Featured image courtesy ConstitutionNet

On Independence Day we had a Constitution framed primarily by a British academic, Sir (then Dr) Ivor Jennings in the mid-40s. In formulating this document he consulted Prime Minister D.S Senanayake, Sir Oliver Goonetellike and others as and when he considered it to be necessary. The superficiality of the consultation is revealed in the response of 8, October 1949 (copied below) of Prime Minister Senanayake to Jennings on receiving a complimentary copy of “The Constitution of Ceylon”;

Dear Dr. Jennings,

Thank you very much indeed for the complimentary copy of “The Constitution of Ceylon” which I am looking forward to reading at my leisure. I have no doubt it will be very pleasant reading for me.

Yours sincerely,

sgd. D.S Senanayake

That Constitution is usually referred to as the Soulbury Constitution because Ceylon had not yet attained independence and Lord Soulbury was the Governor General. It was essentially a British product, in the drafting of which neither the population nor even the Members of the State Council had a significant hand. In this respect it is very different to those of many other Constitutions, notably of India and South Africa.

That Constitution had neither a charter of human rights nor any significant protection of minority rights. Jennings did not think either was necessary.  The need for both these soon became evident and their lack had dire consequences. Within months of independence there were three items of legislation in terms of which almost the entirety of “Indian Tamils”, long resident in this Island, numbering over a million people and constituting over a tenth of the total population were deprived of citizenship and voting rights.  The traumatic impact of statelessness on that population is yet evident.

There are a growing number of exceptions, but many of them yet display features attributed by Ogbu to Involuntary Minorities in his chapter on ‘Immigrant and Involuntary Minorities in Comparative Perspective’, in Margaret A. Gibson and John U. Ogbu (eds) (1991b). Minority Status and Schooling, New York and London: Garland Publishing.

Such legislation was instigated by the fact that many tea growing Kandyan electorates returned “Indian Tamil” Members of Parliament, resulting in the ruling party gaining only a narrow majority in Parliament. It seemed to be possible that if the ethnic minorities and the left parties combined effectively, the ruling party could conceivably be over thrown at the next election due in 1952. To ensure a comfortable majority for these three pieces of legislation, the Tamil Congress, led by G.G Ponnambalam, representing the bulk of the Ceylon Tamils was induced to cross over to the Government with portfolios for that party as well as two independent Tamil Members. A section of the Tamil Congress led by S.J.V Chelvanayagam broke off, formed a new party, the Ilankai Tamil Arasu Kadchi (ITAK), commonly referred to as a Federal Party and opposed the legislation but to no effect. The ruling party now had a comfortable majority. Moreover the ethnic composition of Parliament changed with effect from 1952, with the predominantly Sinhalese parties forming an overriding majority.

In consequence a series of political changes followed, including the passage in 1956 of the Official Language Act, commonly referred to as The Sinhala Only Act. Previously English had been the de-facto official language, Sinhala and Tamil enjoying parity of status as the national languages. The political sequence led to a coalition of Sinhalese led parties convened by the SLFP, now including the major Marxist parties, and the enacting of a second Constitution in 1972 to replace the Soulbury Constitution. This Constitution was short lived and replaced in 1977 by the third Constitution drafted by the new UNP government led by J.R Jayawardene. This Constitution introduced proportional representation in parliamentary elections and a Presidential form of government. Parallel to these development, there were major anti-Tamil riots recurring from 1958 onwards, as well as legislative changes and administrative actions detrimental to the Tamil population.

The representatives of the Tamil people had virtually no say in the drafting of the second or third Constitutions. Again, there was no Charter of Human Rights and, no effective protection of the minorities. Even the token protection provided by Section 29 of the Soulbury Constitution was removed. More over Sinhala was constitutionally enshrined as the sole official language and Buddhism given special recognition and protection as the religion of the majority. In consequence many legislative and other developments followed, including the island wide pogrom of July 1983 and the LTTE revolt which broke out in 1985 and was finally crushed in May 2009.

