By Ranil Wickremesinghe –
The Republic of Sri Lanka established by the 1970 Constituent Assembly is based on two legal instruments. Firstly, the Constitution of the Republic of Sri Lanka enacted by this Constituent Assembly; Article 12 (1) of this 1972 Constitution reiterated the validity of Ceylon Independence Act 1947 passed by the UK Parliament. Secondly, the Republic of Sri Lanka Act 1972 enacted by the UK Parliament with the consent of the Government of Sri Lanka. This Act amended the Ceylon Independence Act 1947 by substituting “Sri Lanka” for “Ceylon”. Under the provisions of this Act:
Sec. 1 (1) No Act of Parliament of UK passed on or after the appointed day shall extend or deemed to extend to Sri Lanka as a part of the law of Sri Lanka, unless it is expressly declared that Sri Lanka has requested and consented to the enactment thereof.
(2) From the appointed day, His Majesty’s Government in the United Kingdom shall have no responsibility for the Government of Sri Lanka.
No law and no provision of any law made after the appointed day by the Parliament of Sri Lanka shall be void on the grounds that it is repugnant to the law of England.
Thus the establishment of the Republic was given legal validity by our former colonial masters, the UK Parliament, by enacting the Republic of Sri Lanka Act 1972.
Though the preamble to the 1972 Constitution invokes, “we the people” as its source, the pedigree of the Constitution, (the legal connection) does not emanate from the people. The grundnorm of our Constitutional Order is not the consent of the people but legislation enacted by the UK Parliament, our colonial masters. The UK Parliament powers to legislate for Ceylon/Sri Lanka are based on the three legal documents which transferred to the King of the United Kingdom, the sovereign authority over Ceylon. These are:
a) The Treaty of Amiens 1802 was made during the Napoleonic wars. Under Article 5 of the Treaty the Batavian Republic (as Netherlands was then known) ceded in full property and sovereignty to the King of England all the possessions in the island of Ceylon which previous to the war belonged to the Republic or to the Dutch East India Company.
b) The Kandyan Convention 1815 vested the dominion of the Kandyan provinces in the sovereign of the British Empire.
c) The Declaration of British Sovereignty 1818 — The position was further clarified under Article 7 (21 November 1818) when His Excellency the Governor restated that the Sovereign Majesty of the King of Great Britain and Ireland is alone the source from which all power emanates and to which obedience is due.
India followed a different route. Article 395 of the Constitution of India repealed the Indian Independence Act 1947 passed by the UK Parliament.Indians opted for Constitutional autochthony. The Constitution became the supreme law. They made a clean break. The Indian Constitution invalidated all legislations made by the imperial powers that were inconsistent with the Constitution. Sri Lanka’s 1972 Republican Constitution is not even the supreme law because all laws passed prior to the Republic continued to be legal even if inconsistent with the Constitution. Sri Lanka subordinated the Constitution to the laws passed by our colonial masters. Therefore, we have two systems – the Republican Constitution and the UK Parliament as the foundations of our Constitutional Order. This is a unique case. Even Canada which is a dominion repatriated its Constitution in 1982. Section 52 of the Constitution of Canada Act 1982 states the Constitution is the supreme law and any law that is inconsistent with the provisions of the Constitution is of no force. Since our Constitutional Order has a legal connection with the UK Parliament, the Declaration of the Peoples Sovereignty sits side by side with the Declaration of British Sovereignty.
The UNP will correct this position and completely break the legal link with the UK Parliament. In the 1978 Constitution, the UNP made provision for the exercise of people’s sovereignty by entrenching the right of franchise and requiring the consent of the people at a referendum for Constitutional reform. This will be taken to its logical conclusion by ensuring that the people exercise their sovereignty to the exclusion of other sources. This is possible through a new Constitutional Order. A new Constitution as the supreme law declaring that the New Republic continues to be an independent and a sovereign state in which sovereignty belongs to the people to the exclusion of any other authority. Any law inconsistent with the provisions of this Constitution to be of no force. Such a Constitution once passed by Parliament will be put before the people to be endorsed at a Referendum. Once the Constitution is ratified the people then become the only source of sovereignty. Hence any Constitutional amendment in the future will also require a referendum.
The New Republic will be based on
a. a People’s sovereignty
b. Upholding the Rule of Law and Human Rights
c. Strengthening national unity (includes national reconciliation)
d. Abolishing the executive Presidency
e. Establishing a Cabinet responsible to Parliament
f. Re-enacting the 17th Amendment
g. Consolidating the multi-party democracy
h. Creating a pluralistic society and
i. Ensuring stability in the larger interest of the State.
