Constitutional Reforms in Sri Lanka

1. History of the constitution goes back to the British rule and subsequently after the independence, Sri Lanka introduced its own constitutions.

a. During Colonial Era. The modern constitutional history of Sri Lanka then called Ceylon begins in 1802 when the country ceded to the British Crown by the treaty of Amiens. Before that, from 1796 to 1802 Ceylon was governed by the British East India Company from Madras. In 1802 Ceylon became a separate Crown Colony of Britain and it was expanded up to whole country after the Kandyan Kingdom was conquered in 1815. After that till 1833, all legislative and executive powers had been exercised by the Governor of Ceylon. He enacted laws for the country by means of proclamations and regulations, and ruled the country through officials and civil servants appointed by him. Governor was accountable to the Crown and carried out instructions from British.

(1) Colebrooke Commission. The constitution of 1833 was established in Ceylon as a result of Colebrooke Commission. It introduced a legislative council and an executive council to the country.

(a) Legislative council consists with the Governor, nine officials and six unofficials nominated by the Governor. Out of those six unofficials three members were Europeans who represented the planters and mercantile communities. Other three were selected on communal basis, one from low country Sinhalese, Burghers and Tamils. That was the first time in Ceylon racial representation was introduced. That reform is seen as a landmark in the constitutional history in Ceylon.

(b) The executive council consists of the Chairman (The Governor), and five other official members (Commanding Officer, Colonial Secretary, Queen’s Advocate, Colonial Treasurer and the Government Agent for the Central Province).

(c) However the Governor dominated both the councils and he had a casting vote in all important matters and the power of veto. As a result of that nothing happened in constitutional point of view from that commission other than increasing two other unofficial members in 1889 to represent Kandyans and Muslims.

(d) Salient Features of the Colebrooke Commission are follows:

i. Common administration.

ii. Establishing a Supreme Court.

iii. Recruiting nationals to the civil service.

iv. Expanding English education.

v. Encouraging plantation.

(2) Crew Mc Callum Reforms. At the beginning of the twentieth century agitation was raised up to reform the constitution by educated local population. It was achieved the limited recognition of the principle of election. In 1910 Crown instructed to increase nine unofficial members up to twenty. From those members, four were elected and out of that four, two were Europeans and others were one Burgher and one educated Sinhalese. Five remaining unofficial members were nominated to represent low country

Sinhalese, Tamils, Kandyans and Muslims respectively. Then the members were increased up to 21 to give equal representation for the Tamils.

Manning Devonshire Reforms. As a result of further reforms requested by the Ceylonese, Sir William Manning had introduced the next constitutional reforms. Under that colonial authority finally agreed to the demand for unofficial representation in the executive council. Governor has permitted to appoint three members from the legislative council to executive council. However, it has to be approved by the Governor. Then the legislative council enlarged its strength up to 14 official members and 23 unofficial members. However, seven nominated members and the European members voted with officials and as a result of that expected powers did not come to the Ceylonese. Also the powers of the legislative council were limited by giving extraordinary powers to the Governor. It is noted that introduction of territorial representation balance of power between Sinhalese and Tamils were radically altered. However, the majority of the council consists of Sinhalese many times. Tamils opposed that and as a result of minority requests Governor agreed to further reforms in order to prevent Sinhalese majority of the council in 1923. By order of the Governor council was increased to 49 members including 12 officials and 37 unofficial members. Considering above all, Manning constitution was considered as inevitable stage of colonial evolution.

(a) Main Objectives are as follows:

i. Representative to be elected.

ii. Enlargement of the legislative council.

iii. After unofficial members in the legislative council became a majority, Governor retained power to reserve legislator.

(b) Several issues highlighted during the period as follows:

Lack of connection between legislative and executive.

Power divorced from responsibility.

Reserve powers of the Governor.

Limited financial control.

Donoughmore Commission. As a result of continuous appeals for the constitutional reforms by the Ceylonese, a special commission was appointed by the British Crown and commission led by the Earl of Donoughmore as Chairman in 1927. Report of the commission was submitted to the British parliament in 1928 with recommendations. A new constitution promulgated in 1931 by the British for the Ceylon government. That new constitution did not follow the usual pattern of British colonies and it was seen as constitutional experiment. Following are the main events and organs which differ from the Manning reforms.

Devolution of power from responsibility by combining legislative and executive functions.

Grant adult male and female to suffrage.

Constitution did not seek to give self governing status to the country and Governor retained considerable powers. He continued to perform formal and ceremonial powers, external affairs and public service. However, he was affected by the changes introduced.

