Evolution of Constitutional reforms in Sri Lanka | Sunday Observer

Evolution of Constitutional reforms in Sri Lanka

16 October, 2022

Constitutional reforms are a much talked about subject in political circles these days due to the Government being uncertain to muster the support of the majority in Parliament to pass the 22nd Amendment to the Constitution. However, no final decision had been taken by many parties who have some reservations over certain clauses of the proposed Amendments.

Sri Lanka which has a recorded history of over 2,500 years as an independent nation became a colony of the British Empire in 1815 and the British rulers started governing this country based on the policies adopted by them for their colonies.

Colonial Government Reforms

A few years into British rule, the then Governor of Ceylon Robert Brownrig wanted to streamline the internal administration and introduced the Colebrook Cameron reforms in 1828 which many significant changes were put in place in the administrative structure of the Government.

At the beginning all powers were vested with the Governor who was the sole authority representing the King of England.

With the introduction of the Colebrook Cameron recommendations, the Executive, Judicial and Legislative powers were divided and the Supreme Court was set-up under a charter of justice for the smooth functioning of justice and fair play.

The British governed our country for almost a century under the Colebrook Cameron reforms with minor adjustments on certain issues. There were dramatic changes in the social, cultural, educational, economic and religious spheres with prolonged British administration in the country.

Post Independence

However, with the passage of time, Sinhala politicians were not very happy over the functions of the Executive Council on which colonial officials enjoyed predominance that was responsible for governing then Ceylon.

Sinhala politicians were also not happy with the composition of the Legislative Council, the island’s principal law making body which had considerable authority over the public purse.

Sinhala lenders disliked it because it excluded them from executive authority and because of an over representation of non-Sinhalese.

The unhappiness which the Constitutional engendered led to the announcement in April 1927 that a special committee would be appointed to prepare the new Constitutional reforms.

One of the main concerns of the Commission which was handled by Lord Donoughmore was the possible extension of franchise to men and women over 21 years of age for which some of the Ceylon National Congressmen had their reservations.

The only people who advocated Universal Franchise were Labour Leader A.E. Gunasinghe and two other British residents of Ceylon.

Donoughmore Reforms

They also proposed the merger of the executive and legislative role within a single State Council of six members, to last for a term of five years. Sixty members were to be elected from the electorates.

A major gain for the previously under represented Sinhalese while eight were nominated by the Governor to give adequate representation to the minorities.

A further three members to be the officers of State In-charge of Executive Portfolios which were excluded from non-official control. Finance, Justice, Public Service, Defense and External Affairs.

Some of the new provisions enshrined in the Donoughmore report were borrowed from the London Country Council. The Governor’s powers were increased to balance those of the State Council.

His right to enact legislation for the Royal assent was extended to cover several new types of Bills.

He was also empowered to suspend decisions of executive committees in these same areas and he retained control of matters concerning civil servants.

Although the British rulers governed the country enacting the Donoughmore recommendations for some time, the progressive forces of the day were not fully satisfied with the system and repeatedly stated the importance of obtaining more powers in administrative affairs of the country.

Ceylon National Congress

There were prominent local politicians in the State Council such as D.S. Senanayake, S.W.R.D. Bandaranaike, J.R. Jayewardene, Sir D.B. Jayathilake and Dr. N.M. Perera. In the meantime the Ceylon National Congress was a formidable force to be reckoned with since most of its members were active and foresighted in the State Council who represented different districts and different sections of the society.

It was the era when the freedom struggle was gaining ground in India for self-government and it had a direct impact on our country as well, since the Ceylon National Congress had a close rapport with the Indian freedom fighters.

The politicians of this day, irrespective of any differences called upon the British rulers to grant the country self-autonomy since the people are quite confident of looking after their affairs.

Eventually, it came to a stage where the almighty monarch had to heed the peoples’ request and appointed Lord Soulbury to make recommendations with regard to the internal administration of Ceylon.

Birth of the Soulbury Constitution

However, the British Government refused to undertake the drafting of the new Constitution in the midst of World War II since they were much occupied and D.S. Senanayake the Chairman of the Board of Ministers appointed P.B. Peiris, the Assistant Legal Draftsman to draft the new Constitution.

The 1946 Constitution which P.B. Peiris drafted and named Soulbury Constitution was the best that Sri Lanka yet had according to some political analysts. It was the model that the British Government used when it began dismantling its far-flung Colonial Empire.

It had no ideological basis and professed no economic or social objectives. It was only concerned with establishing the essential framework for democratic governance.

