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By Dr. Jayampathy Wickramaratne President’s Counsel
This week marks the 50th anniversary of Sri Lanka becoming a republic. We observe the anniversary at a time when the large majority of our people are yearning for comprehensive constitutional reform – “system change,” as they put it. Many believe that, after the failure of the first and second republican constitutions, the time is right for the Third Republic.
This article, in three parts, is based on a paper that I contributed to a collection of essays, titled, Sirimavo, published by the Bandaranaike Museum Committee, in 2010. When Sunethra Bandaranaike invited me to contribute an essay on the 1972 Constitution, I told her that I would be unable to say much good about it. This, I explained, was despite Dr Colvin R. De Silva, the Minister of Constitutional Affairs of the United Front government who steered the constitution-making process, being a former leader of the Lanka Sama Samaja Party to which I belonged and my senior in several fundamental rights cases, beginning with Palihawadana v. Attorney-General (Job Bank Case), the first fundamental rights case, under the 1978 Constitution. “You can write anything”, Sunethra assured me. My friend, Tissa Jayatilleke, edited the publication.
The Independence Constitution of 1947, popularly known as the Soulbury Constitution, conferred dominion on Ceylon. The Governor-General was appointed by the British sovereign. The Parliament of Ceylon consisted of the King/Queen, the Senate and the House of Representatives. Executive power continued to be vested in the Crown and was exercised by the Governor-General. The Cabinet of Ministers was charged with the general direction and control of the government and was collectively responsible to Parliament. The form of government was in the Westminster model, which meant that the Governor-General would act on the advice of the Prime Minister. By the oath of allegiance, Senators, Members of Parliament, and all holders of office, including the Prime Minister, Ministers and heads of departments and judicial officers, swore to ‘be faithful and bear true allegiance to the King/Queen.The first move towards making Ceylon a Republic was made by S.W.R.D. Bandaranaike, who, on becoming Prime Minister, in 1956, informed the other governments of the British Commonwealth of Ceylon’s intention to become a Republic, within the Commonwealth. A Joint Select Committee of the two Houses of Parliament, on the revision of the Constitution, accepted the principle of establishing a Republic, within the Commonwealth. It was also agreed that the parliamentary form of government would continue with the President being a constitutional head of state. The President and the Vice-President would be elected by the legislature, fundamental rights recognized, appeals to the Privy Council abolished, and a court established to adjudicate constitutional matters and hear appeals from the Supreme Court.
Although sub-section 4 of section 29 of the 1947 Constitution provided that ‘in the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island’, the question whether Parliament could replace the British sovereign, who was a source of the legal authority of the Constitution and a constituent part of Parliament, had been raised, among others, by J.A.L. Cooray in his Review of the Constitution. The Privy Council stated in Ibralebbe v The Queen (65 NLR 433, 443) that the reservations specified in section 29 were ‘fundamental’ and in Bribery Commissioner v Ranasinghe that section 29 (2) was ‘unalterable under the Constitution’(66 NLR 73, 78). Although obiter (not essential for the decision), these statements gave support to a move initiated by the Left parties towards a new ‘homegrown’ or ‘autochthonous’ Constitution with a complete legal break from the existing constitutional order in preference to amending the Constitution. There was also a definite trend in the Commonwealth towards enacting ‘homegrown’ constitutions to replace those given by the United Kingdom.
It was this trend towards and desire for an autochthonous Constitution that led the Sri Lanka Freedom Party (SLFP), the Lanka Sama Samaja Party (LSSP) and the Communist Party (CP) to not support the call of the 1965 government of Dudley Senanayake of the United National Party (UNP) to re-establish the Joint Select Committee on the Revision of the Constitution. The SLFP, LSSP and CP, which later combined to form the United Front (UF), whilst declining to serve on the Joint Select Committee, proposed that a Constituent Assembly be set up to adopt and enact a new constitution. At the general election of May 1970, the UF, as reflected in its manifesto, sought from the electorate a mandate to permit the Members of Parliament to function simultaneously as a Constituent Assembly. The Assembly would draft, adopt and operate a new constitution, the primary objective of which was to make the country a free, sovereign and independent republic dedicated to the realisation of a socialist democracy that would guarantee the fundamental rights and freedoms of all citizens.
At the above-referenced general election, 84.9% of the voters, a significantly high percentage even for an electorate known for its enthusiastic participation in elections, exercised their franchise. The UF won 116 out of 151 seats on offer but obtained 48.8% of the total votes cast. With the support of the six nominated members and the two independent members who won their seats with the help of the UF, the latter now commanded 124 seats in the 157-member Parliament. The UNP was down to 17 seats. The Federal Party (FP) won 13 seats while Tamil Congress (TC) won 03.
