8 August, 2022

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The Referendum – An Illegitimate & Unnecessary Device

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

The 1978 Constitution introduced into the law-making process of Sri Lanka the concept of a “referendum”. It was hailed in some quarters as a return to basics. In the tradition of the Greek city states, actual decision-making was being restored to the people. 43 years later, what has it actually achieved? It has entrenched provisions which no legislature would have ever contemplated repealing: the prohibition of torture and the freedom of thought, conscience and religion. It has prevented Parliament from restoring to this country its original name – the Republic of Sri Lanka, by dropping that utterly unnecessary prefix borrowed from the Democratic Socialist Republic of North Korea. It has installed 4th February 1948 as our National Day – the day on which Ceylon received the gift of self-government and dominion status under the British monarchy, rather than 22nd May 1972 – the day on which Sri Lanka unilaterally declared itself a Free, Sovereign and Independent Republic. And, it requires a country-wide referendum to be held before a single note of music in our national anthem, set out in the Third Schedule, could be changed – say, from base to treble. More seriously, and most unfortunately, it was successfully invoked in 2018 to impede the JVP’s constitutional amendment which would have enabled the Ceremonial Head of State under the 19th Amendment to be elected by Parliament rather than at a country-wide, divisive, general election. What was most tragic was that the determination of the Supreme Court on that Bill was clearly erroneous in that it had failed to consider a previous relevant binding decision of a Full Court.

Localized single issues

A referendum (or a plebiscite as it is sometimes referred to) is a mechanism frequently resorted to now in Swiss Cantons, usually to seek community views on single issues such as whether Sunday shopping should be allowed, or liquor shops should be kept opened on the day of Sabbath. It is a democratic way of resolving simple single issues. It is not suitable for consulting the population on complex issues such as the text of a new Constitution. For example, in Canada in 1992, a package of very significant constitutional amendments designed to recognize and give effect to the multicultural character of that country, known as the Charlottetown Accord, which was agreed upon by all the First Ministers and territorial and aboriginal leaders, was rejected at a national referendum for widely divergent reasons which had no relevance whatsoever to the question at issue. Foremost among these reasons was the widespread unpopularity of the then Prime Minister of Canada. So it was with the 2017 referendum in the United Kingdom on the question of leaving the European Union. The crippling consequences of Brexit were not explained to the electorate, and many in middle-England thought that an affirmative vote would mean the restoration of the British Empire! I was in both countries at the relevant times.

An alien concept

The referendum, as a mechanism of direct law-making is alien to this country and unfamiliar to most Sri Lankans. That was evident in the one and only referendum which was conducted in 1982 in the most bizarre circumstances. President Jayewardene first secured undated letters of resignation from all his Members of Parliament and Ministers. He then forwarded to the Supreme Court a Bill that would extend the life of Parliament for a further six years, and thereby deny the people their right to elect a new Parliament.  He certified the Bill as “urgent in the national interest” and required the Court’s decision within three days. He then submitted the Bill to Parliament and required it to be debated and voted on in a single day. The Fourth Amendment to the Constitution was next submitted for approval by the People at a referendum. The reason he gave the country was that he had information that “a Naxalite group intended to establish a military government if a general election was held”.  The Bill he submitted to the “people” was either not read by “the people”, or was probably incomprehensible to many of those who did. In fact, it received two diametrically opposed interpretations by the Supreme Court, with the 7- Judge Bench returning a divided verdict of four to three. Nevertheless, it was approved by a majority of the “people” in what is now accepted as the first genuine mass rigging exercise in the country’s electoral history.

Issue of legislative competence

A serious constitutional issue that arises is whether it was within the legislative competence of the National State Assembly to have introduced the requirement of a referendum into the law-making process of the Parliament it created under the 1978 Constitution?  The 1972 Constitution authorized the new National State Assembly which it established to amend any provision in that Constitution with a two-third majority.  Accordingly, in 1978, the National State Assembly, by a two-third majority, repealed and replaced that Constitution in its entirety.  In doing so, it provided that certain provisions in the new Constitution, which it adopted by a two-third majority, could be amended only by a two-third majority in Parliament followed by approval of the people at a referendum.  In other words, those provisions were to be unalterable by Parliament even with a two-third majority.

