THE DEBATE ON A NEW CONSTITUTION FOR SRI LANKA (PART 1)
Posted on April 26th, 2018

BY Edward Theophilus

Sri Lanka has been relegated to a sharp debate on the constitutional reforms since the political independence in 1948 as the constitution, which was given to the country by the Solebury Commission in 1947 was subject to many criticisms in regard to various matters. The constitution established to the country was not purely originated by a participative exercise of representatives of Sri Lanka in a constitutional council represented by selected agents of all communities considering the deviated interests of them. As a developing country the views of Sri Lanka’s educated community in relation to the national unity and the flexibility of the constitution for decision makings in relation to policy and economic development, plan implementation and efficient service delivery, were significant factors that should have been addressed by a broader constitutional council. The impact of constitution for international relations and the opinions of religious leaders of the country were also vital exposures that should have critically considered and assessed by a constitutional reforming committee at that time. When we were studying at schools and the universities, our educators’ honest opinion was that the constitution was given to Sri Lanka by the Ceylon Constitution order in Council 1946 was not a product that carefully considered above points or issues.

However, the Solebury Commission had an understanding that Sri Lanka was a multi-ethnic and religious state with a majority of Sinhala people, who associated with Buddhism.  Since the Colebrook Cameron Commission in 1827 Sri Lanka had also been subjected to a critical debate on the concept of power-sharing in the political administration. Who initiated such an idea of power-sharing on ethnic basis was clearly unknown, but it seemed that there were no serious practical differences between Tamils and Sinhala people at bottom level on the basis of scientific, biological and anthropological factors as the operational activities and cultural attitudes appeared to be similar. In spite of existing peaceful environment, the ethnicity related issues came front in political reforms. The identity of Sinhala and Tamil people is purely based on the language, which was not a biological or anthropological identity but a factor that added after the birth of a person as a result of the adaptation into the environment.  However, the indigenous people (Vaddas), might had a biological, anthropological, language and cultural identity that was not considered by the authority of political reforms in the colonial era. The history of the Kandyan Kingdom clearly indicates that the right of indigenous people (Vaddas) was recognized and the executive power of the country under the Royal leadership was reasonably distributed to them by the Sinhala King.

The British administrators attempted to introduce a unitary status of government as the population ratio of ethnic communities and the small geographical area of the country clearly proved that an inflexible unitary system would be the most appropriate political administration to maintain the unity of the country than a republican style with provincial legislative bodies. The idea would have contributed by many factors such as social, political, economic, religious and others. The developing ideology in regard to power sharing contained germs of potential conflicts between the central government and the provinces. Spreading such conflicts to practically armed bloodletting at regional level should have prevented by a responsible administrative authority. The prime responsibility of the British colonial rule was to prevent possible future conflicts and ensuring a peaceful environment in the country, otherwise, the colonial rule would be incriminated to the world, if there would be ethnic related conflicts in the dominion administration of Sri Lanka.

The case in Sri Lanka was not similar to India.  One of the main contributor to drafting the constitution introduced in 1947, Sir Ivor Jennings too firmly believed in the concept of the unitary framework of government, which would be a successfully applicable status for small Sri Lanka. When we read his famous work, Cabinet Government, it is distinctly understandable how Sir Ivor respected the unitary framework of governments. We can see that Britain is still reluctant to change its unitary system as it provenly help to unite people in a small country.

The concept of republic administration was not practically experienced by different communities in Sri Lanka, either Sinhala or Tamil or Muslims during the past thousands of years. The idea of republican administration came to light or understood in Sri Lanka as a result of the influences of textbook political theorists looking at the operations of Indian states rather than a practical participation of power-sharing activities in the past by Sri Lankans. India also had a more flexible unitary system under the British colonial rule despite the divided states in the history, however, the operational activities of India were consisting of more decentralized and convenience controls. There were political advisors such as Chanakya and many religious leaders such as Lord Buddha in India talked about the practical aspects of political administration but they did not talk about ethnic-based dividing politics.  Indian history is crystal clear that Mahatma Gandhi did not want to divide the country but religious differences forced for the divisions. The political authority in Sri Lanka must clearly understand that ethnic and religious differences of the community are more vicious elements to destroy the harmony of the community if it uses ethnic criteria to decide the form of constitution of Sri Lanka.