Within this framework we will evolve a system of government that meets with the needs of the country for the next few decades. Even the Westminster and the American systems of Government were based on the needs of these countries in the 18th Century. We must not shy away from examining our experiences as well as sources relevant to us in evolving a new political system. Already a number of political parties including the UNP and other civil society groups have put forward proposals for constitutional change.
Sri Lanka has an innovative constitutional history. We must not forget our past experiences in shaping a new system of government. The 1924 Revised Constitution established a powerful Financial Committee of the Legislative Council. The 1931 Donomough Constitution introduced the Executive Committee System. The 1947 Soulbury Constitution was based on the Westminster System. The 1972 Republican Constitution provided for the Executive dominance of Parliament. The 1978 Republican Constitution is based on the Executive Presidency. Devolution within a unitary state was added by the 13th Amendment to the 1978 Constitution. The UNP will not disturb this status.
Buddha’s sermons on the principle of government are also a useful source in evolving a government based on consensus. At that time the Ganges plains and the Terai region of Nepal were dominated by the Lichchavi Republics. This was an early form of republican government by discussion. Some of these principles of republican government were incorporated into the Vinaya Rules for the Sangha. The best known is the Buddha’s observations that the Vajjian confederacy’s prosperity is dependant in a government by consensus. This is valid for even today. Speaking to Ananda the enlightened one outlined the requirement of Vajjian prosperity “So long, Ananda as the Vajjians hold these full and frequent public assemblies;
So long, Ananda, as the Vajjians meet together in concord, and rise in concord, and carry out their undertakings in concord…so long as they enact nothing not already established, abrogate nothing that has been already enacted, and act in accordance with the ancient institutions of the Vajjians as established in former days…so long as they honour and esteem and revere and support the Vajjian elders, and hold it a point of duty to hearken to their words…so long as no women or girls belonging to their clans are detained among them by force or abduction…so long as they honour and esteem and revere and support the Vajjian shrines in town or country, and allow not the proper offerings and rites, as formerly given and performed, to fall into desuetude…so long as the rightful protection, defence, and support shall be fully provided for the Arahats among them, so that Arahats from a distance may enter the realm, and the Arahats therein may live at ease — so long may the Vajjians be expected not to decline, but to prosper.
When I was once staying, O Brahman, at Vesali at the Sarandada Temple, I taught the Vajjians these conditions of welfare; and so long as those conditions shall continue to exist among the Vajjians, so long as the Vajjians shall be well instructed in those conditions, so long may we expect them not to decline, but to prosper.”
The system of governance by two Indian emperors based on moral precepts and tolerance are also useful as sources for a new political system. The Edicts of Emperor Asoka are well known. The core of the edicts is social and moral precepts. Emperor Akbar also ruled over a culturally and religiously diverse empire. He adopted a new concept of Islam transcending the limits of orthodox Islam. A policy based on religious tolerance: Din-i-Ilahi. He stopped the persecution of other Muslim sects. He allowed Hindus forced to convert to Islam to re-convert to Hinduism. The Emperor and his court followed some of the main Hindu customs. The Jain practices of non violence and vegetarianism were promoted by Akbar. All these are useful precedents for a state committed to reconciliation.
In preparing a new constitution we must follow the examples of the modern constitutions drafted in the last decade of the 20th century. The early constitutions beginning from the US were confined mainly to the powers of the three branches of the government. This became the basis of the centralised government structure. The only concession to the people was a Bill of Right. These above mentioned modern constitutions are based on effective inclusive government. These include the basis of national identity to a definition of people’s sovereignty and the mechanism for exercising it, basic principles on which the political consensus rests, the fundamental rights of the citizen, the recognition of the role of the civil society. Constitutions of South Africa and Sweden are good examples. Sweden in fact makes provision for a referendum to amend the constitution.
At the coming elections, the UNP will request the people to grant a mandate not only to abolish the Executive Presidency but also to enact a new constitution for a new republic. We are already holding talks with all political parties and civil society groups interested in constitutional reform.
Our objective is the establishment of a Republic that is constitutionally autochthonous: A Republic with the people’s sovereignty as its only source. Unlike the 1972 Republican Constitution it will have no legal connection with the UK Parliament. A constitution drafted to suit our need.
The Kandyan Chieftains deposed Sri Wickrama Rajasinghe the King of Kandy in 1815 on the ground of habitual violation of the chief and most sacred duties of a sovereign. The sovereignty was transferred to King George III of the United Kingdom who at that time was mentally deranged, totally deaf and half blind. In 1947 Sri Lanka became a Dominion and in 1972 a Republic but the sovereignty was never fully transferred to us. This link must be broken next year. 2015 marks the bi-centennial of this event. Therefore 200 years after the Kandyan Convention the people of Sri Lanka will symbolically vest in themselves the total sovereignty of the country. This will bring into being a New Republic based truly on a jana sammathaya – the consent of the people.