By Ruwan Laknath Jayakody and Faizer Shaheid –

The Second Republican Constitution of the Democratic Socialist Republic of Sri Lanka promulgated in 1978 has since had 19 Amendments made to it. As part of the ongoing constitutional reforms process, the Steering Committee of the Constitutional Assembly has prepared a Draft Interim Report covering matters pertaining to the nature of the State, sovereignty, religion, principles in relation to the devolution of power and land, the Central Government legislating on subjects coming under the Provincial List, capital territory, the second chamber, the electoral system, the Executive, the Constitutional Council, and law and order. Below is a critical analysis of and counter-narrative to the proposals to Chapter I and II of the Constitution contained in the Draft Interim Report of the Steering Committee of the Constitutional Assembly. 

Chapter I: The People, The State and Sovereignty

Articles 1 and 2

Article 1 of the Constitution defines the Sri Lankan State as being a Free, Sovereign, Independent and Democratic Socialist Republic, while Article 2 deals with its nature, in this case, being one of a unitary character.

The Committee has put forward three alternate formulations for the said Articles. These include – 1) Sri Lanka (Ceylon) is one free, sovereign, independent, undivided and indivisible Republic consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution, 2) Sri Lanka (Ceylon) is one free, sovereign, independent, undivided and indivisible Republic and 3) Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is ‘undivided and indivisible’/‘an aekiya rajyaya/orumiththa nadu’.

Submitting papers in this regard, MP Dinesh Gunawardena and the Jathika Hela Urumaya (JHU) have called for the retention of the present Articles as is, while an alliance composed of the Sri Lanka Muslim Congress (SLMC), the Tamil Progressive Alliance (TPA), the All Ceylon Makkal Congress (ACMC) and the Eelam People’s Democratic Party (EPDP) have proposed the following – “Sri Lanka shall be known as ‘United Republic of Sri Lanka’. It shall be ‘Sri Lanka Ekshath Janarajaya’ in Sinhala language and ‘Aikkiya Illangai Kudiyarasau’ in Tamil language.” In the JHU’s view, a unitary State was the best model to protect the interests of the minorities.

Further the following has been suggested for consideration to be included within Chapter I. One is that “The Constitution is the supreme law of Sri Lanka.” and the second is that “Any amendment or repeal and replacement of the Constitution shall only be made by the Parliament and the people, in the manner provided for in the Constitution.” Gunawardena has objected to the latter.

The authors propose an amalgam of the wordings in Articles 1 and 2 to be expanded as follows: “Sri Lanka (Ceylon) is one Free, Sovereign, Independent, Unitary, Undivided and Indivisible, Democratic, Socialist, Republic consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution.” The authors also call for the inclusion of the two additions that have been suggested.

Article 3

On the question of the Sovereignty of the People, Article 3 currently reads, “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”

The Committee with the exception of Gunawardena has proposed that it should be “In Sri Lanka sovereignty is in the People and is inalienable, and includes the powers of government, fundamental rights and the franchise.”

The authors concur with Gunawardena.

Article 4

Concerning the Exercise of Sovereignty, Article 4 holds that “The Sovereignty of the People shall be exercised and enjoyed in the following manner:– (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum ; (b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People ; (c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law ; (d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided ; and (e) the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament and at every Referendum by every citizen who has attained the age of eighteen years and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.”

The Committee with Gunawardena dissenting has proposed that “The legislative, executive and judicial power of the People shall be exercised as provided for by the Constitution.”

The authors call for the retention of Article 4(d) and Article 4(e), and in the cases of Articles 4(a), 4(b) and 4(c), to read, “The legislative, executive and judicial power of the People shall be exercised as provided for by the Constitution.” while keeping the wordings of the said three Subsections relating to who exercises the power and all that follows in the definitions afterwards. This is a step forward in establishing the doctrine of constitutional supremacy.

