Leelananda De Silva, courtesy of Sunday Island, 24 March 2018, where the title runs “Are We Heading Towards Constitutional Anarchy? The Evolution of Constitutional Governance in Sri Lanka (Revised Second Edition)”
n the 1950s in Ceylon, there was the university entrance examination, conducted by the University of Ceylon annually, to select students for entry to that university. There were no G.C.E. A-Levels then. One of the subjects for this examination was called Government. Those who sat for this subject read the Constitution of Ceylon by Ivor Jennings. Jennings was the author of the Sri Lankan Constitution of 1948, and it was first hand analysis of the constitutional provisions of 1948. Jennings was one of the foremost constitutional lawyers in England and he had published the authoritative “Cabinet Government” some years before and also a more popular book called the British Constitution and another called The Law and the Constitution. Undergraduates of that time were fortunate in reading these authoritative tomes by a leading constitutional scholar. Since 1948, there has been little scholarly writings on constitutional developments in Ceylon, especially on the politics behind constitutional changes.
Lakshman Marasinghe’s volume is a history of constitutional evolution in Sri Lanka, over a period of 173 years and eight constitutions. Apart from chapter one, which is an introduction, chaptertwo of nearly 60 pages, it deals with the Colebrooke reforms (1833 – 1912), the Crewe-MacCallum Reforms (1912 – 1921), the reforms of 1921 – 1924 and the Manning reforms (1924 – 1931). These were all highly limited reforms which did not much affect the power and authority of the British colonial government. Chapter three of 40 pages deals with the Donoughmore reforms which lasted from 1931 to 1948, and which were the first significant changes to British imperial rule. Chapter four of 50 pages deals with the Soulbury constitution which prevailed from 1948 to 1972, after Sri Lanka gained independence. Chapter five has nearly 40 pages on the short lived constitution of 1972. Chapter six to chapter 10 which extend to nearly 400 pages deal with the 1978 constitution and the many amendments that have been introduced. Chapters 11 to 13 which run to 80 pages is about the drafting of a new constitution which is yet an ongoing process. Undoubtedly, the Marasinghe volume is a valuable contribution to our understanding of the constitutional evolution of the country. Marasinghe has been an outstanding scholar and was professor of law at the University of Windsor in Canada and was a visiting professor at the University of Colombo.
In its early chapters dealing with constitutional evolution from 1815 to 1948, the volume deals extensively with the politics of constitution making and the many forces and factors that led to the kind of constitution that was put in place during that period. Subsequent to 1948, the tone and tenor of the volume is distinctly different. The political underpinnings of constitution making and constitutional amendment are generally avoided and a more legal approach is adopted. Case law is a dominant feature after 1978. Since 1972, Parliament has taken over the dominant role in constitution making. Parliamentarians have become constitution makers and by 2015, they even appear to be drafting constitutional provisions, instead of the legal draftsmen. It is essential that we obtain a better understanding of the politics of constitution making and constitutional amendment subsequent to 1978.
The constitutions between 1815 and 1931 did not offer the general population any role in their functioning. They were imposed on the country by the British rulers. The main features of the constitution at this time were an Executive Council and a Legislative Council. Both these bodies were appointed, and there was no electoral process. They mainly consisted of persons who held specific offices. There were a few locals who were brought into these bodies, either representing ethnic groups or commercial interests. During this period of over 100 years, the system of government was one of a blend of Ceylon feudalism and British colonial bureaucracy. For a long period, two or three dominant extended families – the Obeysekere, Dias Bandaranaiake families from among the Sinhalese and the Ramanathan-Arunachalam familes from among the Tamils – obtained representation on the Legislative Council. By the 1920s, modest reforms in the nature of some kind of democratic representation were introduced. Out of a population of four million, about 100,000 people (based on wealth and educational qualifications) were given the franchise to elect a few members to the legislature – an educated Ceylonese seat and a few members elected for each of the provinces.
The Donoughmore reforms brought about a revolutionary change in Sri Lankan systems of governance. The author deals with these issues in some detail. Universal franchise was granted to Ceylon a few years after it was achieved in Britain. This was the first time that the ordinary man and woman had the right to be a participant in the government of the country. It had never happened in monarchical, feudal and colonial times. Politics changed with universal franchise, although it took a little time. The Donoughmore constitution can be seen as a blend of colonial bureaucracy and a political elite acting as representatives of the general population. The feudal elements started to break down during the Donoughmore period. The Donoughmore constitution introduced the single member constituency system which lasted from 1931 to 1989. That period of 60 years made the people of the country familiar with this system and there have been calls to bring it back.
