Sri Lanka: Constitutional Odyssey
The reality of independence and the imperfections of the Republic
( February 11, 2018, Colombo, Sri Lanka Guardian) As this weekly and others reach the reading public today the main results of yesterday’s elections would have already made the news. The political universe will be awash in autopsies and the cadaver feast will continue long enough for some carving next Sunday with my little scalpels. For today, as voting goes on at the time of writing, I will share with the reader more of what I started last week about our dead and reborn constitutions after independence. Talking about independence, there have been criticisms of the TNA’s decision not to participate in the February 4 Independence Day celebrations last Sunday. The TNA is not the only one who took exception to celebrating Independence Day. There have been other suggestions – that the country should disregard February 4 altogether and start celebrating May 22 again as the only and the real Republican Independence day.
May 22, 1972, as we know, was the day Sri Lanka severed its ties to the British monarchy and became a Republic, adopting the First Republican Constitution. But before anyone gets excited, switching from February 4 to May 22 cannot be done easily. Any such change will require the people’s approval in a referendum. JR Jayewardene made sure of that by including February 4 in the Ninth Schedule to the Second Republican (and the current) Constitution. Any change to anything in the Ninth Schedule will require both a two-thirds majority in Parliament and a referendum approval. This was JRJ’s constitutional tit for tat.
The United Front Government after 1972 removed February 4 from the political calendar and made May 22 the day of national political celebration. The change was quite small minded and unnecessary. It was wholly inconsistent with the inclusive sentiments that Dr. NM Perera eloquently expressed at the inauguration of the Constituent Assembly in 1970 – recognizing all the contributions made by all national leaders including DS Senanayake to the freeing of the country from colonial rule. For that NM drew flak from those to the Left of him, mostly Maoists. In any event, the change from February 4 to May 22 did not last long, and lasted only six years. Within six years, an obviously annoyed JRJ took his chance when the pendulum wildly swung his way and not only restored February 4 as Independence Day, but also gave it the constitutional guarantee with the highest protection possible. And tit for tat, rather than keeping May 22 as Republic Day, JRJ demoted it to a vacuous National Heroes Day with no constitutional protection.
This again was unnecessary and unfortunate, but not unexplainable given Sri Lanka’s implacably adversarial political system. The best thing would have been to recognize both days as national holidays. That is what India has been doing without hiccups: August 15 is India’s Independence Day (since 1947, when India became independent), and January 26 its Republic Day (since 1950, when India adopted its Republican Constitution). May be that would be a good example to follow in the future, even if it happens to be from India. More pertinently, the spat between February 4 and May 22 is indicative of not only competing loyalties at the popular (party) level, but also of the tensions between the independence constitution and the two republican constitutions.
Last week, I broadly touched on the areas and constituencies of constitutional disagreements since independence, and how they eventuated into two contrasting constitutions within a span of six years. The main disagreement was whether the Soulbury Constitution was amendable or un-amendable. The dominant interpretation was that there were un-amendable provisions, and that led to the constitutional revolution of 1972. I concluded somewhat abruptly with reference to Asanga Welikala’s critique of that interpretation. Today, I will use the opportunity of a ‘rest day’ after the local elections to elaborate on Welikala’s critique and its ramifications not only for understanding our post-independence constitutional politics, but also for appreciating what needs to be done to make the Republic a lot less imperfect and little more perfect.
Liberal critique of the First Republic
Welikala’s critique is part of what might be called the liberal critique of the First Republican (1972) Constitution, which coalesced around a number of scholarly papers that were written in 2012 to mark the 40th anniversary of the First Republican Constitution. Incidentally, this year, 2018, marks the 40th anniversary of the Second Republican Constitution, and for sure there will be another set of scholarly papers analysing and critiquing our political life experience in the Second Republic. For now, let us stay with the critique of the First Republic. In my understanding there are five aspects to that critique, and which I consider germane to my theme today.
First, the interpretation that Section 29 of the Soulbury Constitution was un-amendable, and which was the principal motivation for the 1972 Constitutional revolution, was erroneous. Second, although the interpretation was forcefully articulated by Dr. Colvin R de Silva, he was not the only one making it. It was shared in the legal academia and it was also consistent with prevailing judicial opinion. Third, the interpretation was consistent with the Left (LSSP) critique of the terms of independence and its (Soulbury) Constitution. The legal debate in the wake of the 1964 Privy Council obiter (in the Bribery Commissioner v. Ranasinghe appeal) provided the LSSP with the ideal context to turn the legal debate into a political question and an electoral mandate for the United Front. Fourth, the interpretation also fed the majoritarian nationalistic intentions for the appropriation of the state and its constitution. And fifth, the fusion of all these forces and currents and their consummation pushed Sri Lanka onto the slippery slope of illiberal constitutionalism and led to the abandonment of even the constitutional pretence of safeguarding minority rights.