It would be difficult, perhaps impossible, to correct these constitutional deficiencies through Constitutional amendments. Certain ethnically sensitive clauses of the Constitution are not easily removed. It is precisely for this reason that these clauses were introduced into the Constitution rather than through other legislation. For example, Sinhala was made only the Official Language of  Sri Lanka in 1956, and it has been incorporated into the 1972 Constitution and again under the 1977 Constitution. Some years later, Tamil also was accepted as an official language, but it was politically impossible to remove the clause establishing Sinhala as the Official Language. What was done was to introduce another clause to declare Tamil also an Official Language. De facto and de jure the two languages do not have equal status or equal use; nor is it possible to make the constitutional provisions less convoluted to provide for parity between the two languages. Similarly, there is a constitutional clause declaring Buddhism as occupy the foremost place in the Constitution and according it special protection. While it might be possible to minimize the negative impact on the minorities of such clauses by legislating for equal rights, it is virtually impossible to totally remove such disparity in an existing Constitution. De facto and de jure, Hinduism, Islam, Christianity and other faiths cannot enjoy complete equality with Buddhism, unless there is fresh Constitution drafted to replace our third Constitution.

The South African and Indian Constitution drew inspiration from phraseology of the French and US Constitutions (but not from the practice in those countries at the times when they were introduced). This reflected the thinking of Mandela, and of Nehru and Ambedkar, who introduced these Constitutions. The preamble of the Indian Constitution reads:

“We the People of India, having solemnly resolved to constitute India into a Sovereign Democratic Republic and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thoughts, expression, belief, faith, and worship;

Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation…”

As Jennings (1953) has noted, the ghosts of Sydney and Beatrice Webb stalk through the pages of the text of the Directive Principles of the Indian Constitution.

“The Indian Constitution had to balance the interests of the different caste and ethnic groups comprising the very diverse population of India. The Constituent Assembly was selected by India’s Provincial Legislative Assemblies, each subdivided into Muslim, Sikh and General (Hindu and others) communal categories, on the basis of one representative per million population of each category, augmented by ninety-three other representatives selected and co-opted from the princely states in consultation with the rulers of those states. The Indian National Congress, which had the support of bulk of the electorate, ensured that those selected came from all significant ideological, social and ethnic groups, including the linguistic, religious, caste, and tribal minorities and women. The formula adopted permitted the minorities, by and large, to impact on the Constitution by choosing their own representatives” (Austin 1966: 5-13).

It interesting to note that the US Constitution, enacted along with the American Declaration of independence in the third quarter of the eighteen century, has survived very drastic political and legal changes with minimal Constitutional amendments. This is because of fundamental differences between the American and South Asian legal and constitutional traditions. For example, The American Declaration of Independence reads:

“We hold these truths to be self-evident that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just power from the consent of the governed”.

These inspiring words of the Declaration were framed by a few Founding Fathers who were all white, male, wealthy, Protestant Christian, and slave owners. They had absolutely no intention to free these slaves or to erase segregation or to extend voting rights to women, people of colour or the poor. As noted by Jack Pole, in ‘Equity and an Action’ (unpublished), Kennedy School of Government Forum Discussion, April 11 1985, Jefferson did make a halfhearted attempt to outlaw slavery but he was himself a slave owner and he did not persevere with his proposed amendment which no one took seriously.

As Oliver Wendel Holmes noted in his celebrated The Common Law (1981):  “The life of the law has not been logic: it has been expedience. The felt necessities of that time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices that judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics…… what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges rarely mention, and always with an apology, are the secret roots from which the law draws all juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy….. the unconscious result of instructive preferences and inarticulate convictions but none the less traceable to views on public policy in the last analysis”.

The Sri Lankan and Indian legal traditions are very different and do not permit fundamental changes in the law without explicit enabling legislative amendments. What is set out below in respect of the Indian Judiciary is equally applicable to the Sri Lankan Judiciary. Those who drafted the Indian Constitution found it prudent to spell out in detail the various provisions for preferential policies. With a few notable exceptions, Indian judges have been much less activist than American judges and more cautious in tapping ‘the secret roots’ for the ‘juices of life’ referred to by Holmes. There is considerable reluctance to let ‘expedience’ influence or even appear to influence the interpretation of the ‘syllogism’. As Galanter observes:

