Sri Lanka’s constitutional changes: A journey through history

In recent times, much attention has been focused on the subject of constitutional changes in the media. During the last presidential election, which Gotabaya Rajapaksa won comfortably, he asked the people to give him a two-thirds majority to abolish the 19th Amendment of the Constitution and draft an entirely new Constitution replacing the 1978 Constitution of the late J. R. Jayewardene.

The people gave him this mandate. Since Independence, this country has had the benefit of three constitutions - - the Soulbury Constitutions, the Colvin Constitution of 1972 and the 1978 Constitution of JRJ now amended 20 times. It may be relevant and useful to retrace the different steps taken to have these three constitutions introduced to become the supreme law of the land. Such a review follows.

The Soulbury Constitution

Let us go back to 1945-46 when the United Kingdom won the Second World War. At the general elections that followed, the Labour Party won a majority and chose their leader, Clement Atlee, to head the new government. By then the UK Government was well aware of the numorous representations made by Sinhala nationalist leaders, starting with D. S. Senanayake, calling for Independence from the British. It was in this context that the UK Government appointed a commission headed by Lord Soulbury and consisting of Sir Fredrick Rees and F. G. Burrows to visit Ceylon to inquire into the Independence demand and report their views to London.

D. S. Senanayake and Governor Andrew Caldecott were in contact with the Colonial Office in London. They informed D. S. Senanayake that they had no draftsman available to undertake the work of drafting a constitution as it was soon after the war and they were still recovering. The Legal Secretary was of Ceylon at the time was D. B. Nihill who had been instructed by the Colonial Office to draft a new constitution and prepare a draft of the Order-in-Council.

Soon after D.S. Senanayake had asked for a team from the Legal Draftsmen to study and work on the documents already in circulations -the Board of Ministers’ draft prepared by Sir Ivor Jennings, the report of the Soulbury Commission and the White Paper embodying the decisions of the UK Government. There was also available correspondence between the Governor and the Secretary of State for the Colonies which had already been published as a Sessional Paper.

Soon after a Legal Draftsman Department team headed by P. C. Villavarayan, the Legal Draftsman. H.N.G. Fernando and B.P. Pieris as Assistant Secretaries were entrusted the task of preparing the two Orders- in- Council. This was approved by Nihill and Drayton and shown to D.S. Senanayake. The two Constitution Orders-in-Council approved by Her Majesty in Council became the law and was published in the Gazette soon after the House of Commons passed the Independence Act and the Soulbury Commission Report, as amended, became the Ceylon Constitution of 1948.

The 1972 Constitution

In May 1970, after the general election where Sirima Bandaranaike and her SLFP, together with their allies were elected to power, Ms. Bandaranaike assumed duties as Prime Minister – the world’s first woman to hold that office ahead of leaders like Golda Meir and Indira Gandhi who took office much later. Mrs. Bandaranaike formed a socialist government together with the LSSP and CP. Among the Minister in her Cabinet was Dr. N.M. Perera as Minister of Finance, Dr. Colvin R de Silva as Minister of Plantations and Constitutional Affairs, Leslie Goonenwardene as Minister of Communications and Pieter Keuneman as Minister of Housing and Construction.

Dr. Colvin R de Silva was given the task of framing a new constitution. He expressed his desire to have no connection with the Soulbury Constitution which he felt was foisted on us by the British and was going to frame an entirely new Constitution.

On July 11, 1970, the PM issued a communication convening the first session of the Constituent

Assembly. The resolution in the legislature read: “We the Members of the House of Representatives do truly resolve and constitute, declare and proclaim ourselves as the Constituent Assembly of the people of Sri Lanka for the purpose of adopting and establishing a Constitution ……to be a free and independent Sovereign Republic…… deriving its authority from the people of Sri Lanka and not from the power and authority created by the British Crown and the Parliament of the UK… for carrying out the said mandate under the presidency of Stanley Tilakaratne and to consider the proposals introduced by the Minister of Constitutional Affairs.

The Members of the House of Representatives under Speaker Stanley Tilakaratne decided to sit in the morning session as the House of Representatives and in the afternoon sit as members of the Constituent Assembly. Dr. Colvin R de Silva had persuaded Walter Jayawardene, an eminent Queens Counsel in the UK, to function as Secretary to the Constituent Assembly with Sam Wijesinha and myself as Assistant Secretaries. The committee met 47 times from 1970 to 1972 and the 1972 Constitution was established on May 22, 1972.

The 1978 Constitution

After J.R. Jayewardene’s victory at the 1977 general election where he received an unexpected five-sixth majority, he appointed a select committee of the House on June 22, 1978 with representation from the Government and the Opposition. The motion to establish this select committee was moved by R. Premadasa and the chairman of the select committee was J. R. Jayewardene. The committee held 15 meetings before its report was presented to Parliament and passed, making J.R. Jayewardene the first Executive Head of Government, a position held by the Prime Minister for a long period. Thus was established the Constitution of 1978.

A new constitution for Sri Lanka in 2021

In August this year, President Gotabaya Rajapaksa’s Government faced a parliamentary election which it won comfortably.

During the election campaign, he promised the repeal of the 19th Amendment and also promised to introduce a new constitution. The 20th Amendment was passed very recently.

It was later announced that the President had appointed a nine-member team of eminent lawyers headed by Romesh de Silva PC, to prepare and draft a new constitution to replace the 1978 Constitution in its entirety. This team of lawyers made a public announcement calling for representations and memorandums to be submitted to the committee, I believe by November 30.

These eminent lawyers would sift through the representations and memorandums received and prepare a draft report which is expected to be submitted to the President. The President is expected to submit the report and draft to the Speaker and the Speaker would submit this report and thereafter appoint a Select Committee comprising members from both the Government and the Opposition.

The Select Committee following the usual established procedure would invite representations from the public and would study all these memorandums and submit the report back to Parliament with their recommendation. It would deliberate at length, studying all the representation made and submit its final report to Parliament.

Thereafter a new Bill containing the new draft constitution would be gazetted and thereafter be taken up for debate in Parliament. After the gazetting, the public would be given the opportunity to petition the Supreme Court regarding any inconsistencies in the Bill. Thereafter the Bill, with the recommendation of the Supreme Court, will be placed before Parliament. If the Supreme Court determines that the Bill would require a two-thirds majority along with a referendum this should be followed. Finally the draft Constitution would be placed before Parliament for the first, second and third readings and thereafter certified by the Speaker to make it the law of the land.