Welikala’s argument that the politically consequential interpretation was erroneous seems well founded, in my understanding, on his holistic reading of Jennings and what Jennings meant to do through the provision of Section 29 for safeguarding minority rights without recourse to a formal bill of rights in the constitution. Rather than the details of Welikala’s reasoning, what is more crucial from my standpoint is his acknowledgment that judicial opinion in Sri Lanka was almost unanimous in conceding to the Sri Lankan parliament only limited legislative sovereignty in terms of its constitution and in contrast to the British parliament. The judicial opinion in Sri Lanka was endorsed from time to time by the Privy Council. That these opinions were wrong is immaterial, because ultimately what would have mattered is what the courts here and the Privy Council in London would have held. And this is what Dr. Colvin R de Silva stressed when he insisted on the futility of amending the Soulbury Constitution within its procedural framework. Even before the Privy Council, the courts here, as Dr. de Silva scorned, would dismiss the removal of Section 29 through a constitutional amendment as unconstitutional.
So at the least there was a practical case, even if not a correctly interpreted legal case, for the constitutional revolution that the United Front government and Colvin R de Silva launched to end Sri Lanka’s Dominion Status and turn it into a Republic. It needs to be also said that turning Sri Lanka into a republic was a historic achievement which could not have been accomplished without the agency of a person of the calibre and stature of Dr. Colvin R de Silva. We can say this and acknowledge at the same time that the constitution he created was far from perfect and that it became the launching pad for even worse imperfections to follow. What I will also argue is that the ‘revolutionary process’ through which the First Republic was created was not inherently vulnerable to becoming the vehicle for illiberal constitutionalism and the abdication of the constitutional responsibility to safeguard minority rights. Perhaps, the 40th anniversary of the Second Republic will provide a new window for viewing the relative contributions to illiberalism of our last two constitutions.
Minority Rights
I would briefly discuss here the implications for minority rights as they pertain to the purposes of the current constitutional reform process. The fact of the matter is that even before the republican conversion, minority rights have been dealt a double blow by the legislature and the courts under the Soulbury Constitution. On the one hand, for all the criticisms that the national parliament was hamstrung by Section 29 of the Soulbury Constitution, there was nothing that really stopped the self-same national parliament from discriminating between its citizens – whether it was in regard to deciding on the citizenship status of its people, or in regard to their language rights. On the other hand, the courts including the Privy Council, while asserting the limited legislative sovereignty of parliament, never really pushed back on parliament for its discriminatory citizenship and language laws.
Given this background and in the heightened partisan atmosphere of the early 1970s, it would have been really utopian to expect Dr. Colvin R de Silva to manufacture a constitution that would have rescinded the body of citizenship and language laws, regulations and practices that had emerged over a period of twenty years, and one that would have enshrined in the constitution the LSSP’s old parity-of-status principle on language rights. Apart from the reality of majoritarian nationalistic intentions there was also the antipathy towards Tamil political leadership that had spurned the SLFP-LSSP coalition government of 1964 and provided support to the UNP-led National Government in 1965. The UNP-FP co-operation also provided the pretext for the argument that the Tamil political leadership had come to terms with Sinhala being the country’s only official language.
All of this is not offered up as justification for rendering Tamil as a virtual non-status language in the constitution, but only to show the circumstances that gave rise to it and to suggest none of them are really irreversible. Perhaps, there was another consideration that may have been paramount for the lack of constitutional status for the Tamil language in the First Republic. And that, in my view, was the opposition of Colvin R. de Silva and the SLFP lawyers to the principle and practice of the judicial review of legislation. The debate over judicial review of legislation in the making of the First Republic needs a separate article for elaboration.
Suffice it to say here, the constitutional status of Tamil language was caught between the United Front government’s opposition to judicial review of legislation, and the pending Supreme Court hearing on the celebrated Kodeswaran case in which a Tamil public servant was challenging the validity of the Official Language legislation and its implementation. There is no doubt that the that non-status of Tamil language in the First Republican constitution was intended to deny any ground for the Kodewaran case to continue in the courts. While acknowledging that this approach is indefensible, there is also the need to acknowledge that it would have been counterproductive to disallow judicial review of legislation, on the one hand, and to allow the Kedswaran case to continue on the other.
What was tragic was that in the absence of explanations of the technical difficulties involved, political space was created to be dominated by deep feelings of Tamil grievances. That technical difficulties and political challenges are not insurmountable has been quite successfully established by the passage of the Thirteenth Amendment. At the same time, the poor record in the implementation of 13A should be enough to illustrate the institutional challenges and administrative difficulties facing any constitutional overhaul or limited amendments. While constitutional reform is necessary to make the Republic of Sri Lanka less imperfect and more perfect, nothing can be accomplished without the capacity to implement whatever reform measures that are enacted and adopted by parliament.
