independent states, and revolution as the means and method of social change. Autochthony and autarky were the mood music of the time. Both of Sri Lanka’s two republican constitutions were created in the 1970s: the decade, as some satirists have called it, that sanity forgot. It is one of the more benign ironies of our modern constitutional history that while the socialist progenitors of the 1972 constitution were content to describe their handiwork as simply the Republic of Sri Lanka, it is J.R. Jayewardene who added two ideological adjectives to the official name of the country in 1978, although the extent to which his Bonapartist constitution is either democratic or socialist is at least debatable.

The first four decades of the life of the republic has been nothing if not eventful, experiencing insurrectionary and secessionist challenges to its mainstream political system from without, and elective authoritarianism and institutional decay from within. Since 2009, the month of May also marks another significant event: the conclusion for the foreseeable future of the military phase of Sri Lanka’s ethnic conflict. In the last three years, there has been extensive debate about what is and what ought to be Sri Lanka’s post-war constitutional, political and societal dispensation. While the republican form is largely taken for granted in these debates – although perhaps it should not be, given the monarchical presidentialism that dominates the institutional architecture and political culture of the Sri Lankan state – it is the contestation over ideas closely associated with republicanism that recalls many of the concerns which animated the process of constitutional change forty years ago: sovereignty, democracy, citizenship, pluralism, nationalism, secularism, and what ought to be the constitutional form of the polity that preserves its unity in diversity.

A review of the particular ways in which those constitutional questions were dealt with at the historic moment of the formation of the republic would therefore seem to have some value as we engage in the post-war constitutional debate. I do not however intend to provide a comprehensive treatment of the 1972 constitution, or a descriptive account of the proceedings in the Constituent Assembly in 1970-72 for, being relatively recent, much of this history is generally well known. I intend instead to focus in this essay on one of the main issues that remains important in the present: the process by which constitutional change was effected in 1970-72, and the implications the choice of that particular process has had in the constitutional and political development of the republic since. It is of course an issue that has topical relevance, as we engage with the modalities and processes, including the proposed Parliamentary Select Committee, by which a new constitutional settlement is to be discussed and agreed in post-war Sri Lanka.

The idea that Ceylon should become a republic, and sever the constitutional links that had survived the grant of independence as a dominion in 1948, had been gestating for some time before the 1970 general election. It was a consistent demand of the Old Left from before 1948, and after the populist-nationalist watershed of 1956, S.W.R.D. Bandaranaike had appointed a Joint Select Committee of Parliament to consider ways of revising the constitution which included the establishment of a republic. Although centre-left nationalists of SLFP-led coalitions did hold power between 1956 and 1965 (except for a brief interregnum in 1960), these administrations were so crisis-ridden that constitutional reform could not become a priority. But the constitutional model to which we were gravitating from 1956 onwards – that of the republic within the Commonwealth established by an elected Constituent Assembly – had already been founded by India in 1950. The alliance of the Old Left with the SLFP 1964 onwards, in government (1964-65) and in opposition (1965-70), both prioritised constitutional reform and made the likelihood of a democratic mandate for creating a republic a realistic possibility.

It is clear that by the late 1960s the republican ideal had caught the imagination of the public. This is apparent, firstly, from the fact that the UNP-led National Government tried to seize the initiative from the centre-left opposition on this issue by appointing a Joint Select Committee to revise the constitution, and secondly by the fact that even the Federal Party was clearly in favour of a republic, provided that it provided for federal autonomy for the north and east. However, beyond differing ideological visions of the future republic, what divided the UNP and the centre-left opposition in the second half of the 1960s was the preferred method or process by which fundamental change could be effected to the Soulbury constitution. Could the latter be repealed and replaced with a republican constitution according to its own amendment procedure, as the UNP argued, or could a republic be established only by recourse to a revolutionary or extra-legal procedure, as the centre-left coalition argued, because elements of the Soulbury constitution were understood to be absolutely unamendable?

This political divide refracted a genuine theoretical dilemma that confronted constitutional lawyers at the time. The legal quandary arose in the context of certain observations about the scope and content of Section 29 of the Soulbury constitution made by British judges in the Privy Council in several cases of the 1960s, in which it was suggested that the anti-discrimination provision was absolutely unamendable, even by a two-thirds majority. The Privy Council in London was then the final court of appeal for Ceylon, and as such, the final adjudicator of constitutional questions under the Soulbury constitution. Section 29 was the pivotal minority protection mechanism of the Soulbury constitution, which constitutionally restricted the Parliament of Ceylon from enacting legislation having the effect of discriminating against any ethnic or religious community. Section 29 also laid down the procedure for constitutional amendment, for which it established essentially three requirements: a two-thirds majority in the House of Representatives; a simple majority in the Senate; and a certificate from the Speaker that the requisite two-thirds had been obtained in the passage of the amendment bill.

