the name of the people
Dr. Nihal Jayawickrama
members of parliament who assumed the responsibility of drafting
two constitutions within the space of six years obviously
overlooked the fact that there is more to a constitution than its
legal validity. What both constitutions lacked was
enacted in the name of the people, they concentrated power in the
lesgislature and the executive and distanced the people from the
power centres of the state.
constitution was a social contract, which is what a constitution of a
democratic state ought to be, since the people were not consulted,
except superficially, on the manner in which state power should be
distributed, exercised and limited.
the constitution of the United States has survived for over 200 years,
and the Australian Constitution for over a century, while our own
home-grown constitutions give the appearance of having been scribbled on
sand, is because our constitutions did not enjoy the legitimacy which
flows not only from its source, but also from its content.
is ironical that the 1946 Constitution, provided by the British
Government, reflected the popular will to a far greater extent than
either of the two home grown constitutions. Based on a constitutional
scheme prepared by the board of ministers of the State Council, it was
formulated by an independent constitutional commission after extensive
public consultations over a period of three and a half months at
sittings held throughout the country, during which evidence was recorded
at public sessions and information was gathered at private discussions.
British government was anxious that the constitutional scheme should be
acceptable to the minorities, considering that, at independence, they
would become subject to Sinhalese majority rule. Five provisions were
designed to safeguard minority rights: multi-member constituencies, six
nominated members in the house of representatives, a second chamber, an
independent public service commission, and section 29 which would
prohibit discriminatory legislation. A sixth element which was noted was
the State Council decision that Sinhala and Tamil will be declared the
official languages of Ceylon from January 1, 1957.
British government insisted that the constitutional scheme should be
accepted by an affirmative vote of three-fourths in the State Council.
Such a majority would necessarily include both Tamil and Muslim members.
In the result, the voting was 51 to 3. It was as close as one could have
reached, on the eve of independence, to a social contract.
1946 Constitution had no ideological basis and professed no economic or
social objectives. It was only concerned with establishing the essential
framework for democratic governance by creating the principal
institutions and defining their powers - a constitutional head of state,
a parliament comprising two chambers, a cabinet of ministers headed by a
prime minister charged with the general direction and control of
government and collectively responsible to parliament, permanent
secretaries charged with exercising supervision over the departments of
government subject to the general direction and control of the relevant
minister, security of tenure for judges of the Supreme Court, a judicial
service commission and a public service commission, the consolidated
fund, a contingencies fund, and an auditor-general. In content, it was
no different from most constitutions in the democratic world.
this constitution, it was possible for both right-wing and left-of-centre
political parties to be elected to office, and for them to implement
their respective programmes unhindered. It was possible for both free
market and regulated economies to be practised.
parliamentary executive system of government it provided was strong
enough to withstand a military coup d'etat in 1962 and a youth
insurrection in 1971, yet flexible enough for a government that had lost
its popularity to be removed by a parliamentary vote of no-confidence or
defeat at a general election. The separation of powers was an inherent
feature of that constitution, and judges exercised the power of judicial
review of both legislative and executive action. Under this
constitution, the people of Sri Lanka enjoyed a quarter century of
relative tranquility, stable government and, generally, respect for
individual rights and freedoms.
1946 Constitution had its shortcomings, and one that was identified very
early was the lack of an enforceable Bill of Rights. Prime Minister
S.W.R.D. Bandaranaike attempted to remedy that omission through a select
committee which was representative of every major ethnic, caste, and
religious group, and in which his ruling party was in a minority. But
the public consultation process he set in motion was aborted when his
party began to fragment and he was laid low by an assassin's bullet. If
some of the institutional safeguards for minorities proved ineffective,
it was because successive governments willed it to be so. The senate was
transformed into a haven for politicians, and the judiciary glossed over
sensitive issues such as citizenship and language.
one contrasts the 1946 Constitution with that of 1972, we see how
potentially divisive and destructive unilateralism can be. The latter
was drafted by a constituent assembly in which the United Front
government had a two-third majority. Debate within the assembly was
circumscribed by a set of 38 basic resolutions which prescribed the
framework for the new constitution. These were prepared by the
government before being presented to the all-party steering and subjects
committee of whose 17 members, 14 were from the government parliamentary
party, including 12 ministers.
the Minister of Constitutional Affairs claimed, the basic resolutions
were 'completely in accord with the United Front and government policy.'
