Constitutional Context
Sri Lanka has worked with four constitutions since it obtained limited selfgovernment from the British in 1931. In this section we discuss briefly key features of three of these constitutions, the factors that drove the making of these constitutions, and the process that was followed.
The current Constitution (1978) and its drivers are discussed in more detail, in the sections that follow.A. The Donoughmore Constitution of 1931
Limited self-government was provided to colonial Ceylon in 1931 through the Donoughmore Constitution.[1477] The Donoughmore Constitution was a progressive and innovative constitution, ahead of its time in many respects.[1478] In August 1927, the British Government appointed a Commission chaired by the Earl of Donoughmore to consider proposals for constitutional reform.
The Commission visited Ceylon in 1927, had 34 sittings and interviewed 140 people. The Donoughmore Constitution of 1931 established a 58-member State Council and introduced three key reforms. It abolished communal representation as a basis for election to the state council; introduced universal franchise, expanding the electorate from approximately 205,000 in 1924 to over 1.5 million in 1931; and introduced the Executive Committee system where all legislators performed both legislative and executive functions. Ceylon was the first in South Asia to obtain universal franchise, a move that was opposed by a majority of the elite Sinhalese and Tamil political actors at that time.[1479] To the British Government, the Donoughmore Constitution was an experiment to see how colonies would handle self-government. It was a first step to full independence which occurred some years later.
B. The Independence (1946-1947) Constitution
In 1948 a constitution was important for newly independent Ceylon to establish its status as an independent country.
A new constitution was also required to ensure that newly independent Ceylon functioned as a liberal democracy and that its many ethnic groups could live together harmoniously. The struggle for independence was a relatively peaceful process, and Ceylon did not have to encounter the violence that characterised the partition of India.There was no fight for... freedom which involved a fight for principles, policies and programmes. No. It just came overnight. We just woke up one day and we were told, ‘You are a dominion now.’ - S. W R. D. Bandaranaike, Ceylon Prime Minister (1956-1959).[1480]
After a protracted period of negotiations, a new constitution was adopted through a series of orders in Council. Sri Lanka’s first post-independence constitution included a bi-cameral legislature, an independent judiciary, an independent public service, and a first-past-the-post electoral system.[1481] While judicial review of legislation was not expressly provided for in the constitution, the Supreme Court took the position that it could exercise this power, even though the power was used only sparingly.[1482] The nominal head of government was the Queen in England, and the final court of appeal was the Judicial Committee of the Privy Council. The first Constitution did not incorporate a Bill of Rights mainly because British constitutional architect Ivor Jennings, did not believe in a Bill of Rights. While the Constitution did not contain a Bill of Rights what was included was Section 29 which was aimed at protecting the rights of religious and ethnic minorities.[1483] While several groups made representations before the Soulbury Commission, the Constitution was an elite political bargain between Jennings and the political leadership which took office in 1948.
Within ten years of independence, ethnic tensions and violence began to emerge. Over 800,000 Up-country Tamils, who lived on the tea plantations, were stripped of their franchise,[1484] and the Official Languages Law, making Sinhala mandatory for all those in the public service, was passed in 1956.[1485] Anti-Tamil violence occurred in 1958, the first of several such incidents, that were repeated in 1977, 1981 and 1983.[1486]
Section 29(2) of the Constitution had its share of critics.
There were those who felt the provision was an inadequate guarantee of minority rights and that Sri Lanka required a comprehensive bill of rights. Others representing Sinhala- Buddhist opinions would have preferred that the historical grievances against Buddhism were addressed by the new Constitution and would have favoured the inclusion of stronger provisions protecting Buddhism in the Constitution.[1487] Even though DS Senanayake, who was to become the first Prime Minister of independent Ceylon, favoured the inclusion of a bill of rights, constitutional architect Ivor Jennings had his way and Ceylon did not get a bill of rights at independence.15Jennings was to later regret his decision. In a talk over the British Broadcasting Corporation’s Overseas Service in 1961, he stated that a bill of rights would have been desirable for a society like Ceylon. He noted, ‘If I knew then, as much about the problems of Ceylon, as I do now, some of the provisions would have been different’.16
No law was declared to be invalid on the grounds that it violated Section 29 (2) and this may have had implications on why Tamil groups resorted to violence in the 1970s and 1980s. In the early years after independence, several issues relating to ethnic discrimination including the disenfranchisement of the Up-country Tamils and the application of the Sinhala Only law surfaced. However, the courts tended to bypass them, deciding these cases on narrow technical issues.17 De Silva observes that ‘Had those decisions gone the other way, the political history of modern Sri Lanka would in all probability have been quite different’.18
It was during the operation of the 1948 Constitution that Sri Lanka had its most vibrant experience with constitutional democracy. Elections were held regularly, power alternated between the two main political formations, and the courts and the media were able to function independently.