In the August 1968 House of Representatives debate on the motion to reappoint the Joint Select Committee on the Revision of the Constitution, the two positions on this matter were clearly enunciated by Dr Colvin R. de Silva for the opposition (in typically florid fashion), and by the Minister of State J.R. Jayewardene for the government (in characteristically sphinx-like interventions). Mr Jayewardene’s position was that notwithstanding the Privy Council’s views, the wording of Section 29 (4) was clear to the effect that any part or all of the constitution was amendable by the Ceylon Parliament, provided the procedural requirement of the two-thirds majority was obtained. Dr de Silva adverted to the same Privy Council cases in making his argument that the Parliament of Ceylon did not have the power to amend certain parts of the constitution, specifically the anti-discrimination provision in Section 29 (2). He stated that while he did not approve of the implications of the Privy Council judgments in terms of Ceylon’s sovereignty and independence, he had no choice but to agree that the Privy Council’s observations to the effect that Section 29 (2) was unamendable reflected the correct legal position.

There were two extensions to this argument: firstly, that the Parliament of Ceylon, and therefore Ceylon itself, was not sovereign under the Soulbury constitution; and secondly, that if an independent and sovereign republic were to be established, it would have to be done by a process other than the procedure laid out in the Soulbury constitution (in other words, a process that would be technically illegal). It would be only through a process that was completely divorced from the fetters of the Soulbury constitution and of its amendment procedure that the people of Ceylon would be able to exercise their sovereignty in enacting a truly independent republic. Although Dr de Silva’s view had the support of eminent legal academics like Dr C.F. Amerasinghe at the time, there are at least three reasons, in addition to the plain meaning of Section 29 (4) relied upon by Jayewardene, why his view could be argued to be erroneous, or at the very least, an overstatement of the problem.

Firstly, all of the Privy Council’s comments which were cited in support of this argument were obiter dicta, i.e., the part of the judicial decision that is non-biding because it does not directly relate to the main issues on which the decision turned. There was no reason therefore to treat these observations as cast in stone. Dr de Silva’s excessive emphasis on them thus raises questions as to whether he was doing so because it helped to further his broader argument in favour of the need for an extra-legal process to create the future republic.

Secondly, given Sir Ivor Jennings’s involvement in the drafting of the Soulbury constitution and specifically Section 29, it is very clear that this provision was intended to only impose a procedural restriction in the form of the two-thirds requirement on Parliament’s legislative power, and not an absolute or substantive restriction. If the procedural requirement imposed by the higher law, the constitution, was met, Parliament could effect any change it wished on the constitution, including Section 29. There was thus no provision that was absolutely protected from change, contrary to the obiter remarks of the Privy Council.

There is no doubt from Jennings’ writings on the Soulbury constitution that this is what was intended in the formulation of Section 29, but it does require some background explanation. One of Jennings’ major contributions to Commonwealth constitutional law and theory during the mid-twentieth century is what is known as the doctrine of ‘manner and form’ entrenchment. This holds, contrary to the orthodox doctrine of parliamentary sovereignty associated with A.V. Dicey in the context of the unwritten British constitution, that the substantive competence of a Parliament is not affected by procedural limitations placed by a written constitution on the manner and form in which it should exercise its legislative power. Thus for example, the requirement in Section 29 (4) that a two-thirds majority was required for constitutional amendments, and that the Speaker should certify that such a majority has been obtained, are procedural requirements, setting out the manner and form in which the legislative power of Parliament should be exercised in amending the constitution. According to Jennings’ theory, this did not affect the substantive competence of the Ceylon Parliament to amend the Soulbury constitution, provided the procedural requirements were met.

So two types of legislation, i.e., laws that could have the effect of communal or religious discrimination, and laws to amend the constitution, were procedurally but not absolutely entrenched under the Soulbury constitution. The Privy Council’s suggestion – enthusiastically seized upon by Dr de Silva because it strengthened his argument in favour of the need for a constitutional revolution – that there were parts of the constitution that were absolutely unamendable in perpetuity therefore was clearly made in ignorance of Jennings’ theory, and the influence of that theory on the formulation of Section 29.

Thirdly, the extension of the Diceyan view of unfettered parliamentary sovereignty to countries with a written constitution intended to operate as a law higher than and binding on the legislature, could imply that such legislatures were legally not sovereign, and critically, that countries with such constitutional restrictions on the legal competence of their legislatures were not really sovereign. This unfortunate and theoretically incorrect equation of parliamentary sovereignty with legal independence was the approach that was once again instrumentally seized upon by Dr de Silva in his role as the principal spokesman for the republican centre-left of the 1960s. If this were true, then it leads to the absurd conclusion that no country subscribing to the principle of constitutional (rather than parliamentary) supremacy could be said to independent, including the former British colonies of the United States and India, as well as the dominions of Australia and Canada. To this day in Sri Lankan constitutional debates, we see this conception of sovereignty and independence asserting itself against the principle of constitutional supremacy. The fetishisation of centralisation that constituted part of the justification for the design of the National State Assembly in the 1972 constitution (continued in the 1978 constitution in other ways), and in its incarnation as the unitary state, for the fateful rejection of the Federal Party’s constitutional demands in the Constituent Assembly, flowed from this injurious theoretical confusion.

