Evolution of Constitutional Governance in Sri Lanka.May 19, 2012, 5:00 pm
Speech to be delivered on May 22 at The Mahaweli Centre in commemoration of the fortieth anniversary of the promulgation of the first Republican Constitution of Sri Lanka :
BY Dr. Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada and also Visiting Professor of Law, University of Colombo.
The significance of 22nd of May for Sri Lanka is that forty years ago Sri Lanka became independent from Colonial rule, in a very real sense. Since 1505, from the conquest of the Maritime Provinces by the Portuguese and through the conquest of the Dutch in 1656 and the British in 1796, and to the achievement of Dominion Status in 1948, the Island had some form of Colonial domination which necessitated the maintenance of a form of a dependency upon a foreign power. The Island nation was subject to foreign rule either as a full blown Colony or as a Dominium of a foreign power.
In 1972, those kinds of dependencies were for the first time and forever cast aside, and after almost 500 years, Sri Lanka found its Sovereignty from its own people, represented by a elected legislative body that represented that Sovereignty of its own people, which was represented by a Head of State chosen by its own people.
In 1972, people of Sri Lanka became the sole repository of its Sovereign powers. This was made possible by the promulgation of the 1972 Constitution. It is this fact that makes today a significant day in the History of this Island of ours. That event took place forty years ago today.
Between the commencement of British Colonial Rule in 1792 and its ending in 1948 there were Five Constitutions. They were each targeted principally at the Strengthening of the economic, social and the colonial hold on the Island.
By way of its Economic hold the avowed policy was to make Ceylon an Economic dependency upon the mother country- Britain. By way of the colonial transformation through education and culture, the aim was to establish an elitist domain among the Ceylonese population. L:astly , to establish a colonial dependency through the introduction of the English language, the protestant Christian faith and the English legal system. There were other competing strands by way of the Roman Catholic Christian faith introduced by the Portuguese during their period of governance of 1505 to 1656 and Roman Dutch Law by the Dutch colonialists between 1656 and 1796. These posed, but, weak competitors to the formidable force with which Britain set its sights at colonizing Ceylon.
1. The first introduction of colonial constitutional governance was made through the Colebrooke Cameron Reforms. While Colebrooke introduced the Constitutional Reforms Cameron proposed the Administrative Reforms.
The Constitutional Reforms, the structure for constitutional governance proposed by Colebrooke, set the pattern for subsequent constitutional models : Crewe MaCallum Reforms (1912) , The Manning Reforms (1922); The Donoughmore Reforms (1926) and the Soulbury Reforms (1948).
The structure for Colonial governance seemed quite simply to be one where the Colonial Civil Service in Ceylon acting under the close supervision of the Imperial Civil servants in Whitehall shall Administer the new Colony . These officers at Whitehall were both the advisors and the sub-ordinates of the Secretary of State for the Colonies who had cabinet ranking and membership in the U.K. Parliament.
The structure introduced by the Colebrooke Reforms was of a bi-cameral legislature referred to as the "Legislative Council" ("Leg – Co") and the "Executive Council" ( "Ex-Co"). These were the precursors of the Legislature and the Cabinet of Ministers of Independent Ceylon. This structure continued into each of the Subsequent Constitutions, and is a common feature today for every member of the British Commonwealth of Nations. Cabinet responsibility to Parliament became a common feature in the British Commonwealth, where the members of the Cabinets of various Commonwealth countries were required, first and foremost, to be members of their respective Parliaments.
Colebrooke Reforms espoused cabinet responsibility to Parliament which had remained to this day, even under the 1998 Constitution.
The subservience of the colonial legislatures to the legislature of the United Kingdom was maintained through the strict application of the Colonial Laws Validity Act of 1865. That Act was a Statute of the U.K.Parliament which merely legitimized the Sovereign reach which the "Mother Country" (U.K. Parliament) had over its colonies. When each of the former Colonies were freed and were proclaimed Independent by the U.K. Parliament that same proclamation declared that the Colonial Laws Validity Act shall no longer apply to that territory.
To every subsequent Constitution the Colonial Laws validity Act applied, until the proclamation of the Soulbury dispensations.
Colebrooke Reforms defined the role of the Governor as the representative of the Sovereign the Monarch who rules over the U.K. Parliament. The introduction of the Governor with the powers of the Sovereign to Rule over the Colony completed the blue-print as an emanation of the constitutional schema of Great Britain.
This schema was passed on to each of the three subsequent colonial Constitutions: Crewe –MaCallum (1912), Manning (1922) and Donoughmore (1926) dispensations. This schema was used by Lord Soulbury to keep the provisions of the Independent Constitution of 1948 to be a reflection of the Constitutional schema that is used to govern the United Kingdom- Britain.
What the 1972, the First Republican Constitution, achieved was to break away from that Colonial schema of constitutional governance which had continued into the Period of Independence.
(2) The departing Colonial power posited the Sovereignty of an Independent Ceylon in three constitutional structures.
The Legislature, under Part III of the Soulbury Constitution was declared to be bi-cameral. There was established a Senate which was not a body elected by the people, but nominated partly by the Executive and partly elected by the Members of the House of Representatives. The second limb of the Legislature was an elected "House of Representatives", thus establishing the bi-cameral nature of the Legislative body. This scheme for Constitutional governance mirrored the constitutional arrangement in the United Kingdom with the House of Commons and the House of Lords forming the bi-cameral structure for constitutional governance.
