Constitution making and dynamics of social change

Methsiri Cooray

Continued from yesterday

So much so far the Soulbury Constitution and the role of Supreme Court, Judicial review and section 29 (2) as a minority safeguards. In fact the role of Supreme Court as well as Privy Council saw to the eclipse of not only Judicial review and 29 (2) but the entire Soulbury Constitution.

29 (2) was considered a letter on Sovereignty. Was 29 (2) unalterable even by 2/3 majority? There was no direct attempt to amend 29 (6) hence it remained a letter.

Members of the legislature took umbrage on the role of Judiciary SC and Privy Council on some of its decisions.

“If we have this power of Judicial Review the chief work of 1956 onwards will be undone. You will have to restore the egg from the omelette into which it had been beaten and cooked.” Dr. Colvin R. De Silva.

“We do not want three or four Judges sitting over deliberations of this Assembly after a Bill has been passed, and ruling it out when these judges do not know about social forces that brought about that legislation”: Stanley Tilekeratne MP.” Why are we saying that a Judge once appointed have the right to declare that Parliament is wrong”: Felix R. Dias Bandaranaike MP.

“S. 29 (2) of the Constitution represented a solemn balance between citizens of Ceylon, the fund a mental condition on which they accepted the Constitution. And they are therefore unalterable”: Lord Pearce Bribery Commissioner VS, Ranasinghe (1964) 66 NLR 78 “Constitution silence as to vesting of Judicial power was consistent with its remaining where it had lain for more than a century in the hands of Judiciary”: Privy Council.

“Impugned Acts amounted to legislative judgments enacted with the aim of impacting punishment on named individuals and depriving judges of their normal discretion in that regard.

Acts therefore were unconstitutional and invalid on so far as they constituted a grave and deliberate interference with judicial power Privy Council Queen vs Liyanage (1965) 68 NLR 265 Judicial Activism and Review brought about a reaction and there were many critics of Judicial Review among members of legislature as mentioned above.

Lord Pearce Judgement in Bribery Commissioner Ranasinghe (1964) 66 NLR 78 brought into sharp focus the question of sovereignty of Parliament.

“This question went up in Appeal to the electorate in the 1970 elections.” The Privy Council delivered the death warrant of the Soulbury Constitution” Prof. Laksman Amerasinghe Constitutional aspects Soulbury Constitution Colombo Law Review.

(C) 17th Amendment. It is being pointed out that 17th Amendment is totally flawed in that it has in built inherent provision on ethnic ratios. In Parliament reporting on the conclusion of the war on terror the President of the country said we should get out of the minority/majority syndrome.

In 1930’s Donoughmore Commission was of the view that Communal representation was the cancer in the body politic and it should be buried once and all. It is to the credit of major ethnic community no political parties were formed on communal lines.

17th Amendment is no answer to our political malaise, no panacea for all evils. It is much to do with political culture, built over past two to three decades, and the upbringing aspiration, attitude, outlook and vision educational levels of would be aspirants to enter the portals of legislature today, unlike 50 years ago apart from inherent drawbacks in the present constitution.

This is a question of disconsonance disparity dysfunction between the political institutions and the underlying political/ socio cultural base. A state of Anomie, of lawlessness, as described by social Scientist Emile Durkien.

The political institution like Parliament, Cabinet, Executive, Judiciary, structure wise are same as those of 50 years at the advent of independence (1948) except the substance of power inherent in each institutions. But the underlying socio/economic/political culture has undergone radical change over the past 50 years.

These political institutions are in a state of being dysfunctional as far as the underlying socio-economic-political base is concerned.

This is the socio-political dynamism which our politicians and others, adherents of 17th Amendment failed to understand.

Without a radical change in the underlying socio economic-political base/culture the 17th Amendment as it is, will only bring about cosmetic changes.

The writer is an Attorney-at-Law

Concluded