Bibliographical Notes

Articles

Lalith Athulathmudali's, 'Towards a New Era in Sri Lanka', Ceylon Daily News, 4 February 1978, is a useful explication of the Constitution in terms of what his party, the U.N.P., hopes to accomplish under its various provisions; the author also explains the why and wherefore of the more important aspects of the Constitution. --,'The New Constitution' Ceylon Daily News, 2 August 1978, is a defense of the constitution from the point of view of his own party, the U.N.P. C. R. de Silva's 'The Constitution of the Second Democratic Socialist Republic of Sri Lanka 1978', The Journal of Commonwealth and Comparative Politics, Vol. XVII, No. 2 (july 1979) is a useful interpretation of the new structures. --, 'Three Constitutions of Independence', Socialist Nation, 1 February 1978, compares the 1972 constitution with the new Constitution and warns against the dangers of absolute power being concentrated in a President. --, 'Jayewardene Constitution', Ceylon Daily News, 4 February 1978, is a scathing criticism of the new Constitution's devaluation of Parliament and the exaltation of the presidency. --, 'No Democracy without Socialism: Not a Question of a Melancholy Heart's Desire', Socialist Nation, 14 June 1978, is a Marxist criticism of the attempt to draw up a constitution which seeks to promote economic development with private capital, local and foreign. --, 'Constitution for Dictatorship: Free and Fair Elections Unlikely Next Time', Socialist Nation, 5 July 1978, is a Marxist criticism of the Constitution, the aspects strongly attacked being the potentialities for dictatorship, the 'devaluation of Parliament' and 'the roadblocks imposed on the Left' under the system of pro• portional representation. on Bibliographical Notes 159 K. M. de Silva, in 'Political and Constitutional Change in Sri Lanka', The Round Table (January 1979) provides a useful in• terpretation of the new constitution with an analysis of the changing political situation. Ranjit Dheeraratne's 'Changes in Local Elections Law', Ceylon Daily News, 10 August 1978, seeks to explain the intricacies of the proportional representation system provided for under the new Constitution with reference to its applicability at local elections. J. R. Jayewardene's 'Science and Politics' in Selected Speeches (Colombo, 1974) is the equivalent of General de Gaulle's Bayeux speech on future constitutional changes. The speech was delivered in December 1966. Tressie Lei tan's 'The Role of the Ombudsman', The Sunday Observer, 13 August 1978, explains the functions of the ombudsman in Britain and the Scandinavian countries with a view to indicating that Sri Lanka might with profit follow their practices. James Manor's 'A New Political Order for Sri Lanka' in World Today (September 1979) is an interpretive survey covering most of the important aspects of the constitution. 'New Government, New Constitution', Review of the International Commission of Jurists, December 1978, makes a critical examination of those sections of the Constitution dealing with human rights and the independence of the judiciary. N. M. Perera, 'Second Amendment to the Constitution: Part 1', Ceylon Daily News, 4 October 1977, criticises the speed with which the changeover to a presidential government was introduced. --, 'The Second Amendment- Part II', Ceylon Daily News, 5 October 1977, criticises the change from cabinet-parliamentary government to an executive presidency. --, 'The Second Amendment- Part III', Ceylon Daily News, 6 October 1977, explains the difficulties a President will face when confronted with a hostile majority in Parliament, emphasising that U.S. precedents are not safe to go by. --, 'The Second Amendment- Part IV', Ceylon Daily News, 7 October 1977, criticises the diffusion of responsibility between President and Parliament and again warns about the dangers of following American practices. --, 'New Constitution Only as long as J.R.'s (J. R. Jayewardene's) Parliament: Every Imitation ofU .S.A. has ended in Dictatorship', Socialist Nation, 2 August 1978. --, 'Loose Thinking in J .R .'s Constitution: Only Lawyers will I6o The Gaullist System in Asia: The Constitution of Sri Lanka Benefit!'- Socialist Nation, 9 August, I 978. --,'Language Solution is 20 Years too Late' -Socialist Nation, I6 August I 978. --, 'U .N .P. Modifies its Past! Racial Discrimination and Emergency Rule were D.S.'s (D. S. Senanayake, the first U .N .P. Prime Minister, I 94 7-I 952) Policies'- Socialist Nation, 23 August I978· --, 'Principles of State Policy- A Cynical Approach to Politics!'- Socialist Nation, 30 August I 978. --,The President's Powers: Prime Minister mere Name Board'• Socialist Nation, 6 September I978. --, 'The President is Not Responsible to Parliament'- Socialist Nation, I3 September I978. --, 'New Constitution has ldi Amin Approach to Democracy'• Socialist Nation, 20 September I978. --, 'Limitations on the Legislature in the New Constitution'• Socialist Nation, 28 September I978. --, 'What Purpose does a Referendum Serve?'- Socialist Nation, 4 October I978. Note: the ti ties of articles in the Socialist Nation by Dr N. M. Perera in a way sHmmarise their contents. R. Premadasa, 'The President and the Parliamentary System', Ceylon Daily News, 4 February I 978, is a straightforward explanation of the President's position vis-a-vis Parliament; it is also an attempt to justify the relationship in terms of Premadasa's own party, the U.N.P. Tilak Ratnakara, 'Framework for Development', Ceylon Daily News, 7 September I 978, interprets the various sections of the Constitution which he indicates have been designed to promote socio-economic growth. Jane Russell's 'Sri Lanka's Election Turning-point' in The Journal of Commonwealth and Comparative Politics, Vol. XVI, No. I (March I978) places emphasis on the benefits that will accrue to the Tamil minority under the new Constitution and expatiates on the consensus building that the changes seek to effect. L. M. Samarasinghe's 'The Need for an Ombudsman', Ceylon Daily News, 2 I March I 978, draws on examples from other countries and explains the necessity for an ombudsman for Sri Lanka. S. N. Seneviratne's 'Constitutional Changes since Independence', Ceylon Daily News, 4 February I 978, is a historical narrative with a description of the principal features in each of the three con- Bibliographical Notes of stitutions that Sri Lanka has had since independence. Neelan Tiruchelvam's 'Mr. President: Some Thoughts on the Accountability of the Executive President', The Sunday Observer, 22 January 1978, is a legalistic interpretation of the accountability of the presidency under the new Constitution. --, 'The Executive Presidency', Ceylon Daily News, 18 October 1977, examines the more important ramifications of presidential government. --, 'Constitution Making' in Lanka Guardian, Vol. 1, No. 11 (October 1978) deals with the two approaches to constitution framing- instrumental and consensual-and argues that the new Constitution should be changed in various ways so as to command a wider acceptance. Paul Wallace's section on Sri Lanka in 'Centralisation and Depoliticisation in South Asia', The Journal of Commonwealth and Comparative Politics, Vol. XVI, No. 1 (March 1978) is not sanguine about the constitutional changes, insisting that the new Constitution 'provides no formula for reconciliation between Sinhalese and Tamils' and adding that it does not indicate 'how basic problems revolving around the youthful, educated un• employed are to be addressed'. A. Jeyaratnam Wilson's 'Presidential Government', Ceylon Daily News, 20 March 1978, is a theoretical approach to the problems of the Presidency. --, 'Focus on the New Constitution', The Sunday Observer, 10 September 1978, which appears as Appendix II in this book under a different title, emphasises, among other things, the problematic areas in the new Constitution.

Books

J. A. L. Cooray, Constitutional and Administrative Law in Sri Lanka (Colombo, 1973) must be studied because sections of the con• stitution of the First Republic are reproduced in the Constitution of the Second Republic; the book is a first rate legal interpretation of the constitution of the First Republic. --, Constitutional Government and Human Rights in a Developing Society (Colombo, 1969) is essential reading because the author was the senior constitutional advisor to the U.N.P. government of J. R. Jayewardene and many of the ideas expressed in Chapter II ('Human Rights and their Protection in Ceylon') and Chapter III 162 The Gaullist System in Asia: The Constitution of Sri Lanka ('An ombudsman for Ceylon') were incorporated into the Constitution of the Second Republic. Cooray is a liberal democrat in the best sense of that term. Jamesjupp, Sri Lanka: Third World Democracy (London, 1978) has useful background material for an understanding of the changes effected in 1977-78. The Peoples' Rights: Documents of the Civil Rights Movement of Sri Lanka (Colombo, 1979) deals with human rights issues from 1971 to 1978 inclusive of the 1977 general election, the Constitution of the Second Republic (1978), women's rights, the independence of the judiciary, civic disabilities, academic.freedom etc. etc. A. Jeyaratnam Wilson, Politics in Sri Lanka, 1947-1979 (London, 1979) contains an analysis of the new structures in Chapter 5 and provides interpretive information on socio-political and economic developments in the island since independence.

