30 June, 2022

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1972: A Majoritarian Constitution

By Jayampathy Wickramaratne –

Dr Jayampathy Wickramaratne PC

In this Part II of the three-part article on the fiftieth anniversary of Sri Lanka becoming a republic, the writer submits that the 1972 Constitution paved the way for constitutionalising majoritarianism in multi-cultural Sri Lanka.

The unitary state

Although Tamil parties expressed their support for the Constituent Assembly process, they were to be disappointed by the substance of the new constitution.

Basic Resolution No. 2 proposed by the Government called for Sri Lanka to be a unitary state. The Federal Party (FP) proposed an amendment that ‘unitary’ be replaced by ‘federal’.

In a memorandum and the model constitution that it submitted to the Steering Committee of the Assembly, the FP proposed that the country be a federal republic consisting of five states made up as follows: (i) Southern and Western provinces, (ii) North Central and North Western provinces (iii) Central, Uva and Sabaragamuwa provinces (iv) Northern Province and the districts of Trincomalee and Batticaloa and (v) Ampara district. The city of Colombo and its suburbs were to be administered by the centre. A list of subjects and functions reserved for the centre, with all others going to the states, was included. Interestingly, law and order and Police were to be reserved subjects.

However, Assembly proceedings show that the Tamils were clearly for a compromise. Dharmalingam, who was a main speaker of the FP under Basic Resolution No. 2, stated that the existing constitution had failed as it was not designed for a multi-ethnic country. He pointed out that in ethnically heterogeneous countries where unitary constitutions had been in operation, concessions to the federal principle have been made to meet the demands and aspirations of the minorities. Where there has been a refusal to concede the federal principle, there have been movements for separation. The FP distanced itself from secessionists such as C. Sunderalingam and V. Navaratnam, referring to them by name, and stated that it was not asking for a division of the country but for a division of power.

Dharmalingam made it clear that the FP’s draft was only a basis for discussion. Stating that the party was only asking that the federal principle be accepted, he suggested that as an interim measure, the SLFP, LSSP and CP should implement what they had promised in the election manifesto, namely that they would abolish Kachcheris and replace them with elected bodies. He stated: “If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralising the administration, not in the manner it is being done now, but genuine decentralisation, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.”

Sarath Muttetuwegama of the Communist Party, the first political party in the country to propose federalism, in 1944, followed Dharmalingam and stated that ‘federal’ had become a dirty word not because of the federal system of government but because of what the FP had advocated. He was clearly referring to the FP’s association with the UNP and the conservative policies it had followed, such as voting against nationalisations, the takeover of private schools and the Paddy Lands Bill. Seemingly oblivious to the offer that Dharmalingam had made, he asked why the FP had not used the phrase ‘regional autonomy.’ Speakers from the UF who followed Muttetuwegama made it clear that the UF was in no mood to consider the FP’s offer to settle for much less.

Consequently, Basic Resolution No.2 was passed, and the FP’s amendment was defeated in the Steering and Subjects Committee on 27 March 1971.

Dr Nihal Jayawickrama, who was the Secretary of the Ministry of Justice under the UF Government and who played an important role in the constitutional reform process, has said that the first draft prepared under the direction of the Minister of Constitutional Affairs did not contain any reference to a ‘unitary state’. However, Minister Felix Dias Bandaranaike proposed in the Ministerial Sub-Committee that the country be declared a ‘unitary state’. The Minister of Constitutional Affairs 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. Nevertheless, the proposed phrase found its way to the final draft. ‘In course of time, this impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogenous Sinhalese state on this island’ Dr Jayawickrama observed. ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice vol 1 (Centre for Policy Alternatives 2012) 43.

It is significant that the FP continued to participate in the Constituent Assembly even after its amendment was rejected. Records show that its leader, S.J.V. Chelvanayakam, regularly attended the meetings of the Steering and Subjects Committee.

