Comprehensive view of constitution making

The first edition of this book was published in March 2007. Ten years have passed since the first edition was released. Sri Lanka has passed through many constitutional stages since the first edition was published. The final constitutional document awaited is the new Constitution of 2017. Between the first set of Instructions sent by the British Colonial Administration to the first Colonial Governor Fredrick North on May 25, 1798, and the last of the Instructions, sent to Governors in place of constitutional documents there were eleven Instructions. Thereafter, commencing from the Crewe-MacCallum Reforms of 1912, the Colony of Ceylon was governed by means of Instructions followed by Constitutional documents, by way of dispensations.

Commencing from the Crewe- MacCallum Reforms, there were six constitutions introduced for the governance of the Island. Of those six, Whitehall was responsible for drafting the first four Constitutions. And the last two –of the 1972 and of the 1978 Constitutions, were “home grown”. The responsibility for drafting them and promulgating them were undertaken by the same body; the two Sovereign Legislatures of Sri Lanka. These two last mentioned Constitutions may be characterized as autochtonous constitutions.

In 2000 an attempt was made to introduce a third autochtonous constitution. That attempt was rejected by Parliament and the attempt made under the Presidential watch of Chandrika Bandaranaike failed without serious discussion.

The next turn of the Constitutional wheel is currently unfolding. One of the central issues that is proposed to be amended in the new Constitution is the executive presidency. Centre periphery relations and revision of the fundamental rights chapter are also expected to be far reaching.

Together with the 19 Amendments, amending the 1978 Constitution, this work represents, a thumb-nail survey of the “Evolution of Constitutional Governance in Sri Lanka” from Governor North (1798) to President Sirisena (2015).

Governor North was an appointee of the East India Company, a trading company incorporated at the time in the UK. It was incorporated with a memorandum and articles very similar to the other sovereign trading companies, which were the vehicles used at the time, both, to advance and establish British colonial rule and to obtain the earnings from colonial investments back to the U.K. The British East Africa Company and the Hudson Bay Company which operated from Canada were two such Sovereign Trading Companies.

In the Instructions referred to above, dated 25th May 1798, the Board of Directors of the East India Company wrote:

“You are hereby strictly enjoined to make diligent enquiry and to examine such documents and communicate with such persons as may best enable you to transmit to us the information thereby required, and for the better ordering of your Report on this subject it will be proper that you should arrange the same under several heads following: (1) Legislature, (2) Executive Government, (3) Courts of Justice, (4) Different Orders of inhabitants in the said settlement, (5) Revenue, (6) Commerce, (7) Religions and Religious Establishments , (8) Military, (8) Estates of absentees and of Minors” . (Sri Lanka Archives – Log 5/1, File 1, Paragraph (5))

In a lengthy response to those questions raised in the first of the colonial Instructions, North paid particular attention to the issues concerning the Legislature and the Executive. North wrote of that aspect, in his response:

“The power which resided in the Dutch Governor and Council of Ceylon, subject to the Governor-General in Council at Batavia, is now, by his Majesty’s instructions to be exercised by me subject to the supreme government .----- The Executive power which resided in the same Governor and Council with the legislative, has in some manner been transferred to the Governor. The principal officers under him are: (1) The Commander of the forces ,(2) the principal Secretary (3) The AuditorGeneral, (4) The Commercial Resident,

(5) The Deputy- Secretary, (6) The Collector of Jaffna, (7) The Collector of Galle and of Matara, (8) The Collector of Batticoloa andMulativu”. ( Sri Lanka Archives- Log 5/1File (1), Paragraph 17).

The origins of constitutional governance in Sri Lanka, it may be considered, to have begun with the Colebrooke Reforms in 1833, under Governor Horton. Until those proposals were made and conveyed by way of a constitutional dispensation, to Governor Horton, the period of early Colonial Governance in Ceylon under North, Maitland, and Brownrigg were conducted under Instructions drafted in Whitehall under the hand of the Secretary of State for the Colonies and transmitted to the Colonial Governor in Ceylon.

One part of the Colebrooke –Cameron Report provided a system for the administration of Justice-that was the part of the Report drafted by Cameron. The other part of the same Report marked the commencement of a process for constitutional develop- ment which was ultimately to result in the grant of “Dominion Status” in 1948.

The author in his monograph, deals with this movement towards independence from the Colebrooke Reforms, through the CreweMcCallum Reforms of 1912, The Temporary Constitution of 1921, The Manning Reforms of 1924, The Donoughmore Reforms of 1921 and into the Soulbury Reforms of 1947, which provided the Constitutional basis for the grant of “Dominion Status” in 1948.

Separately, the author has dealt with the first and the second Republican Constitutions of 1972 and of 1978. In addition the author has provided a separate chapter on the 2000 Constitution which failed to pass its Parliamentary scrutiny.

In dealing with each of these constitutions the author has quoted from original sources, gathered from the National Archives of Sri Lanka and from the National Archives of the UK. He has also considered several memorials written and submitted by Ceylonese, political, social, religious and ethnic groups which had at that time been formed within the Country.

The author has woven into the fabric of his writing the conflicts that had arisen between the Ceylon National Congress and the All Ceylon Tamil Mahajana Sabbhai. He had dealt with the historical factors which had caused the several rifts among these groups, from original sources obtained from his archival research. The author additionally and extensively deals, in the relevant chapters, with the memorials presented by the Indian Association of Ceylon, The Malay Association of Ceylon and the Moor Community. These were principally targeted at the Manning and the Donoughmore Constitutions. The Tamil Congress headed by Mr. Ponnambalam dealt with what has now been referred to as the “50-50” plan for post Independent constitutional governance claimed by the Tamil Community. Those proposals were the principal proposals made, at that time, on behalf of the Tamil Community, and presented to the Soulbury Commissioners. The Author extensively deals with those proposals in the chapter written under the Soulbury dispensations.

As an important appendix to the chapter on the 1978 Constitution, the author deals with some of the important Amendments to the 1978 Constitution, such as Amendments 13, 17, 18 and 19. As an addendum to Amendment 13, the author has devoted a separate chapter to the “Role of the Provincial Governor under the 13th Amendment”. This chapter is very relevant to the issues that have recently arisen between the Provincial Governors and Chief Ministers of the various Provincial Councils.

Of the three amendments included by the author, amendment 13 deals with establishing Provincial Councils and their functions. Amendment 17 deals with the introduction of Constitutional Councils, the performance of which have been further strengthened in the 19th amendment. Amendment 18 deals with the repeal of Article 30(2) of the Constitution which read:

“No person who has been elected twice to the office of President shall be qualified thereafter to be elected to such office by the people.”

The author points out that its repeal gave the incumbent President at the time the right to seek the vote from the people for the third time. The Author analyses in detail the weakness in the Determination made by the Supreme Court of the constitutional validity of that repeal. Amendment 19 principally repealed the repealing provision of 30(2), contained in the 18th Amendment. That reestablished the integrity of Article 30(2). The Author has provided extensive footnotes to his writing amounting to nearly 1800, and found in a total number of pages amounting to nearly 900.

This work is the result of a long and laborious study of original documents found in the British national archives and the Sri Lanka national archives. It furthers and completes Lakshman Marasinghe’s earlier works and in particular the first edition of this work in 2007.

(The reviewer is Chair, Faculty of Law, University of Colombo, Former Dean and Head of Department, One Time Fellow of St. John’s College Cambridge, Balliol College Oxford and Clare Hall Cambridge,Inns of Court Fellow London and Life Member of Clare Hall Cambridge)