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Dr. Lakshman Marasinghe

Extracts from the oration by Dr. Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Windsor, Ontario, Canada, delivered on May 25, at the N.M. Perera Centre, Cotta Road, Colombo 8.

It was with much trepidation that I decided to accept this distinct honour to felicitate the memory of one of the most distinguished sons of Lanka. I say with trepidation, Mr. Minister, because I am always aware of my own inadequacies while having to stand in the formidable shadow of that great human being, a fountain of sparkling wisdom, for the next short while.

Colvin Reginald de Silva was born in 1907 at Baddegama. His father, Arnold de Silva was a Medical Practitioner, with a practice also at Baddegama. Colvin's mother was Jocelyn de Silva. At the age 27, on the 9th of May 1934, Colvin married his close relative Sweenitha de Silva. By that time Colvin had established himself as an Advocate.

He had taken his oaths before Mr. Justice Gavin, as an advocate of the Supreme Court of Ceylon on May 30th 1932, and had spent time as a pupil in the chambers of Mr. M.T. de S. Amerasekera, one of the greats in the Ceylonese Bar at the time.

Colvin had a most distinguished academic career. At the age of 19, in 1926, he obtained the Bachelor of Arts Degree of the University of London, with First Class honours.

During that period he was a student of University College, Colombo, which prepared students for the University of London Degrees. In 1927, Colvin registered as a student at King's College, of the University of London for the Doctorate in Philosophy.

In 1930 having spent the minium period of three years required for the Ph.D. Colvin was awarded the Doctoral degree of the University of London. His thesis - Ceylon Under the British Occupation (1795-1833)- has been acclaimed as the most penetrating analysis of the British Rule of that period.

Dr. Colvin R de Silva

The clear and succinct style of writing gets to the heart of his analytical, thinking. A style he maintained in the practice of law to the very end. In his thesis, having discussed the treacherous conduct of the Kandyan Chief, Colvin concluded in his characteristically pungent style, with one idea in one sentence:

"It was a repetition of an old and tragic tale. The Kandyans turned with a too facile readiness to the idea of bringing in the foreigner to settle their domestic differences. That pitcher went once too often to the well. The convenient arbitrator became the permanent master. The Kandyans accomplished their doom".

Colvin was a Member of Parliament for much of the time after Ceylon gained her independence. His speeches in Parliament were legendary. His speech at the debate on the Official Language Bill, in 1958, appears to have been delivered with profound perspicacity and clairvoyance accuracy.

He told the SLFP government, speaking from the front bench of the opposition: "Give one language you have two nations. Give two languages you have one nation." The truism expressed here has presently become loud and clear.

In 1964, Her Majesty's Privy Council decided The Bribery Commissioner v Pedrick Ranasinghe. There, Lord Pearce expressing an obiter dictum with reference to entrenchments contained in Article 29(2) of the Soulbury Constitution wrote: "They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the constitution; and these are therefore unalterable under the constitution."

This obiter pronounced the death warrant for the Soulbury constitution, which subsequent events lead to its replacement by the 1972 constitution. In the following passage, Colvin shot the fist volley, in Parliament towards replacing the Soulbury constitution. He said with reference to the decision and the obiter dictum of Lord Pearce:

"That is way I said to you, Sir, in answer to your question, that I agree with the decision. I do not agree with every observation in the judgement, but I agree with the decision because it is a correct interpretation of the law, whether we like it or not.

"And, Sir, please remember, as things are, any effort to act otherwise is subject to the same authority, and it is only a set of fools who will think that the Privy Council will adopt another interpretation on the mater of the meaning of the constitution under the constitution.

"Therefore if we try to Legislate in the face of, or in defiance of, this decision under the constitution, then any citizen can take the matter to the Privy Council. In fact he need not go all the way to the Privy Council. The local courts are under an obligation to apply this decision. That is the position.

This debate in 1969 paved the way to seek a mandate in 1970, from the people, to establish a constituent assembly. At the ensuing election The United Front obtained 49% of the vote comprising of SLFP 36.9%, LSSP 8.7% and the CP 3.4%.

As a sequel to this vote the United National Front decided to establish a constituent assembly, and Colvin as the Minister of Constitutional Affairs piloted the creation of the constituent assembly and midwifed the 1972 constitution.

Constituent Assemblies

On Tuesday the 21st of July 1970, at 7.23 P.M., as the Report of the proceedings of the constituent assembly reads, Dr. Colvin R. de Silva began his first presentation to the Constituent Assembly. In his speech which lasted 52 minutes, the then Minister for Constitutional Affairs, speaking in the Sinhala language, outlined the objects, as he saw them, of the constituent assembly.

Then he proceeded to say, that a matter of this magnitude and importance must be commenced by placing objectives at the forefront. Furthermore, his belief was that while it was the desire of the people to establish a constituent assembly the duty of its members was to provide the instruments and the avenues to help achieve them.

Thereafter Dr. de Silva proceeded to emphasise the view that constitution making before a constituent assembly is not based on any law. It is a matter of politics.

The entire activity Dr. de Silva maintained was a political process and should not be allowed to be mired in Laws. If the process was conceived within a normative system, then Dr. de Silva maintained that its purpose and intendment shall be lost.