With the advantage of hindsight, it could be said that acceptance of the FP’s proposed compromise for a division of power would have proved to be a far-reaching confidence-building measure on which more could perhaps have been built later. Moreover, such an acceptance would have ensured the continued participation of the FP in the Constituent Assembly. Even had the FP, as the UNP eventually did, voted against the adoption of the new constitution, their participation in the entire constitution-making process would have resulted in greater acceptance of the 1972 Constitution by the Tamil people.

Although they discontinued participation at a later stage, Federal Party MPs nevertheless took oaths under the new Constitution. Tamil parties soon united under the banner of the Tamil United Front (TUF), which later became the Tamil United Liberation Front (TULF). At the famous Vaddukoddai conference of 1976, the TULF embraced separatism and adopted a resolution calling for a separate state called ‘Tamil Eelam’ in the Northern and Eastern provinces. At the 1977 elections, the TULF contested on a separatist platform and swept the Tamil areas.

The place of Buddhism

According to Dr Jayawickrama, Dr. de Silva’s original proposal called for the guarantee of freedom of thought, conscience and religion to every citizen. However, the Prime Minister requested that this proposal be added with a provision for the protection of institutions and traditional places of worship of Buddhists.

Basic Resolution No. 3 approved by the Constituent Assembly was for Buddhism to be given its ‘rightful place’: ‘In the Republic of Sri Lanka, Buddhism, the religion of the majority of the people, shall be given its rightful place, and accordingly, it shall be the duty of the State to protect and foster Buddhism, while assuring to all religions the rights granted by Basic Resolution 5 (iv).’

Basic Resolution 5 (iv) referred to read: “Every citizen shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have and adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

But by the time the final draft was approved, the proposal had undergone a further change. Article 6 of the 1972 Constitution is as follows: ‘The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18 (1) (d).’ Section 18 (1) (d), in the chapter on fundamental rights, assures to all citizens the right to freedom of thought, conscience and religion.

To the question of whether constitutionally guaranteeing special status to Buddhism not available to other religions of the land might adversely affect the non-Buddhists, Dr de Silva retrospectively responded in the following manner: “The section in respect of Buddhism is subject to section 18 (1) (d) and I wish to say, I believe in a secular state. But you know when Constitutions are made by Constituent Assemblies they are not made by the Minister of Constitutional Affairs. I myself would have preferred (section 18(1) (d)). But there is nothing…And I repeat, NOTHING, in section 6 which in any manner infringes upon the rights of any religion in this country. (Safeguards for the Minorities in the 1972 Constitution (Young Socialist 1987) 10.)

Dr Jayawickrama has been more critical. ‘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’, he opined. (‘Colvin and Constitution-Making – A Postscript’ Sunday Island, 15 July 2007).

Language provisions

Basic Resolution No.11 stated that all laws shall be enacted in Sinhala and that there shall be a Tamil translation of every law so enacted.

Basic Resolution No.12 read as follows: “(1) The Official Language of Sri Lanka shall be Sinhala as provided by the Official Language Act No. 32 of 1956.   (2)   The use of the Tamil Language shall be in accordance with the Tamil Language (Special Provisions) Act No. 28 of 1958.”

Efforts by the FP to get the Government to improve upon Basic Resolutions Nos. 11 and 12 failed. On 28 June 1971, both resolutions were passed, amendments proposed by the FP having been defeated. S.J.V. Chelvanayakam informed the Constituent Assembly that they had met with both the Prime Minister and the Minister of Constitutional Affairs, and while the meetings had been cordial, the Government had refused to make any alteration to the Basic Resolutions. He stated that the FP would therefore not attend future meetings. “We have come to the painful conclusion that as our language rights are not satisfactorily provided in the proposed Constitution, no useful purpose will be served in our continuing in the deliberations of this Assembly. By taking this step, we mean no offence to anybody. We only want to safeguard the dignity of our people.” There was not even a dramatic walk out. ‘We do not wish to stage a demonstration by walking out’, he added.