The Governor-General, in the course of delivering the first Throne Speech of the new Parliament, called upon the Members of Parliament to form a Constituent Assembly in keeping with the mandate asked for and given by the people at the general election.
That the Address of Thanks to the Throne Speech was passed without a division is also important. On 11 July, 1970, Prime Minister Sirimavo Bandaranaike wrote to all members of the House of Representatives to invite them for a meeting to be held on 19 July, 1970, to consider and adopt a resolution for constituting themselves into a Constituent Assembly.
The meeting was to be held at the Navarangahala, the newly constructed auditorium of Royal College, Colombo, and not in the chamber of the House of Representatives, signifying the intention of the UF to make a complete break from the 1947 Constitution. Dr Colvin R. de Silva, the Minister of Constitutional Affairs, emphasised that what was contemplated was not an attempt to create a new superstructure on an old foundation. It is a matter of great significance that all political parties, represented in Parliament, participated in the formation of the Constituent Assembly on 19 July, 1970.
J.R. Jayewardene, the Leader of the Opposition and Deputy Leader of the UNP, joining the debate on the resolution to set up a Constituent Assembly, reminded the UF that it had a mandate only from less than 50% of the people. Nevertheless, if both sides of the legislature, the victors and the vanquished, agreed to make common cause in enacting a new basic law through a legal revolution, that new law, if accepted by the people, will become the full expression of the hopes, desires and aspirations of the present generation.
V. Dharmalingam of the FP, while questioning the need to go outside the existing Constitution, noted: “We are making common cause with you in enacting a new Constitution not as a vanquished people but as the representatives of a people who have consistently at successive elections since 1956 given us a mandate to change the present Constitution which has been the source of all evil to the Tamil people.”
The leader of the FP, S.J.V. Chelvanayakam, urged the Assembly to reach common ground on controversial issues and quoted Jawaharlal Nehru in support: “We shall go to the Constituent Assembly with the fixed determination of finding a common basis for agreement on all controversial issues.”
V. Anandasangaree, speaking on behalf of the TC, stated that his party did not wish to be a stumbling block but requested the Government to be fair and adopt the new Constitution unanimously.
Indicating the acceptance of the Constituent Assembly route towards the adoption of a new constitution by all political parties, the proposed resolution to form the Constituent Assembly was unanimously passed on 21 July 1970.
It is significant that all political parties represented in Parliament participated in the formation of the Constituent Assembly, thus giving legitimacy to the process. However, the Constitution that the Constituent Assembly adopted lacked similar legitimacy. The Federal Party discontinued participation after the Assembly decided to make Sinhala the only official language. The United National Party voted against the Constitution. With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But Assembly proceedings show that the United Front, which had a two-thirds majority but had received a little less than 50% of the popular vote, imposed a constitution of its choice. The Constitution also extended the term of the legislature by two years which had a chilling effect on Sri Lankan democracy. There is certainly a lot to learn from the 1970-72 reform process.
Retaining the parliamentary form of government
Whilst the desire of the UF was to make a complete break from the Soulbury Constitution modelled on the British system, it nevertheless considered the Westminster model of parliamentary government to be suitable for Sri Lanka.
However, J.R. Jayewardene proposed the introduction of an executive presidency, a proposal opposed even by Dudley Senanayake, a former prime minister and the leader of the UNP. Interestingly though, Jayewardene was to have the last word. After he was elected Prime Minister in 1977, the UNP he led having obtained an unprecedented five-sixths majority in Parliament, Jayewardene introduced the executive presidency through the Second Amendment to the 1972 Constitution. He followed it up with the Second Republican Constitution of 1978, based on an executivepresidency sans any checks and balances usually found in countries with a presidential form of government.
It is salutary, in the above context, to recall the words and sentiments expressed by Sirimavo Bandaranaike during the debate on the Second Amendment to the Constitution: “The effect of this amendment is to place the President above the National State Assembly. Above the law and above the courts, thereby creating a concentration of State power in one person, whoever he might be. This has happened in other countries before, and history is full of examples of the disastrous consequences that came upon such nations that changed their Constitutions by giving one man too much power. (…) We oppose this Bill firmly and unequivocally. It will set our country on the road to dictatorship and there will be no turning back. This Bill will mark the end of democracy in Sri Lanka, as the late Dudley Senanayake realized when these same ideas were put to him in the United National Party.”