Goveru~nent Publications

Parliamentary Series No. 14 of The Second National State Assemb[y (Colombo, 1978) contains information on evidence led before the Select Committee on the Revision of the Constitution, dissenting opinions submitted by the S.L.F.P. and the C.W.C. and the record of the minutes of meetings of the Select Committee.

Special Issues of Journals 1979/8o

K. M. de Silva, (editor) The Ceylon Journal of Historical and Social Studies, has a number of articles by Sri Lankan academics on various aspects of the Constitution. W. A. Wiswa Warnapala has edited a special nmpber of Asian Survey in which Sri Lankan academics have dealt with the Constitution and the socio-political situation. Appendix I

THE LEADING ACTORS

THE LIVING

U.N.P. aDd it• allie•

Lalith Athulathmudali, Minister of Trade and Shipping. A former president of the Oxford Union with degrees from Oxford and Harvard. A university lecturer in law at Singapore and other universities before he took to practising the law. A skilled platform speaker. A possible successor to the presidency. Born 1936. Anandatissa de Alwis, Speaker and then Minister of State. Close to the Executive President. He could be a possible stopgap successor to the President. Born 1919. Ronald Joseph Godfrey de Mel, Minister of Finance and Planning. Originally a member of the S.L.F.P. A retired higher civil servant from the top grade. Born 1925· Gamini Dissanayake, Minister of Lands and Land Development and Minister in charge of the gigantic multipurpose Mahaveli river diversion scheme. A possible future President. Born 1942. Junius Richard Jayewardene, member of the legislature since 1943 except for a break during 1956--00; cabinet minister, 1947-56 and 1965-70, Prime Minister 1977-78 and Executive President since February 1978. Leader of the Opposition, 197o-77. Undisputed head of his party since 1973 after the death of Dudley Senanayake. Co-author with Sir Percy Spender of the Colombo Plan, 1952. An organisational man who acquired tremendous charisma in and around •977· A Buddhist conformist and a practitioner of Gandhian methods of civil resistance. A great historic figure. Born tgo6. M. C. M. Kaleel, the respected Muslim elder statesman, in retirement but with considerable political influence in his own community. A former cabinet minister. Cyril Mathew, Minister of Industries and Scientific Affairs. A member of a social group noted for its warriors. A strong Sinhala Buddhist nationalist. Reportedly close to the Executive President. Born 1912. N. G. P. Panditharatne, head of a flourishing accounting firm, a powerful figure in the U .N .P. and itS present chairman. Ranasinghe Premadasa, Prime Minister since February 1978 and a cabinet minister, 1968-70. Originally a member of the Ceylon Labour Party. An organiser of support bases for his party and an able platform orator. Deputy party leader. A possible heir-presumptive but non-goigama (the recognised "dauphin"). Born 1924· I 164 The Gaullist System in Asia: The Constitution of Sri Lanka V. E. K. R. S. Thondaman, irremoveable leader of the Indian Tamil political trade union organisation, the Ceylon Workers' Congress. Formerly one of the three presidents of the Tamil United Liberation Front. Minister of Rural Industrial Development, now a close collaborator with the U .N .P. Commands a deliverable vote. Born I9I3. Ranil Wickremasinghe, Minister of Youth Afiairs and Employment. Buddhist activist. He is a connection ofPresidentjayewardene. A possible President in the future. Born I949· Nissanka Wijeyeratne, a former higher civil servant, lay custodian of the Sacred Tooth Relic of the Buddha. Minister of Education and Higher Education. Sinhalese Buddhist nationalist. Born I924.

S.L.F.P.

Anura Dias Bandaranaike, son of Sirimavo Bandaranaike. Youth leader and probably marked out for cabinet office. Born I949· Felix Dias Bandaranaike, cabinet minister, I96o-65, I97o-77. A senior leader. Deprived of his civic rights in I977· Sirimavo Bandaranaike, Prime Minister, I96o-65 and I970-77, wife of the assassinated prime minister, S. W. R. D. Bandaranaike (I956--59). The ac• knowledged party leader. Given the alternation of parties, a possible President. Born I9I6. T. B. Ilangaratne, cabinet minister, I956-59, Ig6o-65 and I970-77. He has been identified with his party's left of centre policies. Born I 9 I3· Hector Kobbekaduwa, chairman, public service commission, I 963-65 and cabinet minister, I97o-77. Maithripala Senanayake, member of Parliament since I 94 7 and presently deputy leader of his party. Cabinet minister, I956-59, I96o-65 and I97o-77. Probably a future President. Born I9I6. Stanley Tillekaratne, a noted Speaker, I970-77. Originally a member of the L.S.S.P., later the C.P.-V.L.S.S.P. United Front and then the C.P. (Moscow), he joined the S.L.F.P. in I965. A probable President. Born I929·

U.L.F.

Colvin R. de Silva, Trotskyist intellectual, pamphleteer and powerful rhetorician, he was incarcerated by the British in I940 and escaped gaol in I942. In and out of Parliament since I94 7 he was the draftsman and part architect of the constitution ofthe Firs/ Rtpublic. Cabinet minister I97D-75· A lawyer of considerable eminence with a Ph.D. in history from the University of London. Born I907. Leslie Goonewardene, Trotskyist theoretician and pamphleteer, he was in• carcerated by the British in I940 and escaped to India in I942. A barrister-at-law with a B.Sc. (Econ.) degree from the University of London, he was a cabinet minister, I970-75· Born I909· Pieter Keuneman, Pro-Moscow Communist and member of every Parliament from I947 to I970 only to be defeated in the I977 general election. A founder• memberofthe Communist Party, he was an active member of Mrs Bandaranaike's C.F. government of I97D-77 and a cabinet minister in it for the same period. A skilled speaker and pamphleteer. Born I 9 I7. Appendix I matters. Bernard Soysa, a first class Marxist thinker with a convincing style of speaking; he too was incarcerated by the British only to break out of prison. He should have been given ministerial office in 1970 but failed to secure a prize. He acted for his chief, Dr N. M. Perera, as ministeroffinance, on a number of occasions. Born 1914. DrS. A. Wickremasinghe, a physician with an infectious reputation in the south of Sri Lanka, he is leader of the Communist Party (Moscow). He was first elected to the State Council in 1931 but lost his seat at the general election of 1936. He was detained by the British in 1941 under the defence regulations. He along with N. M. Perera, Colvin R. de Silva and the late Philip Gunawardene founded the Marxist movement in Sri Lanka but was expelled from it (the L.S.S.P.) in 1939 and then went on to launch the Communist Party in 1943· He has never held ministerial office though he has considerable knowledge on health and agricultural matters.

Marxist purists

Edmund Samarakoddy, left the L.S.S.P. in 1g64 to form the Revolutionary Workers' Party, which is not of much political significance. Rohana Wijeweera, leader oftheJ .V .P. (National Liberation Front) and the April 1971 insurrection which was crushed. Tried and sentenced to a long term of imprisonment but released by theJ. R.Jayewardene government. His party is back in active politics.

T.U.L.F. Appapillai Amirthalingam, General Secretary of the T.U .L.F. and Leader of the Opposition in the 1977 Parliament. The ardent proponent of Etlam, a separate sovereign state for the Tamils of Sri Lanka. A member of every Parliament since 1956 except for that of1965-70. A lawyer by profession he is known for his skills as a speaker who can move crowds. He has taken part in civil disobedience campaigns since 1956 and has suffered detention at the hands of pro-Sinhala governments. A powerful platform speaker. Born 1927. M. Sivasithamparam, President of the T.U.L.F., he was Deputy Chairman of Committees and Deputy Speaker in the 1965-70 Parliament. Originally a member of the Tamil Congress, he has now gravitated to the nationalist politics of Tamil Liberation. A convincing and persuasive speaker, he has appeared on several international platforms. Born 1923.