Could the National State Assembly have invested such a superior status to the law which it had made by a two-third majority that it would be unalterable by a similar majority?  If it could have, why is it not possible today for Parliament to pass an ordinary Bill by a simple majority of one, and state that that law may only be amended or repealed by a two-third majority; or to take another example, to state that it may be repealed only by the affirmative votes of all the members of Parliament?  Is it even conceivable that Parliament could make a constitutional amendment by a two third majority and declare that amendment to be unalterable by that or any other Parliament ever thereafter?  The absurdity of such a provision is obvious.  The National State Assembly was a creature of statute, a legal persona.  It had no existence outside the provisions of the 1972 Constitution under which it was created.  Its law-making powers were explicitly defined. It was prohibited from abdicating, delegating, or in any manner alienating its legislative power. It was prohibited from setting up an authority with any legislative power other than the power to make subordinate laws. Therefore, it did not have the power to make a law that could not be amended or repealed by a legislature either by a simple or two-third majority.

One redeeming feature

Article 83 specifies which Bills require approval by the “people” at a referendum. They are Bills “for the amendment or for the repeal and replacement of or which are inconsistent with” Articles 1, 2, 3, 6, 7, 8, 9, 10, 11, 30(2), 62(2) or 83. On the other hand, Article 82(5) states that a Bill for the “repeal and replacement of the Constitution” shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members. That Article does not require such Bill to be approved by the “people” at a Referendum.

Therefore, the scheme of the 1978 Constitution appears to be that, while that Constitution remains in force, the entrenched provisions of that Constitution may not be amended, repealed or replaced without the approval of the “people” at a Referendum, but the repeal of that Constitution in its entirety and its replacement with an altogether new Constitution does not require such approval at a Referendum. Whether or not that was the intention of the yet unknown draftsman of the 1978 Constitution, the field is now open for Parliament to adopt an entirely new structure of government.

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    Nihal, you refer to the “yet unknown craftsman of the 1978 Constitution” but it was my impression that it was HR’s brother, Harry. Or, at least, that he oversaw it, ensured that it served JR in every foreseeable way.

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      Correction: JR’s brother, HL (I think his initials were) Jayewardene.

      And, may I presume to offer a simple answer to your question:
      “43 years later, what has it actually achieved?”
      Well, I believe that it did achieve at least one thing that JR might have had in mind if ever such a situation should arise — god forbid! — namely, to wipe out with one fell swoop a general election result that didnt fall in with his plans.
      I might continue this later.

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        Manel, in January 1978, on the proposal of PM/JRJ, the National State Assembly established a select committee to revise the 1972 Constitution. All the political parties represented in the NSA agreed to serve on it. It heard public representations from individuals, political parties and NGOs. JRJ chaired it until he became President in February, and thereafter sat by Prime Minister Premadasa who chaired thereafter. At a certain stage, I was co-opted to assist Sirima Bandaranaike and Maithripala Senanayake (SLFP) in the discussions. We submitted several proposals, including a new chapter on fundamental rights. The government was assisted by Mark Fernando, M.Sanmuganathan, J.A.L.Cooray, and H.W.Jayewardena. Sometime in June or July, with no prior notice, a draft new constitution was presented to the select committee, with the announcement that the 1972 Constitution was not being revised, but replaced. At that stage, the SLFP members walked out in protest. It was rumoured that the draft was prepared by Mark Fernando, Gamini Dissanayake and HWJ. There was never any confirmation of that rumour, and the author/s of the 1978 Constitution still remain in the shadows.
        Nihal J.

        • 1
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          Thank you, Nihal. I must look into my source, but it’s over 40 years ago!

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          Dr.NJ,

          I have heard some people say Mark Fernando was among the best Justices on the Supreme Court and was well-qualified. I am surprised that he was among the drafters of the 1978 constitution. JRJ was also advised by Prof. A. Jeyaratnam Wilson, because of the friendship their families had–despite the latter being the son-in-law of SJV –, though the extent of his involvement and how much of his advice JRJ heeded are unclear to me. You may be able to shed more light on it.

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          “….At that stage, the SLFP members walked out in protest….” Oh, De ja vu, NJ?? What happened in 1972 constitutional reforms?? 13 out of the 17 members of the Steering and Subjects Committee, responsible for drafting the new constitution were ministers of the UF government. The main opposition party UNP, which gained more votes in the 1970 election (37.91% as against of 36.86% of the SLFP) was given ONLY 2 seats in the committee and none of their suggestions were accepted by the obvious majority either! So, it was absolutely a skewed representation of the people’s choice and voice. Worst of them all was the S&S Committee did not have any power to change the already prepared resolutions by a drafting committee headed by Colvin R. de S, Minister of Constitutional Affairs, and a group of senior SLFP LSSP and CP party members which were then submitted for formal cabinet approval through a 12-member ministerial sub-committee. So you see that technically there was no consideration given to a truly democratic process which represented the wishes of the people who voted in the 1970 elections. JRJ must have learnt the tricks in 1972 😉

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          Why dont the srilanken leaders seek due support from any powerful countries while darfting a new constitution ? If a powerful constitution would be made with the assistance of world s experts, future generations would be grateful to the current men in power.
          .
          Below linke will show you, how the germans wrote theirs after WWII.
          :
          https://www.deutschland.de/en/topic/politics/german-basic-law-the-key-facts

      • 0
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        Perhaps I should amend my comment about how the Referendum was put to use, to  “…to FORESTALL in one fell swoop a general election result that didnt fall in with his plans.”

