The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice

Type of Publication: Edited Collection…..Publisher(s): The Centre for Policy Alternatives (CPA), and the Friedrich Naumann Stiftung für die Freiheit (FNF) 

Place Publication: Colombo, Sri Lanka ….. Date of Publication: 21^st December 2012…….

Size of Publication: 1168 pages in two volumes (Vol. I: pp.1-660; Vol. II: pp.661-1168)

ISBN: 978-955-1655-93-8 ………..Bar Code: 9 789551 655938

Editor: Asanga Welikala

Website: http://republicat40.org (entire contents downloadable in complete volumes or as individual chapters)

 Pakiasothy Saravanamuttu of CPA

Purpose and Scope of the Publication: In 2012, Sri Lanka marks the fortieth anniversary of the founding of its republic. With the promulgation of the first republican constitution on 22^nd May 1972, Ceylon severed its remaining constitutional links with Britain that had survived the grant of independence as a dominion in 1948. Both the process adopted in the making of that constitution as well as its substance were historic – a decisive ‘constitutional moment’ – reflecting dramatic political currents that had dominated the late-colonial and post-independence period, and establishing a constitutional order that has, despite being replaced by a second republican constitution in 1978, retained its essential substantive character as a highly centralised unitary state to the present.

The republic established in 1972 marked the triumphant ascendance of postcolonial Sinhala-Buddhist nationalism with the entrenchment of its three major constitutional goals: the recognition of a special place for Buddhism and the Sinhala language, and the centralised unitary state. In doing so, the republican constitution also marked a watershed in Tamil nationalism in terms of constitutional demands for accommodation, from federal autonomy to armed secessionism. Subsequent political history as shaped by this decisive constitutional moment entailed a long and extremely bloody war, a number of failed attempts at constitutional solutions, and a final military showdown which has seemingly ended with the defeat of militant and secessionist Tamil nationalism, and an ever more triumphant and vindicated Sinhala-Buddhist nationalism in control of the state.

In terms of the challenges of ethnic, religious and cultural pluralism that post-war Sri Lanka must settle in order that causes of past conflict are not reproduced in the future, the historical, political and constitutional issues that prevailed in 1972 are as relevant as ever. The proposed edited collection seeks to bring together a series of reflections on those issues on the 40^th anniversary of the Sri Lankan republic, with a view to informing the contemporary debate on reconciling the constitutional form of the Sri Lankan state with its rich societal pluralism.

Prospective Audience of the Publication: We are confident that there will be a wide and varied audience for the kind of interdisciplinary reflections as proposed here, both in Sri Lanka and abroad. The 40^th anniversary is a major historical landmark in itself, and there is renewed interest in the Sri Lankan constitutional reform debate given the absence of a post-war settlement that could provide the stability and reconciliation needed to sustain peace and political justice after the conclusion of military hostilities. The different analytical approaches represented in the multiplicity of disciplines to which proposed authors belong would have relevance and appeal across the social sciences, including law, politics, sociology and history.

One of the major problems with legal research and scholarship in Sri Lanka is the absence of a vibrant culture of publication and publishing, and the constraints on informed debate on constitutional reform options that this imposes. This is exacerbated by the lack of access Sri Lankan teachers, students and researchers have to international legal scholarship, due to reasons of costs, language barriers, and other more deep-seated issues with the way especially tertiary education is currently structured in Sri Lanka. One of CPA’s primary motivations with this publication, as indeed it has been with previous publications and seminar programmes, is to contribute in some way towards addressing this need by facilitating the widest possible access to the work of international and local scholars, through locally produced publications that are made available free or at a minimum price, without, at the same time, compromising on quality in any way.

That said, it can be expected that there will be interest in this publication beyond the local and international academic research community on Sri Lanka, to lawyers and the political community, NGOs / INGOs, the UN and other multilateral agencies, and the wider international community. While it is not meant as a practitioners’ handbook, the collection’s critical analysis and insights would be useful to civil society activists and journalists as well as civil servants and policy-makers.

 Chapter Structure:

Foreword – Mrs Sagarica Delgoda

Preface – Dr Paikiasothy Saravanamuttu

Editor’s Introduction – Mr Asanga Welikala

Part I – Constitutional History

1. Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective – Dr Nihal Jayawickrama (former Permanent Secretary, Ministry of Justice, during the 1970-72 constitution-making period)
2. The 1972 Republican Constitution of Sri Lanka in the Postcolonial Constitutional Evolution of Sri Lanka – Dr Radhika Coomaraswamy (Former United Nations Under Secretary-General, published author on Sri Lankan constitutional law issues)
3. The Failure of Jennings’ Constitutional Experiment in Ceylon: How ‘Procedural Entrenchment’ led to Constitutional Revolution – Mr Asanga Welikala (School of Law, University of Edinburgh, and the Centre for Policy Alternatives)
4. Buddhism and the Constitution: The Historiography and Postcolonial Politics of Section 6/Article 9 – Mr Benjamin Schonthal (The Martin Marty Centre for the Advanced Study of Religions, University of Chicago)
5. Conflicted Solidarities? Muslims and the Constitution-making Process of 1970-72 – Dr Farzana Haniffa (Department of Sociology, University of Colombo)
6. Sinhalaness and its Reproduction, 1232-1818 – Professor Michael Roberts (formerly of the Universities of Adelaide and Ceylon)