THE DEAD

Solomon West Ridgeway Dias Bandaranaike (18gg-1959) member of the State Council 1931-1947 and member of Parliament 1947-1958. A founder of the U .N .P., its deputy leader and cabinet minister 194 7-51. In 1951 heleft the U .N .P. to found the S.L.F.P. which he led to a great electoral victory in 1956. Prime Minister, 195o-59, he launched a Sinhalese Buddhist nationalist revolution at home and a policy of nonaligned neutralism in external affairs. An able and skilled orator, he was assassinated by a Buddhist monk in 1958. S.J. V. Chelvanayakam, Q.C. (18g8-1977) a founder of the Tamil Congress, he later broke away to form the Tamil Federal Party in 1949 which from 1956 became the principal political instrument of the Ceylon Tamils. In 1972, the party joined with the Tamil Congress and the Ceylon Workers' Congress to form the T.U .L.F. 166 The Gaullist System in Asia: The Constitution of Sri Lanka of which Chelvanayakam became one of the Presidents. To his credit it must be said that he activated the spirit of Ceylon Tamil nationalism and provided a resilient and rejuvenating leadership to the Tamils from the time they reached the nadir of their fortunes in 1956. Venerated as a father figure, he will go down in history as the leader who set iri motion the forces ofTamil nationalism which today demand separate sovereign statehood. Detained at various times by the Bandaranaike governments. Philip Gunawardene ( 1901-72) reputedly the "father of Marxism" in Sri Lanka, he took to a politically nomadic existence founding various splinter marxist groupings, joining later S. W. R. D. Bandaranaike's centrist cabinet ( 1956-59) and Dudley Senanayake's rightwing 'national government' as minister of industries and fisheries, 1965-70. He founded the M.E.P. in 1959 after he was forced to resign from the Bandaranaike cabinet. This Marxist grouping continues its nondescript existence under the leadership of Gunawardene's son, lndika. E. M. V. Naganathan (1go6-1971) a leader with an international outlook and education, a soldier in the cause ofTamil freedom, he first helped found the Tamil Congress with G. G. Ponnambalam and later the Federal Party with S. J. V. Chelvanayakam. He was for long the thinker and pamphleteer of the Federal Party. A member of the Senate and of Parliament at various times. Detained by the Bandaranaike governments. N. M. Perera (1905-79) a founder of the Marxist movement in Sri Lanka in 1935 and later one of the founders of the Trotskyist L.S.S.P. in 1939. He was elected a member of the State Council in 1936 and in 1940 was incarcerated by the British colonial government. In 1942 he along with other L.S.S.P.Ieaders broke gaol and escaped to India. He was responsible for organising the trade union movement in Sri Lanka and was later elected to every Parliament from 1947 to 1970 but lost his seat at the 1977 general election. Leader of the Opposition, 1956-6o and a cabinet minister in Mrs Bandaranaike's governments, 1964--65 and 1970-75. He held the Ph.D. and D.Sc (Econ.) degrees in political science of the University of London and was one of the leaders of the U .L .F. today. G. G. Ponnambalam, Q.C. ( 1899-1977) founder of the All Ceylon Tamil Congress and the originator of the demand for "balanced representation" in the legislature (fifty percent ofseats to the minorities and fifty per cent for the Sinhalese majority) which failed to gain acceptance from the Soulbury Commission. Member of the State Council from 1934-4 7 and thereafter of Parliament at various times. Cabinet minister 1948-53. One of the country's ablest debaters and orators and a lawyer of eminence. In his last years, he joined the T. U. L. F. and was one of its presidents. Don Stephen Senanayake ( 1884-1952) member of the Legislative Council, 1924-31 and the State Council, 1931-1947· He was also minister of agriculture and lands, 1931-47, and leader of the State Council from 1942 to 1947. He founded the right of centre U.N.P. in 1946 and led it to a modest victory in 1947· Prime Minister, 1947-52. His education was minimal but he had considerable commonsense and political cunning. One of the political generals par excellence of the twentieth century, he was essentially pro-British in his foreign policy. Dudley Senanayake ( 1911-73) four times prime minister, succeeding his father in 1952. Previously minister of agriculture and lands, 1947-52. Member of the State Council, 1936-47. A liberal democrat who placed emphasis on agricultural production as the solution to the island's problems. Appendix I The

M. Tiruchelvam, QC. ( 1907-77) Senator and cabinet mtmster 1965~. Architect of the language regulations of January 1966 which provided for the official use of the Tamil language in the Tamil-speaking northern and eastern provinces and of the abortive district councils bill of 1968 which sought to confer a measure of regional autonomy on the administrative districts ofSri Lanka inclusive of the Tamil-speaking areas in the northern and eastern parts of Sri Lanka. The principal political strategist of the Federal Party and a 'favourite son' of its founder• leader, S. J. V. Chelvanayakam. Detained by Mrs Bandaranaike's 196o--65 government. Appendix II

THE SECOND REPUBLIC- THE CONSTITUTION OF SEPTEMBER, 1978

A.JEYARATNAM WILSON

NOTE President J. R. Jayewardene indicated to the author and to some of the members of his cabinet that the reasoning in this article which appeared in The Sunday Observer, 10 September 1978, was on "all fours with his thinking". An overzealous journalist of the government-controlled newspaper in which this article was published changed the title, the order in which it was written as well as the subheadings (the original ordering and subheadings are maintained here) thus giving a misleading impression of the author's views to the general public.

GESERAL CHARACTER

The 1978 constitution marks a watershed in the history of constitutional development. Whilst we have retained and modernised the parliamentary legacies inherited through the years, we have discarded some of the outmoded features that were impositions more suited to the needs of an expanding stable imperialism such as Britain, a country which has at present found some equilibrium as a declining medium sized power. But even Britain has modified the Westminster model to suit the changing situation. There is an inner cabinet, and what is more, a still more confined inner circle of advisors. At the top of the pyramid is the prime minister, no longer primus inttr pam but a virtual president in the American and Gaullist style. Eden, Macmillan, Heath and Wilson are the examples of the recent past and general elections in Britain have tended to become presidential contests between the leading contenders- the question at issue being whether the voters preferred to be governed by one leader as against another. The British have even adopted the referendum to determine the views of the electors as for example on the Common Market question. We have in our new constitution endeavoured to adopt a style of government that suits a crisis-laden society that is in danger of going off balance. It incorporates some of the functional aspects of our own past as well as those of the British, American and French systems of government. But it is unique in that it has been framed to meet our own requirements and cannot therefore be described as imbibing to a great extent the major principles of any one of the systems mentioned. It is a presidential-parliamentary type of political experiment that will ensure stability, popular involvement through elections and referenda, and conformity with democratic practices made possible by a charter ofliberties and provisions for an independent judiciary.