Apart from universal suffrage, the author feels that the abolition of communal seats in the legislature were the key features of the Donoughmore constitution. The Donoughmore reforms were instituted after considerable discussion with the many representative organizations of the people, unlike previously when discussions on constitutional reform were only with the elite. Between 1931 and 1947, Ceylon started to move towards a welfare state. The State Council has a rich and enviable legislative record–on free education, expansion of health services, labour and social legislation and the landmark Land Development Ordinance (LDO) of 1935 which created a new peasantry in the dry zone.
In 1948, Ceylon’s new independent constitution was adopted, and the author discusses many of the representations made to the Soulbury Commission which preceded it. Representations were made by ethnic minorities and by the Kandyans. Surprisingly, there is no mention whatever of the role of Ivor Jennings in constitution drafting. The Soulbury Commission was determined to establish a unitary state. They provided guarantees to the minorities in the form of Section 29 of the constitution. Although the author does not refer to it, the great achievement of the 1948 constitution was that it provided autonomous spaces for non-political actors – the public service, the judiciary, permanent secretaries. It was not a heavily political constitution. It established parliamentary government and a cabinet system. Once again, the author does not refer to an important development of the time – the rise of the key political parties in Ceylon and their increasingly important role in the country’s governance. One would have liked the author to discuss the role of political parties in this period, especially in relation to the constitution.
In 1972, there was a new republican constitution, with the monarchy abolished. Parliamentary government continued. The author discusses the legal aspects of constitution drafting and what he calls an “autochthonic” process. The author confines himself largely to a legal discussion of the constitutional provisions and there is little discussion on the politics behind the drafting process. He sees the 1972 constitution as paving the way for the 1978 constitution which abolished the parliamentary system of government. One would have liked more extensive discussion of the radical break of the 1972 constitution with the past. The 1972 constitution abolished the autonomous spaces available to non-political actors. The independence of the public service and the judiciary were replaced with more politically controlled institutions. Section 29, which guaranteed minority rights was done away with and state recognition of religion was introduced, thereby leading to politicization in the religious sphere. The author should have dealt more extensively with the important political and social implications that flowed from the 1972 constitution.
The author deals extensively with the 1978 republican constitution and its provisions. As noted before, his approach is highly legalistic, and the politics of that period is largely neglected. The 1978 constitution was not the same in its life so far of 40 years. In the period 1978 – 1989, the President had overwhelming power, largely due to a parliament elected under the provisions of the 1972 constitution and where he had a 2/3rds majority. It is during these eleven years that the government largely abolished the welfare state of which Sri Lanka had been proud of since 1931 and established a market economy. It can be argued that the market economy was established due to the overwhelming power the President had under a hybrid constitution –a parliament elected under the 1972 constitution and powers vested in him under the 1978 constitution. The author does not address the politics of presidential rule and confines himself to a highly legalistic approach. One important aspect of the 1978 constitution was the entrenchment of the dominance of political parties in the functioning of the constitution and of government, especially through the system of proportional representation and the abolition of autonomous political spaces which were available in the single member constituency system. Members of parliament became party apparatchiks.
The author considers the legal implications of the many amendments (19 in all) of the 1978 constitution. Due to space, we shall confine here to the 19th Amendment of 2015, which was enacted after the new and latest President has come into power. The author deals with the many legal changes that were brought about through this amendment. Again, the author could have been more expansive on the constitutional outcomes that resulted. Dr. Nihal Jayawickrama, an authority on these matters, has analyzed in some depth, the implications of these constitutional changes. It is obvious that the powers of the President have been curtailed, and the powers of parliament have been correspondingly increased. The legislators are taking over executive functions. The author might have referred to the way in which the 19th Amendment was drafted, as the 19th Amendment is virtually another constitution. It was drafted by parliamentarians, and the implications of the provisions incorporated were not adequately studied. Many would remember the scenes inside parliament at the time these provisions were drafted. There is another volume which the author could write, and he is especially qualified to do that, about the 1978 constitution and its major transformation through the 19th Amendment.