(d) Colonies were not entrusted with the powers of external affairs, defence, law and finance. Those powers handled by Chief Secretary, the Legal Secretary and the Financial Secretary. However, council had to be responsible for the national budget.

(e) The state council replaced the legislative council and consisted of 50 members elected on the basis of territorial representation and also included eight nominated members and three officers of state.

(f) The state council had an elected leader of the house and a Board of Ministers. The state council divided by them into seven executive committees and the chairman of those committees considered as Ministers. These Ministers and three officers of state formed the Board of Ministers.

(g) The executive committee was a modern feature of the constitution. It consisted of chairmen of seven committees. Those were Home Affairs, Agriculture and Lands, Local Administration, Health, Labor, Industry and Commerce and Education and Communications.

(h) The officers of the state consisted of the Chief Secretary, Financial Secretary and the Legal Secretary and they reserved subjects with separate departments and were responsible only to the Governor.

(i) Public Service Commission was under the supervision of the Governor and appointments, promotions, transfers, dismissals and disciplinary control of public officers were done by the Governor. Public Service Commission consisted of the Chief Secretary and two others appointed by the Governor.

(j) Higher appointments to the judiciary were under the King and Governor had an authority to suspend any judge for misconduct or incapacity. Appointments of minor judiciary were appointed by Legal Secretary with the recommendations.

Soulbury Commission. In 1944 commission was appointed for the reforms and it was headed by Lord Soulbury. Boards of Ministers also sent their proposals to the commission and the request of the dominion status was rejected by the Crown and approved the Soulbury proposals. It was adopted by the state council in November 1945. Ceylon independence act was passed by the British parliament on 10 December 1947 and 19 December 1947 Ceylon independence order was issued. Finally on 4 February 1948 Ceylon became an independent country.

After Independence. After the independence in 04 February 1948 up to 1972 Sri Lanka was ruled under the Soulbury Constitution. In 1972 the first Sri Lankan made constitution was introduced. In 1978 again a new constitution was introduced to the country and it has been implementing up to date with amendments.

(1) Soulbury Constitution. Authorities and functions were exercised by the Governor General. Former state council was dissolved and members were elected for a new Ceylon parliament. Governor General has the power to dissolve the parliament and he acted on the advice of the Ceylon government. The first election was held in 1947 and after that in 1952, 1956, 1960, 1965 and 1970 elections were held under the Soulbery constitution.

(a) The main objectives of Soulbery constitution are as follows:

i. Governor replaced with Governor General.

Introducing a Parliament and a Senate.

Cabinet of Ministers and a Prime Minister.

Public Service and Judicial Service Commissions.

Appeal possible to the Privy Council in England.

(b) Issues of the Soulbery Constitution are as follows:

i. United Kingdom had power to legislate for Sri Lanka.

ii. Court could over rule legislation.

iii. Final appeals determined overseas.

iv. Head of the state was the King or Queen.

(2) First Republican (1972) Constitution of Sri Lanka. [6] The first constitution originated by the Sri Lanka was the constitution of 1972. It also referred to as first republican constitution. Sri Lanka completely finished her allegiance with British government and became a sovereign and independent republic by that constitution. The main features of the 1972 constitution are:

(a) The President. The President was Head of the State, Head of the Executive and Commander in Chief of the armed forces. The President was nominated by the Prime Minister and required to act on the Prime Minister’s advice. President was only a nominal executive and had immunity from civil and criminal proceedings for the period of appointment.

(b) The Prime Minister. He is effective Head of the State. He advised the President to declare a state of emergency and invoke the Public Security Ordinance.

(c) National State Assembly. Constituent Assembly renamed as National State Assembly. Members of the Constituent Assembly and House of Representatives became as members of the National State Assembly. Duration was six years. Initially it consisted of 151 members. Salient features are as follows:

i. Constitutional conventions were incorporated to the constitution.

Public Service had been reorganized.

Public Security became an important factor.

Parliamentary supremacy with the abolition of the judicial review of legislation, that means limited role given to the judiciary as guardians of the constitution.

(3) Nineteen Seventy Eight Constitution. Presently Sri Lanka ruling under the 1978 constitution and it is commonly known as second republican

constitution of Sri Lanka. The preamble of the constitution declares the fundamental promises when the constitution grounded. The principles of freedom, equality, justice, fundamental human rights and the independence of judiciary are declared as the intangible heritage of people both present and future. The important chapters of the constitution are as follows:

(a) [7] Chapter One the People, the State and Sovereignty. It contains general provisions with regard to the people, the state and sovereignty. Sovereignty is with the people and it includes following. The first three of these are to be exercised collectively, through representatives, and not individually or directly. The other two, fundamental rights and the right to vote are exercised individually.

i. The legislative power of the people, to be exercised by the parliament.

ii. The executive power of the people, to be exercised by the President.

iii. The judicial power of the people, to be exercised through courts, tribunals and designated institutions.

