By Rajan Philips –

Rajan Philips

There have been quite a few news reports and nostalgic commentaries on Sir Ivor Jennings inspired by the visit to the Peradeniya campus by his granddaughter, Catherine Watson. Sir Ivor’s pioneering contribution to university education in Sri Lanka has not been sufficiently honoured and appreciated. For several decades, honouring Jennings was a one-man mission for the late H.A.I. (Ian) Goonetilleke, the venerable bibliographer of Sri Lankan scholarship. Ian fought a lone battle against powerful odds and without any official resources to remember and honour Jennings, to preserve his writings and to publish some of them. It was not just the establishment for, as has been duly noted by the popular “People and Events” columnist Nan, even the student population at its boorish worst spurned the efforts in the 1970s to honour Jennings with a statue or monument on the campus he founded. Perhaps a better way of honouring Jennings today, than statues or street names that are no longer a mark of distinction, would be for the universities to offer (seminar or reading) courses on Jennings, his work and his contributions to Sri Lanka.

Apart from nurturing the island’s first university and its picturesque campus, Jennings played a crucial role in the transfer of power from a colonial Governor to an indigenous government, and in the development of independent Lanka’s first constitution.  Jennings was “honorary constitutional advisor” to DS Senanayake from May 1943 to February 1948, and a consummate participant observer in the Senanayake administration both before and after independence, from 1943 till Mr. Senanayake’s death in 1952.  His monograph “The Constitution of Ceylon”, first published in 1948 and was followed by two editions in 1950 and 1953, is still the foundational framework for assessing Sri Lanka’s constitutional development from the Soulbury Constitution (1947-72), through the First Republic (1972-78), to the Second Republic since 1978 with a seemingly unlimited term.

Some of us born in 1948 or after have been fortunate enough to experience Jennings through hearsay from our intellectual mentors and more directly through his own writings. He wrote not just on the constitution, but on the resplendent land’s flora and fauna, and the culture of its people including their food habits, describing in one instance, the “innumerable small dishes of curries” that decorate a sumptuous Lankan meal.  He offered the insights of a trained mind into the structures of our society and its nascent transition from being a traditional caste-society to an emerging modern nation-society.  The political manifestation of that unevenly unfolding transition is what I have ventured to call, for the purpose of this article – Sri Lanka’s tortuous decline from Jennings to Geneva.

The making of the Soulbury Constitution

I will start with Jennings’s description of how things were during what he has called “The Making of the Constitution”  (Chapter 1 of “The Constitution of Ceylon”) from May 1943 to May 1946. There were three key players involved in the process: the Colonial Office in London, the Governor in Colombo and the Board of Ministers of the State Council functioning under the Donoughmore Constitution. The final constitutional reform leading up to independence began with the British government’s Declaration of 1943, which ambiguously laid down the purpose of reforming the constitution towards granting Sri Lanka “full responsible government”, and the procedure for achieving it. Making its own interpretation of the London Declaration, the Board of Ministers set out to draft a new constitution for Sri Lanka, which after years and some changes would become independent Sri Lanka’s first constitution, better known as the Soulbury Constitution.

“The major difficulty, however, was the minority problem”, wrote Jennings, while “the rest of the constitution was comparatively easy.” How was this difficult problem addressed? While Jennings claims no credit for himself, according to AJ Wilson , Jennings, as the adviser to D.S. Senanayake and the principal drafter of the “Ministers’ Draft Scheme” (as it was officially called), was instrumental in incorporating various safeguards to protect minority rights. The safeguards addressed the main concerns in regard to representation in parliament, equal treatment before the law, and fairness in recruitment to government jobs, by providing weightage in representation, a rigid constitution requiring two-thirds majority for amendment, and independent public service and judicial service commissions.

While there was good understanding between the colonial rulers and the Board of Ministers in regard to the purpose and even the content of the new constitution, there was a misunderstanding about procedure. The Board of Ministers understood the procedure as literally requiring the support of “three quarters of the State Council” for its draft constitution. To the Colonial Office, the requirement of “three quarters” support was intended to “compel the Ministers to negotiate an agreed draft with the minorities, or some of them.” The Ministers did not negotiate anything with the minorities, and Jennings has noted that “nobody in Ceylon had understood this to be the intention.” He goes on to say: “Not only had it not been done, but some of the minority members protested to the Secretary of State for the Colonies that they had not been allowed to express their views on the Ministers’ draft.”

This was the background to the Soulbury Commssion, whose task, Jennings notes, was very different from that of the Donoughmore Commission seventeen years earlier. While the latter had to create a new constitution, the former was tasked with approving one of three constitutional alternatives: 1) Do nothing and let the Donoughmore Constitution continue, and nobody was in favour of this; 2) the Ministers’ draft, which had about two-thirds support in the State Council (SC); and 3) the Tamil Congress scheme focused on “balanced representation”, which would have garnered 12 votes in the SC.  In the end, it was the Ministers’ Draft with modifications and embellishments that became the Soulbury Constitution.  The main changes were the addition of a Second Chamber, flexible powers given to the Delimitation Commission, and the increase in the powers of the independent Public Service Commission.

