federalidea.com

by Nihal Jayawickrama

[EDITORS NOTE: A lively debate was conducted recently in the columns of "the Sunday Island" on the role of Dr. Colvin R de Silva in making the Republican Cnstitution of 1972. Among the issues discussed were the promulgation of the Unitary state, the deletion of the Soulbury constitution's Section 29, constitutional enthronement of Sinhala as official language, elevated constitutional status of Buddhism, abolition of senate etc. It has been a source of sadness to many members of the Tamil community that the man who uttered the prophetic comment "one language two nations, two languages one nation" in 1956 should become the republican Constitution's architecht in 1972. It is however a moot point that the extent of the actual role played by Colvin in Constitution making is not fully known. We are also in the dark about the influence of Mr. Felix. R. Dias Bandaranaike in Constitution making though Colvin was the acknowledged father of the 1972 constitution.Now Dr. Nihal Jayawickrama who was Justice ministry seceretary during Mrs. Bandaranaike's United Front Government has provided further light on the making of that Constitution and Colvin's role in it. "The Federal Idea" publishes it here in full as Dr. Jayawickrama provides great insight into the intricacies of making or unmaking a Constitution. We also hope that revelations such as these would help posterity gain a balanced perspective of the Lanka Sama Samaaja Party and its stalwarts like Dr. Colvin R de Silva who played a constructive role in combatting majoritarian chauvinism and championing the cause of equality and justice.]

[Dr. Colvin R de Silva]

The recently concluded debate on Dr. Colvin R. de Silva between Carlo Fonseka and V. P. Vittachi (with occasional interventions from my schoolmate Gamini Seneviratne and former colleague R. M. B. Senanayake) brought to the fore once more the 1972 Constitution. It is common practice to attribute authorship of the country’s three constitutions to the three persons who are perceived to have occupied the pre-eminent position in the respective drafting processes: Lord Soulbury, Colvin R. de Silva and J. R. Jayewardene. Yet each constitution was a collective effort. For example, in 1946, the Ministers’ Scheme, which formed the core of the Constitution, was assembled by Sir Ivor Jennings. It was carefully crafted to include provisions that would not only guarantee its acceptance by the ethnic minorities in the State Council, but would also satisfy the British Government’s insistence that the Sinhalese majority should “prove their willingness and capacity to operate self-governing institutions in collaboration with the minorities, with due regard to their rights and susceptibilities”.

Unitary State

Similarly, the 1972 Constitution was the collective effort of a Cabinet that consisted of several seasoned politicians. There were many features of the Constitution for which Colvin (if I may) could be held responsible, but these need to be distinguished from those which were either inspired or influenced by others. For example, the first draft prepared under Colvin’s direction did not contain any reference to a “unitary state”. In Cabinet, one of the senior ministers insisted that a new section be added to the effect that “Sri Lanka is a unitary state”. Colvin did not consider this to be necessary, and argued that while the proposed constitution would have a unitary structure, unitary constitutions could vary a great deal in form. This impetuous, ill-considered, and superfluous embellishment has, for three decades thereafter, stultified every attempt at a peaceful resolution of the ethnic problem.

Buddhism

Nor did Colvin propose to introduce religion into the Constitution of this secular state, except to guarantee to every citizen the right to freedom of thought, conscience and religion. It was the Prime Minister who requested that reference be made to the protection of the institutions and traditional places of Buddhist worship. This request, as it went through the drafting processes and translations, assumed the form of a duty imposed on the state to give to Buddhism “the foremost place” as well as to “protect and foster” Buddhism. If Buddhism had survived in the hearts and minds of the people through nearly five centuries of foreign occupation, a constitutional edict was hardly necessary to protect it now.

