Evolution of constitutional reforms in Sri Lanka

By Jaliya WIJEYEKOON

Sri Lanka which has a recorded history of over 2,500 years was ruled by a large number of kings and a handful of queens in the past till it became a colony of the British Empire with the fall of the Kandyan Kingdom in 1815. However, prior to this, there had been two invasions by the Portuguese and the Dutch in 1505 and 1656 who conquered only the maritime provinces of the country.

Colonial Government reforms

Donoughmore	Lord Soulbury	D.S. Senanayake
Sirimavo Bandaranaike	J.R. Jayewardena	Mahinda Rajapaksa

A few years after British rule, the then Governor of Ceylon Sir Robert Brownrig wanted to streamline the internal administration and introduced the Colbrooke-Cameron reforms in 1828 by which a number of significant changes were put in place in the administrative structure of the government. At the beginning all powers were centered around the Governor and he was the sole authority representing the King of England. With the introduction of the Colbrooke-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 fairplay of its citizens.

British rulers governed our country under the Colbrooke-Cameron reforming for many years with minor adjustments over certain issues. There were drastic changes in the social, cultural, educational, economic and religious spheres with the prolonged British administration in the country.

Post independence

However, with the passage of time Sinhalese politicians were not very happy over the functions of the Executive Council on which Colonial officials enjoyed predominance that was responsible for governing Ceylon. The Sinhalese 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. The Sinhalese leaders disliked it because it excluded them from executive authority and because of an over-representation of non-Sinhalese.

Donoughmore reforms

The unhappiness which the constitution engendered led to the announcement in April 1927 that a special committee would be appointed to prepare 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 A.E. Goonesinghe and two British residents of Ceylon. They also proposed the merger of the executive and legislative roles within a single state council of 6 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 were to be the Officers of State in charge of executive portfolios which were excluded from non official control, Finance, Justice, Public Services, Defence 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 Donoughmore recommendations for sometime 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, Dr. N.M. Perera and Sir D.B. Jayathilake.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 Indian freedom fighters.The politicians of the day, irrespective of 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 people's request and appointed Lord Soulbury to make recommendations with regard to the internal administration of Ceylon.

Birth of Soulbury Constitution

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

The 1946 constitution which B.P. 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 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 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 1946 constitution it was possible for both right wing and left or centre political parties to be elected to office and form them to implement their respective programs unhindered. It was possible for the free market and regulated economies to be practised. The parliamentary executive system of government it provided was strong enough to withstand the youth insurrection in 1971. It was also flexible for a government that had 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 tranquillity, 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 National State Assembly and parliamentarians became the members of the National State Assembly with the bicameral legislature becoming unicameral.

Another major significant change relating to judiciary was that the right to appeal to the Privy Council was done away with.

Second republican constitution

Alleging that the 1972 constitution did not have adequate checks and balances and similar drawbacks, President Jayewardene lost no time in introducing his brainchild, The first Executive Presidential constitution of 1978 which is still in force. However, of 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., Premadasa and Wijetunga ruled the country under the umbrella of the 1978 constitution till 1994.

Meanwhile, the Opposition led by the SLFP which were crusading against the dictatorial nature of the constitution, referred to at times as JR's Bahubootha Viwasthawa by President Chandrika Bandaranaike conducted an islandwide 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 change in the constitution.

President Mahinda Rajapaksa who took over the reins of government in 2005 said he would abolish the draconian constitution for which the ground work is being prepared.

The 1978 constitution 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 President Mahinda Rajapaksa Government.