168 Appendix II 169

THE PRESIDENCY

Adequate provision for a stable executive presidency is ensured in thr("e ways. The President is elected by an absolute majority of the voters participating in his/ her election. He is likely to emerge as a national figure drawing support not from one segment of society but from a broad spectrum of the whole. He would strive towards consensus politics because proportional representation is likely to result in no one party obtaining an absolute majority of seats in the legislature. Secondly the President will necessarily enjoy a greater quantum of authority and prestige and will therefore be in a better position to initiate and implement governmental policy. Under our discarded system, prime ministers with one or two exceptions tended to be chairmen of cabinets involved in a vain search for coherence and continuity in policy and having to contend against the Donoughmore tradition of strong individualism on the part of ministers. They functioned more in the style of their nineteenth century British counterparts not realising that conventions had brought about significant changes in Britain itself. Thirdly the President as acknowledged leader will have a maximum of authority to handle the problems of our disequilibristic society. The constitution in effect intends him to be a crisis leader. Much needed economic regeneration, social change and the reconciliation of alienated groups into the body politic can only be effected with speed and decision by an acknowledged leader invested with the maximum confidence available. Views have been expressed that ( 1) the present President may work the new system but what of his successors, (2) there can be deadlock and conflicts between the President and the legislature if the latter body has a majority hostile to the President and (3) the system could give rise to dictatorship. These arguments need examination since they are based on genuine though unfounded fears. It is true that the present President has been in the mainstream of democratic politics for over forty years and that his world view is coloured by a determination to maintain constitutional government. The underlying fear is that the succeeding incumbent might be spurred on with visions ofBonapartism, Castroite designs etc. The argument is really tied up with that of the potentialities for dictatorship. We will come to this question but suffice it to say at this point that a half century of electoral experience, an over-pluralised social structure and a militant trade union movement are, apart from the safeguards against abuse of power written into the constitution of the Suond Republic, adequate built in checks against subversion of the democratic processes. Besides the hour can produce the man.lt used to be said that the Fifth Republic was tailor-made for De Gaulle and would not outlast him. But Pompidou and d'Estaing proved capable in their own way and the Fifth Republic has shown ability to adapt itself to the stresses and strains of the volatility of French political life. A hostile majority in the legislature need not cause problems. We had it in our own constitutional past (the Donoughmore period) when ministers implemented policies that they did not approve of. And the Swiss Council of Ministers is the best example of a fixed executive that at times does the bidding of the legislature. In the French Fourth Republic, ministers had to accept amendments, from the legislative committees of the Chamber of Deputies which mangled their original proposals. American Presidents have had to go along with hostile majorities in one or both houses of Congress. There are two alternatives that will become available to our 1 70 The Gaullist System in Asia: The Constitution cif Sri Lanka President under the Second Republic. He can either carry out the wishes of the legislative majority as defined by the cabinet of ministers. Or he can revert to the role of a constitutional head of state. Commentators on the Fifth Republic have indicated that this course is available to French presidents faced with a hostile majority. The Constitution is therefore workable and need not cause paralysis in the nerve centres of government. The Constitution of the Second Republic is the least prone to dictatorship of all systems. For one thing there are entrenched provisions which stipulate extremely difficult conditions for the extension of the life of Parliament and the term of the President. In either instance a two-thirds majority is not in itself adequate. The approval of the people must, in addition, be sought in a referendum. The American and French systems are less democratic. The President of the United States enjoys extensive veto powers over Congress. The French President can, in certain given circumstances, in terms of Article 16 of the Constitution, rule by decree without the consent of the legislature. Even in Britain, C. F. Strong has remarked that the cabinet "is much more the rule of one man than that of a committee" (Modern Political Constitutions, 1975 edition, p. 216). So have other writers like R. M. Pun nett and J. P. Mackintosh. African presidential systems bear no resemblances whatsoever. Their presidents rule in the context of one-party states. Their cabinets are mere bodies of advisors. Their legislatures only possess residual authority. Our Parliament has the Prime Minister and cabinet sitting in it and the legislative consultative committees ensure a correspondence between government and executive.

PROPORTIONAL REPRESENTATION

The inequitable system of weightage to backward and sparsely populated areas has been dropped. Nor can there any longer be perverse landslide majorities which have little relation to the actual number of votes polled under the outmoded Anglo• Saxon first-past-the-post single member constituency system. Proportional rep• resentation will ensure in the legislature a fairly accurate mirror of opinion in the country. The business offorming a stable government will devolve on the President as well as on political brokers and amalgamators. There will be a move in the direction of consensus politics and national governments rather than the bitterness of party strife that has characterised government since independence. Long years ago, even in Britain, a liberal historian of repute, Ramsay Muir, in a book, How Britain is Governed, which he published in the nineteen thirties, advocated proportional representation as a way of ending the monopoly of politics by the two major parties and as a step in the direction of ending dictatorship by the cabinet. Proportional representation however has its defects which we deal with below.

FUNDAMENTAL RIGHTS

The section on fundamental rights when taken with the proviSions for an Ombudsman (Article 156), the independence of the judiciary, the restrictions on the exercise of emergency powers is by far the most extensive charter of freedom that this country has had in all its history. Articles 1o and 11 relating to freedom of thought, conscience and religion and freedom from torture are entrenched, while the other freedoms are subject to the usual requirements of national economy, Appendix 1/ 171 national security, national harmony and public morality. The state does not however have a blanket right to curtail these freedoms on the grounds stated. The state's decision will be subject to interpretation and adjudication by the Supreme Court. More significant than all this is the provision contained in Article 17. Under it a citizen is entitled to seek the protection of the Supreme Court when there is an imminent threat to his rights by executive or administrative action. It might be recalled that Section 29 of the 1948-72 constitution safeguarded the citizen only against legislative discrimination. While the constitution of the First Republic ( 1972-78) left out the ordinary courts and permitted only limited jurisdiction to a specially constituted Constitutional Court.

AMENDING PROCEDURES

Certain sections in the Constitution are more entrenched than others, requiring in addition to the usual two-thirds majority of the total membership, approval by the people in a referendum. The Constitution in a sense becomes more rigid than previous ones because proportional representation would make it difficult for any one party to obtain a two-thirds majority. However parties can combine for the purpose of effecting amendment. The attempt of the S.L.F .P. to negotiate with the T.U.L.F. at the tail end of the last Parliament is a pointer. And it should not be forgotten that even without proportional representation, change was difficult during the period of the 1948-72 constitution. Only once before the major overhaul of 1972, did a government secure a two-thirds majority (at the general election of 1952) but it did not on that occasion attempt to bring about major alterations. The new system therefore, in effect, seeks to achieve consensus or maximum agreement in this vital area of government as well. Constitutional change can no longer be effected on a unilateral basis.

DEFECTS

The fact that the President's term is fixed while that of the cabinet and the legislature is likely to be different need not detain us. If the legislative majority is hostile to the president, the odds are that we will return to prime ministerial government. The President may dissolve the legislature once but no constitution can stand a diet of dissolutions. The President is made responsible to the legislature but the Constitution is silent as to how that responsibility can be enforced. The Prime Minister will presumably answer for the President. Besides Parliament can if it so desires amend the statement of government policy or the annual appropriation bill in order to bring the President in line. Ultimately, the Constitution, by implication makes it indispensable for the President, the cabinet and the legislative majority to work in harmony and cooperation. The possible fragmentation of parties under propor• tional representation will make the President's task somewhat easier. The rationale of course is to strive towards consensus politics. Proportional representation brings about the fragmentation and splintering of parties. But it might as well be noted that despite the existence of two rival major coalitions which call themselves political parties (the U.N. P. and S. L. F. P.) they are themselves federations of group interests, sometimes in conflict with each other. The new system also does away with by-elections which can at times help 1 72 The Gaullist System in Asia: The Constitution of Sri Lanka governments to gauge the state of public opinion while enabling the Opposition to record its protest. This can be an advantage which proportional representation destroys. But do by-elections truly reflect the mood and temper of the electors? Mulkirigala and the S. L. F. P.'s victory there in 1976 disproves such a view. Nor is it advantageous for the whole machinery of government to be mobilised to fight a by-election when its energies and resources are needed for more urgent purposes. Proportional representation will however promote the dictatorship of the party machine. The candidate becomes dependent on the party to have his name entered in the list. When this is coupled with the anti-defection clauses (Article gg, subsections I 3 (a) and (b)) under which a party has the right to expel and replace members of Parliament, the dictatorship of party becomes truly dangerous. The size of the electoral district which will be the same in most cases as that of an administrative district will help to some extent to counteract the rigid control of parties. Members will develop and cultivate their own local bases within the electoral district. This will provide them with a certain amount of leverage when lists of candidates are being formulated by political parties. It is doubtful as to whether the referendum can be a useful device. The Constitution however stipulates that only questions of national importance and certain fundamental matters of constitutional significance should be referred to the electors. There are some disadvantages here. An excessive politicisation of an already over-politicised electorate can be one outcome. Secondly powerful vested interests can mobilise sections of voters and persuade them to vote while the general mass may be apathetic. Lastly the legislature and executive might shelve their responsibilities by transferring the burden of decision-making to the electors. Finally, the Constitution makes the Supreme Court almost a third chamber of government. The Court is vested with a certain pre-eminence. It enjoys fairly extensive powers of judicial review, the right to render advisory opinions, and, in defined cases, intervene in the operation of the Constitution. judicial review of executive, legislative and administrative acts is no doubt a safeguard of individual liberties. But the Court can also hold up the work of government. The working of the Constitution in the next few years will indicate whether the Court will be helpful or obstructive. Appendix III

THE CONSTITUTION OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA- THE SECOND REPUBLIC

NOTE: The more important and relevant articles of the Constitution are reproduced below

CHAPTER I

The People, the State and Sovereignty

1. Sri Lanka (Ceylon) is a Free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the Democratic Socialist Republic of Sri Lanka. 2. The Republic of Sri Lanka is a Unitary State. 3· In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise. 4· The Sovereignty of the People shall be exercised and enjoyed in the following manner:- (a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum; (b) the executive power of the People, including the defence ofSri Lanka, shall be exercised by the President of the Republic elected by the People; (c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law; (d) the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided; and (e) the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament, and at every Referendum by every citizen who has attained the age of eighteen years, and who, being qualified to be an elector as hereinafter provided, has his name entered in the register of electors.

