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From Jennings to Geneva  Sri Lanka's tortuous decline

From Jennings to Geneva  Sri Lanka's tortuous decline

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Published by: Thavam on Mar 17, 2014
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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$s tortuous decline from Jennings to ,eneva#
The ma&ing of the Soulbury !onstitutionI will start with Jennings$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 representation which 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 decline4escribing 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# .ventuallywith 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

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