Article 5

According to Article 5, the Territory of the Republic, holds that “Sri Lanka shall consist of the [twenty- five] administrative districts, the names of which are set out in the First Schedule and its [territorial waters: Provided that such administrative districts may be subdivided or amalgamated so as to constitute different administrative districts, as Parliament may by resolution determine].”

The Committee has proposed the following “The territory of Sri Lanka is constituted of its geographical territory as recognized under International Law, including the Provinces as set out in the XX Schedule of the Constitution, and including its territorial waters and airspace, together with such additional territory as may be acquired in future. Sri Lanka shall have all rights recognized by law, custom and usage, pertaining to its territory. No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province of part thereof, from Sri Lanka.”

The authors were divided on the definition, with Jayakody proposing that the reference to international law be removed and Shaheid being in favour of the proposed formulation in its entirety. Jayakody argued on the basis that although the territory of the Republic of Sri Lanka being “constituted of its geographical territory as recognized under International Law” is a reference that could be construed as being specifically made with regard to the geographic territory of a State, such however could not be divorced from notions and principles contained in international law regarding what is a State and who defines it, on self-determination, on sovereignty, on territorial integrity and the like. It must also be noted that geopolitics too affects geographical territory and the eventual application of international law.

Shaheid opined that the reference to international law was purely on principle and only the norms and mechanisms relating to the applicability of the law will be relevant under the draft amendment. The said provision addresses ideas of self-determination and territorial integrity by expressly stating that no Provincial Council or any other authority shall declare any portion of Sri Lanka to be a separate State. It also specifically permits any land that may be acquired in future, but refuses to acknowledge any form of cessation, hence protecting the territorial integrity of Sri Lanka.

The reference to “such additional territory as may be acquired in future” is with regard to landmass that is artificially added to the country’s natural landmass. The computation of the 12 nautical miles which constitute the nation’s territorial waters takes place on the basis of the baseline which is from the natural landmass. The exclusive economic zone extends up to 200 nautical miles, after which begins the high seas or international waters.      

Article 6

The Committee is in favour of having as per Article 6, the Lion Flag as the National Flag.

The authors agree with the same premise.

Article 7

The National Anthem contained in Article 7 refers to “Sri Lanka Matha”, the words and music of which are set out in the Third Schedule.

The Committee has called for the consideration of a formulation which “should be as presently recognized in the Sinhala and Tamil versions of the Constitution.”

The clause proposed in the paper submitted by the alliance of the SLMC, the TPA, the ACMC and the EPDP reads, “The National Anthem of the Republic of Sri Lanka shall be “Sri Lanka Matha” in Sinhala language and “Sri Lanka Thaaye” in Tamil language as per the words and music of which are set out in the relevant Schedules.”

The authors are in agreement with the alliance’s version.

Article 8

The National Day of Sri Lanka is at present February 4 of any year.

The Committee too has called for Article 8 to prevail.

The authors believe that such should continue to be the case.

Chapter II/Article 9: Buddhism

Article 9 presently reads, “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 the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).”

Article 10 guarantees the freedom of thought, conscience and religion, and also the right to have or adopt a religion or belief of one’s choice, while Article 14(1)(e) enshrines the freedom to manifest one’s religion or belief, by way of worship, observance, practice and teaching, by oneself or with others, in private or in public.

