2 December, 2021

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The Abolition Of The Senate

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

It was fifty years ago, on 2nd October 1971, that the Governor-General, William Gopallawa, assented to the Bill that sought to abolish the Senate, the upper chamber of the Parliament of Ceylon. It was an event that was precipitated by the Senators themselves.

The Senate was one of the five constitutional safeguards that were included in the 1946 Constitution in order to remove the fear of “domination and oppression” by a “permanent and unassailable majority” which existed especially in the minds of Ceylon’s ethnic and religious minorities. The other entrenched safeguards were multi-member constituencies in those electorates in which a substantial minority, whether racial, religious or otherwise, lived; six nominated members of the House of Representatives to represent interests which were either not represented or were inadequately represented; an independent Public Service Commission which would guarantee strict impartiality in all matters affecting appointments; and a prohibition on Parliament enacting legislation either to confer a privilege or to impose a disability on persons of any particular community or religion.

Forum for impeding precipitate legislation

The Senate, with 15 members elected by the House of Representatives (according to the principle of proportional representation) and 15 members nominated by the Governor-General, was intended to serve as an instrument for impeding precipitate legislation as well as a forum for handling inflammatory issues in a cooler atmosphere. It was hoped that the Senators, being eminent individuals of high intellectual attainment and wide experience of national and global affairs, would make a valuable contribution to the law-making process. The Constitution required that not less than two Ministers (one of whom was the Minister of Justice), and not more than two Parliamentary Secretaries should be members of the Senate. The first Minister of Justice was Sir Lalita Rajapakse, QC., LLD. His succesors were equally eminent men of the law. They included E.B.Wikramanayake QC; M.W.H. de Silva QC, former Attorney-General and Judge of the Supreme Court; Valentine S. Jayawickrama, former District Judge and Commissioner of Assize; and G.C.T.A. de Silva former District Judge and Permanent Secretary to the Ministry of Justice.

In the twenty-four years of its existence, the Senate enabled proposed legislation as well as governance issues to be debated by a small group of men and women who had reached the pinnacle of their respective professions and other fields of endeavour. This group of distinguished Ceylonese included experienced civil servants (C.Cooomaraswamy, H.E.Jansz, R.S.V. Poulier, Sir Kanthiah Vaithianathan, Sir Oliver Goonetilleke); entrepreneurs (Sir Chittampalam Gardiner, Sir Cyril de Zoysa, Justin Kotelawela, Sir Donatus Victoria, K. Adamally, Sir Mohamed Macan Markar), proprietary planters (Thomas Amarasuriya, C. Wijesinghe, Layard Jayasundera) eminent lawyers (S.Nadesan QC, M.Tiruchelam QC); men of medicine (Sir Nicolas Attygalle, Dr. M.V.P. Peries, Sir Frank Gunasekera); scholars and educationists (S. Natesan, A.M.A. Azeez, Doric d’Souza, A.B. Rajendra); social activists (Cissy Cooray, Evelyn de Soysa, Evadne de Silva); and economists (N.U. Jayawardena) They were complemented by political representatives who included Dr. E.M.V. Naganathan (TC), Reggie Perera, Chandra Gunasekera (LSSP), Peri Sunderam (CIC), L.B. Jayasena (CP). I recall the numerous occasions in the early 1960s, during the period when my father-in-law-to-be was President of the Senate when I used to proceed from Hulftsdorp to Fort, to sit in the Senate gallery and absorb the sharp analytical wisdom of these eminent men and women. I also recall that an emerging relatively young politician who was frequently also in the visitors’ gallery was R.Premadasa together with his fiancee. It must be recalled that it was the Senate that enabled the world’s first woman Prime Minister to assume that office after not having contested any seat in the July 1960 general election.