Fundamental rights.

v. The Franchise.

(b) [8] Chapter Three Fundamental Rights. Fundamental Rights and Freedoms enshrined in our constitution. They are contained in article 10 to 14 of the constitution and those cannot be violated by any executive or administrative persons or authority. Remedies for infringement or imminent infringement of fundamental rights are available only in respect of executive or administrative action. Article 126 of the constitution will describe the procedure and only the Supreme Court is vested with fundamental rights jurisdiction. [9] However the constitution describes a number of situations in which different fundamental rights can be restricted by law.

i. Freedom of thought, conscience and religion.

ii. Freedom of torture.

iii. Right to equality.

iv. Freedom from arbitrary arrest, detention and punishment, and prohibition of retroactive penal legislation.

v. Freedom of speech, assembly, association and movement.

(c) [10] Chapter Seven Executive President of the Republic and His Powers. According to the 1978 constitution there shall be a President for the Democratic Socialist Republic of Sri Lanka. He is the Head of the State, the Head of the Executive, the Head of the Government and the Commander-in- Chief of the Armed Forces. The President of Sri Lanka is elected by the people and shall hold office for a term of six years. One President can hold the appointment only two terms. Article 31 of the constitution mentioned the qualifications required to nominate the presidential election. According to the 1978 constitution executive powers of the President is as follows.

i. Appointments List A.

aa. Prime Minister.

ab. Ministers.

ac. Deputy Ministers.

ad. Appoint of provincial Governors.

ae. Army, Navy and Air Force Commanders.

af. Presidential secretary and secretaries for other ministries.

ii. Appointments List B.

aa. The Chief Justice and the Judges of the Supreme Courts.

ab. The president and the Judges of the Court of Appeal.

ac. The members of Judicial Service Commission.

ad. The Attorney General.

ae. The Auditor General.

af. The Inspector General of Police.

ag. Parliamentary Commissioner (Ombudsman) for Administration.

ah. The Secretary General of Parliament.

iii. In addition to the powers and functions assigned to the President by the constitution or any written law the President shall have the power:

aa. To make the statement of government policy in parliament at the commencement of each session of parliament.

ab. To preside at ceremonial sittings of parliament.

ac. To receive and recognize and to appoint and accredit Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents.

ad. To appoint as President’s Council.

ae. To keep the Public Seal of the Republic and to use the Public Seal for sealing all things whatsoever that shall pass that Seal.

af. To declare war and peace.

ag. To do all such acts and things not being inconsistent with the provisions of the constitution or written law as by international law, custom or usage he is required or authorized to do.

iv. The President has the power in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka. It is known as grant of pardon.

v. Immunity of President from suit.

aa. No proceedings shall be instituted or continued against the President in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.

ab. Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the period of time during which such person holds the office of President shall not be taken into account in calculating any period of time prescribed by that law.

(d) [11] Chapter Eight the Cabinet of Ministers. The Cabinet of Ministers selected from the members of the parliament. As per the constitution, Cabinet is entrusted with direction and control of the government of the republic and is collectively responsible and answerable to parliament. The Cabinet falls within the executive arm of government and the President is Head of the Cabinet. One of the important aspects of the system of government under the 1978 constitution is that the President’s tenure of office is not tied to that of the Cabinet. If the Cabinet is dissolved the President carries on in office unaffected. This will ensure the stability and continuity of the executive. Key features of the Cabinet are as follows:

i. Collective responsibility of the Cabinet of Ministers.

ii. If any Minister wishes to differ from the views of the Cabinet he or she would be expected to resign.

iii. Confidential Cabinet meetings and proceedings.

Individual responsibility for the work of his or her ministry to the parliament.

v. Prime Minister is Nominal Head of the Cabinet.

(e) [12] Chapter Nine Public Service. Public service carries out the day to day running of government activity. It includes all personnel of Ministries and Departments. Public Service Commission is one of the key features of Public Service. It has nine members appointed by the President on the recommendation of Constitutional Council.

(f) [13] Chapter Ten Parliament. As per the constitution of Sri Lanka parliament has 225 members. Out of that 196 shall be elected according to the District basis and 29 will be appointed from the national list according to the constitutional provisions. The period of parliament is six years from the date appointed for its first meeting unless the parliament is sooner dissolved.

(g) Amendments. From the date constitution was introduced it was amended eighteen times up to date.