When public representations were invited, it was pointed out that any
proposals for amendment must be in conformity with the basic
resolutions. This meant that only questions of form and detail and not
of principle would be considered. The draft constitution was adopted by
119 votes to 16, those voting against being from the UNP. The Federal
Party members had already withdrawn from the assembly and therefore
boycotted the vote.
from establishing the Republic of Sri Lanka, the 1972 Constitution made
significant, people-unfriendly, changes in the system of government. Sri
Lanka was declared to be a 'unitary state,' on the face of it ruling out
any possibility of accommodating minority aspirations for a federal
system of government. Buddhism was singled out for fostering and
protection by the state. The unicameral National State Assembly was
declared to be the 'supreme instrument of state power.' The separation
of powers doctrine was abandoned and the judicial review of legislation
fundamental rights of the people were squeezed into one paragraph, with
no provision for their enforcement. The appointment, transfer, dismissal
and disciplinary control of public and judicial officers, now termed
'state officers' were vested in the cabinet of ministers. Permanent
secretaries, now termed simply as 'secretaries,' were brought under 'the
direction and control' of the relevant minister. Not only was Sinhala
declared to be the official language, the language of legislation, and
the language of the courts, but Tamil was referred to as the language of
'translation,' and the Tamil language regulations which provided for the
use of that language, were 'deemed to be subordinate legislation.' Apart
from asserting the superiority of the Sinhala language, the Tamil
community was unnecessarily humiliated.
therefore, marked the erosion of the constitutional settlement agreed
upon with the minority communities prior to independence. It led to the
Vaddukkodai Declaration of 1976 when all the Tamil political parties
combined to form a Tamil United Liberation Front whose objective was the
establishment of a separate state in which Tamils would rule themselves
as a nation distinct and separate from the Sinhalese. Did the people of
Sri Lanka, in whose name the constitution was enacted, desire that? Did
they really wish to politicise the state services, surrender their
fundamental rights, strip the judiciary of its powers, and enthrone the
1978 Constitution was the product of the "freely elected
representatives of the people of Sri Lanka." That is the members of
the UNP which secured a four-fifth majority in the 1977 general
elections. The UNP manifesto had sought a mandate to draft a new
republican constitution in which would be included 'the basic principles
accepted by the 1975 party sessions.' The concept of an executive
presidency was introduced by amending the 1972 Constitution through a
bill which was certified by the cabinet as being 'urgent in the national
interest,' and which was neither discussed in the government
parliamentary group nor published in the gazette for public information,
but was debated and approved in one day after the two opposition
parties, the SLFP and the TULF, had walked out in protest.
1978 Constitution was drafted by a 10-member parliamentary select
committee, seven of whose members were cabinet ministers. The TULF
declined to serve on this committee. After 16 meetings held behind
closed doors, over a period of seven months, the select committee
published its report to which was annexed a draft constitution. When it
was presented to parliament, the SLFP and TULF members walked out of the
chamber, and with 137 voting in favour and none against, the
Constitution of the Democratic Socialist Republic of Sri Lanka was
from cosmetic changes, such as changing the name of the country and
transferring the jurisdiction of the Constitutional Court to the Supreme
Court, the 1978 Constitution reproduced substantially the 1972
Constitution as amended in 1977. Two significant reforms were the
replacement of the 'first-past-the-post' electoral system with
proportional representation, and a more comprehensive statement of
fundamental rights which still fell short of international standards.
negative impact of the 1978 Constitution has been very substantial.
Parliament is either a cipher or is in perpetual conflict with the
president, depending on the relative strength of the president's party
in parliament or on the willingness of an incumbent president to respect
the democratic will of the people as expressed in a general election.
Under its auspices, inter-ethnic relations degenerated into civil war.
1972 and 1978 reflected the policies of the two principal political
parties of the south. The voice of the north, expressed so clearly and
unequivocally, was neither heard nor recognised. The constitutions
drafted by politicians have brought authoritarianism, inefficiency,
corruption, and divisiveness. Under them, an almost unbridgeable gap was
created between political parties and between ethnic groups. By
asserting unitarism, the country was torn asunder. Despite the duty
"to foster Buddhism," the people were brutalised. It is
evident that neither constitution enjoyed a national consensus, because
what this country has been subjected to under them could not possibly
have been what the people desired for themselves and their children.
a prerogative of government
is not the prerogative of a government. To entrust that task to a
government is, as S. Nadesan, QC observed in 1970, comparable to what
the outcome might have been if at Runneymede, the Barons of England had
invited King John to draft the Magna Carta. Indeed, a constitution that
is drafted by parliament reflects only the consensus among the members
of the majority party. Even a referendum, where the decision is reached
by a majority vote, is likely to be similarly flawed. A referendum may
be feasible on a specific question, but is wholly unreliable on a
constitutional document This was demonstrated 10 years ago in Canada
when the Charlottetown Accord, a package of very significant
constitutional amendments designed to recognise and give effect to the
multicultural character of that country, was submitted to a referendum.
Although agreed upon by all the first ministers and territorial and
first nation leaders, it was rejected by a plurality voting against it
for widely divergent reasons, one of which was the widespread
unpopularity of then Prime Minister Mulroney, which had no relevance
whatsoever to the questions at issue.
any lessons are to be learnt from the mistakes of the past, the task of
drafting a constitution ought to be entrusted by parliament to a small
but politically independent and representative constitutional
commission. Within such a body, the government, other political parties,
interest groups and individuals will be able to make representations on
an equal footing and in full transparency and will be assured that such
representations will receive equal consideration.
the constitutional commission publishes its report together with a draft
constitution, it will, of course, be for parliament to decide whether to
enact that constitution with or without any amendments. It is only then
that the constitution will truly encapsulate the aspirations of all the
people of the country and not merely of the majority. Such a
constitution can lay claim to be, in fact, a social contract.