    • 2
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      Dear Manel,
      .
      What were the rumours in the air, based on the draftsmen of 78 constitution then ? .
      .
      Dr NJ is concluding the article saying:
      “but the repeal of that Constitution in its entirety and its replacement with an altogether new Constitution does not require such approval at a Referendum. Whether or not that was the intention of the yet unknown draftsman of the 1978 Constitution, the field is now open for Parliament to adopt an entirely new structure of government.”
      .
      So even if a draconian constititution would be the next, being introduced by current men in power, people would not not have options to oppose it in today s context right ? Just look at how they got the BUDGET ( much higher criticisms) got passed by 2/3 majority in the parliament. In today s context, they can even get any pacts passed also based on ” arbitory killings by state”.
      This sound to be a dangerous situation… or what do you make of this ?

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        Leelagemalli, rumours? Do you mean about HWJ overseeing the new Constitution? Anyway, NJ has given his remembering of what happened. I am still wondering.

        I cant really answer your other question except to say, look how JR used the Referendum. He was supremely confident of winning the Presidential Election:
        “We are contesting this election to win and at a time most favourable to us. We intend to take advantage of all our opponents. We intend with the help of those supporting us to demolish and completely destroy the opposition politically. After that I say to you, roll up the electoral map of Sri Lanka. You will not need it for another ten years.”
        The results screamed at him. Believing himself far more popular than many of his MPs, he now faced the possibility of losing, if not the general election, at least his vital 2/3 majority. He said he planned a post mortem on them before deciding the election date. “In any case I must have it before July.”
        It seems that p-m caused him to effect a complete volte face & announce a referendum instead. Hope GR doesn’t take a leaf from his book

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    NJ, How dare you write these things in 2021 as if nothing happened in the 70s? Wasn’t it you, with Felix RDB turned the then Ceylon legal system up side down for the WORST with your friends and cronies appointed to the judicial system??? Are you expecting Thala after sowing Mung?

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      Skimming NJ’s piece, Jit, it was the Referendum that grabbed my attention, partly because that ws something of which I had close-up, concrete experience. I had barely settled in when the UNP came in & the ‘77 “race riots” flared up, & it was still another year or two before I discovered the Civil Rights Movement. I do, of course, have some idea about Nihal’s “history” but he seems to have spent his time thereafter, coming out publicly on the “right” side ever since (tho I don’t recall his ever having engaged in any form of self-criticism), so I didn’t immediately think of his role under FDB – ah, yes, one thing was that he took the liberty of sitting in a chair reserved for loftier men. Sorry, that was trivial.
      I dont really know enough about it to engage him on the matter; nor do I have the legal knowledge to respond about constitution-making, etc. What I DO know quite a lot about – though even there memory is failing — & what I have written & published about at some length, is the Referendum.

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        Part 1 of 3
        Manel, I agree with you and there is no doubt what JRJ did in the constitutional reforms and his pathetically undemocratic referendum have made serious dents in our social fabric with lasting consequences. In fact, the anarchical mode of present-day authoritarian regime is a direct result of JRJ’s executive presidency which is not responsible for the people elected parliament (how this ludicrous bunch of idiots in the current parliament got in there is a subject to discuss for another day). But my point was there was no difference of the authoritarian way it happened either in 1972 or 1978. NJ might have done a self-criticism which just like you, I’m not aware of either, but has anything changed for better whether he did or not? Because the scars of the serious damage done to our country in 1972 and 1978 (and thereafter) will remain for a very long time, even if one day someone reversed it all (which I’m sure wouldn’t see in my lifetime).

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        Cntd….2/3 …… I was a kid when this 1972 constitutional changes happened but for some of my studies later, I was part of a research team on the economic impacts of the political evolution in the 60s and 70s. I am no political science expert, but I can clearly say that the 1972 constitution was a watershed moment of Sri Lanka – a very bad one. One would say the 1972 constitution was less evil than the 1978 one, but I’d say both are equally evil. You can read how it was done, in my reply to NJ today. Actually, 1972 constitution gave JRJ his own ‘valid reasons’ to further undemocratize the constitutional reforms in SL. The worst outcome of 1972 constitution was the recognition of Buddhism as the state religion. It was with some kind of horror I found later that the idea was approved by Colvin RdS, a staunch Marxist, who once famously said ‘one language two countries – two languages one country’. Well not only he did NOT allow two languages but imposed Buddhism on everyone else too by making it the state religion, something even DS, Banda or Dudley never dared doing in their tenures.