Few textbook theorists were associated with the teaching of political science in the university or any other higher education institutions in the country might had opinion on ethnic base division of the country for a constitution. Those theorists had the knowledge to talk about political theories and individual Western Political Theorists’ ideas in relation to federalism but they never represented in the administration authority of a federal system to gain real practical experience with a view to converting such political knowledge in university teaching to educate how to apply such theoretical views in the practice federal power sharing.

The unitary style of government was successfully operated in the United Kingdom for centuries and Prof Jennings would have accurately considered that Sri Lanka, a small country in the world must be a unitary state in which the supreme power vested with the central government.  In terms of unitary system, the power sharing should be materialized within the central government in a manner agreed upon in the country and it should be written in the constitution.  The unitary style of government was also the best consideration in regard to specific factors such as cost and controls, which are the most effective determinants to success of the governing style. The provincial councils in Sri Lanka has created a fiscal mess and corruptions in regional Sri Lanka and has become a major factor to uncontrollable inflation in the country pushing poor villages to unmitigated poverty.  The practical experience in regard to the operations of the 13th amendment to the 1978 constitution later proven that the creation of provincial councils has become a waste of resources creating tremendous economic and governance related problems such as corruptions, nepotism and waste of resources, excessive public spending and other fiscal issues to the country.  As a result of the operations of provincial councils, a large sum of scare resources, which should have been applied to rural development wasted as administration expenses.

The history of Sri Lanka too provided evidence that although the political administration of the country was divided as Ruhuna, Maya, and Pihiti in some eras, such a divisive administration was not an ethnic based separation of one country into different federal states with different names, but a single ethnic group, Sinhala people alone divided one county into three areas. Sometimes, it leads us to assume that historical administrate divisions in Sri Lanka was based on the concept of Grama Rajya of King Pandukabaya, which was not a federal concept based on ethnicity of people. Later in the Kotte era, the country was divided into administrative areas by Sinhala kings purely based on personal reasons and power hungry.  Historians also believe that during the time when Lord Buddha visited Sri Lanka, the country had a division as Devils, Cobras and Gods, which were assumed to be religious groups within one nation on the basis of the worships of people, but they were not federal style power sharing divisions. Therefore, we can see power sharing on ethnic basis would be alarmingly risk to the country. Why cannot the current Sri Lankan politicians to consider historical facts and future possible risks when reforming the existing constitution?

A written constitution has not been used by the reigns of Kings and Queens in Sri Lanka, however, Sir John Doyly, who was the advisor and translator of Sir Robert Brownrigg has published a book title ‘A Sketch of the Constitution of the Kandyan Kingdom’, which gives a clear idea on the pattern of the constitution of traditional Sri Lanka. Below I quoted the beginning of the book.

The power of the King is Supreme and absolute”

The Ministers advise but cannot control his will.”

The King makes Peace and War, enacts ordinances and has the sole power of Life and Death”

“He sometimes exercises Judicial Authority, in Civil and Criminal cases, either in the original jurisdiction or in appeal.”

The acts of his government are presumed to be guided by the institutions and Customs of his Kingdom”

Before innovations of importance are carried into Effect it is customary to consult the Principal Chief and frequently the Principal Priests and when other matters of the Public moment are in agitation the same Persons are usually called to his Councils.”

The Authority of the King is exercised through many officers of the State.”

The principal officers employed in the administration of public affairs, are, The Two Adhikari’s, commonly called Adhikari”.

The map of Sri Lanka in the Kandyan Kingdom in 1815 attached in the book clearly indicates that the Kandyan Kingdom was a large area of the country except a small area of seaside and the rule of the King of Kandy was accepted by all citizens of the country. The Kandyan Kingdom also covered a large area of the North and the East of Sri Lanka and the map further proves that there was not an area covered as a Tamil homeland in the country, despite current Tamil politicians’ a claim that there existed such a land area. The Kandyan convention signed by Adigars of Sri Lanka was signed in Tamil except two Adhikari’s, who were signed in Sinhala. As the King of the country at that time was a Tamil National, many Adigars signed in Tamil with a view to respecting the Tamil King.  This is a very good evidence that there were Sri Lankans who used the Tamil language as a national language in the country, but they never demanded a physical division of the country like in a federal system, but they respected the unitary system and successfully integrated to the country as Sir John Doyly illustrated.  The Tamil king, Vijaya Rajasinghe in 1707 started reigning in the Kandyan Kingdom, he took oath to secure the tradition and the religions of Sinhala state.