April general elections, held as it was after the ceasefire agreement
but before a final settlement of the Tamil national question was
negotiated and reached, has added a new dimension to constitution
making. It provided the LTTE with the first opportunity to obtain a
political mandate to be recognised as the legitimate representatives of
the Tamil people of the north and east, on the concept of the Tamil
homeland, and that Tamil self-rule should be accepted as the basic
aspirations of the Tamil people. The LTTE, therefore, need to be a party
to any new constitutional settlement that is reached between the state
and the people, and it is upon the basis of such a constitutional
settlement that any new constitution ought to be drafted.
question then arises whether any enduring constitutional reform is
possible or indeed ought to be undertaken before a final settlement of
the Tamil national question. Such a settlement will inevitably lead to a
restructuring of the state, the electoral system and the institutions of
governance. When the problems facing this country are prioritised, few
will argue that none cries out more for urgent resolution than the
ethnic conflict that has brutalised our people and virtually bankrupted
disappointed in you my pet. Here I was thinking I'll be given bags of
virulent material to enable me to effortlessly engage in these weekly
scribblings of mine, and what do I get? Zilch. Zero. Zip. If I didn't
know any better I would have thought you were far too busy giddily
turning over a new leaf.........of that excellent and celebrated novel
by M. T. Olugediya, Exploring The Muslim 'Richard'. Pray, what makes it
must admit the subject beats in sheer excitement value, the previous
best sellers on the bearded community focusing specifically on the
mental side. The mind, thoughts, etc. Moreover, authors dealing with
this new and improved subject matter have the added advantage of having
to write only three-fourth's of a book. Which, it goes without saying,
publishers will be compelled to market, as a complete read.
has been a distant dream of mine darling to one-day write your
biography. In fact a collection of my feisty pieces Chandi Banda
Vignettes, if I may so call my humble efforts, in paperback form will
sell like bananas at a chimpanzee circus. Or if you prefer, like hot
cakes at a mother's Union meeting at the local vicarage. Or if the
proletariat prefers, lavariya at the village temple. I do apologise for
Westernising the analogy. Alas, we unfairly reformed dubiously Dutch
chappies, tend to draw from the Christian experience by sheer force of
habit. But what had me jumping up and down in delirious delight like an
epileptic monkey in a trance, is this great news about your award.
accolade for feeding the world. Sort of like a giant mother cow was my
initial mental visual. Still on the cow motif, I do know this dear. If
it isn't you gadding about with the milk of human kindness freely
sloshing about inside you, I don't know who it is. As a man who hangs
upon your every word and tries to emulate your every movement, I too
would like to be awarded the Ceres under your guidance and care. Judge
of my surprise then, when I learnt the medal has since 1971 been awarded
by the FAO only to distinguished women who have contributed to the fight
against hunger. What, ask indignantly, about distinguished men?
dress rather snappily, if I say so myself. I dangle a monocle like a
wild thing at the end of a chain around my neck. I go about with a suave
air and a fashionable chip on my shoulder. Not any old McDonald's chip
either, but a gourmet 'pomme fritte.' Surely, I ask you? Does this not
make me distinguished? I gave a beggar Rs. 10 once. I've fed my share of
down and outs in struggle town. I admit sheepishly that I never had
occasion to make them wait in line for a buth packet, but hey, nobody's
it made me weak with an emotional mix of anticipation and unfulfilled
longing, to learn that even your mother before you was awarded the medal
for feeding people. Yes, it must be her legacy darling passed down to
you. Those parippu and bread lines were backed up for miles. And with
rice from the moon too, who didn't have a lunar experience at dinner
enough about that. A minor nuisance though it is, let's have a bit of a
chat on the peace process, shall we? Let's see. What to talk about? For
one thing, it's as stalled as a Volkswagon without a carburettor. Or as
a horse without a shoe. Or like a pig in a poke. Whatever that means.
another thing you have the meddlesome mildew from Neverland..no, no.. I
mean Norwegians with their rucksacks on their backs, waiting to stick
their right legs out and do the hokey pokey. Meanwhile the wily Tigers
are crouched in hunting position. A bally stalemate is what I would call
it dear. A bally stalemate. And all the while I'm thinking, what is
different from before April 2nd? Darling, I cannot find a wart that
wasn't present in the earlier scheme of things.
all as similar as a pair of identical twins. Do make things a bit
interesting dear. Give us something different. Don't be such a copy cat.
Have pity on a poor burgher depending on your antics to pen this column
and thus keep the wolf from the door with a mere pittance. I'll expect
better from the Ceres winner next time. My column is hungry. Much like
that green mean mutha of a plant in the little shop o' horrors.
to better more exciting news. Toodle oo till next time.