Constitutional reforms over the years

By Jaliya WIJEYEKOON

Constitutional reforms are a much talked-about subject in political circles these days. This is due to the Government being able to muster the support of over two third of the members in the house with the agreement formed with the Sri Lanka Muslim Congress (SLMC) members who officially announced their willingness to support the proposed reforms while being members of the opposition. Before venturing into scrutinising, assessing and analysing the proposed 18th Amendment, it is appropriate to look into the Constitutional reforms of our country since the inception of the Constitution.

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 adapted by them for their colonies.

A few years into the British rule, the then Governor of Ceylon Sir Robert Brownrig? wanted to streamline the internal administration, and introduced the Colbrooke and Cameron reforms in 1828 by 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 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.

The British governed our country for almost a century under the Colbrooke-Cameron reforms with minor adjustments on 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 became unhappy over the functions of the Executive Council on which colonial officials enjoyed predominance.

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 in the Council.

Donoughmore Reforms

The unhappiness which the Constitution engendered led to the announcement in April 1927 that a special committee would be appointed to draft 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 of over 21 years of age, over which some of the Ceylon National Congressmen had reservations.

The only people who advocated universal franchise were Labour leader A.E. Goonesinghe and two British residents of Ceylon. They also proposed the merger of Executive and legislative roles 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.

This was major gain for the previously under-represented Sinhalese while eight were nominated by the Governor to give adequate representation to the minorities. 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 provisions enshrined in the Donoughmore report were borrowed from the London Country Council.

The Governor's powers were increased to balance those of 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 also retained control of matters concerning Civil Servants.

Although the British rulers governed the country enacting the 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.

There were prominent local politicians in the State Council such as D.S. Senanayake, J.R. Jayewardene, S.W.R.D. Bandaranaike, Dr. N.M. Perera and Sir D.B. Jayathilake who were active members of the Ceylon National Congress, the organization which had been formed by patriotic leaders of the day which immediately advanced to be a formidable force to be reckoned with since most of its members were farsighted politicians.

It was the era when the Freedom Struggle for self-government was gaining ground in India 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 local political leaders of the 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 British Monarch had to head the people's request; he 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 amidst World War II and D.S. Senanayake, the then Chairman of the Board of Ministers appointed B.P. Peiris, Assistant Legal Draftman to draft a new constitution.

The 1946 Constitution, which B.P. Peiris drafted and named the Soulbury Constitution was the best that Sri Lanka yet had, according to some political analysts. It was the model that the British Government had used when it began dismantling the 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 a few principal institutions and defining their powers; a Constitutional Head of State, a Parliament comprising two Chambers, a Cabinet of Ministers headed by the Prime Minister charge with the general direction and control of the government and collectively responsible to the Parliament, Permanent Secretaries charged with exercising supervision over departments of government subjects to the general direction and control of the relevant Ministers, security for judges of the Supreme Court, Judicial Service Commission and 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 implement their programs unhindered. It was possible to practise free market and regulated economic policies. 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 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 power 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 respect for individual rights and freedom.

First Republican Constitution

The country was governed by six national leaders under the Soulbury 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 while the parliament too was renamed as the National State Assembly and parliamentarians became members of the National State Assembly with the bicameral legislature becoming unicameral.

Another major change relating to the judiciary was that the right to appeal to the Privy Council was done away with. On the other side of same paper The Governor General, who functioned under the Soulbury Constitution as the constitutional figurehand representing the Queen of England was replaced with a ceremonial President appointed by the Prime Minister.

The first Republican Constitution of 1972 included almost all significant features of the Soulbury Constitution while some additions were enshrined in respect of fundamental rights of the citizens.

J.R. Jayewardene became the leader of the Opposition and the leader of the United National Party with the demise of Dudley Senanayake in 1973. He aggressively reorganised the party and sought a mandate from the people to form a government and introduce a new Constitution.

He obtained a mammoth five-sixth majority at the election and lost no time in introducing his brainchild, alleging that the 1972 Constitution did not have adequate checks and balances and had similar drawbacks.

The first Executive Presidential Constitution which J.R. Jayewardene introduced in 1978 is still in force despite various objections from whatever party is in opposition. President Jayewardene had to make a number of amendments to the Constitution so that it suits the situation of the country and the political environment of the time, to avoid and sometimes to suppress certain vital political issues.

However, of all the subsequent amendments to the Constitution, the most controversial was the 13th Amendment provided for the devolution of power to the periphery, via a network of Provincial Councils. The United National Party, headed by the three leaders JR, R. Premadasa and D.B. Wijethunga ruled the country under the umbrella of the 1978 Constitution till 1994.

Meanwhile, the Opposition led by the SLFP crusaded against the dictatorial nature of the Constitution, referred to at times as JR's Bahubootha Viyawasthawa or evil and obnoxious Constitution by Chandrika Kumaratunga. They conducted islandwide campaign to abolish the Constitution and introduce a more people-friendly democratic one to the country if they are voted in to power.

However, Kumaratunga too governed the country for two consecutive terms, but no effective action was initiated to abolish or make any changes in the Constitution.

President Mahinda Rajapaksa who took over the reigns of Government in 2005 said that he would abolish the draconian constitution for which the groundwork is now laid.

President Rajapaksa is about to complete his first term of office. There is no sign of completely abolishing or introducing a new Constitution since he has fully utilised the resources available in the present Constitution in defeating the three-decade conflict which had been a cancer to the nation. Whether political analysts agree or not, it is quite evident that the Executive Presidency was of immense use in defeating terrorism, stabilising the economy, resisting political turmoil and maintaining discipline in the party in power.

Now the ruling party, headed by President Rajapaksa, has decided not to abolish the Constitution, but to introduce the 18th amendment to the Constitution which will extend the President's term to more than two.

Constitutional experts and political analysts express different views on the proposed 18th Amendment while the main Opposition UNP and the JVP have decided to protest the amendment. the five-member leftwing camp has still not decided their course of action according to M.P. Vasudeva Nanayakkara.

However, the government is quite confident of mustering the required number of votes to pass the 18th Amendment with the support of the SLMC members.

Hence, the country is anxiously waiting for the final outcome of the reforms that would be introduced by the Government.