Constitutional reform – A reply to Dr. Wijeyadasa Rajapaksa

The lengthy article by Dr. Wijeyadasa Rajapakshe PC on constitutional reform published in the newspapers recently appears to contain several errors of fact and of law. I have no wish to argue with the former Minister of Justice on his views on the legality of the current constitutional reform process in which he participated until his removal from office. However, any debate should proceed upon the basis of accurate information and correct statements of the law.

(i) Dr. WR: “We gained Dominion Status which did not amount to full independence with Soulbury Constitution and Ceylon Independence Ordinance in 1947/48.”

The Ceylon (Constitution) Order in Council 1946 granted full self-government to Ceylon based upon a draft constitution that had been approved in the State Council by 51 votes to 3, including the affirmative votes of members belonging to the Tamil, Muslim and Burgher communities. That Constitution provided for a Governor, and established a House of Representatives and a Senate. The Ceylon Independence Act 1947, enacted by the Parliament of the United Kingdom and the Ceylon (Independence) Order in Council 1947, both of which came into force on 4 February 1948, granted “Dominion Status” to Ceylon. From that day, Ceylon was “fully independent”, except that the Queen was the Head of State and was represented in Ceylon by the Governor-General who was appointed in consultation with, and thereafter acted on the advice of, the Prime Minister of Ceylon.

(ii) Dr. WR: “The Soulbury Constitution did not confer the power on the Parliament to replace it with a new constitution.”

This is a misinterpretation of the law. Section 29 of the 1946 Constitution stated explicitly that “Parliament may amend or repeal any of the provisions of this Order”. The exceptions were that “(a) no law could prohibit or restrict the free exercise of any religion; (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions were not made liable; (c) confer on persons of any community or religion any privilege or advantage which was not conferred on persons of other communities or religions; or (d) alter the constitution of any religious body except with the consent of the governing authority of that body”. That restriction on legislative power was the compact between the majority and the minority communities, and the basis upon which Independence was granted to Ceylon. It was the condition precedent to Independence. Subject to that restriction, Parliament had the power to repeal and replace every other provision of the Constitution. The power to “amend or repeal” necessarily includes the power to replace. In fact, in 1970, the Judicial Committee of the Privy Council was replaced by our own Court of Final Appeal, and in 1971 Parliament abolished one of its constituent units, the Senate, and chose not to replace it with another second chamber.

(iii) Dr. WR: “Dr Colvin R de Silva, with his wisdom realising the legal barriers of the Soulbury Constitution to replace it, advised to form the said Constituent Assembly outside the Parliament.” . . . “Since the Soulbury Constitution had not provided the authority and a procedure to adopt a new constitution by repealing the existing one, the government elected in 1970 had no option but to establish a Constituent Assembly operating outside Parliament”. 

This is not a correct statement of fact. The Common Programme drawn up by the SLFP, LSSP and CP in early 1968, in anticipation of forming a government at the next general election, stated quite explicitly that “A Constituent Assembly will be established, and a new Constitution will be introduced. This Constitution will declare Ceylon to be a free, sovereign and independent Republic”. There was no legal impediment to Parliament enacting the necessary legislation to declare Ceylon to be a Republic, a course which several other Commonwealth countries had already followed. Nor was there any legal impediment to Parliament establishing a Constituent Assembly as India had done. However, Dr Colvin R de Silva refused to consider the perfectly practical option of terminating Ceylon’s link with the British Crown through the powers conferred on Parliament by the British Crown. He argued that freedom should be asserted by a free people through a body constituted outside the legal order established by the British Crown. This was a principled stand by one of the twentieth century’s greatest lawyers who had consistently refused to apply for “silk” since he had no wish to be one of “Her Majesty’s Counsel Learned in the Law”. That exercise in autochthony – in establishing a new legal order that sprang from our own native soil – was a bold, idealistic, exciting, even romantic, experience not only for those of us who steered it through possible legal pitfalls, but also for a great many constitutional lawyers and academics worldwide for whom this legal revolution was a rare precedent.

(iv) Dr.WR: “The draft of the constitution made by the constitutional assembly was presented to the Parliament and it passed with a majority of 2/3 on 22 May 1972 by replacing the Soulbury Constitution.”

This is a complete misstatement of facts. Following the July 1970 ceremonial meeting at the Navarangahala of the elected members of the House of Representatives at which they constituted themselves as the Constituent Assembly, it was resolved that all future meetings would be held in the parliamentary chamber. Nearly two years later, following the final meeting of the Constituent Assembly, at which the draft constitution was adopted by 119 votes to 16, the members (including those from the UNP who had voted against) adjourned to the Navarangahala. There, at the auspicious time of 12.43 pm, the President of the Assembly, Stanley Tillekeratne, certified the adoption and enactment of the new constitution by the Constituent Assembly. Immediately thereafter, Mrs Bandaranaike took her oath of office as Prime Minister. She then nominated William Gopallawa as the President of the Republic, whereupon he took his oath of office. The focus then shifted to President’s House (until then, Queen’s House) where superior court judges, ministers, permanent secretaries and service commanders took their oaths of office. Ceylon ceased to exist, and in its place the Republic of Sri Lanka arose. The new constitution was never submitted to Parliament.

(v) Dr. WR: “When Mrs Sirimavo Bandaranaike and Mr J.R. Jayewardene wanted to enact new constitutions in 1970 and 1977 respectively, they did not seek advice of any overseas experts or spend public funds in millions on expert advice. If the members of the legislature are not competent or have capacity to make the laws necessitated for the country, what is the use of maintaining such a Parliament?”