Saving Nanda Ellawela

In July 1970, following the general election held in May of that year, the Minister of Constitutional Affairs, Dr Colvin R.de Silva, introduced a Bill to amend section 13 of the Ceylon (Constitution) Order-in-Council. That section provided that a person who had served three months’ imprisonment for an offence punishable with imprisonment for a term exceeding one year was disqualified from sitting in either House of Parliament. The amendment sought to define a disqualifying offence as one involving “moral turpitude”. Dr.de Silva stated that the Bill had been drafted in the Ministry of Justice, and not by his Ministry. It had probably been drafted before I assumed office as Permanent Secretary in mid-June, since I became aware of it only when it was presented in the House of Representatives. It may even have been drafted by private lawyers before the general election. The Bill sought to make the amendment retroactive from 25th March 1970. It was an open secret that the purpose of this rushed legislation was to enable Nanda Ellawela, the newly elected MP for Ratnapura, to retain his seat. He had been convicted of unlawful assembly and had served a sentence of imprisonment above the disqualifying period. Predictably, an election petition had been filed and it was due to be taken up for hearing very shortly.

In the House of Representatives, the UNP and the Federal Party opposed making the amendment retroactive, but the former kept away, and the latter abstained when the vote was taken, thereby enabling the Bill to be passed with the required two-third majority. W. Dahanayake of the UNP resigned from the party, explaining that he disagreed with his party’s opposition to the amendment since the UNP had in previous years introduced similar legislation to enable E.L. Senanayake and A.L. Thambiyah to retain their seats in Parliament.

What is “moral turpitude”?

When the Minister of Justice, J.M. Jayamanne, presented the Bill in the Senate on 6th August, having suspended standing orders in order to have it passed through all three stages before the end of day, it immediately ran into serious problems. Senators K.M.P. Rajaratne, S. Nadesan QC, and M. Tiruchelvam QC, in a brilliant analysis of the Bill pointed out that while “moral turpitude” had been defined to include offences such as theft and robbery, other serious offences including rape and kidnapping were not. “Would not bigamy constitute “moral turpitude” they asked ? Several members in that UNP controlled Senate appealed to the visibly rattled Minister to amend the Bill either by defining “moral turpitude” more broadly, or to remove altogether the disqualification of a person who had completed serving a sentence of imprisonment. With the Minister refusing to adopt either option, the Leader of the Senate, A.P. Jayasuriya, proposed that the debate be adjourned for the next day.

Two “obstinate Senators”

On the following morning, I was in my office in the Ministry of Justice (I was at that time also acting as Permanent Secretary in the Ministry of Health) when I received a telephone call from Mr. J.R. Jayewardene. He said that he had done all he could to persuade UNP Senators to either abstain or keep away at voting time as had been done in the House of Representatives, but that Senator Fairlie Wijemanne, Leader of the Opposition, was determined to defeat the Bill. He said that with an obstinate Justice Minister and an equally obstinate Opposition Leader, he did not need to remind me what the consequences of that would be. He obviously anticipated that the Government’s next move would be to abolish the Senate. He asked me to go to the Senate and do whatever I could to avoid that calamity. I did so and found that Ministers Felix Dias Bandaranaike and Colvin R.de Silva were both in the Senate Restaurant too. The government was not willing to accept either of the amendments suggested by Senators Nadesan and Tiruchelvam. The resumed debate therefore ended with the Bill being rejected by 13 to 7. Nine UNP Senators were not in the chamber when the vote was taken. The rejection of the Bill meant that the Government would not be able to secure the necessary constitutional amendment before the Ratnapura election petition was taken up for trial. Lobby correspondent Manik de Silva described the debate as “one of the most exciting discussions in the teak-and-satin panelled chamber of the Upper House within recent memory”.

On the following morning, the Daily Mirror editorial had this to say:

By virtue of its vigil over this Bill, the Senate has rocketed in public esteem. It has manifested its utility as the Soulbury Commission envisaged “to prevent hasty and ill-considered legislation reaching the Statute Book”, and as the Commission also hoped it has used the delay “for the purpose of giving time for reflection and consideration” of the flaws in the Bill.

Responding to the vote in the Senate, Minister Felix R. Dias Bandaranaike explained that the Government had three options. The first was to prorogue Parliament for a day and present the Bill again in the House of Representatives in the new session. That, he thought, might create an unhealthy precedent. The second was to delay the hearing of the Ratnapura election petition. The third was to pardon Mr. Ellawela to enable him to contest his seat again.