173 174 The Gaullist System in Asia: The Constitution of Sri Lanka

CHAPTER II

Buddhism

9• The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14( 1 )(e).

CHAPTER Ill

Fundamental Rights

10. Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice. 11. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Ul. ( 1) All persons are equal before the law and are entitled to the equal protection of the law. (2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds: Provided that it shall be lawful to require a person to acquire within a reasonable time sufficient knowledge of any language as a qualification for any employment or office in the Public, Judicial or Local Government Service or in the service of any public corporation, where such knowledge is reasonably necessary for the discharge of the duties of such employment or office: Provided further that it shall be lawful to require a person to have a sufficient knowledge of any language as a qualification for any such employment or office where no function of that employment or office can be discharged otherwise than with a knowledge of that language. (3) No person shall, on the grounds of race, religion, language, caste, sex or any one of such grounds, be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels, places of public entertainment and places of public worship of his own religion. (4) Nothing in this Article shall prevent special provision being made, by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons. •3· ( 1) No person shall be arrested except according to procedure established by law. Any person arrested shall be informed of the reason for his arrest. (2) Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of such judge made in accordance with procedure established by law. (3) Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court. (4) No person shall be punished with death or imprisonment except by order of a competent court, made in accordance with procedure established by law. The arrest, holding in custody, detention or other deprivation of personal liberty of a person, pending investigation or trial, shall not constitute punishment. Appendix Ill 175 (5) Every person shall be presumed innocent until he is proved guilty: Provided that the burden of proving particular facts may, by law, be placed on an accused person. (6) No person shall be held guilty of an offence on account of any actor omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed. Nothing in this Article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles oflaw recognized by the community of nations. It shall not be a contravention of this Article to require the imposition of a minimum penalty for an offence provided that such penalty does not exceed the maximum penalty prescribed for such offence at the time such offence was committed. (7) The arrest, holding in custody, detention or other deprivation of personal liberty of a person, by reason of a removal order or a deportation order made under the provisions of the Immigrants and Emigrants Act or the Indo-Ceylon Agreement (Implementation) Act No. 14 of 1967, or such other law as may be enacted in substitution therefor, shall not be a contravention ofthis Article. •4· ( 1) Every citizen is entitled to-

(a) the freedom of speech and expression including publication; (b) the freedom of peaceful assembly; (c) the freedom of association; (d) the freedom to form and join a trade union; (t) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or beliefin worship, observance, practice and teaching; (f) the freedom by himself or in association with others to enjoy and promote his own culture and to use his own language; (g) the freedom to engage by himself or in association with others in any lawful occupation, profession, trade, business or enterprise; (h) the freedom of movement and of choosing his residence within Sri Lanka; and (i) the freedom to return to Sri Lanka.

(2) A person who, not being a citizen of any other country, has been permanently and legally resident in Sri Lanka immediately prior to the commencement of the Constitution and continues to be so resident shall be entitled, for a period of ten years from the commencement of the Constitution, to the rights declared and recognized by paragraph ( 1) of this Article. 15. ( 1) The exercise and operation of the fundamental rights declared and recognized by Articles 13(5) and 13(6) shall be subject only to such restrictions as may be prescribed by law in the interests of national security. For the purposes of this paragraph "law" includes regulations made under the law for the time being relating to public security. (2) The exercise and operation of the fundamental right declared and recognized by Article 14( 1 )(a) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or in relation to 1 76. The Gaullist System in Asia: The Constitution rif Sri Lanka parliamentary privilege, contempt of court, defamation or incitement to an offence. (3) The exercise and operation of the fundamental right declared and recognized by Article I4( I) (b) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony. (4) The exercise and operation of the fundamental right declared and recognized by Article I 4( I) (c) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony or national economy. (5) The exercise and operation of the fundamental right declared and recognized by Article I 4( I) (g) shall be subject to such restrictions as may be prescribed by law in the interests of national economy or in relation to- (a) the professional, technical, academic, financial and other qualifications necessary for practising any profession or carrying on any occupation, trade, business or enterprise, and the licensing and disciplinary control of the person entitled to such fundamental right, and (b) the carrying on by the State, a State agency or a public corporation of any trade, business, industry, service or enterprise whether to the exclusion, complete or partial, of citizens or otherwise. (6) The exercise and operation of the fundamental right declared and recognized by Article I4( I )(h) shall be subject to such restrictions as may be prescribed by law in the interests of national economy. (7) The exercise and operation of all the fundamental rights declared and recognized by Articles I 2, I 3( I), I 3( 2) and I 4 shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or ofmeeting the just requirements of the general welfare of a democratic society. For the purposes of this paragraph "law" includes regulations made under the law for the time being relating to public security. (8) The exercise and operation of the fundamental rights declared and recognized by Articles I 2 (I), I 3 and I 4 shall, in their application to the members of the Armed Forces, Police Force and other Forces charged with the maintenance of public order, be subject to such restrictions as may be prescribed by law in the interests of the proper discharge of their duties and the maintenance of discipline among them. 16. (I) All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter. (2) The subjection of any person on the order of a competent court to any form of punishment recognized by any existing written law shall not be a contravention of the provisions of this Chapter. 17. Every person shall be entitled to apply to the Supreme Court, as provided by Article I26, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which such person is entitled under the provisions of this Chapter. Appendix Ill 177

CHAPTER IV

Lanpage

18. The Official Language of Sri Lanka shall be Sinhala. •9· The National Languages of Sri Lanka shall be Sinhala and Tamil. 20. A Member of Parliament or a member of a local authority shall be entitled to perform his duties and discharge his functions in Parliament or in such local authority in either of the National Languages. 21. ( 1) A person shall be entitled .to be educated through the medium of either of the National Languages: Provided that the provisions of this paragraph shall not apply to an institution of higher education where the medium of instruction is a language other than a National Language. (2) Where one National Language is a medium of instruction for or in any course, department or faculty of any University directly or indirectly financed by the State, the other National Language shall also be made a medium of instruction for or in such course, department or faculty for students who prior to their admission to such Uqiversity, were educated through the medium of such other National Language: Provided that compliance with the preceding provisions of this paragraph shall not be obligatory if such other National Language is the medium of instruction for or in any like course, department or faculty either at any other campus or branch of such University or of any other like University. (3) In this Article "University" includes any institution of higher education. 22. ( 1) The Official Language shall be the language of administration throughout Sri Lanka: Provided that the Tamil Language shall also be used as the language of administration for the maintenance of public records and the transaction of all business by public institutions in the Northern and Eastern Provinces. (2) A person, other than an official acting in his official capacity, shall be entitled- (a) to receive communications from, and to communicate and transact business with, any official in his official capacity, in either of theN ational Languages; (b) if the law recognizes his right to inspect or to obtain copies of orextracts from any official register, record, publication or other document, to obtain a copy of, or an extract from such register, record, publication or other document or a translation thereof, as the case may be, in either of the National Languages; and (c) where a document is executed by any official for the purpose of being issued to him, to obtain such document or a translation thereof, in either of the National Languages. (3) A local authority in the Northern or Eastern Province which conducts its business in either of the National Languages shall be entitled to receive communications from, and to communicate and transact business with, any official in his official capacity, in such National Language. (4) All Orders, Proclamations, rules, by-laws, regulations and notifications made or issued under any written law, the Ga;:.tllt, and all other official documents 1 78 The Gaullist System in Asia: The Constitution of Sri Lanka including circulars and forms issued or used by any public institution or local authority, shall be published in both National Languages. (5) A person shall be entitled to be examined through the medium of either of the National Languages at any examination for the admission of persons to the Public Service, judicial Service, Local Government Service, a public corporation or statutory institution, subject to the condition that he may be required to acquire a sufficient knowledge of the Official Language within a reasonable time after admission to any such Service, public corporation or statutory institution where such knowledge is reasonably necessary for the discharge of his duties: Provided that a person may be required to have a sufficient knowledge of the Official Language as a condition for admission to any such Service, public corporation or statutory institution where no function of the office or employment for which he is recruited can be discharged otherwise than with a sufficient knowledge of the Official Language. (6) In this Article- "official" means the President, any Minister, Deputy Minister, or any officer ofa public institution or local authority; and "public institution" means a department or institution of the Government, a public corporation or a statutory institution. 13. ( 1) All laws and subordinate legislation shall be enacted or made, and published, in both National.Languages together with a translation in the English Language. In the event of any inconsistency between any two texts, the text in the Official Language shall prevail. (2) All laws and subordinate legislation in force immediately prior to the commencement of the Constitution, shall be published in the Ga<;tttt in both National Languages as expeditiously as possible. (3) The law published in Sinhala under the provisions of paragraph (2) of this Article, shall, as from the date of such publication, be deemed to be the law and supersede the corresponding law in English. 14• ( 1) The Official Language shall be the language of the courts throughout Sri Lanka and accordingly their records and proceedings shall be in the Official Language: Provided that the language of the courts exercising original jurisdiction in the Northern and Eastern Provinces shall also be Tamil and their records and proceedings shall be in the Tamil Language. In the event of an appeal from any such court, records in both National Languages shall be prepared for the use of the court hearing such appeal: Provided further that - (a) the Minister in charge of the subject ofjustice may, with the concurrence of the Cabinet of Ministers, direct that the record ofany such court shall also be maintained and proceedings conducted in the Official Language;·and (b) the record of any particular proceeding in such court shall also be maintained in the Official Language if so required by the judge of such court, or by any party or applicant or any person legally entitled to represent such party or applicant in such proceeding, where such judge, party, applicant or person is not conversant with the Tamil Language. (2) Any party or applicant or any person legally entitled to represent such party or applicant may initiate proceedings, and submit to court pleadings and other Appendix Ill 1 79 documents, and participate in the proceedings in court, in either of the National Languages. (3) Any judge, juror, party or applicant or any person legally entitled to represent such party or applicant, who is not conversant with the language used in a court, shall be entitled to interpretation and to translation into the appropriate National Language, provided by the State, to enable him to understand and participate in the proceedings before such court, and shall also be entitled to obtain in either of the National Languages, any such part of the record or a translation thereof, as the case may be, as he may be entitled to obtain according to law. (4) The Minister in charge of the subject ofjustice may, with the concurrence of the Cabinet of Ministers, issue directions permitting the use of a language other than a National Language in or in relation to the records and proceedings in any court for all purposes or for such purposes as may be specified therein. Every judge shall be bound to implement such directions.

