It is undeniable that the sovereignty of the Kingdom of Kandy was transferred to the british through the Kandyan constitution. It is equally undeniable that said soverignty was never transferred back to the Sri Lankan people!

In stark contrast to the constitutions of India/Pakistan and Burma which transferred sovereignty to the people, making them republics at independence, the soulburry costitution explicitly recognized the Queen of England as the Queen of Ceylon.

Even though the constitution of 1972 asserted that SL was a republic, they were never able to get royal assent from the Queen agreeing to make ceylon a republic, and relinquish Britains claim on the island.

I’ve searched and searched, but I have not been able to find any document, royal proclamation, treaty or agreement in which England agrees that Queen Elizabeth is no longer the Queen of Ceylon.

So even as the commonwealth celebrates the Queens Diamond Jubilee, I can’t help but wonder if it’s also the diamond Jubilee of the Queen of Ceylon.

Given Colvin’s (and the left parties’) previous stand on the language issue, the FP Could not be faulted for joining in the deliberations of the CA but walked out when they felt let down. It was Colvin and the left parties who did not prevent Sinhala only. Why fault the Soulbury Consitution?

It did have its shortcomings and improvements could have been made upon it. Instead, what did come out of the CA was much worse.

No constitution will stop the rot in Sri Lanka, unless there is a demand for good and principled governance from an overwhelming majority of the people.

Dr.Rajasingham Narendran

Colvin was always opposed to the Soulbury constitution. The doctrine of autocthony came in handy to get round thorny issues concerning the legality of the process adopted by him. The doctrine itself had been around for a while and was employed to give the process a veneer of legality. To say that it was response to the critique of arms made by the JVP rebels is not the way many see it.

Many who made representations on the draft 1972 constitution found Colvin uncompromising on most of the issues, and Mrs B amenable to persuasion.

1. The Soulbury Constitution did not prevent the foundational and perhaps worst act of discrimination: Sinhala Only.

2. While the exclusionary treatment of the FP must be severely criticised, the ’72 Constitution cannot be said to have been rammed through by a governing coalition which won only 49% of the vote, because it was the product of a Constituent Assembly which contained the UNP, and therefore represented a far greater percentage of the citizenry.

3. The real emotional charge and cutting edge of the argument for discontinuous change was not the safeguards for minorities, but the fact that the plotters of a right wing military coup (whose minoritarian profile didn’t help) appealed successfully to the Privy Council!

4. The first of the famous Five Lectures of the JVP was on the semi-colonial character of the Sri Lankan state and the ‘fake’ nature of independence. The Privy Council was one of the arguments used in this lecture which had wide resonance. Therefore, the possible lack of legitimacy of a ‘ruptural’ transition to the Republic was of far less importance to the State than the perceived illegitimacy of the status quo with its colonial Constitutional umbilical chord.

5. That pre-’72 status quo was so absurd that the JVP rebels had to be charged with ‘conspiracy to wage war against the Queen’.

6. Though JR Jayewardene had argued for constitutional change through continuity (as Asanga notes), he did not once raise the issue of ‘illegality’ in relation to the ’72 constitution. This I believe was because the entire political elite understood the need for drastic reform as a survival strategy in the aftermath of April ’71.

7. Had April ’71/the JVP had a Tamil component ( which it did not, but could and should have, given the strong presence of a radical Maoist cadre in the North), the ’72 Constitution’s discourse may have been different.

8. The argument in Asanga’s essay about sovereignty, parliament and the supremacy of the Constitution is only one perspective. The other tradition, deriving from Rousseau, the Declaration of the Rights of man and the Citizen, privileges popular sovereignty and the gheneral will, vesting sovereignty in ‘the nation’ –of which the elected national assembly is arguably as much or more an agency, than a Constitution.

The analysis would be enriched and ‘thickened’ by embedding it in the political conjuncture. Colvin felt the need to stress the ‘ ruptural’ and ‘autochthonous’ character of the process, as a respnose to the ‘critique by arms’ of the ‘semi-colonial’ character of the Soulbury Constitution and the Ceylonese state, made by the JVP rebels of April ’71; a critique which was elaborated at the CJC trials by Rohana Wijeweera. Thus my own critique of ’72 shifts the emphasis from
the theory of ‘rupture’ and even the unitary form, to something else.

That ‘something else’ is the question as to why the ruptural leap to republicanism in Sri Lanka, was NOT to the well-known Republican models of either the US or France (and what could be more revolutionary than the latter?). Why did the Republicanism of ’72 not reflect the virtues of an inclusionary civic equality, an equality of citizenship? Surely it could not have been the case that Colvin was unware of French civic republicanism.

The French republic was and is unitary, but as is well known, is also secular and inclusive. While it is understandable that a secular republic was a bridge too far, and that the unitary form of state was privileged in progressive discourse (federalism was anathema to Marx and was close to the axis of fissure with Bakunin’s Anarchism) why did Colvin’s unitary republic entrench the dominance of a single language and religion in a multiethnic and multireligious society?

If the answer is that it was due to the pressure of the SLFP, why is there no record of any debate between the Left parties and the SLFP on these issues, during the Constitution-making process?

The 18th Amendment has undermined the very basis of the constitution and democracy by abolishing the Constitutional Council and bringing the appointment of the Judiciary and Public Officials under the Executive.

http://groundviews.org/2010/09/02/the-18th-amendment-to-the-constitution-process-and-substance/

“The President has proposed to make changes to the constitution via an urgent bill. The changes known as the 18th Amendment to the Constitution, seek to remove the two term limit on being elected to the office of the President and the Constitutional Council under the 17th Amendment. As required under the Constitution, the President has referred the urgent bill to the Supreme Court. Supreme Court heard the Government’s arguments and the arguments of six intervening petitioners on Tuesday 1 September 2010. These changes have not been discussed in the public domain and they are sought to be made in secret. It is important to note that even at the Supreme Court hearing the intervening petitioners were only given copies of the proposed changes after the government started making its submissions. This article explains how the Constitution can be amended, what the key changes are and the legal arguments advanced in favor of and against the changes.”

“Key Proposed Changes to the Constitution
Removal of the two term limit: There will no longer be a limit on the number of times an individual can be elected to the office of the President.
Repeal of the 17th Amendment: the Constitutional Council will be replaced with a new Parliamentary Council. The President will seek the ‘observations’ of the Parliamentary Council in making appointments to key governments posts. However where the Parliamentary Council fail to communicate its observations to the President within the specified time, the President can proceed to make appointments solely at his discretion.
Restricting the role of the Election Commission: The Election Commission will no longer have the power to issue directions to prevent political parties from using state resources to advance their campaigns during elections. Further the private media will be under a duty to comply with guidelines issued by the Election Commission.”

The present parliment who succumbed to the machinations of the Executive should take full resposibility for the present stae of affairs.

The Senate was also abolished with this in mind. You will find politicians of the time and also some academics (including Dr Mark Cooray) making arguments in justification of the abolition of the Senate but the architects of the 1972 Constitution knew they had to get it out of the way if they were to ensure the passage of the constitution without any hindrance.
The rest is history.