On 13th August, when the Ratnapura election petition against Nanda Ellawela was taken up for hearing before Justice O.L. de Kretser, the proctor for the petitioner informed Court that he had no instructions to proceed with the trial. Counsel for the respondent moved that the petition be dismissed, but the Judge, probably suspecting collusion, stated that he wished to hear the petitioner in person before doing so. Accordingly, he re-fixed the hearing for 30th August. On the same day, the Cabinet decided to introduce legislation to abolish the Senate.

Bill to abolish the Senate

On 28th October 1970, the House of Representatives passed, with 117 for and 16 against, the Bill to abolish the Senate. On the previous day, the election of Nanda Ellawela to the Ratnapura seat was declared null and void by the Election Judge, Justice O.L. de Kretser on the ground that he was disqualified for election in view of his conviction and sentence of imprisonment. On 19th November 1970, the Minister of Justice, Senator Jayamanne, moved the second reading of the Bill to abolish the Senate, but was thwarted when he moved that government business have precedence on the day’s proceedings. Four months later, on 24 March 1971, Parliament was prorogued, and the next session was opened by the Governor-General on 28th March. Immediately thereafter, the House of Representatives again passed the Bill for the abolition of the Senate.

The Constitution provided that if a Bill is passed by the House of Representatives in two successive sessions, and having been sent to the Senate in the second of those sessions, is not passed by the Senate within six months after the commencement of that session, the Bill may, notwithstanding that it has not been passed by the Senate, be presented to the Governor-General for his assent. On 23rd September 1971, the Senate convened for its final meeting. On 2nd October 1971, the Governor-General assented to the Bill and the Ceylon (Constitution and Independence) Amendment Act No.36 of 1971 came into force, converting Ceylon’s bicameral legislature into a unicameral one.

The Constitution provided that a Minister who for any period of four consecutive months is not a member of either Chamber shall, at the expiration of that period, cease to be a Minister. However, on 20th January 1972, at the request of the Prime Minister, the Minister of Justice, former Senator J.M. Jayamanne, tendered his resignation and was succeeded by Felix R. Dias Bandaranaike, Member of Parliament for Dompe, who was already Minister of Public Administration, Home Affairs and Local Government. On 3rd February 1972, on the eve of the expiry of the four month period, John Rodrigo, an appointed member of the House of Representatives tendered his resignation and was appointed Ambassador to Italy. On the following day, former Senator C. Kumarasuriar, Minister of Posts and Telecommunication, was nominated to fill the vacancy thereby created.

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Latest comments

  • 3
    3

    I don’t understand this, because the government of that time was of two houses and no Governor General or President, but only one ceremonial, and one of them, the lower house simply passing a 2/3 majority bill can remove the upper house, but no referendum for that massive change? I believe, certainly, that was a loophole in the Soulbury constitution. Dr. NJ did not describe the voting process of both presentations. I don’t know what the minority parties were doing. As in 1971 the new Socialistic constitution had not come into, why didn’t the minorities contest absolution of the Senate in Privy Council as that the Amendment was something hurting minorities? The drama king Junius Richard shed some crocodile tears for the dismantling of the Senate, but he later did without the parliament itself and made him uncrowned King In Diyawanna Lake Palace.
    Then the Modaya MPs voted to abolish the Senate. Nothing biggie though! They voted for 1978 President Only Constitution, then voted for 17A to curb the president, voted for 18A to make the president permanent Maharajane; reversed it in 19A and redid it in 20A. Most of these voting was by the same Afghani donkeys gather in Diyawanna Lake Palace.

    • 3
      0

      Mallaiyuran,
      The abolition or banning to the Privy Council by litigants of Ceylon, preceded the abolition of the senate, which was in early 1970 as a consequence of the release of the 1962 Coup d’état, suspects convicted by SL Supreme court being discharged as the legal provision under which they were convicted was retroactive legislation.
      Surely the Senate at that time did not foresee what was coming!?
      The demise of the senate itself with no source of reprieve!