At its core, the Soulbury Constitution was meant to be the “communal compact” between the Sinhalese, the Tamils, and the Muslims, and “the rest of the constitution was comparatively easy”, to re-quote Jennings. The communal compact was formally sealed when G.G. Ponnambalam joined the D.S. Senanayake cabinet soon after independence, leaving, as Jennings as casually noted, “only a small Tamil section, which produced a scheme (or at least an idea) for a federal constitution” … in opposition.”  Notably, the word ‘unitary’ does not appear in Jennings’s monograph. But what he describes in passing, in Chapter 2 (“Independent Status”) of the monograph, as British success in establishing “a democracy by convention while remaining a monarchy in legal theory”, could well be tried even belatedly in Sri Lanka to establish devolution by convention and practice, while remaining a unitary state in constitutional theory. Jennings saw no inconsistency between laws and conventions when the latter reverse the effects of the former.

The tortuous decline

Describing the “Political Developments since 1947” (Chapter 3), Jennings observed that the “first United National Party Government had an easy passage,” and attributed it to a weak and divided opposition with political issues being “more controversial outside parliament than inside.” Of the official opposition party, Sir Ivor wrote, the “Lanka Sama Samaja Party was well managed by its leader, Dr N.M. Perera, but it lacked personnel.”  Even though “Mr D.S. Senanayake was thrown from his horse and died on 22 March 1952,” the second UNP government elected later that year “was even stronger … than it had been in 1948.” Yet, by the time Sir Ivor Jennings left Sri Lanka in January, 1954, political storm clouds were already gathering. Writing in March 1953, for the Third Edition of the book, Jennings noted that “the period of ‘easy money’ had come to an end, and in 1952-53, the government faced the prospect of a heavy deficit in the revenue”. The 1953 August Hartal had forced Prime Minister Dudley Senanayake to resign and he was replaced by the ebullient but blundering Sir John Kotelawala. The latter shattered the communal compact by firing G.G. Ponnambalam from the cabinet. SWRD Bandaranaike, whose departure from the government in 1951 had been seen as a blessing in disguise for the UNP government, was only an election away from capturing the highest prize that he had always considered to be his entitlement.

But what Sir Ivor Jennings, like Lord Soulbury, would not have foreseen was the swiftness with which the political presuppositions of the Soulbury (Jennings) constitution would be undermined by one government after another. It was not the ‘unitary’ nature of the constitution that led to the undermining but acts of parliament that eroded minority rights in violation of the spirit of the constitution and the judicial reluctance to challenge these violations. Eventually, with the adoption of the 1972 and the 1978 constitutions, even “the rest of the constitution” that Jennings considered to be “comparatively easy” in 1947, were made unnecessarily difficult, rigid, and presently frozen. It is not just the minority rights that are of concern today, but the overpowering of the public services, public spending, the judiciary, and parliament itself by the executive president with hardly any check or balance. Jennings, who died prematurely of cancer in 1965, could not have foreseen the abandonment of the slowly evolving parliamentary-cabinet system and its replacement by a rapidly degenerating presidential-cabinet system.

Geneva represents the nadir of Sri Lanka’s constitutional and political decline after independence.  The “minority problem” that Jennings considered “the major difficulty” in the making of the Soulbury Constitution nearly seventy years ago, is now the Sri Lankan government’s insurmountable international hurdle. For the third year in succession, the UNHRC is set to pass a resolution against the Sri Lankan government. That the draft 2014 resolution has excluded the call for international investigation of wartime excesses could hardly be a solace, let alone a victory, for the government, because the new draft widens the scope of international oversight of the Sri Lankan government. In addition to repeating the call to implement the recommendations of the LLRC Commission, the new resolution brings within the purview of the UNHRC – the attacks on religious minorities, the army attack on Weliweriya protesters, and the government’s reluctance “to provide the Northern Provincial Council with the authority and resources to govern as required by the 13^th Amendment of Sri Lanka’s constitution.” India’s hand in the draft could be seen in the exclusion of the call for international investigation, while giving the Sri Lankan government more time to put in place a “credible national process” of investigation, and in the specific reference to the 13^th Amendment for the first time in an international resolution on Sri Lanka.

The government may reject the resolution as unacceptable, as Minister G.L. Peiris has already indicated in his opening speech in Geneva. But this rejection is not even a formality because the government is promising at the same time to work with the UNHRC and it intends to attend the Geneva sessions twice a year and by the looks of it forever. It will not boycott the UNHRC sessions and insisting on rejection without boycotting is practically meaningless. Nor is Sri Lanka’s predicament going to be attenuated by attacking the United States for its hypocrisy. President Clinton once remarked that his country must project itself to the world through “the power of its example and not the example of its power.” While the world must condemn the example of American power, many countries including Sri Lanka would do well to learn from the power of the American example of a progressively inclusive constitutional democracy.

Speaking of constitutional democracy, Sir Ivor Jennings left Sri Lanka’s constitutional development on a firm footing. I am not suggesting that Jennings is beyond criticism, and there have been many criticisms of Jennings in Sri Lanka and elsewhere especially in regard to his reluctance to including a Bill of Rights in the constitution. But what Sri Lanka has done in dispensing with the Soulbury Constitution and replacing it with not one but two homegrown substitutes is so horrendous that Jennings’s contributions look all the more superhuman. In regard to the “minority problem” that was his “major difficulty”, Jennings offered this insight: “As always happens when constitutional reform is under discussion for long periods, members had pledged themselves to conflicting principles.” In other words, long periods of constitutional discussion reinforces inflexibility. And Sri Lanka has had a longer than long period in reinforcing its internal inflexibilities. Every new generation has created its own constitutional idiocies. The upshot is the annual pilgrimage to Geneva.