Dr De Silva warned against the danger of counterposing the Prime Minister chosen by the people who are sovereign against a President who is directly elected: “Let me put it directly and more strongly. You have the Prime Minister chosen by the people who are sovereign. Then, if you have a President, chosen also by the sovereign people directly through the exercise of a similar franchise, you have at the heart and apex of the State two powers counterposed to each other, each drawing its power from the same source, the sovereign people, but each drawing the power independent of the other.” No Constitution will be able to define adequately and satisfactorily the relationship between the two, he explained.
(Next: Part II: A Majoritarian Constitution)
Jacqueline concerned about situation in Sri Lanka
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Some of Cassandra’s readers may ask whether she is out of her right mind to see glimmers of hope for the country. She assures them she is as sane as can be; she does cling onto these straws like the dying man does. How else exist? How else get through these dire times?
What are the straws she clings to? News items in The Island of Tuesday 24 May.
‘Sirisena leaves Paget Road mansion in accordance with SC interim injunction.’ And who was instrumental in righting this wrong? The CPA and its Executive Director Dr Pakiasothy Saravanamuttu. It is hoped that revisions to the system will come in such as giving luxury housing and other extravagant perks to ex-presidents and their widows. Sri Lanka has always lived far beyond its means in the golden handshakes to its ex- prezs and also perks given its MPs. At least luxury vehicles should not be given them. Pensions after five years in Parliament should be scrapped forthwith.
‘Letter of demand sent to IGP seeking legal action against DIG Nilantha Jayawardena.’ Here the mover is The Centre for Society and Religion and it is with regard to the Easter Sunday massacre which could have been prevented if DIG Jayawardena as Head of State Intelligence had taken necessary action once intelligence messages warned of attack on churches.
‘CIABOC to indict Johnston, Keheliya and Rohitha’. It is fervently hoped that this will not be another charge that blows away with the wind. They do not have their strongest supporter – Mahinda R to save them. We so fervently hope the two in power now will let things happened justly, according to the law of the land.
‘Foreign Secy Admiral Colombage replaced’. And by whom? A career diplomat who has every right and qualification for the post; namely Aruni Wijewardane. If this indicates a fading of the prominence given to retired armed forces personnel in public life and administration, it is an excellent sign. Admiral Colombage had tendered his resignation, noted Wednesday’s newspaper.
‘Crisis caused by decades of misuse public resources, corruption, kleptocracy – TISL’.
Everyone knew this, even the despicable thieves and kleptocrats. The glaring question is why no concerted effort was made to stop the thieving from a country drawn to bankruptcy by politicians and admin officers. There are many answers to that question. It was groups, mostly of the middle class who came out first in candle lit vigils and then at the Gotagogama Village. The aragalaya has to go down in history as the savior of our nation from a curse worse than war. The civil war was won against many odds. But trying to defeat deceit power-hunger and thieving was near impossible. These protestors stuck their necks out and managed to rid from power most of the Rajapaksa family. That was achievement enough.
Heartfelt hope of the many
The newly appointed Cabinet Ministers leaves Cass un-uplifted. She need not elaborate. She wishes fervently that Dr Harsha de Silva will leave party loyalty aside and consider the country. Usually, it’s asking politicians to cast aside self interest, which very rarely is done in the political culture that came to be after the 1970s. Thus, it is very unusual, completely out of the ordinary to appeal to Dr Harsha to forego party loyalty and do the very needful for the country by accepting the still vacant post of Minister of Finance. We are very sorry Eran W too has kept himself away. As Shamindra Ferdinando writes in the newspaper mentioned, “Well informed sources said that Premier Wickremesinghe was still making efforts to win over some more Opposition members. Sources speculated that vital finance portfolio remained vacant as the government still believed (hoped Cass says) Dr Harsha de Silva could somehow be convinced to accept that portfolio.”
Gas is still unavailable for people like Cass who cannot stand in queues, first to get a token and then a cylinder. Will life never return to no queues for bare essentials? A woman friend was in a petrol queue for a solid twelve hours – from 4 am to 4 pm. This is just one of million people all over the country in queues. Even a common pressure pill was not available in 20 mg per.
Cassandra considers a hope. We saw hundreds of Sri Lankans all across the globe peacefully protesting for departure of thieves from the government. The ex-PM, Mahinda Rajapaksa’s answer to this was to unleash absolute terror on all of the island. It seems to be that with Johnson a younger MP stood commandingly.