Language

Inexplicably, Colvin did insist on providing constitutional status to the Official Language Act which he had strenuously opposed in 1956. However, he ignored the proposal made by Felix R. Dias Bandaranaike that Sinhala be declared the “one” official language of Sri Lanka. The Prime Minister argued, but to no avail, that it would not be wise to re-open the language debate, and that the better course would appear to be to let the ordinary laws on the subject operate in the form in which they were. The District Court of Colombo had held in 1967, in the Kodeswaram case, that the Official Language Act was in breach of section 29 of the 1946 Constitution and was therefore void. On appeal by the Crown, the Supreme Court had avoided the constitutional issue but set aside the judgment on the ground that Kodeswaram had no legal status to sue. In December 1969, the Privy Council ruled that a civil servant in Ceylon did have a right of action against the Crown for arrears of salary, but did not consider it proper to express an opinion on the constitutional question “without the assistance of the considered judgment of the Supreme Court”. In that state of play, Colvin apparently decided to put the issue beyond the jurisdiction of any court by providing constitutional status to the language law. “If the courts do declare this law invalid and unconstitutional, heavens alive”, he exclaimed in the Constituent Assembly. “The chief work done from 1956 onwards will be undone. You will have to restore the egg from the omelette into which it was beaten and cooked.”

Appeals to the Privy Council

Colvin was not responsible for abolishing the right of appeal to the Privy Council and establishing our own court of final appeal instead. That decision was taken in, and implemented by, the Ministry of Justice very early in the life of the United Front Government. Since Independence, several previous governments had considered this step but had done little or nothing to accomplish it. With the establishment of the republic, the right of appeal to the Queen would almost certainly have ceased. But I was strongly of the view that the restructuring of the judiciary was the responsibility of the Ministry of Justice rather than of the Constituent Assembly. I prepared the first draft of the Court of Appeal Bill in about January 1971. It was then finalized by the Legal Draftsman, Percy de Silva, at the CR & FC one afternoon during office hours since that was when and where the sharp mind of that expert draftsman was at its best. Colvin the lawyer (as distinct from Colvin the Marxist politician) did not share my sense of urgency to cut our links with the Privy Council. In fact, when I returned from a visit to London after discussing the modalities of the “separation” with the Judicial Committee, Colvin argued that it would be unjust to “repatriate” to the proposed new court of final appeal the matters which were pending before the Privy Council but had not yet been set down for hearing. The bill was passed in October 1971 and the court was established three months later.

Abolition of the Senate

Although Colvin was committed to a unicameral legislature in the new Republic, he was not responsible as such for abolishing the Senate in 1971. That happened due to the intransigence of the UNP majority in the Senate which was determined to reject an ill-advised constitutional amendment which had secured a two-thirds majority in the House of Representatives. The amendment was sought by the newly elected UF Government to ensure that one of its members – Nanda Ellawela – would not forfeit his seat owing to a criminal conviction. The amendment would have disqualified a person who had been sentenced to serve a term of three months imprisonment only if the offence involved “moral turpitude”. The Bill was conceived in haste and, as with most draft legislation prepared by politicians, was defective. But, as J. R. Jayewardene, the Leader of the Opposition in the lower House, appreciated, rejecting the first legislative measure of a strong newly elected Government was not the best signal that the Upper House should send. He tried, but failed, to persuade his colleagues in the Senate to abstain. The response of the Government was predictable. A bill to abolish the Senate was passed twice in the House and became law in January 1972.

Autochthony

I doubt very much that Colvin favoured the introduction of these two legislative measures which, in effect, pre-empted what the Constituent Assembly was seeking to achieve. The fact that it was legally possible for Parliament, which consisted of the Queen, the Senate and the House of Representatives, to abolish not only the Queen’s right to entertain appeals from her subjects, but also one of its constituent units – the Senate – eroded the legal argument for a Constituent Assembly. What remained was the emotional claim that freedom should be asserted by a free people through a body constituted outside the established legal order. That was a principled stand by one of the twentieth century’s greatest lawyers who had consistently refused to apply for “silk”, since he had no wish to be one of “Her Majesty’s counsel learned in the law”. This exercise in autochthony – in establishing a new legal order that sprang from our native soil – was also an exciting experience not only for those who steered it through possible legal pitfalls, but also for a great many constitutional lawyers and academics worldwide for whom this legal revolution was a rare precedent.

