From Jennings to Geneva: Sri Lanka's tortuous decline

Rajan Philips-March 15, 2014 There have been quite a few news reports and nostalgic commentaries on Sir Ivor Jennings inspired by the visit to the Peradeniya campus by his granddaughter !atherine "atson# Sir Ivor$s pioneering contribution to university education in Sri %an&a has not been sufficiently honoured and appreciated# 'or several decades honouring Jennings was a one-man mission for the late ()I *Ian+ ,oonetille&e the venerable bibliographer of Sri %an&an scholarship# Ian fought a lone battle against powerful odds and without any official resources to remember and honour Jennings to preserve his writings and to publish some of them# It was not just the establishment for as has been duly noted by the popular -People and .vents- columnist /an even the student population at its boorish worst spurned the efforts in the 0123s to honour Jennings with a statue or monument on the campus he founded# Perhaps a better way of honouring Jennings today than statues or street names that are no longer a mar& of distinction would be for the universities to offer *seminar or reading+ courses on Jennings his wor& and his contributions to Sri %an&a# )part from nurturing the island$s first university and its picturesque campus Jennings played a crucial role in the transfer of power from a colonial ,overnor to an indigenous government and in the development of independent %an&a$s first constitution# Jennings was -honorary constitutional advisor- to 4S Senanaya&e from 5ay 0167 to 'ebruary 0168 and a consummate participant observer in the Senanaya&e administration both before and after independence from 0167 till 5r# Senanaya&e$s death in 019:# (is monograph -The !onstitution of !eylon- first published in 0168 followed by two editions in 0193 and 0197 is still the foundational framewor& for assessing Sri %an&a$s constitutional development from the Soulbury !onstitution *0162-2:+ through the 'irst Republic *012: - 28+ to the Second Republic since 0128 with a seemingly unlimited term# Some of us born in 0168 or after have been fortunate enough to e;perience Jennings through hearsay from our intellectual mentors and more directly through his own writings# (e wrote not just on the constitution but on the resplendent land$s flora and fauna and the culture of its people including their food habits describing in one instance the -innumerable small dishes of curries- that decorate a sumptuous %an&an meal# (e offered the insights of a trained mind into the structures of our society and its nascent transition from being a traditional caste-society to an emerging modern nation-society# The political manifestation of that unevenly unfolding transition is what I have ventured to call for the purpose of this article - Sri %an&a$s tortuous decline from Jennings to ,eneva#

The ma&ing of the Soulbury !onstitution I will start with Jennings$s description of how things were during what he has called -The 5a&ing of the !onstitution- *!hapter 0 of -The !onstitution of !eylon-+ from 5ay 0167 to 5ay 016<# There were three &ey players involved in the process= the !olonial >ffice in %ondon the ,overnor in !olombo and the ?oard of 5inisters of the State !ouncil functioning under the 4onoughmore !onstitution# The final constitutional reform leading up to independence began with the ?ritish government$s 4eclaration of 0167 which ambiguously laid down the purpose of reforming the constitution towards granting Sri %an&a -full responsible government- and the procedure for achieving it# 5a&ing its own interpretation of the %ondon 4eclaration the ?oard of 5inisters set out to draft a new constitution for Sri %an&a which after years and some changes would become independent Sri %an&a$s first constitution better &nown as the Soulbury !onstitution# -The major difficulty however was the minority problem- wrote Jennings while -the rest of the constitution was comparatively easy#- (ow was this difficult problem addressed@ "hile Jennings claims no credit for himself according to )J "ilson Jennings as the adviser to 4SSenanaya&e and the principal drafter of the -5inisters$ 4raft Scheme- *as it was officially called+ was instrumental in incorporating various safeguards to protect minority rights # The safeguards addressed the main concerns in regard to representation in parliament equal treatment before the law and fairness in recruitment to government jobs by providing weightage in representation a rigid constitution requiring two-thirds majority for amendment and independent public service and judicial service commissions# "hile there was good understanding between the colonial rulers and the ?oard of 5inisters in regard to the purpose and even the content of the new constitution there was a misunderstanding about procedure# The ?oard of 5inisters understood the procedure as literally requiring the support of -three quarters of the State !ouncil- for its draft constitution# To the !olonial >ffice the requirement of -three quarters- support was intended to -compel the 5inisters to negotiate an agreed draft with the minorities or some of them#- The 5inisters did not negotiate anything with the minorities and Jennings has noted that -nobody in !eylon had understood this to be the intention#- (e goes on to say= -/ot only had it not been done but some of the minority members protested to the Secretary of State for the !olonies that they had not been allowed to e;press their views on the 5inisters$ draft#This was the bac&ground to the Soulbury !ommssion whose tas& Jennings notes was very different from that of the 4onoughmore !ommission seventeen years earlier# "hile the latter had to create a new constitution the former was tas&ed with approving one of three constitutional alternatives= 0+ 4o nothing and let the 4onoughmore !onstitution continue and nobody was in favour of thisA :+ the 5inisters$ draft which had about two-thirds support in the State !ouncil *S!+A and 7+ the Tamil !ongress scheme focused on -balanced representationwhich would have garnered 0: votes in the S!# In the end it was the 5inisters$ 4raft with modifications and embellishments that became the Soulbury !onstitution# The main changes were the addition of a Second !hamber fle;ible powers given to the 4elimitation !ommission