Returning from that horror thought to the protesters overseas, Cass wondered if each of them contributed one hundred dollars to their mother country, it would go a long way to soften the blows we are battered with. Of course, the absolute imperative is that of the money, not a cent goes into personal pockets. The donors must be assured it goes to safety. Is that still not possible: assuring that donations are used for the purpose they are sent for: to alleviate the situation of Sri Lankans? I suppose the memory of tsunami funds going into the Helping Hambantota Fund is still fresh in memory. So much for our beloved country.
(Emeritus Professor of Agriculture Biology UNIVERSITY OF RUHUNA and Former Executive Director Sri Lanka Council of Agriculture Research Policy)
There are two aspects of the ban on agrochemicals. The first is the ban on chemical fertilisers, and the second is the ban on the use of pesticides. Several eminent scientists, Dr Parakrama Waidyanatha (formerly the Soil Scientist of RRI), Prof OA Ileperuma (Former Professor of Chemistry University of Peradeniya), Prof C. S. Weeraratne (former Professor of Agronomy University of Ruhuna), Prof D. M. de Costa University of Peradeniya, Prof. Buddhi Marambe (Professor in Weed Science University of Peradeniya) have effectively dealt with the repercussion of the ban on chemical fertilisers which appeared in The Island newspaper on recently.
The major points summarised by these authors are listed below.
1. These scientists, including the author, are of the view that the President’s decision to totally shift to organic agriculture from conventional could lead to widespread hunger and starvation in future, which has become a reality. Organic farming is a small phenomenon in global agriculture, comprising a mere 1.5% of total farmlands, of which 66% are pasture.
2. Conventional farming (CF) is blamed for environmental pollution; however, in organic farming, heavy metal pollution and the release of carbon dioxide and methane, two greenhouse gases from farmyard manure, are serious pollution issues with organic farming that have been identified.
3. On the other hand, the greatest benefit of organic fertilisers as against chemical fertilisers is the improvement of soil’s physical, chemical and biological properties by the former, which is important for sustained crop productivity. The best option is to use appropriate combinations of organic and chemical fertilisers, which can also provide exacting nutrient demands of crops and still is the best option!
4. Sri Lanka has achieved self-sufficiency in rice due to the efforts of the Research Officers of the Department of Agriculture, and all these efforts will be in vain if we abruptly ban the import of fertiliser. These varieties are bred primarily on their fertiliser response. While compost has some positive effects such as improving soil texture and providing some micronutrients, it cannot be used as a substitute for fertiliser needed by high yielding varieties of rice. Applying organic fertilisers alone will not help replenish the nutrients absorbed by a crop. Organic fertilisers have relatively small amounts of the nutrients that plants need. For example, compost has only 2% nitrogen (N), whereas urea has 46% N. Banning the import of inorganic fertilisers will be disastrous, as not applying adequate amounts of nutrients will cause yields to drop, making it essential to increase food imports. Sri Lankan farmers at present are at the mercy of five organizations, namely the Central Department of Agriculture, the Provincial Ministry of Agriculture, the Private sector Pesticide Companies, the Non-Government organizations and the leading farmers who are advising them. Instead, improved agricultural extension services to promote alternative non-chemical methods of pest control and especially the use of Integrated Pest Management.
Locally, pest control depends mostly on the use of synthetic pesticides; ready to use products that can be easily procured from local vendors are applied when and where required Abuse and misapplication of pesticides is a common phenomenon in Sri Lanka. Even though many farmers are aware of the detrimental aspects of pesticides they often use them due to economic gains
We will look at the post scenario of what has happened
1. The importation of Chemical fertilisers and Pesticides was banned at the beginning of Maha season 1 on the advice of several organic manure (OM) promoters by the Ministry of agriculture.
2. The Ministry of Agriculture encouraged the farmers to use organic manure, and an island-wide programme of producing Organic manure were initiated. IT took some time for the government to realize that Sri Lanka does not have the capacity to produce such a massive amount of OM, running into 10 tons per hectare for 500000 hectares ear marked in ma ha season.
3. Hence the government approved the importation of OM from abroad, and a Company in China was given an initial contract to produce OM produced from Seaweed. However, the scientists from University of Peradeniya detected harmful microorganisms in this initial consignment, and the ship was forced to leave Sri Lankan waters at a cost of US dollar 6.7 million without unloading its poisonous cargo. No substitute fertiliser consignment was available.
4. A committee in the Ministry hastily recommended to import NANO RAJA an artificial compound from India to increase the yield by spraying on to leaves. Sri Lanka lost Rs 863 million as farmers threw all these Nano Raja bottles and can as it attracts dogs and wild boar.