C.
The 1972 ConstitutionThe 1946-47 Constitution lasted 25 years, till a landslide win at the parliamentary election of 1970 enabled the ruling alliance at that time to steamroll in a new republican constitution in 1972. Prior to that, in 1958, a Joint Select Committee of the Senate and the House of Representatives (the two chambers of Parliament at that time), was appointed to look at several issues of constitutional reform. This included the possibility of establishing a republic, and the inclusion of a bill of rights in the Constitution.19 The Joint Committee made several proposals
Asanga Welikala, Power-Sharing in Sri Lanka: Constitutional and Political Documents, 1926-2008 (Berghof Foundation for Peace Support, 2008).
15 Joseph AL Cooray, 508-510. Jennings later wrote, ‘In Britain, we have no Bill of Rights; we merely have liberty according to law, and we think - truly, I believe - that we do the job better than any country which has a Bill of Rights or a Declaration of the Rights of Man, Ivor Jennings, Approach to Self-Government (1958) cited by Joseph Cooray, at 509.
16 Joseph A L Cooray, 509.
17 See Kodakan Pillai v Mudanayake (1954) 54 NLR 433; Mudanayake v Sivagnanasunderam (1951) 53 NLR 25 and Sundaralingam v IP Kankasanthurai (1971) 74 NLR 457. See Herman Leonard de Silva, ‘Pluralism and the Judiciary in Sri Lanka’ in Neelan Tiruchelvam and Radhika Coomaraswamy (eds), ‘The Role of the Judiciary in Plural Societies’ (Frances Pinter, 1987) 79 for an analysis of these decisions.
18 De Silva (n 17) 87.
19 Nihal Jayawickreme, ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Centre for Policy Alternatives, 2012) 44, 48. including the adoption of a comprehensive bill of rights, modelled largely on the Indian Constitution.[1488] The assassination of Prime Minister Bandaranaike by a Buddhist monk in September 1959 halted this process even though the issues continued to be debated throughout the 1960s and 1970s.[1489]
Constitutional backsliding commenced with the adoption of the First Republican Constitution in 1972.
Since then, the country has drifted in and out of constitutional authoritarianism. It has also had to contend with a variety of forms of political violence starting with the first JVP (Janatha Vimukthi Peramuna) insurrection of 1971, a civil war between Tamil militants and the state between 1983 and 2009, the second JVP insurrection of 1987-89, and several bouts of violence against the Tamil and Muslim minorities.The 1972 act of constitution-making was driven by a desire to cut ties with the British and adopt an autochthonous constitution. The desire to make Parliament supreme, vest power in a strong parliamentary executive, and remove the power of the courts to overturn legislation, were other drivers of this change. Both the substance and the process reflected these goals.
The United Front coalition won 115 of the 151 seats in the lower house in the 1970 parliamentary election. The Senate was abolished by way of a constitutional amendment in 1971 and the members of the lower house constituted themselves into a Constituent Assembly to draft a new constitution.[1490] The members symbolically deliberated outside Parliament, to establish that this process represented a break in legal continuity with the country's dominion status. The 1972 Constitution created a unitary state, privileged Buddhism, made Sinhala the official language and ‘Ceylon' became ‘Sri Lanka'.[1491] Although the Prime Minister of the country at that time was a woman (and the world's first woman Prime Minister in the 1960s), women as a group played only a limited role in the drafting of the Constitution. Power was centralised in Parliament and judicial review of legislation was excluded. Appeals to the Privy Council were abolished. The Tamil parties proposed federalism, and when that was rejected, walked out of the constitution-making process.
A bill of rights was included in the 1972 Constitution but because there was no mention of a specific remedy for violations, only one case was litigated under its provisions.[1492] The Constitutional Court that functioned for a brief period under the 1972 Constitution issued several pronouncements on the constitutional validity of bills but did not have the power to declare legislation invalid.[1493]
III.