CHAPTER V

Citizenship

~6. (I) There shall be one status of citizenship known as "the status of a citizen of Sri Lanka". (3) No distinction shall be drawn between citizens of Sri Lanka for any purpose by reference to the mode of acquisition of such status, as to whether acquired by descent or by virtue of registration.

CHAPTER VI

Directive Principles of State Policy and Fundamental Duties

~7· (I) The Directive Principles of State Policy herein contained shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society. (2) The State is pledged to establish in Sri Lanka a democratic socialist society. ~8. The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations, and accordingly it is the duty of every person in Sri Lanka - (a) to uphold and defend the Constitution and the law; (b) to further the national interest and to foster national unity; (c) to work conscientiously in his chosen occupation; (d) to preserve and protect public property, and to combat misuse and waste of public property; (e) to respect the rights and freedoms of others, and {j) to protect nature and conserve its riches.

~9· The provisions of this Chapter do not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court or tribunal. 1 8o The Gaullist System in Asia: The Constitution of Sri Lanka

CHAPTER VII

The Pre•ideat of' the Republic

30. ( 1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People, and shall hold office for a term of six years. 3•· ( 1) Any citizen who is qualified to be elected to the office of President may be nominated as a candidate for such office-

(a) by a recognized political party, or (b) if he is or has been an elected member of the legislature, by any other political party or by an elector whose name has been entered in any register of electors. (2) No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People. . (3) The poll for the election of the President shall be taken not less than one month and not more than two months before the expiration of the term of office of the President in office. (4) The term of office of the President shall commence on the fourth day of February next succeeding the date of his election: Provided that the President in office, notwithstanding anything to the contrary in Article 30, shall continue to exercise, perform and discharge the powers, duties and functions of the office of President until the assumption of office by the person declared elected as President. If the office of President becomes vacant, by reason of the person declared elected as President failing to assume office, the President in office shall continue to exercise, perform and discharge the powers, duties and functions of the office of President, until the Prime Minister or if the office of Prime Minister be then vacant or if the Prime Minister be unable to act, the Speaker commences to act in the office of President in terms of Article 40. 32. (3) The President shall, by virtue of his office, have the right at any time to attend, address and send messages to Parliament. In the exercise of such right the President shall be entitled to all the privileges, immunities and powers, other than the right to vote, of a Member of Parliament and shall not be liable for any breach of the privileges of Parliament, or of its Members. 33· In addition to the powers and functions expressly conferred on or assigned to him by the Constitution or by any written law whether enacted before or after the commencement of the Constitution, the President shall have the power-

(a) to make the Statement of Government Policy in Parliament at the commencement of each session of Parliament; (b) to preside at ceremonial sittings of Parliament; (c) to receive and recognize, and to appoint and accredit, Ambassadors, High Commissioners, Plenipotentiaries and other diplomatic agents; (d) to keep the Public Seal of the Republic, and to make and execute under the Public Seal, the Acts of Appointment of the Prime Minister and other Ministers of the Cabinet of Ministers, the ChiefJustice and other Judges of Appendix Ill pass the Supreme Court, such grants and dispositions of lands and immovable property vested in the Republic as he is by law required or empowered to do, and to use the Public Seal for sealing all things whatsoever that shall pass that Seal; (t) to declare war and peace; and U) to do all such acts and things, not being inconsistent with the provisions of the Constitution or written law, as by international law, custom or usage he is required or authorized to do. 37· ( 1) If the President is of the opinion that by reason of illness, absence from Sri Lanka or any other cause he will be unable to exercise, perform and discharge the powers, duties and functions ofhis office, he may appoint the Prime Minister to exercise, perform and discharge the powers, duties and functions of the office of President during such period, and may also appoint one of the other Ministers of the Cabinet to act in the office of Prime Minister during such period: Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the President may appoint the Speaker to exercise, perform and discharge the powers, duties and functions of the office of President during such period. (2) Ifthe Chiefjustice in consultation with the Speaker is of the opinion that the President is temporarily unable to exercise, perform and discharge the powers, duties and functions of his office and is unable to make an appointment in terms of paragraph ( 1) of this Article, he shall communicate in writing his opinion to the Speaker and thereupon the Prime Minister shall exercise, perform and discharge the powers, duties and functions of the office of President during such period, and shall appoint one of the Ministers of the Cabinet to act in the office of Prime Minister during such period, notwithstanding the absence of such appointment as is provided for in paragraph ( 1) of this Article: Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the Speaker shall exercise, perform and discharge the powers, duties and functions of the office of President during such period. 38. ( 1) The office of President shall become vacant- (a) upon his death; (b) if he resigns his office by a writing under his hand addressed to the Speaker; (c) if he ceasd to be a citizen of Sri Lanka; (d) if the person elected as President wilfully fails to assume office within one month from the date of commencement of his term of office; (t) ifhe is removed from office as provided in the next succeeding paragraph; or U) if the Supreme Court in the exercise of its powers under Article 130(a) determines that his election as President was void and does not determine that any other person was duly elected as President. (2) (a) Any Member of Parliament may, by a writing addressed to the Speaker, give notice of a resolution alleging that the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the President has been guilty of- (i) intentional violation of the Constitution, (ii) treason, (iii) bribery, 182 The Gaullist System in Asia: The Constitution of Sri Lanka g (iv) misconduct or corruption involving the abuse of the powers of his office, or (v) any offence under any law, involving moral turpitude, and setting out full particulars of the allegation or allegations made and seeking an inquiry and report thereon by the Supreme Court. (h) No notice of such resolution shall be entertained by the Speaker or placed on the Order Paper of Parliament unless it complies with the provisions of sub• paragraph (a) and- (i) such notice of resolution is signed by not less than two-thirds of the whole number of Members of Parliament, or (ii) such notice of resolution is signed by not less than one-half of the whole number of Members of Parliament, and the Speaker is satisfied that such allegation or allegations merit inquiry and report by the Supreme Court.