On a personal note, it was also deeply ironic that an individual who had, among other things, registered his aversion to imperialism by refusing the otherwise richly deserved professional accolade of Queen’s Counsel throughout his career, should be the champion of a constitutional doctrine that was so quintessentially British as the sovereignty of Parliament. And indeed, the attraction of the Diceyan conception of parliamentary sovereignty as conterminous with sovereign independence is pervasive within the Sri Lankan legal community, and especially strong among Sinhala-Buddhist nationalist defenders of the unitary state. This is explicable to the extent that the unitary state is parasitic upon parliamentary sovereignty, but as my colleague Rohan Edrisinha has shown in his critique of the Sinhala Commission’s constitutional analyses and prescriptions, it is a peculiar paradox that such paragons of indigenous authenticity should be so dependent on the old imperial oppressor for their constitutional arguments.

I find it quite impossible to believe that Dr de Silva was acting in ignorance when he took up these positions in the constitutional debates of the 1960s. He was too good a lawyer, too broad an intellect, had too much time between 1964 and 1970, and in the close company of too many scholarly colleagues – in particular, Dr N.M. Perera, whose postdoctoral work had been on comparative parliamentary democracy – to have been unaware of the issues I have raised above. To me, therefore, it suggests that he was being at least partly disingenuous on the question of the constitutional procedure to be adopted for the future establishment of the republic, playing up the Privy Council cases in order to not merely strengthen the argument that the Soulbury constitution was a foreign imposition that the Ceylonese were saddled with forever, but also to remind the public that the highest judicial authority of Ceylon was a foreign court, associated with the person of a foreign monarch, that continued to limit our sovereignty.

In Dr de Silva we had a constitution-maker who combined the skills and disposition of the criminal defence advocate with a Trotskyite commitment to revolutionary constitutional change. Projected onto the opposition coalition in the run up to the 1970 general election, it is this combination of professional and ideological dispositions that led to the formation of a dominant interpretative position on the process of constitutional change, that would once put into practice in 1970-72, invite major theoretical questions about the legality and legitimacy of the republican constitutional order in the years to come.

Thus it was that once the United Front had won 77% of parliamentary seats (but, it is pertinent to recall, only 49% of votes) in the 1970 general election that the Constituent Assembly process was established and operated. The UF government therefore had the necessary parliamentary majority with which to amend the constitution legally in terms of the Soulbury constitution, but expressly chose not to do so. The procedure for constitutional amendment was deliberately ignored to signify ‘a complete break with the past.’ It was claimed that the source of authority for the new constitution was the people of Sri Lanka, deriving from the democratic mandate of the 1970 general election.

The symbolism aside, this argument makes no sense whatsoever from a constitutional perspective. How could a new republican constitution that repealed and replaced the granted constitution be held to be anything less than what it is merely because the existing legal procedure was followed in its enactment? On the contrary, the deliberate adoption of an illegal procedure for the foundation of the republic, when there was no pressing necessity for it, created an insalubrious precedent that may be used in the future for less defensible ends than what occurred in 1970-72. It was a meretricious indulgence of wholly figurative anti-imperialist ideological sentiments that would, by rupturing legal continuity, have grave consequences for the future Sri Lankan republic, without at the same time following the normative requirements of inclusivity and consensus that would have added through political legitimacy what was lost by procedural illegality.

While the Indian Constituent Assembly served as the inspiration for Ceylonese republican revolutionaries in the Soulbury era, none of the former’s scrupulous attention to widest possible representation and rigorously negotiated consensus seem to have registered with the latter. Moreover, while the Indian experience was regarded as a great revolutionary model of constitution-making, an examination of the detailed mechanics of how that body was established from the failure of the Cabinet Mission Plan onwards reveals that it was less literally ‘revolutionary’ than widely understood by Ceylonese admirers. As has been demonstrated in many other ways since, the Nehruvian political elite was more adept and relaxed in the dynamics of negotiation and the compromises of liberal democratic politics than what was the suggested by the slogans of its nationalist rhetoric, which our nationalists (from either side of the ethnic divide) have always taken rather too literally for the good of Sri Lanka’s pluralist democracy.