 Part II – Constitutional Theory

1. Sovereignty and the 1972 Constitution – Ms Hallie Ludsin (former Consultant, Legal & Constitutional Unit, Centre for Policy Alternatives)
2. The Left and the 1972 Constitution: Marxism and State Power – Professor Kumar David (formerly of the University of Ceylon and the Hong Kong Polytechnic University, Marxist political analyst)
3. A Game of Mirrors: Constitutionalism and Exceptionalism in a Context of Nationalist Hegemony – Dr David Rampton (Department of Politics, School of Oriental and African Studies, University of London)
4. Republican Constitutionalism and Sinhalese Buddhist Nationalism in Sri Lanka: Towards an Ontological Account of the Crisis of the Sri Lankan State – Dr Roshan de Silva Wijeyeratne (School of Law, Griffiths University)
5. Beyond the Unitary Conception of the United Kingdom Constitution – Professor Neil Walker (Regius Professor of Public Law and of the Law of Nature and Nations, University of Edinburgh)
6. Parliamentary Sovereignty and Written Constitutions in Comparative Perspective – Professor Cheryl Saunders (Laureate Professor, Melbourne Law School) and Ms Anna Dziedzic
7. Sub-State Nations and the Constitutional State: Embedding Normative Principles within a Plurinational Constitution – Professor Stephen Tierney (Professor of Constitutional Theory, University of Edinburgh, and Director of the Edinburgh Centre for Constitutional Law)
8. Revolutions and Institutions: Political Violence and Sri Lanka’s 1972 Constitution – Professor David C. Williams (Maurer School of Law, and Co-Director, Center for Constitutional Democracy, University of Indiana at Bloomington)
9. On the Republic at Forty, Culture at One-Forty – Professor Qadri Ismail (Department of English, University of Minnesota)
10. Whose Nation? Power, Agency, Gender and Tamil Nationalism – Ms Ambika Satkunanathan (Independent Researcher)

Part III – Constitutional Practice

1. Ethnicity, Nationhood and Pluralism – Professor Yash Ghai (formerly of the Universities of Warwick and Hong Kong, former chair of the Constitutional Review Commission of Kenya)
2. Democracy, Nationalism and the Nation-State – Mr Lucian Arulpragasam (formerly of the Ceylon Civil Service)
3. Fundamental Rights and the 1972 Constitution – Dr Jayampathy Wickramaratne, P.C. (Attorney-at-Law, former Senior Consultant to the Ministry of Constitutional Affairs, former member of the Panel of Experts to the All Party Representative Committee (APRC), and author of Fundamental Rights in Sri Lanka (2^nd Ed., 2006))
4. Representation in Politics: Women and Gender in the Sri Lankan Republic – Professor Maithree Wickramasinghe (Head of the Department of English and Director of the Centre for Gender Studies, University of Kelaniya) and Ms Chulani Kodikara (Research Associate, International Centre for Ethnic Studies)
5. Gender Equality in Constitutional Design: An Overview for Sri Lankan Drafters – Professor Susan Williams (Maurer School of Law, and Co-Director, Center for Constitutional Democracy, University of Indiana at Bloomington)
6. Constitution-making and Nation-building in Divided Societies – Mr Nicholas Haysom (Deputy Special Representative of the Secretary General, United Nations Assistance Mission in Afghanistan; formerly Director of Political Affairs, Executive Office of the United Nations Secretary General; formerly Director of the Office of Constitutional Support, United Nations Assistance Mission for Iraq; Visiting Professor, University of the Witwatersrand; and former Legal Advisor to President Nelson Mandela)

Part IV – Interviews and Recollections

1. The Constitutional Form of the First Republic: The Sinhala-Buddhist Perspective: An Interview with Mr Udaya Gammanpila
2. The Ilankai Thamil Arasu Katchi (Federal Party) and the Post-Independence Politics of Ethnic Pluralism: Tamil Nationalism Before and After the Republic: An Interview with Mr R. Sampanthan M.P.
3. From Federalism to Separatism: The Impact of the 1970-72 Constitution-making Exercise on Tamil Nationalism’s Ideological Transformation: An Interview with Mr D. Sithadthan
4. Tamils of Recent Indian Origin and the Constitution-making Process of 1970-72: An Interview with Mr P.P. Devaraj
5. Insurrection amidst Constitutional Revolution: The Janatha Vimukthi Peramuna (JVP) and the 1970-72 Constitution-making Process: An Interview with Mr Lionel Bopage

 Editor’s Professional and Contact Details: Asanga Welikala, LL.B, LL.M, on sabbatical leave from the Legal & Constitutional Unit of the Centre for Policy Alternatives (CPA), Sri Lanka, is completing his PhD at the School of Law, University of Edinburgh. His thesis is provisionally entitled, ‘Beyond the Liberal Paradigm: The Constitutional Accommodation of National Pluralism in Sri Lanka.’ He is a Member of the Edinburgh Centre for Constitutional Law (ECCL), and is a Tutor in the Public Law of the United Kingdom and Scotland (PLUS) and in Public Law and Individual Rights (PLAIR). He will be ESRC Teaching Fellow in Public Law at Edinburgh Law School from March 2013 onwards.

 Further details of his publications, work experience and research interests are available at: http://www.law.ed.ac.uk/research/students/175.aspx

 E: asanga@cpalanka.org or a.s.welikala@sms.ed.ac.uk

M: +44 (0) 77 958 24610

H: +44 (0) 131 447 1970

SPECIAL NOTE: The book is not available for purchase in bookshops, but is fully downloadable in complete volumes or as individual chapters from the dedicated website: http://republicat40.org  For those in Sri Lanka, a small number of hard copies are now available for collection free of charge from Dharani at the Centre for Policy Alternatives (CPA), 24/2, 28th Lane, off Flower Road, Colombo 07. Tel: 011 2565304-6, Ext: 110.