The second of this trilogy was in Part V of the Soulbury Constitution. That was the executive arm of government – constituting the Cabinet of Ministers, drawn from the members of the two chambers of governance – The Senate and the House of Representatives.
The last of the trilogy was the Governor – General established under Part II of the Soulbury Constitution. It is important to observe that Article 4(1) of the Independence Constitution, drafted by Lord Soulbury read:
" The Governor-General shall be appointed by Her Majesty, and shall have and may exercise in the Island during her Majesty’s pleasure , but subject to the provisions of this Order, such powers, authorities and functions of Her Majesty as her Majesty may be pleased to assign to him."
The Governor-General in a Dominion, as Ceylon was, at the time, under the Soulbury Constitution, was the representative of the Sovereign of Great Britain. She in fact was the Head of State of a Dominion, which was our constitutional status at the time.
Once we accepted the Status of the Governor-General as being the representative of the Sovereign of Great Britain, we, as Ceylonese, continued to owe our allegiance to a foreign Sovereign. The Soulbury Constitution which we accepted as a document which freed us from foreign domination, in fact made that foreign domination
Constitutionalized by making us continue our allegiance to the same Kingdom under which we became a subject nation – a Colony - , namely the descendents of King George III. This is a fact that must not be missed when considering the amplitude of the Soulbury Constitution.
A fundamental change of Ceylon’s "Dominion Status" was introduced in the 1972 Constitution where it was declared that :
" Sri Lanka (Ceylon) is a Free, Sovereign, and Independent Republic ( Article 1) ——— There shall be a President of the Republic of Sri Lanka who is the Head of the State (Article 19)——The President is the Head of the Executive and the Commander – in – Chief of the Armed forces (Article 20) .
In Article 21, the 1972 Constitution detailed, in eight paragraphs, the powers of The President, as the Head of State of the Republic of Sri Lanka. The post of the President under the 1972 Constitution was a home-grown institution, being a part of an Autochthonous Constitution.
President Eamon de Valera’s Free Irish Constitution of 1922 which was amended in 1937, may be regarded as the first Autochthonous Constitution which established the Republic of Ireland. The well known Constitution which was "Home Grown" is the present Indian Constitution. Its drafting Committee was chaired by Dr. Ambdekhar. The most recent was the Namibian Constitution of 1990 amended in 1998.
The powers of Her Britanic Majesty as the Head of State of the Dominion of Ceylon, under the Soulbury Constitution was given by the British Houses of Parliament and therefore was of a foreign creation. The powers of her Majesty’s representative in the Dominion of Ceylon was the Governor –General and his duties have been declared , inter alia as those detailed to be :
" —- exercised as far as may be in accordance with the constitutional conventions applicable to the exercise of similar powers, authorities and functions in the United Kingdom by her Majesty.
( Article 4(2) – Soulbury Constitution).
While the Soulbury Constitution maintained a tight knot of powers of the strings that connected the Sovereignty of an independent Ceylon with the departed colonial power, the 1972 Constitution successfully severed those apron strings, thus freeing Sri Lanka from any constitutional domination that may sully the purity of its independence. That is an important contribution that the 1972 Constitution has made to Constitutional governance in Sri Lanka.
(3) There were a number of historical benchmarks that the Colonial Administration had marked, which to a large measure affected the people- their society and their Religion. These are some of the areas that the 1972 Republican Constitution was designed to ameliorate. The period between the Colebrooke Constitution ( 1833 – 1912) and the introduction of the Crewe-MaCallum Reforms in 1912 was a period of hostile governance by the Colonial power. There were a number of Areas of hostility that the Colonial Administration showed towards the people over whom they ruled. This paper has chosen some Key areas for consideration. These three areas have received particular attention in Chapters II, III, IV, and V of the 1972 Constitution.
The hostilities were a result of a well articulated colonial policy crafted in Whitehall and transmitted by way of " Commissions and Instructions" to the Governors between 1833 and 1872. There were at least ten such directives during that 39 years of governance. Sir Ivor Jennings ( See Journal of the Royal Asiatic Society (N.S.) Vol 1 at page 51- " Notes on the Constitutional Law of Colonial Ceylon)- wrote:
" If we ignore the dominant Commission, there were between 1833 and 1872, inclusive, ten Constitutions for the Island, namely the Commissions and Instructions issued to Governors Horton (1835) , Stuart MacKenzie (1837 and 1838) , Campbell (1841), Torrington ( 1847), Anderson (1850), Ward (1855), MacCarthy (1860), Robinson (1865) and Gregory (1872).
The Instructions sent to Governor Horton at his assumption of duties on 20th March 1833, was that, whatever be the Instructions sent from Whitehall from time to time, the Governors should follow them and in a flexible manner fit them into the terms of the prevailing constitution. In any event between 1833 – 1912 there were no fresh constitutional provisions sent other than dictates of colonial policy through these "Commissions and instructions".
Continued next week
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Last Updated Apr 27 2015 | 07:08 pm