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Constitutional History

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ri Lanka’s constitutional history reflects the victories, struggles and tensions of its society. Modernity was thrust upon the island through colonial domination and rule from the 16th century onwards till Sri Lanka gained independence in 1948.

Sri Lanka boasts of a written history spanning back to 5th CE. Pre-modern history records the establishment of regional kingdoms which were occasionally brought under the rule of a monarchy of the entire island and the introduction and establishment of Buddhism in Sri Lankan society. Due to its strategic geographical position, the island was well known across Asia, the Middle East etc.

The first formal encounter with potential colonial powers was in 1505 with the arrival of Portuguese to the island. The Portuguese conquered the Kingdom of Kotte in 1580. Over the next few decades, they extended their control in the maritime provinces of the island. During the period 1638 – 1663, alliances were formed by the Lankan rulers with the Dutch in the interest of ousting the Portuguese from the island. The colonial rule by the Dutch was established in 1640 and continued till the territories under their control were ceded to the British pursuant to the Treaty of Amiens (1802). During the Dutch period, they established a system of administration drawing from the existing structures of governance such as the office of the village headman. Roman-Dutch law was introduced to Sri Lanka during this time along with a basic court structure and a judiciary. The British were the only colonial rulers to establish control over the entire island with the signing of the Kandyan Convention in 1815. Up to 1948 Sri Lanka was part of the British Empire. It is during the latter part of this period that the foundations were being laid in Sri Lankan society for the establishment of modern forms of government.

The road to constitutional democracy in Sri Lanka has been marked with the relatively early grant of universal franchise, peaceful changes of government, and strong welfare policies on education and health. During this time Sri Lanka has also experienced ethnic tensions, two youth insurrections, an armed separatist movement and challenges with regard to power sharing in governance. Following the end of the internal armed-conflict in May 2009, ensuring democratic governance, strengthening the rule of law, and ensuring respect for pluralism are the main significant challenges that confronts Sri Lanka. The current constitutional reform process seeks to address these challenges through the adoption of a new constitution.

The first written Constitution adopted for Ceylon (as Sri Lanka was then known) was the Ceylon (State Council) Order in Council of 1931, commonly referred to as the Donoughmore Constitution. Prior to this Constitution, several other reforms had been introduced periodically by the colonial administration to establish constitutional governance, namely,

• The Colebrooke-Cameron Reforms 1833

• The Crewe-McCullum Reforms of 1912

• The Manning Reforms of 1922

• The Manning-Devonshire Reforms of 1924

Of these reforms the Colebrooke-Cameron reforms set the foundation for constitutional governance in the country by bringing significant changes to the then existing structure. The subsequent reforms gradually introduced more progressive mechanisms for governance including the election of persons to the Legislative Council on the basis of communal identity.

The right to vote, however, was limited to men on the basis of education and wealth. The number of unofficial members in the Legislative Council was also increased over time due to demands for further power in administration by local leaders.

During this time, the local political leadership began to mobilize the people to push for extensive reforms in administration. The demand for self-government too was gradually gaining momentum in the Island. The Donoughmore Constitution was introduced within this context. Abolishing communal representation; the introduction of universal franchise; and the establishment of an Executive Committee system, Cabinet and State Council were some of the significant aspects of this constitution. Two political questions dominated the debates on constitutional reform during this time. One was independence from the British and the other was minority representation  in government in the event Ceylon became an independent state.

The Second World War paved the way for the local political leadership of Ceylon to bargain for political independence on the basis that Ceylon supported Britain in its war efforts. The Ceylon (Constitution) Order in Council, 1946, which followed the Soulbury Commission report and thus referred to as the Soulbury Constitution, established a parliamentary democracy in Ceylon and included several other unique features in the system of governance. The parliament included two chambers – the House of Representatives and the Senate. The Constitution did not include a chapter on fundamental rights. However, it did include a clause, which prohibited the enactment of legislation that would discriminate against minorities. The public service was independent and the Privy Council was the final court of appeal. The three Ceylon (Constitution) (Amendment) Orders in Council, all of 1947, and the Ceylon (Independence) Order in Council, 1947 led to independence Britain, but as a Dominion of Britain.

Growing political dissatisfaction with dominion status, due to various reasons and reflecting the global trends at the time, the Ceylonese political leadership sought to break free from its received tradition of constitutional governance and establish an ‘autochthonous’ constitution. Autochthonous means ‘derived from the soil’ and such a constitution would depend for its legitimacy not on a British parliament but in its own People. The Members of Parliament met at another location as a Constituent Assembly, deliberated and adopted the First Republican Constitution of Sri Lanka in 1972.

The 1972 Constitution described Sri Lanka as a free, sovereign and independent republic and recognized that it drew its authority from the sovereignty of the people. The legislature, that is the National State Assembly (NSA), was the supreme instrument of state power of the republic. This Constitution declared Sinhala to be the official language and granted the foremost place to Buddhism while recognizing religious freedom. Some civil and political rights were recognized as fundamental rights in the constitution with no explicit remedy for their enforcement. The Cabinet of Ministers exercised powers of appointment, transfer, disciplinary control and dismissal of state officers and were responsible therefore to the NSA. Appointment of judges of the lower courts and of state officers administering justice was by the cabinet after receiving the advice of the Judicial Services Advisory Board.

With the change of government in 1977, constitutional reforms were being considered yet again. A new constitution was proposed through a Parliamentary Select Committee and adopted in 1978 as the Second Republican Constitution of Sri Lanka.

The Executive Presidency was the defining feature of this constitution – all appointments to high posts were made by the President. Presidential immunity from suit while in office and a broader chapter on fundamental rights with a judicial remedy were included in this constitution. To date this constitution has been amended 19 times. Of these the sixth, thirteenth, seventeenth, eighteenth, and nineteenth amendments are of considerable political significance. The current constitutional reform process is an effort towards introducing a constitution based on an extensive public consultation process and with the popular support of all the political parties in Parliament.