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        Cntd….3/3……… The other worst outcome of the 1972 constitution was the abolition of Public Services Commission (PSC) which allowed the subject minister to control the public servants. Then started the plague of politicized public servants in our country! All senior positions in the public sector were filled to the whims and fancies of the UF government’s political agenda and particularly the Ministers Felix RDB, Illangaratne, Maithreepala, Kalugalla and Subasingha had heavy hands in these political appointments. That broke the backbone of our civil servants and was the very beginning of now utterly corrupt public service that we’ve got everywhere today. Needless to add, UF government’s authoritarian way of constitution reforms built heavy frustrations in the north and east which inspired Uma M and Velupillai P to take up arms and kill Duraiappa in 1975 and also fueled TULF to declare the Ealam concept in the 1977 election campaigns. Rest is history!

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          My article on the Referendum has resulted in the ghosts of the 1970s being invoked. All the issues raised were dealt with (a) in my chapters in two CPA publications edited by Asanga Welikala, and (b) by S.Nadesan QC in his six-week address on my behalf before the Special Presidential Commission in 1979. Briefly,

          1. In my view, the best Constitution we had was that of 1947 based on the Soulbury Commission Report and drafted by B.P. Peries. It served us well for 24 years notwithstanding an attempted coup and an insurgency.

          2. The trend towards authoritarianism commenced with the 1972 Constitution which instituted the National State Assembly as the “supreme instrument of state power”, bringing under it both judges and public officers. Mrs Bandaranaike attempted, though unsuccessfully, to stem that trend. Colvin was too powerful an individual to contend with.

          3. The steering committee of 1970 was a contrast to the select committee on the constitution that SWRD established in 1958. That consisted of members of all political parties, ethnic, religious and caste groups, in which the government was in a minority.

          4. The 1972 Constitution did not declare Buddhism to be the state religion. H.H.Basnayake and Cyril de Zoysa argued for it, but Mrs.B, as chairperson of the relevant committee, rejected it. She was supported in her position by a prominent Mahanayake who also objected.

          5. The Administration of Justice Laws of 1974 and 1975 were based on recommendations previously made by Justices Alan Rose, Nagalingam and Gratiaen, as well on contemporary work of law commissions in Australia, Canada and UK. They were resisted by the Bar and Bench because they seriously threatened their life styles and income sources. They were repealed immediately after the 1977 general election.

          6. All judicial appointments from 1970-77 were made in accordance with procedures followed since Independence. The CJ, AG and the Bar Association were consulted, and strict seniority was observed in the case of judicial and legal officers, with serious attempts made to attract members of the unofficial Bar to ensure a desirable balance.

          7. The incident in the Supreme Court at a ceremonial sitting in 1975 was a comedy of errors. Both MJ and I were invited by the CJ. I stood down because MJ wanted to take the Deputy Minister Ratnasiri Wickremanayake to sit with him at the Bar Table. The CJ objected because RW was not a lawyer. Unfortunately, RW did not turn up in time, and MJ insisted that I accompany him. I sat at the Bar Table as I was entitled to as a lawyer and as a former Attorney-General. What happened when the court assembled was that I became the target of a prepared speech of the CJ. When the CJ addressed me and said that I had no right to sit at the Bar Table, he probably thought he was addressing RW whom he had intended to see where I was seated.. Mr Nadesan dealt with this fully in the SPIC by reference to correspondence, etc.

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            NJ, thanks for that. My comments as follows in the same chronological order:

            1. Agree, 1947 constitution was the best, but it didn’t really serve us well for 24 years. 1956, 1959, 1962, 1966 were all troubled years before the major one in 1971.
            2. “..The trend towards authoritarianism commenced with the 1972 Constitution ..” Thank you! We are on the same page now.
            3. A bit confusing. Would you agree the 1970 Steering Committee allowed only 2 UNPers – JRJ & Dudley only despite they polling more than the SLFP in the 1970 election? Out of 17 members? Fair enough??
            4. Dont agree. What I found was “…….Article 10 and 14 (1) e, Article 9 of the 1972 Constitution declares, “Buddhism shall be given the foremost place by the State”.
            5. No comment/pass – as I didnt raise that point
            6. Was appointing Siva P as AG not a contentious issue?
            7. I have heard about that incident, of course the other side – that you were snubbed by the CJ. Now I see your side too.