Since there is no other option the Ministry promised to pay Rs 50000 per hectare for all the farmers who lost their livelihood. It is not known how much the country lost due to this illogical decision of banning fertilisers and pesticides.
1. Judicious use of pesticides is recommended.
2. The promotion and the use of integrated pest management techniques whenever possible
3. To minimize the usage of pesticides:
Pesticide traders would be permitted to sell pesticides only through specially trained Technical Assistants.
Issuing pesticides to the farmers for which they have to produce some kind of a written recommendation by a local authority.
Introduction of new mechanism to dispose or recycle empty pesticide and weedicide bottles in collaboration with the Environment Ministry.
Laboratory-testing of imported pesticides by the Registrar of Pesticides at the entry-point to ensure that banned chemicals were not brought into the country.
Implementation of trained core of people who can apply pesticides.
Education campaigns to train farmers, retailers, distributors, and public with the adverse effects of pesticides.
Maximum Residue Level (MRL) to reduce the consumer’s risk of exposure to unsafe levels.
Integrated pest Management and organic agriculture to be promoted.
1. To ensure the proper usage of agrochemicals by farmers
All those who advised the Minister of Agriculture and the President to shift to OM still wield authority in national food production effort. The genuine scientists who predicted the outcome are still harassed sacked from positions they held in MA and were labelled as private sector goons. The danger lies if the farmers decide not to cultivate in this Maha season due to non-availability of fertilisers and pesticides the result will be an imminent famine.
The country also should have a professional body like the Planning Commission of
India, with high calibre professionals in the Universities and the Departments and
There should be institutions and experts to advise the government on national policy matters.
Nothing is happening for us, at this end, other than queues, queues, and more queues! There’s very little to shout about were the sports and entertainment scenes are concerned. However, Down Under, the going seems good.
Sri Lankans, especially in Melbourne, Australia, have quite a lot of happenings to check out, and they all seem to be having a jolly good time!
who puts pen to paper to keep Sri Lankans informed of the events in Melbourne, was in Sydney, to taken in the scene at the Sri Lanka Schools Sevens Touch Rugby competition. And, this is Trevine’s report:
The weather Gods and S.Thomas aligned, in Sydney, to provide the unexpected at the Sri Lanka Schools Sevens Touch Rugby competition, graced by an appreciative crowd.
Inclement weather was forecast for the day, and a well drilled Dharmaraja College was expected to go back-to-back at this now emerging competition in Sydney’s Sri Lanka expatriate sporting calendar.
But the unforeseen was delivered, with sunny conditions throughout, and the Thomians provided the upset of the competition when they stunned the favourites, Dharmaraja, in the final, to grab the Peninsula Motor Group Trophy.
Still in its infancy, the Sevens Touch Competition, drawn on the lines of Rugby League rules, found new flair and more enthusiasm among its growing number of fans, through the injection of players from around Australia, opposed to the initial tournament which was restricted to mainly Sydneysiders.
A carnival like atmosphere prevailed throughout the day’s competition.
Ten teams pitted themselves in a round robin system, in two groups, and the top four sides then progressed to the semi-finals, on a knock out basis, to find the winner.
A food stall gave fans the opportunity to keep themselves fed and hydrated while the teams provided the thrills of a highly competitive and skilled tournament.
The rugby dished out was fiercely contested, with teams such as Trinity, Royal and St. Peter’s very much in the fray but failing to qualify after narrow losses on a day of unpredictability.
Issipathana and Wesley were the other semi-finalists with the Pathanians grabbing third place in the play-off before the final.
The final was a tense encounter between last year’s finalists Dharmaraja College and S.Thomas. Form suggested that the Rajans were on track for successive wins in as many attempts. But the Thomians had other ideas.
The fluent Rajans, with deft handling skills and evasive running, looked the goods, but found the Thomian defence impregnable. Things were tied until the final minutes when the Thomians sealed the result with an intercept try and hung on to claim the unthinkable.
It was perhaps the price for complacency on the Rajans part that cost them the game and a lesson that it is never over until the final whistle.
Peninsula Motor Group, headed by successful businessman Dilip Kumar, was the main sponsor of the event, providing playing gear to all the teams, and prize money to the winners and runners-up.
The plan for the future is to make this event more attractive and better structured, according to the organisers, headed by Deeptha Perera, whose vision was behind the success of this episode.
In a bid to increase interest, an over 40’s tournament, preceded the main event, and it was as interesting as the younger version.
Ceylon Touch Rugby, a mixed team from Melbourne, won the over 40 competition, beating Royal College in the final.
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