  • 2
    1

    This is an instance of, “Throwing the baby with the bathwater”!

  • 4
    1

    If the second chamber or house of review was in existence today, 50% of the ill advised moves by half educated JPUM’s would have been avoided.
    What a pity?
    This majoritarian Manoeuvering of the constitution was the starting point of tinkering (for personal gain of politicians in power) of the basic and fundamental law, resulting in future excesses being brought to the attention of the international community and intervention by outside forces!
    Indian, EU intervention and by UNHRC

    • 1
      0

      There was no connection between the Privy Council Judgment in the Coup Case and the abolition of appeals to the Privy Council. The Privy Council was replaced by our own Court of Final appeal in 1971. The reason for that decision taken by the Ministry of Justice was that not even 5% of unsuccessful litigants were able to retain counsel in England to represent them in the Privy Council. The decision to abolish appeals to the Privy Council had previously been taken by a parliamentary select committee set up by S.W.R.D.Bandaranaike in 1958. In fact, by 1970, the right of appeal to the Privy Council existed mainly from the British colonies.

      An amendment of the 1946 “Soulbury” Constitution required only a 2/3 majority. There was no requirement of a referendum in that Constitution. Notwithstanding that the Constitution was amended, I believe, only about twice in 24 years.

      • 0
        0

        NJ,
        Noted your comment, correction.
        Thanks.

  • 4
    0

    Nice to read you after quite a while Dr.Nihal. J…………
    The fall-out of the abolition of the Senate ,like the fallout from the Hiroshima bomb, is still felt in the country.
    The Republican Constitution of 1972 without safeguards for Minorities which was found in the form of Section 29 was also thrown out, due to the Kodeeswaran case.
    Sad, this was all with the active participation of the Left [LSSP, CP ] in the UF Govt: of Sirimavo. The fallout from this is still felt on our political landscape

    Sadder still! Senate had to go due to Nanda Ellawela.
    So, Sirimavo could not stage Hamlet without the Prince of Denmark? or is it the Prince of Ratnapura!

  • 0
    1

    There was an inherent flaw in the composition of the Senate.
    Of 30 members, 15 were elected by the House of Representatives, using a proportional representation scheme, each MP with a single transferable vote. The remaining 15 members were appointed by the Governor-General of Ceylon on advice of the Prime Minister and generally consisted of distinguished individuals.
    Although the nominations and elections were phased out in three stages, an outgoing government’s say in the senate will be tremendous for a good part of the term of the new government, because the appointed 15 distinguished individuals handpicked by the PM were seldom apolitical creatures.
    Such a scheme helped to buy time for the ‘Old Order’ to hold say even in the wake of a massive electoral defeat.
    There is case for some safeguard against rash legislation, but carry over of such large inertia is unfair.
    There was case for some redress: the old Opposition Party could have had a say in the nominated membership. 15 comprising 9 by PM 6 by Leader of Opposition or some such.
    *
    What happened was that the baby was thrown out with the bathwater.

    • 0
      0

      SJ/NJ
      Thanks for the important input and very well presented.
      May I add my 2 cents worth for future use, if and when second chamber becomes a reality:
      1. 50% of the chamber is elected by the House of Representatives (HoR), which presumably have Government Majority. Preferred candidates, assured 50% support to Government.
      2. The balance be 50% Senate members less 2, be nominated by the Opposition in HoR to enable a diverse view to that of the government and being the Second Chamber (or Review), which is would be a important arrangement/serve the very purpose of the Senate very well.
      3. The residual 2 members to be appointed to be, 1 by the President and the other be appointed by the Speaker of HoR
      4. Item 3 above should obviate any recalcitrant opposition manoeuvre to delay government legislation passing through the Senate.
      5. All other conditions to appointment or election to the senate remain unchanged.
      6. Minimum age requirement, in addition to other qualifications specified should be not less than 35 years of age and have minimum educational qualification of a Bachelor’s Degree.
      NJ,
      Seek your erudite and valued thoughts are sought with eagerness prevent “Steam Rolling” legislation
      .

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