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              Jit, responsing to your comments –

              1. The 1947 Constitution merely created the framework for governance. It provided flexibility, subject to section 29 and separation of powers. It enabled governments to be changed at every general election. It enabled free market and socialist economic policies to be practised. It prevented authoritarianism being established either in 1962 or 1971.

              2..The Constitution was entirely the creation of Colvin, influenced by Trotskyism. He even ignored the PM’s request not to include any reference to language, especially since Tamil was being described as “the language of translation”. He ignored the PM’s request to make the chapter on fundamental rights justiciable. The establishment of the National State Assembly as the “supreme instrument of state power” was a Marxist concept.

              3. The composition of the steering committee was designed to secure the smooth acceptance of the draft constitution. Several suggestions I made, during the brief period I served in the drafting committee, were rejected, Colvin claimed, by the “Top committee”. When I inquired from the PM what the “top committee” was, she said she was unaware of it, and that it was probably the LSSP politbureau !

              4. Establishing a state religion is different from requiring the state to “foster and protect Buddhism”. The initial draft required the state to protect the traditional places of Buddhist worship. The relevant committee categorically rejected the proposal to declare Buddhism as the state religion.

              5. You did raise this point by alleging that the legal system was turned upside down and cronies were appointed to judicial office.. That was why I responded.

              6. I was primarily responsible for appointing Siva Pasupati as AG. We found that the then AG, Rajah Wanasundera, was generally reluctant to provide advice in writing. It was always a case of “this is possible, and that is possible, and you decide”. To appoint Siva as AG, we had to first appoint him as Solicitor General, and that required moving two or three officers senior to him out of the department as High Court Judges. I was saddened when Siva, after the change of government, gave incorrect evidence against me in the Special Presidential Commission.

              • 0
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                1 of 2….NJ, sorry I didn’t actually get what you meant in #5 in your earlier comment. Yes, I brought up that issue – legal system was turned upside down and cronies were appointed to judicial office. One of the main reasons for that allegation was the appointment of Siva P as the AG pushing Raja W. away and I found that was very political. In the #6 you actually admit that heads had to be rolled to pave the way for S.P to be the A.G. Such a thing in 2021 Sri Lanka is so common and not even worthwhile to discuss but in 1975 it was really contentious whereas almost all senior legal personnel, including senior judges, at that time were trained before 1948, followers of the rules in the books. I get your point that you needed a strong personality to advice the government on matters of national importance, but do you still believe that it wasn’t a shock in our public service to promote an officer that way, particularly in the judiciary, which otherwise had a smoothly run promotion system that far?

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                2 of 2…Also, I still have questions re- Buddhism, “Buddhism shall be given the foremost place by the State” phrase in the constitution is quite different to what you define as “foster and protect Buddhism”. Giving foremost place means it is given #1.
                I am actually quite aghast to learn the magnitude of LSSP power wielding on the making of the constitution and how Colvin and the Trotskyism influenced the whole procedure to benefit their ideological thinking. And how he flaunted his power over such strong SLFP characters like the PM or FRDB, MS or TBI is quite astonishing too!
                Thanks again anyway, for enlightening me on couple of things that I didn’t know until now.

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                  Jit, in response,

                  1. To clarify, the Attorney-General is not a judicial officer, nor is he a part of the judiciary. He is the principal legal adviser to the government.

                  2. Raja Wanasundera was not pushed out. He was “elevated” to the Supreme Court, I think he was far more comfortable there, and wrote some very significant judgments. What any government needs is a strong lawyer who will not only provide sound advice, but will also be willing to go into court and defend governmental action.

                  3. The “shock” to the Supreme Court occurred in 1978 when JRJ re-structured the Court leaving out about eight Judges who had been guaranteed security of tenure under the Constitution at the time of their initial appointment.

                  4. The relevant article on Buddhism read:
                  “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 Buddhism while assuring to all religions the rights guaranteed by section 18(1)(d).”
                  As a Buddhist, I understand the teachings of the Buddha as offering a philosophy of life. Therefore, I do not know what the Republic of Sri Lanka has to do with my acceptance of that philosophy.

                  5. What Colvin offered to his fellow Ministers were (i) a supreme instrument of state power (the National State Assembly) in which they were all members; (ii) a Cabinet of which they were all members exercising the power of appointment of all judicial and state officers; and (iii) Permanent Secretaries who will be “subject to the direction and control of his Minister”, and not, as previously, “subject to general directions” which PM Dudley Senanayake had interpreted as “subject to policy directions only”. Such a Constitution must have seemed very tempting to them.