and the increase in the powers of the independent Public Service !ommission# )t its core the Soulbury !onstitution was meant to be the -communal compact- between the Sinhalese the Tamils and the 5uslims and -the rest of the constitution was comparatively easy- to re-quote Jennings# The communal compact was formally sealed when ,, Ponnambalam joined the 4SSenanaya&e cabinet soon after independence leaving as Jennings as casually noted -only a small Tamil section which produced a scheme *or at least an idea+ for a federal constitution- ### in opposition# -/otably the word $unitary$ does not appear in Jennings$s monograph# ?ut what he describes in passing in !hapter : *- Independent Status -+ of the monograph as ?ritish success in establishing- a democracy by convention while remaining a monarchy in legal theory - could well be tried even belatedly in Sri %an&a to establish devolution by convention and practice while remaining a unitary state in constitutional theory# Jennings saw no inconsistency between laws and conventions when the latter reverse the effects of the former# The tortuous decline 4escribing the -Political 4evelopments since 0162- *!hapter 7+ Jennings observed that the -first Bnited /ational Party ,overnment had an easy passage - and attributed it to a wea& and divided opposition with political issues being -more controversial outside parliament than inside# - >f the official opposition party Sir Ivor wrote the -%an&a Sama Samaja Party was well managed by its leader 4r /5 Perera but it lac&ed personnel#- .ven though -5r 4S Senanaya&e was thrown from his horse and died on :: 5arch 019: - the second B/P government elected later that year -was even stronger ### than it had been in 0168#- Cet by the time Sir Ivor Jennings left Sri %an&a in January 0196 political storm clouds were already gathering# "riting in 5arch 0197 for the Third .dition of the boo& Jennings noted that -the period of $easy money$ had come to an end and in 019:-97 the government faced the prospect of a heavy deficit in the revenue-# The 0197 )ugust (artal had forced Prime 5inister 4udley Senanaya&e to resign and he was replaced by the ebullient but blundering Sir John Dotelawala# The latter shattered the communal compact by firing ,, Ponnambalam from the cabinet# S"R4 ?andaranai&e whose departure from the government in 0190 had been seen as a blessing in disguise for the B/P government was only an election away from capturing the highest priEe that he had always considered to be his entitlement# ?ut what Sir Ivor Jennings li&e %ord Soulbury would not have foreseen was the swiftness with which the political pre-suppositions of the Soulbury *Jennings+ constitution would be undermined by one government after another# It was not the $unitary$ nature of the constitution that led to the undermining but acts of parliament that eroded minority rights in violation of the spirit of the constitution and the judicial reluctance to challenge these violations# .ventually with the adoption of the 012: and the 0128 constitutions even -the rest of the constitution- that Jennings considered to be -comparatively easy- in 0162 were made unnecessarily difficult rigid and presently froEen# It is not just the minority rights that are of concern today but the overpowering of the public services public spending the judiciary and parliament itself by the e;ecutive president with hardly any chec& or balance# Jennings who died prematurely of cancer in 01<9 could not have foreseen the abandonment of the slowly evolving

parliamentary-cabinet system and its replacement by a rapidly degenerating presidentialcabinet system# ,eneva represents the nadir of Sri %an&a$s constitutional and political decline after independence# The -minority problem- that Jennings considered -the major difficulty- in the ma&ing of the Soulbury !onstitution nearly seventy years ago is now the Sri %an&an government$s insurmountable international hurdle# 'or the third year in succession the B/(R! is set to pass a resolution against the Sri %an&an government# That the draft :306 resolution has e;cluded the call for international investigation of wartime e;cesses could hardly be a solace let alone a victory for the government because the new draft widens the scope of international oversight of the Sri %an&an government# In addition to repeating the call to implement the recommendations of the %%R! !ommission the new resolution brings within the purview of the B/(R! - the attac&s on religious minorities the army attac& on "eliweriya protesters and the government$s reluctance -to provide the /orthern Provincial !ouncil with the authority and resources to govern as required by the 07th )mendment of Sri %an&a$s constitution# - India$s hand in the draft could be seen in the e;clusion of the call for international investigation while giving the Sri %an&an government more time to put in place a -credible national process- of investigation and in the specific reference to the 07th )mendment for the first time in an international resolution on Sri %an&a# The government may reject the resolution as unacceptable as 5inister ,% Peiris has already indicated in his opening speech in ,eneva# ?ut this rejection is not even a formality because the government is promising at the same time to wor& with the B/(R! and it intends to attend the ,eneva sessions twice a year and by the loo&s of it forever# It will not boycott the B/(R! sessions and insisting on rejection without boycotting is practically meaningless# /or is Sri %an&a$s predicament going to be attenuated by attac&ing the Bnited States for its hypocrisy# President !linton once remar&ed that his country must project itself to the world through -the power of its e;ample and not the e;ample of its power#- "hile the world must condemn the e;ample of )merican power many countries including Sri %an&a would do well to learn from the power of the )merican e;ample of a progressively inclusive constitutional democracy# Spea&ing of constitutional democracy Sir Ivor Jennings left Sri %an&a$s constitutional development on a firm footing# I am not suggesting that Jennings is beyond criticism and there have been many criticisms of Jennings in Sri %an&a and elsewhere especially in regard to his reluctance to including a ?ill of Rights in the constitution# ?ut what Sri %an&a has done in dispensing with the Soulbury !onstitution and replacing it with not one but two homegrown substitutes is so horrendous that Jennings$s contributions loo& all the more superhuman# In regard to the -minority problem- that was his -major difficulty- Jennings offered this insight= -)s always happens when constitutional reform is under discussion for long periods members had pledged themselves to conflicting principles#- In other words long periods of constitutional discussion reinforces infle;ibility# )nd Sri %an&a has had a longer than long period in reinforcing its internal infle;ibilities# .very new generation has created its own constitutional idiocies# The upshot is the annual pilgrimage to ,eneva#