“Indian judges, especially in the Superior Courts, have a tradition of relative isolation from political life and governmental connection……The predominant style is formalistic….. Judges expatiate on the inherent meaning of words; they elicit definite answers from textual passages; they portray themselves as controlled by inexorable rules of procedure and precedence. Judges apply pre-existing rules; that this involves choices is rarely emphasized; for it is assumed that the choice will be guided by formal principles (e.g., canons of statutory interpretation) rather than by assessment of consequences. Therefore, making choices is a matter of professional knowledge and skill rather than of personal values or political involvement” (1984:483 – 4)

Thus, whereas in the USA very radical political changes could be incorporated into the Constitution and related legislation (e.g. the Equal Rights Act of 1964 and the Voting Rights Act of 1965 with minimum legislative interventions), that would not be possible in Sri Lanka or elsewhere in the region. For example, in the USA it was possible for Justice Harlan to assert in his celebrated dissenting judgement in Plessy v Ferguson (163 US 537, 896):

“[no] legislative or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved……It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable to white and coloured citizens. But [every] one knows that [it] had its origin in the purpose, not so much to exclude white persons from railway cars occupied by blacks, as to exclude coloured persons from railway cars occupied by or assigned to white people, [The] fundamental objection, therefore to the statute, is that it interferes with the personal freedom of citizens…..”

Justice Harlan went on to reveal the racism underlying both the law and the majority judgement:

“….in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling, class of citizens. There is no caste here. Our constitution is colour blind….In my opinion, the judgement this day will, in time, prove to be quite as pernicious as the decisions made by the tribunal in the Dred Scott case (that) the descendants of Africans who were imported into this country, and sold as slaves, were not included or intended to be included under the word ‘citizens’ in the Constitution;….The thin disguise of ‘equal’ accommodation for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done….”

Justice Harlan’s courageous and prophetic dissenting judgement was inconsistent with the judicial interpretation of the Constitution up to that time and was in fact over half a century ahead of his time in the evolution of the American Judiciary. Justice Harlan anticipated by 58 years the judgement in the Brown v Board of Education, 1954 of a re-interpretation of the constitutional “equal protection of the laws”. The system that replaced slavery had essential features of the caste system, including something close to the concept of “untouchability”. In effect, the judgement in Brown v. Board of Education effectively introduced new legislation fundamentally changing the relationship between the different races, particularly on racial segregation. Such radical re-interpretation is not possible in Sri Lanka or in any of our neighboring countries.

It is for these reasons that we need a new Constitution to take us into the rest of 21st century, and beyond. We also need to use language in the Constitution that will permit progressive re- interpretation over time. We also need to note that in times of crisis such re- interpretation may not always be progressive. This was evident in our own Supreme Court’s interpretation of Sec 29 of the Soulbury Constitution in relation to the rights of minorities. It is interesting to note that, in the USA, the Equal Rights Act 1964 was interpreted to mandate racial and gender quotas but two decades later, after few years of vacillation, such quotas were ruled to be unconstitutional by the US Supreme Court. All that is left of Affirmative Action / reverse discrimination in the USA is some consideration of the need for diversity. In contrast, an array of quotas had been constitutionally introduced by Ambedkar, for a ten year period initially, and has been routinely extended every ten years. It would be politically very difficult to remove from the Indian Constitution, particularly as quotas entitlements have grown to benefit nearly half of the population (15% Scheduled Castes, 7.5% scheduled Tribes and 27% Other Backward Classes; these three categories total over one of the population). In Malaysia, Bumiputras, who are the beneficiaries of preferences, will always be in a majority. In India, Malaysia and many other countries where the majority are beneficiaries of preferences, it will be very difficult to remove these discriminatory laws favoring the majority.

For this reason, in Sri Lanka and elsewhere in South Asia, certain innovation are best introduced into the legal system outside of the Constitution to facilitate their removal when they are no longer considered essential. In drafting a new Sri Lankan Constitution, it is important to ensure that such clauses that may be considered essential now (but which future generations may not) do not get embedded into the Constitution, but come in through subsidiary legislation. Apart from universally accepted legislation such as that relating to civil rights, we should not effectively tie the hands of future generations.

Readers who enjoyed this article might find “The urgent need for constitutional reform” and “New Constitution: Need to Address Post-war Challenges Effectively” enlightening reads.