None of our constitutions were “drafted” by members of the legislature. The drafting history of the 1946 Constitution is too well known to require recounting here. The 1972 Constitution was drafted by a 12-member Drafting Committee consisting of lawyers, academics and political scientists (in which I had the privilege to serve), and thereafter channelled through a Ministerial Sub-Committee and a Steering and Subjects Committee to the Constituent Assembly. The Assembly then divided itself into eleven committees, with each committee examining a chapter in detail and receiving oral public representations, after which the Drafting Committee prepared the final draft for submission to the Assembly. The 1978 Constitution was also drafted by “experts” (believed at the time to have included Gamini Dissanayake and Mark Fernando). It was tabled at the final meeting of a Select Committee of the National State Assembly that had been appointed to consider the revision of the 1972 Constitution. The Committee had held several meetings, some of which I attended as an advisor to the Opposition Members on it, Mrs Bandaranaike and Maithripala Senanayake. It had heard oral representations, and then considered draft revisions, including a new chapter on fundamental rights that I prepared for submission by the SLFP. Much to our astonishment, it became apparent that what the government had in mind was not the revision of the existing constitution through the Select Committee, but its repeal and replacement by a wholly new constitution prepared outside the Select Committee.

It is not a reflection on our own abilities to seek the wisdom of others in fulfilling our responsibilities. When we drafted the Administration of Justice Bills of 1974 and 1975, we benefitted greatly from the reports and recommendations of the Law Reform Commissions of Canada, United Kingdom and Australia. When I was drafting the Bill to abolish the right of appeal to the Judicial Committee of the Privy Council, I sought the experience of countries that had already done so, and found their contributions to be extremely valuable. 

(vi) Dr. WR: “In 1940 people of Korea never aspired or dream to divide Korea. But the United Nations was instrumental in dividing it into South Korea and North Korea”. “UN was instrumental in dividing Kosovo from Serbia, and also dividing Sudan in 2011”

This is a serious misreading of contemporary world history, apparently intended to denigrate the United Nations and its perceived “interference” in Sri Lanka’s “domestic affairs”. At the end of the Second World War, upon the surrender of Japan, the Korean peninsula was divided into two zones, with the north being occupied by the Soviet Union and the south by the United States. The United Nations had not even been formed at the time. Kosovo, which since the Ottoman Empire had been a part of Serbia, declared its independence from Serbia in 2008. Although recognised by 111 states so far, Kosovo is not yet a member state of the United Nations. The Republic of South Sudan was formed following a referendum in which 83% of the population voted to secede from Sudan. The UN was not instrumental in “dividing” Sudan, as claimed by Dr. Rajapakshe. 

(vii)Dr. WR: “Whose need is to have a new constitution devolving powers enabling the conversion of this country to a federal state with the right of self-determination for Tamils in North and East and also by removing the foremost place and protection given to Buddhism? . . . The question that has arisen is whether a new constitution should be promulgated just to satisfy 2.5 million votes of the minority communities, ignoring 9.4 million votes of the Sinhalese. . . Laws must be enacted with the majority opinion; not with the minority opinion.”

It is sad when a person who is educated, both in law and in ecclesiastical matters, expresses such lack of respect for communities other than his own. It is socially obnoxious, politically reckless, and economically ignorant to cheapen the presence of any community in one’s country. As a distinguished jurist has observed, “it is only the weak-minded people incapable of comprehending the origins of the modern state, its philosophy, its instruments, and its edicts, that resort to such approaches in managing the expression of disagreement”. The strength and beauty of Sri Lanka lies, not in its rivers and its mountains, but in its people: multi-ethnic, multi-religious and multi-linguistic. That is what creates the mosaic of one nation.

I am compelled to repeat what I stated 21 years ago, in the Felix R. Dias Bandaranaike Memorial Lecture, since the sentiments I expressed then are, unfortunately, as relevant today as they were then:

“Constitution-making becomes a meaningless exercise if it does not respond to the evolving aspirations of the people of the country. The voice of the minority communities in the North and East have been loud and clear in its support for genuine autonomy. They ask for space; space which they are entitled to as of right in this multicultural state of which they are an integral part; space in which to preserve their unique identities, because identity is the central issue of being; space in which to keep alive their languages and their history, their legends and their stories. The identity of a community is inviolable. It is not enough to be who we are; we must also be seen and heard and respected for who we are. When that basic right is denied, by force or otherwise, peoples will struggle and fight to regain it. The space that a minority community seeks is not negotiable, and therefore ought not to be conditional upon, or indeed to await, a referendum or national consensus or even a cease fire. The initiative rests with the government to do that which the law and common-sense demand.”

Therefore, it seems to me that, whatever agreement may be reached on governance at the periphery, it is vital and fundamental that there should be power-sharing at the centre. That cannot be achieved by the inclusion of Colombo-based unelected Tamils in the Cabinet, such as C. Kumarasuriar and Lakshman Kadirgamar, who represented none but themselves. Power sharing at the centre is a requirement that should be incorporated in the Constitution. Whichever political party forms the government, it should be mandatory for the different ethnic groups to be represented in the Cabinet, at least in proportion to the number of such members elected to Parliament. Thereby, the minority communities will be constitutionally guaranteed not of token but of genuine representation, both in the legislature and in the government. Policy formation will then be by consensus of the different ethnic groups, which is how it should be if multiculturalism is accepted, recognised, and celebrated; not brushed under the carpet as a canker on the body politic.