(c) Where such resolution is passed by not less than two-thirds of the whole number of Members (including those not present) voting in its favour, the allegation or allegations contained in such resolution shall be referred by the Speaker to the Supreme Court for inquiry and report. (d) The Supreme Court shall, after due inquiry at which the President shall have the right to appear and to be heard, in person or by an attorney-at-law, make a report of its determination to Parliament together with the reasons therefor. (e) Where the Supreme Court reports to Parliament that in its opinion the President is permanently incapable of discharging the functions of his office by reason of mental or physical infirmity or that the President has been guilty of any of the other allegations contained in such resolution, as the case may be, Parliament may by a resolution passed by not less than two-thirds of the whole number of Members (including those not present) voting in its favour remove the President from office. 39· (I) Where the Supreme Court in the exercise of its jurisdiction under Article I 30 determines- (a) that the election of the President was void and does not determine that any other person was duly elected, then, a poll for the election of the President shall be taken not later dian three months from the date of the determi• nation; or (b) that any other person was duly elected as President, then, such other person shall assume the office of President within one month of the date of the determination. For the purposes of Article 38( I) (d), the date of commencement of the term of office of the new President shall be the date of his election or the date of the determination, as the case may be. (2) Upon the Supreme Court making any such determination as is referred to in paragraph (I) of this Article, the person who was exercising, performing and discharging the powers, duties and functions of the office of President shall forthwith cease to exercise, perform and discharge such powers, duties and functions. During the period intervening between the date of such determination and the assumption of office by the new President, the Prime Minister shall act in the office of President and shall appoint one of the other Ministers of the Cabinet to act in the office of the Prime Minister: Appendix III Prime Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the Speaker shall act in the office of the President. (3) For the purposes of Article 30(2) and notwithstanding the provisions of Article 31(4), the term of office of the new President shall be deemed to have commenced on the date on which the term of office ofthe person whose election was determined to have been void or undue would, but for such determination, have commenced. 40. ( 1) (a) If the office of President shall become vacant prior to the expiration of his term of office, Parliament shall elect as President one of its Members who is qualified to be elected to the office of President. Any person so succeeding to the office of President shall hold office only for the unexpired period of the term of office of the President vacating office. (b) Such election shall be held as soon as possible after, and in no case later than one month from, the date of occurrence of the vacancy. Such election shall be by secret ballot and by an absolute majority of the votes cast in accordance with such procedure as Parliall'\(:nt may by law provide: Provided that if such vacancy occurs after the dissolution of Parliament, the President shall be elected by the New Parliament within one month of its first meeting. (c) During the period between the occurrence of such vacancy and the assumption of office by the new President, the Prime Minister shall act in the office of President and shall appoint one of the other Ministers of the Cabinet to act in the office of Prime Minister: Provided that if the office of Prime Minister be then vacant or the Prime Minister is unable to act, the Speaker shall act in the office of President. 41. ( 1) The President shall have the power to appoint such Secretaries, and, in consultation with the Cabinet of Ministers, such other officers and staff as are in his opinion necessary to assist him in the exercise, performance and discharge of the powers, duties and functions of his office, and to determine their terms and conditions of service. ( 2) The salaries of such Secretaries, officers and staff shall be charged on the Consolidated Fund. (3) Such Secretaries, officers and staff shall be deemed to be public officers except that the dismissal and disciplinary control of such Secretaries, officers and staff shall be vested in the President, who may delegate to any such Secretary his powers of dismissal and disciplinary control in respect of any such officers or staff. (4) Every such Secretary, officer or member of the staff shall cease to hold office upon a new President assuming office.

CHAPTER VIII

The Cabinet of Mini•ters

42. The President shall be responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security. 43• ( 1) There shall be a Cabinet of Ministers charged with the direction and 184 The Gaullist System in Asia: The Constitution rif Sri Lanka control of the Government of the Republic, which shall be collectively responsible and answerable to Parliament. (2) The President shall be a member of the Cabinet of Ministers, and shall be the Head of the Cabinet of Ministers: Provided that notwithstanding the dissolution of the Cabinet of Ministers under the provisions of the Constitution, the President shall continue in office. (3) The President shall appoint as Prime Minister the Member of Parliament who in his opinion is most likely to command the confidence of Parliament. 44• ( 1) The President shall, from time to time, in consultation with the Prime Minister, where he considers such consultation to be necessary- (a) determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers; and (b) appoint from among the Members of Parliament, Ministers to be in charge of the Ministries so determined. (2) The President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister under the provisions of paragraph ( 1) of this Article or the provisions of paragraph ( 1) of Article 45, and may for that purpose determine the number of Ministries to be in his charge, and accordingly, any reference in the Constitution or any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President. (3) The President may, at any time, change the assignment. of subjects and functions and the composition of the Cabinet of Ministers. Such changes shall not affect the continuity of the Cabinet of Ministers, and the continuity of its responsibility to Parliament. 45· ( 1) The President may, from time to time, in consultation with the Prime Minister where he considers such consultation to be necessary - (a) appoint from among Members of Parliament, Ministers who shall not be Members of the Cabinet of Ministers; and (b) determine the assignment of subjects and functions to, and the Ministries, if any, which are to be in charge of, such Ministers. (2) The President may at any time change any appointment or assignment made under paragraph ( 1) of this Article. (3) Every Minister appointed under this Article shall be responsible arid answerable to the Cabinet of Ministers and to Parliament. (4) Any Minister of the Cabinet of Ministers may, by Notification published in the Gazette, delegate to any Minister who is not a member of the Cabinet of Ministers any power or duty pertaining to any subject or function assigned to him or any power or duty conferred or imposed on him by any written law and it shall be lawful for such other Minister to exercise and perform any power or duty delegated to him under this paragraph, notwithstanding anything to the contrary in the written law by which that power or duty is conferred or imposed. 46. ( 1) The President may, from time to time, in consultation with the Prime Minister, where he considers such consultation to be necessary, appoint from among the Members of Parliament, Deputy Ministers to assist the Ministers of the Cabinet of Ministers in the performance of their duties. Appendix III power

(2) Any Minister of the Cabinet of Ministers may, by Notification published in the Ga<;tttt, delegate to his Deputy Minister any power or duty pertaining to any subject or function assigned to him, or any power or duty conferred or imposed on him by any written law and it shall be lawful for the Deputy Minister to exercise and perform any power or duty delegated to him under this paragraph notwithstanding anything to the contrary in the written law by which that power or duty is conferred or imposed on such Minister. 47• The Prime Minister, a Minister of the Cabinet of Ministers, any other Minister or Deputy Minister shall continue to hold office throughout the period during which the Cabinet of Ministers continues to function under the provisions of the Constitution. unless he- (a) is removed by a writing under the hand of the President; (b) resigns his office by a writing under his hand addressed to the President; or (c) ceases to be a Member of Parliament. 49• ( 1) On the Prime Minister ceasing to hold office by removal, resignation or otherwise, except during the period intervening between the dissolution of Parliament and the conclusion of the General Election, the Cabinet of Ministers shall, unless the President has in the exercise of his powers under Article 70, dissolved Parliament, stand dissolved and the President shall appoint a Prime Minister, Ministers of the Cabinet of Ministers, other Mipisters and Deputy Ministers in terms of Articles 43, 44, 45 and 46: (2) If Parliament rejects the Statement of Government Policy or the Appropriation Bill or passes- a vote of no-confidence in the Government, the Cabinet of Ministers shall stand dissolved, and the President shall, unless he has in the exercise of his powers under Article 70, dissolved Parliament, appoint a Prime Minister, Ministers of the Cabinet of Ministers, other Ministers and Deputy Ministers in terms of Articles 43, 44, 45 and 46. 5•· ( 1) There shall be for each Ministry a Secretary who shall be appointed by the President. (2) The Secretary to the Ministry shall, subject to the direction and control of his Minister, exercise supervision over the departments of Government or other institutions in the charge of his Minister. (3) The Secretary to a Ministry shall cease to hold office upon the dissolution of the Cabinet of Ministers under the provisions of the Constitution or upon a determination by the President under Article 44 or Article 45 which results in such Ministry ceasing to exist.

