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Sri Lanka has a penchant for constitutions, indeed an obsessive predilection for them. From 1931 to 1948 the Island was run according to what is familiarly termed the Donoughmore Constitution prescribed by a British Royal Commission consisting of eminent political personalities headed by the Earl of Donoughmore. Importantly, this constitution bequeathed on us universal adult franchise, a revolutionary advance that was resented by the local elites.

In the meantime, with our fetish for constitutions, the ministers of the Donoughmore legislature prepared a draft of a new constitution for our country. The ministers’ draft became the framework for our pre-independence constitution, the Soulbury Constitution of 1947, on which was erected our first post-independence constitution. This constitution was a dispensation from another British Royal Commission headed by Viscount Soulbury. Soulbury, incidentally, became independent Ceylon’s first governor general.

This constitution, which endured till 1972, had an upper chamber of 30 members or senators. Distinguished persons up to the prescribed limit of about 15 were appointed to the senate while parties of the lower chamber, the House of Representatives, elected 15 other members. The lower chamber was actually more powerful and could not be restricted in its exercise of authority by the upper chamber, the senate.

There was provision in the constitution that prevented the House of Representatives from legislating in favor one community while ignoring others. This measure was to debar the enactment of discriminatory legislation, a safeguard due to fears of the minority communities – Sri Lankan Tamils, Tamils of recent Indian origin, Muslims, Malays, Burghers and Eurasians – that the Sinhalese majority would be partisan. This constraint on legislation was constitutionally entrenched to prohibit a single community being privileged, while the second chamber of eminent nationals were to discourage the creation of discriminatory measures. Both provisions were meant to assure the minorities would not suffer owing to the partiality of the Sinhalese majority.

Through the 1970 elections the Sinhalese were able to secure for themselves a legislature dominated by the majority community. The opposition was weak; the Tamils of recent Indian origin had been rendered inarticulate by being deprived of citizenship, their vote and representation. It were under these circumstances that the government went ahead and drafted what came to be known as Sri Lanka’s first Republican Constitution of 1972. After initially giving support the Sri Lankan Tamil representatives decided to boycott the legislature when it formed itself into a constituent assembly and set out to frame a new constitution.

In the first Republican Constitution Buddhism was accorded a preponderantly superior position in an island of multi-religious beings. Partial treatment to Buddhists gave them an edge over others. The senate, at best an ineffectual safeguard for the minorities, was abolished. Thus the clause meant to deter the enactment of legislation favoring one community in a partisan manner over others was removed. This left the minorities vulnerable and at the mercy of the majority and as unequal partners in society. Furthermore, a clause in the constitution elevated the Sinhala language to a prominent status in a multilingual society. The other principal language was relegated to an inferior level. Happily the 1972 Constitution was totally rejected and a new constitution replaced it in 1978.

The late President J. R. Jayewardene, a veteran politician, authored the 1978 Constitution. He formed a committee of parliamentarians of different political hues to entertain representations on constitutional reform. (I was a member of a three-man team, which presented changes and innovations). The constitution prescribed an executive president and the Jayewardene held this position for two terms. Though the 1978 Constitution prescribes that the executive president is to be elected by on an Island-wide vote, Jayewardene slipped into the seat straight from premiership to which he was elected under the previous constitution.

In his second term Jayewardene assumed executive headship after extending the life of the legislature through a referendum, a move that was criticized for lacking legitimacy. He did not have a parliament newly elected on the proportional representation (PR) system, which was to have been introduced in consonance with the Constitution of 1978. He used the overwhelming and formidable majority obtained through ‘the first past the post’ system of elections under the previous constitution and lengthened the life of parliament through the referendum.

As president, Jayewardene could address parliament, which he did not need to attend. He was not accountable to parliament and though impeaching him was possible, it was only through a cumbrous and not easily practicable procedure. The president enjoyed impunity for life even after retirement, as well as immunity from suit. Moreover, Jayewardene had obtained letters of resignation from parliamentary members of his party and they could be turned pliant, ductile or malleable. He encountered no opposition and remained unaccountable and unanswerable.

The executive president’s appearance of being an authoritarian personality is reinforced by his or her power to dissolve parliament after one year in office without hindrance, to prorogue parliament for two months, grant amnesties, and declare war and peace. Parliament of course could disallow funds to the president for expenditure, but the iron grip the president, who is usually leader of his or her party, has over the MPs makes this is highly unlikely. So the 1978 Constitution more or less created a Leviathan at the top.

No wonder the political parties are looking today for a new constitution. Some fear the threat the executive presidency holds due to such unbridled power. People also find it well nigh impossible to form a stable government with elections fought under PR generating regimes without comfortable majorities. Minority governments feel compelled to form coalitions. This is unsatisfactory as coalescing partners demand much and drive the weak government to lose its vision, character and promises. Coalition governments compromise too much.

Though there are compulsions to amend the present constitution there are almost insuperable difficulties to do so. A two-thirds majority for amendments cannot be easily mustered as the PR system yields either hung parliaments or minute majorities held precariously together through coalitions. A referendum that may be sometimes constitutionally needed to change the constitution makes passing an amendment for this purpose almost unimaginable. Recently I suggested at a gathering that the best course is to follow Britain and continue to govern without a constitution. My cynical comment was naturally dismissed out of hand.

There is no right or wrong way to amend, alter or replace constitutions. There are no international rules to change the supreme law. The Sri Lankan Constitution of 1978 prescribes the manner to be followed in altering or changing the constitution but it is impossible to be followed, as a two-thirds majority cannot be easily garnered. Following this a referendum of the people may also have to be won, which is also not easy.

Nevertheless, since a constitution is the outcome of a contract between those who wish to govern and the people who are to be governed, one can lay before the people the constitution that is proposed for their consent for which a referendum is perhaps inevitably needed, difficult though it might be. Those who wish to govern and want the constitution have to convince the sovereign people.