A unitary state defines in dictionaries as a state of government with a single power in which the central government is ultimately supreme and any administrative divisions (subnational units) exercise only the power the central government chooses to delegate.  In the British system the parliament is using the power of the crown and enacts laws, no other can challenge them.  The British encyclopedia further explains that the parliament sovereignty is commonly regarded as the principles of the British Constitution.  Parliament can create or abolish the law and the rule of law, the separation of the government into executive, legislative and judicial branches are basic principles of the British Constitution.

The constitution given to Sri Lanka in 1947 contained an anti-discrimination clause under the section 29 which reflected that the constitution was a rigid administration instrument which restricted the flexible amendments.  The section 29 of the 1946 constitution contained (a) no law could prohibit or restrict the free exercise of any religion (b) make person 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 persons of other communities or religions or (d) after the consultation of any religious body except with the consents of the governing authority of that body.  The constitutions in in 1972 and 1978 included Chapter VI on Fundamental Rights and Freedom, when repealed the section 29 of the 1946 constitution.  The inserting of fundamental rights and freedom in 1972 and 1978 constitution was more broader and stronger clause than the section 29 of the 1946 constitution.

The major difficulty in the 1946 constitution for its amendments was the requirement of a two-thirds majority of members of the parliament and the political environment at that time clearly indicated that it was a difficult task for any political party as they haven’t had superior policy to unite voters with a view to gaining absolute power.   The ethnic ratio of the country consisted of more than 75% of Sinhala people, who could have obtained more than two third of majority of the parliament but they divided on political party basis with economic, social, religious, caste and many other differences.   However, the general election held in 1970 re-established the political environment of the country as the collision group of SLFP, LSSP and CP were able to claim a great victory with a two-thirds majority of members to the government and such a huge victory opened the way to introduce a new constitution to the country. The attractive victory of 1970 election was purely based on economic reasons as the government of Mr Dadly Senanayake elected to office in 1965 apparently failed to look after poor people and find an effective solution to increasing unemployed in the country.

In 1972, the Solebury constitution was abolished and new constitution was introduced in a unitary framework of republic government, the main contributor to the 1972 constitution, Dr. Colvin R de Silva strongly believed that Sri Lanka is a small country, which should be in a unitary framework rather than distributing of the legislative power and vital policy-making authority of the central government to provincial states. As a highly educated historian and an eminent lawyer of the country, Dr. Colvin R. De Silva, the Minister of Constitutional Affairs considered several strong logical points in support of a unitary state and Dr. NM Perera, who earned two Doctorates in Political Science and Economics was also agreed with the points of Dr. De Silva.  Again, the constitution was changed in 1978 because the elected UNP government observed that lack of executive power to the president in 1972 constitution restrained the vigorous policy-making and implementation authority for the benefits of the country. The operation pattern of the parliament in Sri Lanka was appeared to be gossiping and less disciplined taking place when compared to the operations of legislative assembly in UK, Australia, Canada, USA France and Germany etc. and it clearly appeared that vesting executive power to a president directly elected by people was a more practically successful method to the country where had less experience in the use of parliamentary or liberal democracy.

Historically Sri Lanka was subject to many internal conflicts and after the independence, two conflicts, Emergency of 1958 and JVP insurrection in 1971incurred in the country.  In these two occasions, it clearly seemed that executive decision making through the parliament was very weak and a journalist in the Lakehouse, Tassie Vittachchi in a booklet on the Emergency of 1958 explained that although the Governor-General, Sir Oliver Gunatilake, who was a nominal executive representing the Queen was taking the executive power of the parliament into his hand has efficiently acted to control the problem of the country. The Prime Minister, SWRD Bandaranaike later confirmed that Sir Oliver acted on the advices of him, but Vittachchi in his book confirmed that Sir Oliver acted alone to control the situation of the country and Mr Bandaranaike later depended the situation stating the governor General acted on the advice of the Prime Minister.  The booklet was banned in Sri Lanka as it was recorded as a black dot in Westminster style of democracy in Sri Lanka.

 

BY Edward Theophilus

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