It did so by creating the principal institutions and defining their powers in a Constitutional Head of State. A Parliament comprising two chambers, a Cabinet of Ministers headed by a Prime Minister charged with the general direction and control of Government and collectively responsible to Parliament.

Permanent Secretaries charged with exercising supervision over the departments of Government subjects to the general direction and control of the relevant Ministers, security for the tenure of judges of the Supreme Court, Judicial Service Commission and a Public Service Commission, the Consolidated Fund, Contingencies Fund and an Auditor General.

Under the 946 Constitution it was possible for both right wing and left or centre political parties to be elected to office and implement their programs unhindered.

It was possible for the free market and regulate the economics to be practiced. The Parliamentary Executive System of Government it provided was strong enough to withstand the youth insurrection in 1971. It was also possible for a Government that has lost its popularity to be removed either by a parliamentary vote of no confidence or through defeat at a general election.

The separation of powers was an inherent feature of the Constitution and judges exercised the power of judicial review of legislative and executive action. Under this Constitution people in the country enjoyed a quarter century of relative tranquility, stable Government and generally respect for individual rights and freedom.

First Republican Constitution

The country was governed by six National Leaders under the Soulbery Constitution from its introduction and in 1972 the SLFP Government of Sirimavo Bandaranaike introduced the non-executive presidential form of Government.

The official name of the country was changed to Democratic Socialist Republic of Sri Lanka and Parliament too renamed as National State Assembly and Parliamentarians became members of the National State Assembly with the bicameral legislature becoming unicameral.

Another major significant change relating to the judiciary was that the right to appeal to Privy Council was done away with. Sirimavo Bandaranaike’s Constitution was architectured by Constitutional expert Dr. Colvin R. de Silva.

Second Republican Constitution

Alleging that the 1972 Constitution did not have adequate checks and balances and similar drawbacks President J.R. Jayewardene lost no time in introducing his brainchild, the First Executive Presidential Constitution of 1978 which is still in force.

However, all subsequent Amendments to the Constitution, the most controversial 13th Amendment provided for devolution of power to the periphery via the network of Provincial Councils.

The United National Party headed by its three leaders namely J.R. Jayewardene, Ranasinghe Premadasa and D.B. Wijethunga ruled the country under the umbrella of the 1978 constitution till 1994.

The Opposition led by the SLFP which were crusading against the dictatorial nature of the Constitution, referred to at times as JR’s Bahubootha Viyawasthawa by Chandrika Kumarathunga conducted an island-wide campaign to abolish the Constitution and introduce a more democratic and people friendly Constitution to the country if voted to power.

However, she too governed the country for two consecutive terms and no effective action was initiated to abolish or make any significant change in the Constitution during her tenure of office, quite contrary to what she pledged at the election platforms.

President Mahinda Rajapaksa who took over the reins of Government in 2005 said that he would abolish the draconian Constitution for which the ground work was being prepared.

He agreed to the Tami community in North and the East that he would even go beyond the 13th Amendment to provide democratic measures.

However, there again we couldn’t see any remarkable steps towards pure democracy or well-being of the general public other than getting the Presidency further consolidated with the 18th Amendment. The 18th Amendment entailed a number of clauses by which the sovereignty of the countrymen was threatened.

With the advent of the Yahapalanaya Government the 19th Amendment to the Constitution was enacted and a number of progressive measures were introduced. The appointment of Independent Commissions, Right to Information Act, reduction of a Presidential term by one year are some of the salient features introduced by the 19th Amendment.

The 20th Amendment to the Constitution was introduced soon after Gotabaya Rajapaksa became the President and no significant or public friendly actions were taken other than making provisions to retain the eligibility of duel citizens to engage in local politics and hold ministerial portfolios for which they got a two-thirds majority with the support of bankrupt political henchmen of the extreme left who have no future unless they aligned with a main party.

New Government

With the advent of the new government, the main Opposition (SJB) had drafted the 21st Amendment to the Constitution and presented in Parliament as a Private Member’s Bill and constitutionally it required the Supreme Court approval and followed by a referendum. Hence it is kept in suspense right now and the Government is trying to introduce the 22nd Amendment to the Constitution which has a number of democratic features including the removal of the eligibility of dual citizens taking part in local politics. However, we are yet to see whether the Government will succeed in enacting the 22nd Amendment as there seems to be a difference of opinion in this vital issue among Government members themselves.

The 1978 Constitution of J.R. Jayewardene is very strong in character and has so far weathered many a storm. Hence the country is anxiously waiting for the final outcome of the reforms that would be introduced by the Ranil Wickremesinghe Government.