Aside to the current wording in the Constitution, the Committee has provided six options in terms of formulations regarding amending Article 9. Options include 1) “Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while guaranteeing to all persons the fundamental rights guaranteed by the Constitution.”; and 2) “Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while treating all religions and beliefs with honour and dignity, and without discrimination, and guaranteeing to all persons the fundamental rights guaranteed by the Constitution.”; and 3) “Sri Lanka shall give to Buddhism the foremost place. It shall be the duty of the State to protect and foster the Buddha Sasana. Sri Lanka shall treat all religions and beliefs with honour and dignity, without discrimination, and while guaranteeing to all persons the fundamental rights guaranteed by the Constitution.”; and 4) “Sri Lanka shall give to Buddhism the foremost place. It shall be the duty of the State to protect and foster the Buddha Sasana, while treating all religions and beliefs with honour and dignity, without discrimination, and while guaranteeing to all persons the fundamental rights guaranteed by the Constitution.”; and 5) “Sri Lanka shall give to Buddhism the foremost place. It shall be the duty of the State to protect and foster the Buddha Sasana, while treating all religions and beliefs without discrimination, and while guaranteeing to all persons the fundamental rights guaranteed by the Constitution.”; and 6) “Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana. Sri Lanka recognizes the equality of all religions and beliefs, and guarantees to all persons the fundamental rights guaranteed by the Constitution.”

Gunawardena has called for the retention of the existing provision. The grouping of the SLMC, the TPA and the ACMC has provided for that “The Republic of Sri Lanka shall give to Buddha Dharshanaya, the foremost place, and accordingly it shall be the duty of the State to protect and foster Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).” On the other hand, the EPDP has proposed a secular State which assures all religions the rights granted by Article 10 and 14(1)(e). The JHU is of the opinion that Article 9 in its present garb is merely symbolic and that for all intents and purposes Sri Lanka in reality remains a secular State. The JHU has thus called for Article 9 to be kept intact. 

The authors are in favour of the separation of religion and the State. The State should ideally have no business with institutionalized, organized religion. An ideal of such a Jeffersonian (a reference to Thomas Jefferson – one of the Founding Fathers of the United States of America {USA}, author of the Declaration of Independence and the third President of the country) ‘wall’ is found in the First Amendment to the Constitution of the USA which states that the “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;.” Giving Buddhism the foremost place and making the State duty bound to protect and foster the Buddha Sasana is entirely contrary to such and also constitutes a violation of the equality and non-discrimination clause enshrined in Article 12. Even though it is not specified as to what is meant by the recognizing of the “equality of all religions and beliefs”, the second part of option six is commendable. However when coupled with the first half of the proposal which states that Buddhism shall be given the foremost place and also making it the State’s duty to protect and foster the Buddha Sasana, it becomes bereft of anything meaningful and instead becomes an oxymoron. The JHU’s logic while having a certain basis in reality is however ultimately self-defeating.

Therefore the authors are in agreement with the EPDP’s proposal regarding the issue. The recognition of Buddhism as a “Dharshanaya”, meaning a philosophy may be deemed by some to be an enlightened position, yet the proposition may also be considered by some to be an insidious, almost Machiavellian move on the part of non-Buddhist and non-Sinhalese politicians. In short some may also sniff or whiff racist overtones and undertones. Also options two, three and four refer to treating “all religions and beliefs with honour and dignity”. Honour and dignity (Article 1 of the Universal Declaration of Human Rights contains the said word) are not terms which can be easily legally quantified owing to the fact that they are too ambiguous and vague and also run the risk of being double edged in that the application of such terms in law, in litigation and on litigants, can probably have an arbitrary nature. 

Also, the authors take the opportunity to recommend the deletion of “teaching” from Article 14(1)(e), as in light of the absence of anti-conversion legislation, “teaching” could be construed as giving free reign to propagandizing or proselytizing or worse still brainwashing (a recruitment which is a form of enforced conversion) or forcible conversion if one’s religion or belief advocates and practices such. On the other hand, the reference to “practice” found in the same Subsection, could be argued as including teaching and preaching, depending on the religion or belief. Free speech and expression including publication as found in Article 14(1)(a) and the freedom of enjoying and promoting one’s culture as contained in Article 14(1)(f) too is applicable in this instance. Culture is informed by religions and beliefs. It is also understood that none of the rights in Article 14 are absolute rights, and therefore the exercise of such by one cannot infringe on the exercise of the same by another. And it may be argued therefore that no change in the existing law is needed in this regard.