Concretely and immediately, the deliberate illegality of the Constituent Assembly process served to strengthen perceptions of the illegitimacy of its creature, the 1972 constitution, on both democratic and pluralist grounds. The UF’s two-thirds parliamentary majority was the product of the first-past-the-post electoral system then in operation, which enabled the votes of less than half of the electorate to be reflected in such disproportionate parliamentary representation. The question that naturally arose was: can a party that had obtained the support of only 49% of the country in terms of total votes, purport to speak for the entire country, in all its diversity, in the making of a constitution for a new republic? This aspect of its mandate was especially problematic for a government that would in the constitution-making process go on to use its overwhelming parliamentary majority to settle every question; that is, to adopt wholly majoritarian justifications for having its own way rather than inclusive, consultative, deliberative and consensual decision-making procedures in the negotiation of the content of the future constitution. This question would have arisen with lesser force had the UF followed the amendment procedure of the Soulbury constitution, because its parliamentary majority would then have been defensible on the grounds of constitutionality.

The illegal procedure also compounded the complete failure of the Constituent Assembly to sustain the support of the vast majority of Sri Lankan Tamils to the new republic by the contempt with which it treated the demand for autonomy. Instead the Constituent Assembly drafted a constitution that seemed to only reflect the constitutional worldview of the Sinhala-Buddhist majority, in terms of the ‘foremost place’ for Buddhism, the privileged constitutional status for Sinhala, and of course the unitary state that was instantiated in both structural and symbolic terms. It thus added to the illegitimacy of the entire post-republican constitutional order from the perspective of a plural polity, an argument that has been made by Tamil nationalist and especially Tamil separatist voices with more validity than should be the case. The combination of illegality and majoritarianism of the Constituent Assembly created the theoretical space for Tamil nationalists to assert a separate sovereignty on the basis of their lack of consent to the republican constitutional order. An argument made first and most completely by M. Tiruchelvam Q.C., in the Amirthalingam Trial-at-Bar in 1976, and in more demotic terms in the Vaddukoddai Resolution of the same year, this continues to reverberate, making invocations of popular sovereignty and democratic mandates a double-edged sword for Sri Lankan governments even today. While one can politically disagree with the separatist implications of such arguments, it is much more difficult as a matter of legal theory to reject their validity.

Indeed, it was not merely in relation to the loyalty of the Tamils to the new republic that the unadulterated majoritarianism of the 1970-72 constitution-making process proved problematic. It gave grounds for the UNP to change the constitution at the next available opportunity on the basis of the claim that the 1972 constitution only reflected the views of those who had voted for the UF in the 1970 general election. While it is likely that the horrors of the 1978 constitution might have occurred regardless, it is inescapable that the precedent for unbridled majoritarianism and governmental unilateralism in constitution-making was established when Sri Lanka became a republic in 1970-72: a point that present-day hagiographers of the 1972 constitution like Tissa Vitharana would do well to keep in mind. Quite clearly, therefore, the form of the 1970-72 process emerges as a singularly inappropriate way by which to construct a durable democratic republic with strong social foundations in our plural polity; an argument to which the past four decades of instability and extra-institutional violence bears sad testimony.

My purpose in raising these issues is neither historical revisionism nor the expression of some reactionary nostalgia for the dominion constitution, although I do believe that from the perspective of liberal democratic values, the Soulbury constitution succeeded better than either of the two republican constitutions that have been the result of much vaunted ‘home grown’ processes. I think that by the late 1960s the democratic aspiration for the establishment of a Sri Lankan republic was exceedingly clear and probably inexorable. There was thus no reason why an extra-constitutional process was necessary, except for the sheer symbolism of the act, and even less reason for the crude majoritarianism that characterised it. Based on the questionable rationales I have described above, the process that was chosen for the creation of the republic was driven, not only by majoritarian calculations, but also by excessive partisanship. The Old Left, once the exemplar of multi-ethnic accommodation on the basis of the Marxist approach to nations and nationalities, failed to alleviate the Sinhala-Buddhist nationalism of its SLFP ally, and were at one with the SLFP’s authoritarianism in its commitment to centralisation.

These problematic choices with regard to process forty years ago have given rise to enduring questions about the nature, legality and legitimacy of the Sri Lankan republic that were entirely avoidable. As the Indian Constituent Assembly and constitution had shown, legitimacy is the measure of both revolutionary constitution-making as well as republican constitutionalism. By that standard, the Sri Lankan Constituent Assembly and 1972 constitution were an abject failure, and the Sri Lankan republic continues to suffer the consequences.

Are we capable of learning the lessons of the past in respect of pluralism and tolerance, negotiation and compromise, constitutionality and restraint, as we re-engage in a process of constitutional change in post-war Sri Lanka? We shall soon be able to see in the Parliamentary Select Committee.

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Note: The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, an edited collection of critical and inter-disciplinary essays by leading Sri Lankan and international scholars, marking the 40th anniversary of the enactment of the 1972 constitution and the establishment of the Sri Lankan republic, will be published by the Centre for Policy Alternatives (CPA), later this year.

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