A Constitutional Dream
By Nihal Jayawickrama –November 8, 2015
Dr. Nihal Jayawickrama
A few days ago, a member of the government parliamentary group announced that the government will shortly begin drafting a new constitution. He also spoke about Parliament being transformed into a constituent assembly. He spoke of a referendum. Perhaps the time is opportune to identify which features of the present constitution should not be repeated, and what new features ought to be included, in the new constitution.
A national consensus
A national constitution is a document that crystallizes a “consensus” among the citizens as to the nature and character of their State and the manner of its governance. That is not a historical fact, because citizens do not actually sit and arrive at a consensus on what their constitution should be. But it is a legal fiction that gives the constitution legitimacy. It raises the issue as to how and through what mechanisms such a consensus may be arrived at. Whatever the mechanism, constitution-making is not the prerogative of the government. To entrust that task to a government is, as Senator 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. The truth of his observation is evident if one reflects on the processes through which the three recent constitutions of this country were drafted and adopted.
The drafting processes
The 1946 Constitution was based on a constitutional scheme submitted to the British Government by the Board of Ministers of the State Council. It was prepared by Sir Ivor Jennings without any public participation. The only constraint was that it should be acceptable to three-quarters of the 58-member State Council in which 19 members belonged to minority communities. It was in many respects a replication of the Westminster system of government. It simply created the principal institutions and defined their separate powers and functions. It also contained certain safeguards for the minority communities. But the Royal Commission that was appointed to examine the scheme spent three months in the country travelling through the provinces, meeting various interest groups, recording evidence at public sessions, and gathering information at private discussions. Its recommendations were accepted by the State Council by 51 votes to 3. A young assistant legal draftsman, sitting with a typewriter at his home in the small town of Panadura, gave legal shape and form to these proposals which, when incorporated in an Order-in-Council, became known as the 1946 Constitution of Ceylon.