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                    Another aspect of the drafting of the 1972 Constitution which is perhaps now not well known is that the process began with a resolution of the Constituent Assembly (comprising the elected members of the House of Representatives), followed by the drafting of the “Basic Resolutions” setting out the principles upon which the new constitution was to be drafted. That task was performed by a 12-member Drafting Committee under the direction of the Minister of Constitutional Affairs (Colvin), and coordinated by the Permanent Secretary of the Ministry, Walter Jayawardena QC. These Basic Resolutions were presented to, and debated in the Constituent Assembly.

                    Immediately after the final Basic Resolution was adopted by the CA, Felix (who was then the Minister of Public Administration, Home Affairs and Local Government) sent for me and instructed me, in consultation with AG Victor Tennekoon, to prepare a draft constitution faithfully giving effect to the Basic Resolutions. When I reminded him that that task was already being performed in the appropriate ministry, he required me nevertheless to submit a draft within a week which I did. He beat Colvin to it, and released it to the press. “Colvin is free to accept or reject it” he told the press. Colvin responded that “only one draft will be placed before the constituent assembly”, and only the official one eventually was.

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                      NJ, thank you and for some of these stories to which I didn’t obviously have access when we did the research in late 90s. My uncle was a public servant since 1960s, politically very neutral, but became a political victim under the UF government when he refused certain things his minister ordered to do. He resigned few years in to UF regime, as he couldn’t stand the gross violations to AR and FR, something he followed religiously since his cadetship. And had narrated me quite a lot of stories about the violations of rules and regulations that were protected in the public service thus far. He singled out the abolition of the PSC as the main reason why public servants would not be independent thereafter. He was even more shocked and saddened by the things happened under JRJ particularly the executive and the muted parliament. He died an unhappy man few years ago, not in the land he dearly loved. Not because he was my uncle but the fact that he was not the only good honest public servant which SL lost makes me sad and angry today in the backdrop of an utterly chaotic, ruined, and failed country.

          • 1
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            Thank you for yr explanation, Nihal. But I, too, was surprised by yr saying the 72 Constitution did not declare Buddhism to b the state religion. I wanted to check my copy of that C but cant find it.

            Have been going thru the latest “edition” of the current one, online, & only now realise that various things have been dropped or changed, in the last 2 years, not always a consequence of the 20th amendment. Ability to focus badly impaired these days so any legal document is a bit of a struggle for me.

            I now remember that the CRM (founded in 1971 some months after the insurrection, with ER Sarachchandra as Chair, submitted suggestions & amendments to sections of the draft Con. I expect they have a considerable record of that endeavour, & not only because S. Nadesan was one of their most active members, but the current Secretary, Surita Wickremasinghe

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              Abrupt halt to my post caused by “interfering” mobile!

              Suriya Wickremasinghe, also an advocate, dedicated civil rights activist for well over 50 years, is a mine of knowledge about so many long-forgotten legal & illegal developments in this stricken land.

  • 0
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    Manel Fonseka,

    it was H.W.Jayewaerdene QC, the younger brother of JR

    • 1
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      Thank you, Srikrish, HW, of course! I’m afraid my memory’s giving me a lot of trouble now. I wonder what errors have crept into other posts. Repeating myself, too — v. embarrassing.

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        You are doing fine Manel and trust me, the things you remember and the way you put them into context amazes me – something I am not able to do all the time :)

  • 0
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    Nihal Jayawickrama

    The constitutional experts in the then Yahapalanaya government may have overlooked Article 82(5) of the 1978 constitution and thereby working on the premise that in terms of the provisions in the 1978 constitution an entirely new constitution could be brought in only by a simple majority in a referendum in addition to two third majority.
    Was it?.

  • 1
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    Here are a few things that pass thru mind.
    A whole new constitution is NOT against the provisions of the 1978 Constitution.
    .
    Drafting new Constitutions has become an obsession with us. We seem to imagine that a new Constitution would work magic to SOLVE our problems. It is a fallacy.
    .
    No Constitution will be better till we educate ourselves to understand that democracy by itself cannot bring about a broad consensus. Democracy is not a vehicle meant for the numerically superior to rule over the minority communities.