That Dr Colvin R. de Silva, who prophetically stated in 1955, ‘one language, two countries; two languages, one country’, should go so far as to upgrade the then-existing language provisions to constitutional status has baffled many political observers. In fact, according to Dr Jayawickrama, the Prime Minister had stated that it would be unwise to re-open the language debate and that the better course would be to let the ordinary laws on the subject operate in the form in which they were. By this time, the Privy Council had reversed the decision of the Supreme Court in A.G. v Kodeswaranthat a public servant could not sue the Crown for breach of contract of employment and sent the case back for a determination on other issues, including the main issue as to whether the Official Language Act violated section 29 (2), as the District Court had held. Dr. de Silva did not wish the Supreme Court to re-visit the issue. ‘If the courts do declare this law invalid and unconstitutional, heavens alive, 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.’ He had, however, resisted a proposal made by Minister Felix R. Dias Bandaranaike that Sinhala be declared the ‘one’ official language of Sri Lanka.

Related posts:

Fifty Years As A Republic: The Making Of The 1972 Constitution

 

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Latest comments

  • 4
    2

    Thank you Dr. Jayampathy Wickramaratne for placing the record in its factual perspective.
    I had often thought, our National Question should have been resolved when FP LEADER S.J.V.CHELVANAYAGAM WAS AROUND……
    Instead, it was allowed to drift into a full-scale Armed revolt lasting several decades.
    At the end of the day generations of Sinhala and Tamil youth ended up by viewing each other with hostility……..

    Dr.Nihal Jayawicrama had made a profound observation….
    …………..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…………..!

    With this Constitutional edict Buddhist Monks have made inroads into the political life of the citizenry.

    A very interesting observation by the essayist is why the FP preferred Law and Order to remain in the Centre?!

    • 3
      5

      Plato,
      “…our National Question…”
      —-
      Who are the people included in ‘OUR’ and what is the ‘NATIONAL QUESTION’ of those people you refer to as ‘OUR’?

      • 4
        1

        EE,
        .
        All that are forced to think like you.
        .
        You EE belong to psychiartic wards, that would never see it right for a common solution.
        And so long your eyes and ears are toally sealed off by incessant cruelties, you guys would not have chance to see it in big picture. Not just Johnsten, Aluthgamage, Rohith palhora, not forgetting Mahinda Musalaya, you the ilk should take the responsiblitiy to have driven this nation to this precipice levels.
        :
        The day, we could say ” anichchawatha sankara අනිච්චාවත සංකාරා.to you the kind of demencia patients”, this country would emerge as a REAL NICE PARADICE where rule of law and order be on their top of the agenda.
        :’
        As British govt works without a written CONSTITUTION, our ARAGALAYA youth comprising of SRILANKEN YOUTH, function smoothly setting examples to you and the like criminals and crime supporters in our population.
        .

    • 4
      5

      Plato,
      “…our National Question should have been resolved when FP LEADER S.J.V.CHELVANAYAGAM WAS AROUND”
      —-
      Chelvanayagam’s ‘National Question’ was maintaining Vellala supremacy. Did they do anything to give equal status to ‘Panchamars’ in Yapanaya’? It was Sinhala Government that passed Prevention Of Social Disabilities Act (No. 21 of 1957) allowing low caste Tamils in Yapanaya to attend schools for the first time. Despite this Act, still discrimination and oppression of ‘Panchamars’ take place in Yapanaya. International and local champions of human rights turn a blind eye to the pathetic situation faced by low caste Tamils in Yapanaya.

    • 2
      1

      Best Constitutional proposals would beone draft similar to that of Germany/Switzerland and introduce federal rule to the country.

      https://www.bmi.bund.de/EN/topics/constitution/constitutional-issues/constitutional-issues.html#:~:text=The%20current%20version%20of%20the,the%20Federal%20Republic%20of%20Germany.&text=The%20Basic%20Law%20was%20adopted,the%20state%20until%20German%20reunification.

      We should all create an environment where law and order be put above. That should be valid also to SINHALA MONKS that abuse their place being given in the society.
      .
      In such a constitution, president s role would restrict to that of our pre-JRJ era, only focusing on ceremonial role. Regional govts will have to take good care of their own administration as is the case in Germany s NRW and Bavaria set their own govts by their own. Just few ministries of crucial nature will work under central govt. That is it. All proved that functions to its best.

      what have our srilankens missions in germany been doing ? Why cant they seek the assitance of the expertise in Germany and Switzerland ?

