by Dr.Tissa Vitarana
Forty years ago, on May 22, 1972, at the Navarangahala in Colombo, the Parliamentarians of Sri Lanka concluded two years of sitting there as the Constituent Assembly, by passing and accepting the new autochthonous Constitution of Sri Lanka.
This home grown Constitution was formulated de novo by the elected representatives of the people of Sri Lanka, and was not derived in any way from the Constitution that was imposed on Sri Lanka by the British rulers, the Soulbury Constitution.
By declaring Sri Lanka to be a Republic, the umbilical cord that tied us to the British crown was severed once and for all, and Sri Lanka became a fully independent country, free from British rule.
The Centre-Left Coalition Government, headed by Sirimavo Bandaranaike, that came to power at the 1970 General Election had as an objective in its Election Manifesto the setting up of a Constituent Assembly to draft a new Constitution that accorded with the wishes and aspirations of the people of Sri Lanka.
By voting that Government into power the people of Sri Lanka gave their approval for the setting up of the Constituent Assembly and gave the mandate for the Republican Constitution. The architect of the Constitution was Dr. Colvin R de Silva, the Minister in charge of Constitutional Affairs and Plantation Industry. Stanley Tillakaratne, the Speaker, presided over the Constituent Assembly. Mahinda Rajapaksa, the present President of Sri Lanka, was a member of that Constituent Assembly. Everyone accepts that Dr. N.M. Perera, a constitutional expert, made a significant contribution to the drafting process.
“The evolution of constitutional government in Sri Lanka” is the subject of the Republic Day Lecture to be delivered by the internationally reputed expert on constitutional law, Professor Lakshman Marasinghe, at the Mahaveli Centre Auditorium on Tuesday, May 22 at 4.30 p.m. He lucidly traces the course of evolution of the five British Constitutions in Sri Lanka from the commencement of British rule in 1792 up to 1948. As he states “they were each targeted principally at the strengthening of the economic, social and the colonial hold on the island.” This includes the Soulbury Constitution of 1948 that supposedly ushered in Sri Lanka’s independence.
By virtue of the Soulbury Constitution what we got in the name of independence was only ‘Dominion Status’. (a) The legislative powers were restricted so as to help protect British interests in Sri Lanka (then Ceylon). One way was through an upper house, the Senate, modeled on the House of Lords, which constituted a hindrance to the legislative process and had to be subsequently abolished.
Another instance is that under the Soulbury Constitution the economic base, the ‘free market economy’ of the colonial system was protected, as the laws recognized the right to private ownership of both movables and immovables, and an individual owner of property enjoyed a freedom to utilize it to his maximum economic advantage.
As Lakshman Marasinghe states, in his book on the evolution of Constitutional Governance in Sri Lanka, the “interest of the State in restricting this freedom in any given circumstance was strictly circumscribed”.
Thus the “rights arising out of ownership was a right superior in law to all other rights”. In the context of one of the basic assumptions of the Soulbury Constitution being that “rights and duties between citizens inter se and their rights and duties vis a vis the State were subject to the exclusive cognizance of the courts of law located within a hierarchical system of Courts”, and that the Privy Council in Britain was at the apex of that hierarchical system the protection of the right to private property was ensured.
In terms of other basic assumptions of the Soulbury Constitution that “no rights of a person shall be taken away except by due process of law”, and that the “judges shall enjoy every right that might help to establish their independence from the political system”, and that “at all times the Courts shall have the power to subject every law to Judicial Review so as to determine their Constitutional validity”.
In this way the assets owned by British citizens, which included the vast extents of tea and rubber plantations, as well as the banks, insurance etc. (the “sterling companies”) could not be taken over from them by the Sri Lankan Government through any Act of Parliament within the framework of the Soulbury Constitution.
It was the 1972 Constitution that eliminated all the powers bestowed on the British monarch, so that all Sterling company land could be taken over by the Government of Sri Lanka under the second Land Reform Act of 1974. This included the vast extents of land, specially the temple land, that had been forcibly acquired under the Waste Lands Ordinance.
If not for the 1972 Constitution the ownership of these vast extents of tea and rubber land could have been retained by the British owners, so that economic benefit would still accrue to them, and they could have continued to have a stranglehold on our economy.
(b) Executive powers – From 1948 to 1972 the Sri Lankan Executive was under the control of the British monarch, who was the head of state of the Dominion of Ceylon, through her representatives here, the Governor-General. It was the British Armed Forces that held the military power, as their bases continued to be in operation here. This is why when legal action was taken against the leaders of the JVP insurrection of 1971, their crime was that they had “waged war against Her (British) Majesty’s Government of Ceylon”.
It is the 1972 Constitution that removed all these powers from the British monarch, and replaced her by a Sri Lankan citizen appointed as President, approved by the Prime Minister as head of the Parliament elected by the people. All executive power was vested in the President together with the Prime Minister as the head of the Cabinet of Ministers.
Thus sovereignty was really vested in the people of Sri Lanka, for the first time in the history of our country, thereby departing from both our colonial and feudal past, so that the 1972 Constitution was truly democratic. Unfortunately this very welcome democratic aspect of the 1972 Constitution was undermined by the 1978 Constitution, which was undemocratically foisted on the country and the people by J.R. Jayewardene, where all power is vested in the Executive President.
(c) Judicial power – One of the major criticisms of the 1972 Constitution is that it did away with the Section 29 of the Soulbury Constitution, in particular 29(2) (b) and (c) which read as follows: “(b)….. persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; and (c) confer on persons of any community or religion any privilege or advantage, which is not conferred on persons of other communities or religions…” But it is not appreciated that for the first time a whole new extensive Fundamental Rights section was introduced in the 1972 Constitution, that was not there in the Soulbury Constitution.
It is also forgotten that despite these Section 29 protections of minority rights, the discriminatory Citizenship Act of 1948 and the Parliamentary Elections (Amendment) Act of 1949 (that discriminated against the Upcountry Tamils) were passed by the UNP Government of the time, and that the Sinhala Only Act of 1956 (which discriminated against the entire Tamil speaking community) was passed by the SLFP led MEP Government of the time. Legal appeals were made but they were ultimately turned down by the Privy Council, in Britain.
For instance on the discriminatory legislation that deprived the Upcountry Tamils of citizenship and voting rights a case was filed, Mudanayake v Sivagnanasunderam, but ultimately the Privy Council rejected the appeal and in the judgment the class basis of this colonial judgement is blatantly evident:
“Standards of literacy, of property, of birth or of residence are, as it seems to their Lordships, standards which a legislature may think it right to adopt in legislation on citizenship and it is clear that such standards, though they may operate to exclude the illiterate, the poor and the immigrant to a greater degree than they exclude other people, they do not create disabilities in a community as such, since the community is not bound together as a community by its illiteracy, its poverty or its migratory character, but by its race or its religion…”
Professor Marasinghe states “In most Constitutions in the Third World countries, the question of citizenship becomes a central issue for a detailed statement. The Soulbury Constitution was remarkable in that aspect, for it left that issue out of its ambit”.
It is clear that the “Independence” gained in 1948 was a step forward, but the Soulbury Constitution on which it was based clearly restricted our freedom and sovereignty. It was the 1972 Constitution that gave Sri Lanka complete freedom and sovereignty. Without a doubt it is Republic Day, May 22, that should be celebrated as true Independence Day