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    ” Therefore, the scheme of the 1978 Constitution appears to be that, while that Constitution remains in force, the entrenched provisions of that Constitution may not be amended, repealed or replaced without the approval of the “people” at a Referendum, but the repeal of that Constitution in its entirety and its replacement with an altogether new Constitution does not require such approval at a Referendum. Whether or not that was the intention of the yet unknown draftsman of the 1978 Constitution, the field is now open for Parliament to adopt an entirely new structure of government. “ That argument is not valid. Once the existing constitution is dismantled without any binding terms over its constituents, then all constituents become free to go on their path. Uniting the liberated constituents with the Rapist Army’s oppression is not viable in the modern world. This will open up Kandyans to ask again a separate administration for them and Muslims may too want Thani Alahu for them or separation. (Tamils are not bound by the 1972 constitution or 17978 Constitution.)
    One cannot write a constitution to be covering and protecting anything and everything of destructive ideas coming out of criminal, crook minds. It is said Westminster has operated with the least number of lines in their constitution for 800 years. It is neither codified as one document. How is this possible?

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    It is about respecting the Maxims of the law theorems. For example, if we take the main point Dr. NJ discussed, here, “a High Court doesn’t overrule CoA or Supreme Court, but only overrule the magistrate court.” There is no constitution needed to defend higher court’s authority if a lower attempts to overrule it. That is not accepted in practice. Part of the customary law develops by simply accepting the logical position, even if they are not stipulated in the main canon text of the country’s law. Unfortunately, Lankawe refused to implement the part of the written constitution, the 13A, because it is not a law abiding country, but a Rapist Army oppressing wildlife sanctuary. It is only a highly dishonest gimmick, now, it is pretending that it is looking for a logical way to get away from the referendum. The Lankawe constitution is codified in one document. It cannot be split and interpreted by individual lines, independently. So, if there is a section in the constitution that is restricted to amendments or alteration requesting referendum, then that constitution cannot be abandoned without referendum. It is well accepted that any sections mutually exclusive or not directly above the provision faces amendment restriction, can be changed without referendum, even if their level can be interpreted as parallel or at the same level of the restricted provision.

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    Because the Lankawe constitution is a single codified document, if the fundamental of it is changed or it is abolished as whole, then the constitution is changed in violation to the restricting provision. So, one cannot change the constitution or abandon the constitution without satisfying the restricted provision. Without changing the restricted provision with a referendum and if a new constitution is introduced, then the country will be operating under two constitutions, that is the unchanged provision and its in-extinguished binding authority & the new constitution’s fresh provisions. So, there is no possibility in Lankawe to change the EP’s status without a referendum. Another convoluted argument can be that abolishing the constitution as whole other than the restricted provision and adopting the restricted part in the new constitution, as it is. That may have worked if Siri Ma O had transferred S 29 from the Dominion constitution to the Republican constitution. Tamils joined Ceylon only after S29 negotiated and after the Tamil ministers ratified the 1948 constitution. In that case one may argue that the new republican constitution is binding on Tamils. That did not happen. Siri Ma O didn’t take care of those matters, so the 1948 constitution was completely abolished with the consent that the Tamils gave to that. Now Tamils are free to make any new constitution for them at any time.

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    I would like to recall some background to/reasons for the Referendum, some examples of its outrageous conduct & suggest at least one serious, possible consequence of it, but perhaps I will just refer the rare, interested person to the report I was still writing while under curfew after July ’83. A report that I had to hide whenever the doorbell rang as police frequently came to search for “subversive” literature.
    .
    Parts of it appeared in “Sri Lanka in Change & Crisis,” (ed) James Manor, London, 1984. I agreed to let him use it because was nigh impossible to bring it out in SL, but I was unaware of the context in which it would appear. To my horror, my chapter followed one by Lalith Athulathmudali, presenting a view of the Presidential Election & Referendum totally different from my own. And the whole section in my report devoted to the shocking, racist, campaign HE initiated — “A VOTE for the POT is a VOTE for EELAM!” — was not included in the book at all. It wasn’t until 1988 that the full report (117 pp) was published, but also abroad, alas, by the CHR Michelsen Institute, Norway, under the pseudonym “Priya Samarakone”.

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    What is the point in submitting the draft of a complex piece of legislation to the people at a Referendum to obtain their approval when the people don’t know the intricacies of the law or the consequences of enacting such laws. Remember, the legal knowledge of the people is practically nil and the average IQ of the Sri Lankan population is 79 points!

    Basic laws must be drafted by legal experts, but principled legal experts, not shysters! Referendums are obstacles to social and political progress and are an expensive exercise that we can ill afford! Every time we need to change a law we cannot be holding a Referendum.