An evaluation

Thirty five years after the event, it is possible to evaluate the 1972 Constitution with reasonable objectivity. If the purpose of a constitution is to provide an enduring legal framework for good governance, the 1972 Constitution failed the test. It failed for two reasons.

Ideological basis

The first error was the infusion of an ideological basis into the constitution. What would underpin the entire constitutional structure would be the concept of the National State Assembly as the “supreme instrument of state power”, a phrase then in vogue (but not any longer) in the constitutions of the communist states of Eastern Europe. Compliance with that concept would require every other institution of government to yield to the supremacy of the elected legislature from which all power would flow. If the 1971 insurgency had not intervened, even the decision to declare a state of emergency would have been vested in the legislature. It would require the abandonment of the separation of powers doctrine, the prohibition of the judicial review of legislation, the abolition of the presidential assent in the law-making process, and the vesting of the powers of appointment, transfer, dismissal and disciplinary control of public and judicial officers in the cabinet of ministers. When one word pregnant with meaning was deleted from the relevant provision in the constitution, a permanent secretary to a ministry who was subject only to “general directions” from the minister in the performance of his duties, was transformed into a secretary to a ministry who was henceforth subject to “directions” from the minister. “General directions” were those of policy only; “directions” on the other hand could be case specific if the minister was so inclined.

The minister, and through him numerous members of parliament and constituents whom he wished to humour or accommodate, now became directly involved in the administration and decision-making processes of government departments.

The Prime Minister expressed her aversion to this constitutional scheme. She reminded her Minister of Constitutional Affairs by letter that it would be wrong to assume that a political revolution had taken place in the country. The social revolution set in motion in 1956 had been carried further within the existing political framework, and significant progress had been achieved in terms of social and economic transformation within that framework without the judiciary ever standing in the way of progressive legislation. She saw no real need to make such drastic and radical changes to the existing constitutional structure. She favoured a division of powers with a built-in system of checks and balances. She wished to retain the judicial review of legislation; sought an enforceable statement of fundamental rights; and saw no need for a separate constitutional court. But in her second term in office, Mrs. Bandaranaike generally governed by consensus, and on all these issues the dominant personality of the doctrinaire politician she had chosen to be her minister of constitutional affairs apparently prevailed.

Erosion of the constitutional settlement

The second error was to have even more serious consequences. It had been on the basis of a constitutional settlement between the different communities of this country, reflected in the 1946 Constitution and in a resolution of the State Council, that Independence was granted in 1948. There is evidence to indicate that in the absence of constitutional provisions for the protection of minority rights, the British Government would not have agreed to the grant of independence to Ceylon. This means that the condition upon which the Tamils and other minorities agreed to subject themselves to majority rule in an independent Ceylon was the continued existence of these constitutional safeguards. They were (a) a second chamber; (b) an independent public service commission; (c) multi-member constituencies; (d) nominated members of the legislature; (e) a prohibition on Parliament from enacting legislation either to confer a privilege or to impose a disability on persons of any particular community or religion; and (f) Sinhala and Tamil enjoying parity of status. By 1972, all these safeguards had been repealed, and the constitutional settlement had eroded. The subsequent events, both tragic and destructive, are now a matter of history.

I was privileged to know Dr. Colvin R. de Silva from a very early stage of my life. His family and my mother’s were virtual neighbours in the southern coastal towns of Ambalangoda and Balapitiya. I worked as a junior in his chambers (which contained no law reports!), and was humbled by the remarkable mind that could argue both criminal and civil cases with equal felicity and success. On the Prime Minister’s suggestion, I had occasion to seek his active intervention in Cabinet to save the writ of habeas corpus when the Minister of Justice was attempting to replace it with a remedy of his own creation. But I sincerely believe that he should, and could, have led our country into a free, sovereign and independent republic while keeping intact the essential features of the very practical and functional 1946 Constitution that had served the land and its people well for a quarter of a century. But that would have required Colvin the Lawyer and Colvin the Humanist to completely subjugate and overcome Colvin the Marxist politician!