The emphasis is on the fact hat the Constituent Assembly is not a creation of the law. Therefore it is established outside the existing constitution. And therefore it is free to adopt its own procedures. In doing so the members of the Assembly may decide with what majority should the final draft be passed.

Freed from the shackles of the existing constitution, the Assembly is not bound by any entrenched clauses in it, which may call for particular majorities for constitutional changes.

Constituent Assemblies stand in conflict with the existing constitution. They are established as a means for annulling the present constitution. Therefore a constituent assembly is never workable as a creature of the constitution.

While referring to the percentages that the United National Front government received at the election in which a mandate to constitute a Constituent Assembly was sought, Dr. de Silva maintained that this was not a number game. It is the popular will of the people manifested by the power of the people that has justified the establishment of the constituent assembly.

Dr. de Silva relies upon popular will of the people to justify the Constituent Assembly. "People power may be gauged through several means. One of the clearest being where people have rejected one philosophy by choosing another which is diametrically opposed to the one that had been rejected.

In the election of May 27th, Dr. de Silva argued that the people had voted to change the then existing political direction and move the country towards socialism. This change of direction was so radical that it was not necessary to work out the percentages of votes that had been cast towards such a change.

Once the change is so very radical the people power unleashed thereby would be sufficient to justify the making of a new constitution through a constituent assembly.

By avoiding the numbers game and firmly rooting the mandate to establish a Constituent Assembly on the radical change of direction of the socio - economic aims of the previous government, Dr. de Siva pointed out the watershed that the country had reached.

This he maintained spoke reams more than mere numbers, in support of making a new constitution. However, historically, Constituent Assemblies are not the only bodies that help in drafting new constitutions. There are others too. A survey of these may be poignant at this point.

Constitution making bodies

The available literature on the subject of Constituent Assemblies is both copious and complex, and therefore somewhat confusing. This confusion arises as a result of the inconsistency in the way in which Constitutions have historically being replaced and annulled. The word "constituent assembly" has been used, loosely and interchangeably, with "constitutional conventions".

Occasionally, the term "constituent assembly" had been used when what is established is a "constitutional convention". Out of this confusion there has resulted several basic contradictions regarding the use of people-centred bodies to annul an existing constitution, thus paving the way for its replacement by a new constitution also to be established by that very same body.

For the purpose of this paper, "constituent assemblies" or "constitutional conventions", "constitutional conferences", "representative legislative committees" and "constitutional commissions", shall each be regarded as distinct and separate constitution making bodies.

There are two types of Constituent Assemblies. Those that are "directly elected" and those that are "indirectly elected". The "directly elected Constituent Assemblies" are those where the delegates are elected by the population-at-large with the primary, if not the exclusive, purpose of drafting a new constitution.

A directly elected constituent assembly may during its lifetime assume the additional task of performing the functions of a supreme law making body.

Indian Constituent Assembly in 1947, at its first meeting after gaining independence declared itself an interim parliament. And thereby it began to perform the twin functions of drafting the Indian constitution and at the same time began to functioning as a "supreme law making body" for India.

The most recent example of a "directly elected constituent assembly" was in Namibia. There, a directly elected constituent assembly met from November 1989 to February 1990 to draft a constitution for Namibia.

This was made necessary as a result of the relinquishing of the League of Nation mandate by South Africa. South Africa held that mandate, as a result of the defeat of Germany in World War I. South West Africa under the new constitution emerged in 1990 as the independent and sovereign state of Namibia.

Another example of a directly elected constituent assembly was in Nicaragua in 1984. A more distant example was the Indian Constituent Assembly, to which reference had been previously made. The delegates to the Constituent Assembly were chosen at an election held in July 1946.

The subsequent decision to divide the sub-continent into India and Pakistan resulted in the delegates thus elected in 1946, to constitute, in 1947, two separate Constituent Assemblies for the two newly independent countries. The two Constituent Assemblies worked separately. The new constitution for India was proclaimed on the 26th January 1950.

However, Pakistan's Constituent Assembly which commenced its work on 16th August 1947 was suspended by order of the Governor-General of Pakistan on 24th October 1954.

A second assembly directly elected in March 1955 managed to enact a constitution in March 1956. That constitution was abrogated in October the same year.

Rationales

It is axiomatic that in modern day world constitutions are necessary due to mistrust. This mistrust arises between those who wield the power of the State and those who are the subjects of that power. Constitutions may sometimes be imposed upon a people.

Sometimes they are received by the people. When a constitution is received by a people then it is one that is born out of a popular acceptance, based on a consensus.

It is an obligation that the rulers of a State carry, that the relationship between them and those who are subject to their rule, must be established with a fully informed consent. When there is consent there is voluntary acceptance of the evolving compact between them.

In order to make these the underpinnings for a basic document, the constitution; an institution must be established which would bring into focus all those desiderata upon which popular consent could be established. This requires popular participation of the people, through their elected representatives.

Human experience has shown that one of the institutions suited for achieving this desired goal is the use of constituent assemblies as a method for drafting constitutions. There are other institutions too to which reference had previously been made.

Second, a constituent assembly unlike a legislature, is not bound by any external rules, other than the Rules and procedures that its members may in their collective wisdom might formulate.

This provides a flexibility to the institution and therefore to the process that leads the assembly to formulate policy which would be incorporated into the new constitution.

Third, a constitution must embody the collective wishes of the people.

(To be continued)

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