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      Democracy doesn’t worry if the Sinhala Buddhist Modayas can’t understand the legal complexity in its structure. It treats the words “Sinhala Buddhist Modayas” and “Sinhala Intellectuals”, the strange spices on the earth, as synonyms. Usually referendums are “Yes” or “No” questions, in order to make the voter find it easy. First the draft will be discussed in the parliament. The Closed provision will be put for the public for voting, (only for opening, so they need not to worry too much about what the effect of changes will be, by opening the closed provisions for change. In this case, the main question is would they prefer the EP’s dominance, instead of a parliament which is balanced with the President. Apparently, in the 2019 election, they wanted a Hitler to control minorities. So, they prefer EPs. Usually, in all elections, there will be something the voters wouldn’t easily understand. So, the election candidates go for Townhall Meetings to ensure that the voters are clear of the problems on which the candidates are contesting. In all Western elections, Left and right parties are contesting. But these are not about if Adam Smith is right, or Marx is right. Most of the questions dividing the parties are only about candidates’ political image. Thus, democracy keeps going on (or just survives).

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    Nihal J.would be most probably having a copy of the piece by S.Nadesan Q.C UNDER THE TITLE ………
    Some comments on the Constituent Assembly and the Draft Basic Resolutions published in Feb.1971. He was at that point of time the Chairman of the Bar Council. He was concerned at the haste with which the Republican Constitution was in the process of formulation………..[ This was published and circulated by him to lawyers of his circle. I merely inherited a copy; Thats all! ]

    Anyway ,his concluding remarks on page 120 were…………..
    ……..Another idea which Mr. Bandaranaike gave to Ceylons political thinking was the decentralisation of Administration and the creation of Provincial or Regional Councils. He considered that this was one way of solving the minority problem. He was unable to implement his ideas in his lifetime on account of the activities of what he himself described as the forces of evil …………………..

    As for the forces behind the 1978 Constitution there were several cooks. A.J. Wilson called it a model based on De Gaulle style.
    But, I was told that JRJ went through the whole works, line by line, with his Lawyer Ben.Eliathamby P.C., [ He looked like JRJ!!!!]. So, in essence it was Tailor-Made for JRJ.

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      Plato, I do have a copy of Mr.Nadesan’s brilliant, and comprehensively researched, book on the 1971 constitutional proposals. The 1978 Constitution was clearly “Tailor-Made” for JRJ and included ideas which he had initially floated at a CISIR lecture in the 1960s and then submitted to, and been rejected by, the UNP under Dudley Senanayake.

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    It was a pleasure reading through the comments of Nihal.J. and Jit; Agewise several years apart! A mini thrust and parry!

    Dr.Colvin R.de.Silva was no doubt the Architect of the 1972 Republican Constitution.
    So much so, as Nihal.J. who had a ringside view has told us, Dr.Colvin bull-dozed his way through not even bothering the more moderate stand of the PM WITH RESPECT TO RELIGION AND LANGUAGE.
    In fact S.Nadesan Q.C urged Colvin to be considerate on the Language issue.No way ; Politics is the art of the Possible responded Colvin

    The concept of the National State Assembly and other ingredients of the Republican Constitution was modeled on Marxist ideology.
    But how did a doctrinaire Trotskyite turn his coat to become an ecclesiastic enthusiast?

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      Thanks Plato, yeah it was a good run and I cleared some of my doubts although I do not necessarily agree with everything he said but that’s alright :). NJ clarified some of them quite clearly. As you agree too, stories about Colvin’s hegemony is new and shocking to me particularly with a paltry number of seats in the parliament, 17 I guess, over a majority of SLFP’s 96, again a close guess? Amazing!

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        jIT

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          Sorry

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    Jit

    You wanted to know Singapore’s inventions.
    Here are a few lists of items you probably didn’t know first they existed second they were invented by Singaporeans:

    10 useful inventions by Singapore firms during Covid-19
    https://www.businesstimes.com.sg/infographics/10-useful-inventions-by-singapore-firms-during-covid-19

    10 Super “Extra” Inventions Singaporeans Never Knew They Needed In Their Lives Until Now
    https://thesmartlocal.com/read/extra-inventions-singaporeans/

    Made-in-Singapore inventions
    https://www.tech.gov.sg/media/technews/sg%20tech%20represent!%20three%20times%20made-in-singapore%20tech%20made%20us%20proud

    3 LOCAL TECHNOLOGIES YOU NEVER KNEW EXISTED
    https://www.a-star.edu.sg/News-and-Events/a-star-innovate/innovates/latest-research-tech/3-everyday-technologies-made-in-singapore

    SINGAPORE’S SEXIEST 2017 CALENDAR! – TSL Comedy
    https://www.youtube.com/watch?v=yMZk6dXPkpk

    16-year-old Singaporean exhibits invention at CES 2019
    https://www.straitstimes.com/tech/16-year-old-singaporean-exhibits-invention-at-ces-2019

    Watch this one as well.
    Michigan Invention Convention 2019
    https://www.youtube.com/watch?v=8BIMoDdBVtQ&t=42s

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