In the context of ethnic polarisation and the alienation of the minorities, the British Sovereign, however tenuous the link to her was, even remotely, an independent arbiter. It was also not lost on the Tamils that it was the Queen’s representative, Sir Oliver, and not the Parliament, who acted to stamp out the 1958 communal violence. These stabilising features of the Soulbury Constitution were dissolved at the stroke of a pen on 22nd May 1972 when Ceylon became Sri Lanka. The Tamil problem was aggravated by leaving the key issues of Tamil agitation unresolved, yoking the minorities, as it were, to a majoritarian tyranny. Ironically, Dr. de Silva had himself sided forcefully with the minorities on these issues in the late 1940s and 1950s.

Why did Colvin R. de Silva do it? Having been a lifelong Marxist revolutionary, it perhaps appealed to him, symbolically at least, to sweep away everything before him and put something supposedly new in its place. But the enhanced power was not passing on to anything remotely resembling a revolutionary vanguard. It understandably meant a lot to Dr. de Silva to make that symbolic act of defiance against the British Crown. In making Parliament sovereign, Dr. de Silva appears to have encountered difficulty in prescribing legal remedies for Fundamental Rights that were defined in his Constitution.

This problem is addressed by Walter Jayawardena QC, who was cabinet secretary to the ministry of constitutional affairs under Dr. de Silva, in a recent article (Sunday Island 12.3.2000). Among Dr. de Silva’s reasons were, that the courts and administrators were bound to have due regard to these rights whenever a citizen took his stand on them, and the Constitution should be brief and need not include matters that would be dealt with in the normal course of legislation. Walter Jayawardena comments on Dr. de Silva’s strongly felt insistence on the removal of the Public Service Commission -“three gentlemen who owed no direct loyalty to anyone”- and vesting its functions with ministers.

Walter Jayawardena observes: “He [Dr. de Silva] would not give the right weight to the contention that it was not the honesty of ministers that mattered so much, nor the fact that they were subject to party discipline and parliamentary control. What really mattered was that politics in Ceylon had reached a point where party bosses had themselves become biased completely the wrong way, thoroughly corrupted if you like; with the result that no one believed that a just appointment would be made without undue weight being given to party considerations… To the Tamil minority, this was an irreparable blow. It is an injustice fraught with danger for the nation, and could have been foreseen. I cannot believe that for all the feeling he displayed Colvin was a free agent in this matter. I recognise that this is indeed a double edged compliment.”

It was left to J.R. Jayewardene to uncover the extent of mischief wrought by the 1972 Constitution. Having mistaken her five-year mandate in 1970 for a revolutionary one, Prime Minister Mrs. Bandaranaike overstayed her welcome and was resoundingly beaten in the 1977 parliamentary elections. All the prominent Left leaders and the majority of the SLFP ministers were beaten in constituencies they had long represented, often by unknown UNP opponents. With a five-sixths majority in the sovereign parliament, Jayewardene drew up another constitution, making himself in 1978 the first sovereign president. Mrs. Bandaranaike’s precedent was taken and the life of parliament became 6 years, as was the president’s term.

A public services commission was restored and so was a judicial service commission. But these, like the position of chief justice, were filled by the executive president and were more firmly politicised. The politicisation comes not so much directly as from a host of other factors. Restraining traditions observed up to 1970 had been decisively breached by this new notion of a sovereign parliament with no fetters. The moment one is happy to promote the 20th man on the seniority list to have a yes-man in place, it creates a chain of other evils. Fundamental Rights were made judicable, but this can be nullified by the Parliament’s unfettered legislative power.

This was the case with the Parliament in 1978 passing a law to overturn the Appeal Court ruling on the SPC (Special Presidential Commission) dealing with Mrs. Bandaranaike and then, in 1980, legislating to deprive Mrs.Bandaranaike of her civic rights for 7 years. This was done despite such retroactive punishment being contrary to the ICCPR (International Covenant on Civil and Political Rights) which Sri Lanka had already signed. Fundamental Rights were of no avail to the victim. Neither does it seem that the Judiciary could stop Parliament from enacting bad, inconsistent and even calamitous laws (see Chapter 7).