      I know PEOPLE due to lack of proper information woudl repeatedly deny federal solutions, but those who stand on our way, should come with the alternative propsals.

      • 1
        3

        leelagemalli
        “Best Constitutional proposals would beone draft similar to that of Germany/Switzerland and introduce federal rule to the country.”

        What Germans and Swiss do is their business. Sinhale, the Land of Sinhalayo and Vedda Eththo has been a ‘Unitary State’ and a Buddhist country for thousands of years and it will remain like that. If the descendants of people who came from foreign countries (Para) and settled down in Sinhale have a problem with that, they are free to return to their ancestral homelands without creating problems to indigenous Sinhalayo.

  • 5
    3

    ‘In course of time, this impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogenous Sinhalese state on this island’, Dr Jayawickrama observed.
    How prophetic. I am proud that I am an admirer of Dr Jayawickrama

  • 5
    7

    “…existing constitution had failed as it was not designed for a multi-ethnic country.”
    —-
    Before Europeans colonized Sinhale, this country was predominantly a Sinhala Buddhist country and it had remained like that for thousands of years. The ethnic composition of the country changed because colonial rulers brought millions of foreigners to exploit the resources in Sinhale and at the end left them and ran away.
    In 1815, indigenous Sinhalayo handed over their country to British and in 1948 British returned the country to Sinhalayo but with a changed ethnic composition. Those changes occurred mainly during colonial rule. During colonial rule, indigenous Sinhalayo were oppressed, discriminated and were treated as second class citizens. Whenever Sinhalayo rose against colonial rule, they were massacred in a brutal way with the help from non-Sinhala people. Therefore, after Sinhalayo gained independence they had every right to govern their country in such a way that their aspirations are fulfilled as a sovereign nation. Descendants of foreigners who settled down in Sinhale had no right to dictate how Sinhalayo should govern their country. If they were not happy with the way Sinhalayo ruled their country, they were free to return to their ancestral homelands. Sinhalayo have no other place in this world other than this tiny island where they evolved and developed from scratch.

    • 4
      2

      Eagle Eye,
      You vomit so much that I am worried about your health!
      … In 1815, indigenous Sinhalayo handed over their country to British.
      Ungrateful British. They never thank ed the Sinhalayo for your gesture, did they?
      … Sinhalayo have no other place in this world other than this tiny island where they evolved.
      Are you rewriting Mahavansa?
      Don’t worry. Even G. C. Mendis was skeptical about portions of the text.

  • 4
    3

    This clearly indicates how chronic our Silly Lankan constipation is ??? By the way the A. Hole appointed by Sir. Fail, in charge of “one family, one country , one law”, reportedly fled the country. He was last sighted in the duty free section , busy buying single malt , for the road.

    • 3
      1

      Chive,
      .
      Not just SINHALA leaders, but it is the same with others too. Look at Douglas Dewananda and ALi Sabry.
      :
      Had Ali Sabry done his job as a lawyer sworn before the courts, would GOTA ever be able to become the president of this MERCOWS dominated srilanka ?
      .
      In protest marches heading to Jaffna by Young former female MP Hirunika Premachandra, a guy by name ARUN SIDDHARTHAN was hired by pro Rajapakshe goons to attack her. Remember ?
      .
      Not long ago, until recent times, how many muslims became easy supporters to any criminal leaders in this country ?
      .
      Burgher community has not done it because they realized it long ago – and most of them migrated to western world.
      :
      Today, I see something in that former millitary doctor Pathum Kerner ( coming from a burger community) is arising with WHOLE LOT OF MODEST THOUGHTS AND MINDS for a better future.
      .
      But not sure, our RACIALLY rotten average mind set would ever abe able to see right about his unbiased thoughts. If young leaders could give saline to formerly known ” the poorest nation of the world – Ethiopia” why cant our people finally get together for a better future ?

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