CHAPTER IX

The Public Service

54• The President shall appoint all public officers required by the Constitution or other written law to be appointed by the President, as well as the Attorney• General and the Heads of the Army, the Navy, the Air Force and the Police Force. 55• ( 1) Subject to the provisions of the Constitution, the appointment, transfer, dismissal and disciplinary control of public officers is hereby vested in the Cabinet of Ministers, and all public officers shall hold office at pleasure. (2) The Cabinet of Ministers shall not delegate its powers of appointment, 186 The Gaullist System in Asia: The Constitution of Sri Lanka transfer, dismissal and disciplinary control in respect of Heads of Departments. (3) The Cabinet of Ministers may from time to time delegate its powers of appointment, transfer, dismissal and disciplinary control of other public officers to the Public Service Commission: Provided that the Cabinet of Ministers may, from time to time and notwith• standing any delegation under this Article, delegate to any Minister its power of transfer in respect of such categories of officers as may be specified, and upon such delegation, the Public Service Commission or any Committee thereof shall not exercise such power in respect of such categories of officers. For the purposes of this proviso, "transfer" means the moving of a public officer from one post to another post in the same service or in the same grade of the same Ministry or department with no change in salary. (4) Subject to the provisions of the Constitution, the Cabinet of Ministers shall provide for and determine all matters relating to public officers, including the formulation of schemes of recruitment and codes of conduct for public officers, the principles to be followed in making promotions and transfers, and the procedure for the exercise and the delegation of the powers of appointment, transfer, dismissal and disciplinary control of public officers. (5) Subject to the jurisdiction conferred on the Supreme Court under paragraph ( 1) of Article 126 no court or tribunal shall have power or jurisdiction to inquire into, pronounce upon or in any manner call in question, any order or decision of the Cabinet of Ministers, a Minister, the Public Service Commission, a Committee of the Public Service Commission or of a public officer, in regard to any matter concerning the appointment, transfer, dismissal or disciplinary control of a public officer. 56. ( 1) There shall be a Public Service Commission which shall consist of not less than five persons appointed by the President. The President shall nominate one of the members of the Commission to be the Chairman. (4) Every member of the Public Service Commission shall hold office for a period of five years from the date of his appointment, unless he earlier resigns his office by a writing under his hand addressed to the President, or is removed from office by the President for cause assigned, but shall be eligible for reappointment. (8) The quorum for any meeting of the Commission shall be three members. 57· ( 1) Whenever the Cabinet of Ministers so directs the Chairman of the Public Service Commission shall appoint a Committee of the Public Service Commission to exercise the powers of the Commission in respect of such categories of public officers as are specified in such direction. (2i Upon a direction being made under paragraph (1) of this Article, the Chairman of the Public Service Commission shall appoint a Committee consisting of three members of the Public Service Commission. Where such Chairman is a member of the Committee so appointed, he shall be the Chairman of the Committee, and where he is not a member of the Committee so appointed, then such member of that Committee as may be nominated in writing by such Chairman, shall be the Chairman of that Committee. (3) Upon the appointment of any such Committee, the Public Service Commission shall cease to exercise its powers of appointment, transfer, dismissal and disciplinary control in respect of the categories of public officers specified in the direction for the appointment of such Committee. (5) The quorum for any meeting of any such Committee shall be two members. Appendix I II may sa. (I) The Public Service Commission or any Committee thereof may delegate to a public officer, subject to such conditions 'loS may be prescribed by the Cabinet of Ministers, its powers of appointment, transfer, dismissal or disciplinary control of any category of public officers. (2) Any public officer aggrieved by any order of transfer or dismissal, or any other order relating to a disciplinary matter made by a public officer to whom the Public Service Commission or any Committee thereof has delegated its powers under the preceding paragraph shall have a right of appeal to the Public Service Commission or such Committee, as the case may be. 59· The Ca,binet of Ministers shall have the power to alter, vary or rescind- (a) any appointment, order of transfer or dismissal or any other order relating to a disciplinary matter made, on appeal or otherwise, by the Public Service Commission or a Committee thereof; (h) any order of transfer made by a Minister; or (c) any appointment made by a public officer to whom the Public Service Commission or any Committee thereof has delegated its powers under Article s8( I).

CHAPTER X

Parliameat

611. ( 1) There shall be a Parliament which shall consist of one hundred and ninety-six Members elected by the electors of the several electoral districts constituted in accordance with the provisions of the Constitution. (2) Unless Parliament is sooner dissolved. every Parliament shall continue for six years from the date appointed for its first meeting and no longer, and the expiry of the said period of six years shall operate as a dissolution of Parliament.

CHAPTER XI

The Legislature

Procedure and Powers 70. ( 1) The President may, from time to time, by Proclamation summon, prorogue and dissolve Parliament: Provided that - (a) subject to the provisions of sub-paragraph (d), when a General Election has been held consequent upon a dissolution of Parliament by the President, the President shall not thereafter dissolve Parliament until the expiration of a period of one year from the date of such General Election, unless Parliament by resolution requests the President to dissolve Parliament; (b) the President shall not dissolve Parliament on the rejection of the Statement of Government Policy at the commencement of the first session of Parliament after a General Election; (c) subject to the provisions of sub-paragraph (d), the President shall not dissolve Parliament after the Speaker has entertained a resolution comply- 1 88 The Gaullist System in Asia: The Constitution of Sri Lanka

ing with the requirements of sub-paragraphs (a) and (b) of paragraph (2) of Article 38, unless - (i) such resolution is not passed as required by sub-paragraph (c) of paragraph (2) of Article 38; (ii) the Supreme Court determines and reports that the President has not become permanently incapable of discharging the functions of his office or that the President has not been guilty of any of the other allegations contained in such resolution; (iii) the consequent resolution for the removatofthe President is not passed as required by sub-paragraph (t) of paragraph (2) of Article 38; or (iv) Parliament by resolution requests the President to dissolve Parliament; (d) where the President has not dissolved Parliament consequent upon the rejection by Parliament of the Appropriation Bill, the President shall dissolve Parliament if Parliament rejects the next Appropriation Bill. (2) Parliament shall be summoned to meet once at least in every year. (3) A Proclamation proroguing Parliament shall fix a date for the next session, not being more than two months after the date of the Proclamation: (5) (b) Upon the dissolution of Parliament by virtue of the provisions of paragraph (2) of Article 62, the President shall forthwith by Proclamation fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation. (6) Where the poll for the election of the President is to be taken on a date which falls between the date of dissolution of Parliament and the date before which Parliament is required by paragraph (5) of this Article to be summoned to meet, Parliament shall, notwithstanding anything in that paragraph, be summoned to meet on a date not later than four months after the date of dissolution of Parliament. 75• Parliament shall have power to make laws, including laws having retrospective effect and repealing or amending any provisjon of the Constitution, or adding any provision to the Constitution: Provided that Parliament shall not make any law -

(a) suspending the operation of the Constitution or any part thereof, or (b) repealing the Constitution as a whole unless such law also enacts a new Constitution to replace it. 76. ( 1) Parliament shall not abdicate or in any manner alienate its legislative power, and shall not set up any authority with any legislative power. (2) It shall not be a contravention of the provisions of paragraph ( 1) of this Article for Parliament to make, in any law relating to public security, provision empowering the President to make emergency regulations in accordance with such law. (3) It shall not be a contravention of the provisions of paragraph ( 1) of this Article for Parliament to make any law containing any provision empowering any person or body to make subordinate legislation for prescribed purposes, including the power- (a) to appoint a date on which any law or any part thereof shall come into effect or cease to have effect; Appendix Ill 189 (b) to make by order any law or any part thereof applicable to any locality or to any class of persons; and (c) to create a legal person, by an order or an act.

77• ( 1) It shall be the duty of the Attorney-General to examine every Bill for any contravention of the requirements of paragraphs ( 1) and (2) of Article 82 and for any provision which cannot be validly passed except by the special majority prescribed by the Constitution; and the Attorney-General or any officer assisting the Attorney-General in the performance of his duties under this Article shall be afforded all facilities necessary for the performance of such duties. (2) If the Attorney-General is of the opinion that a Bill contravenes any of the requirements of paragraphs ( 1) and (2) of Article 82 or that any provision in a Bill cannot be validly passed except by the special majority prescribed by the Constitution, he shall communicate such opinion to the President: Provided that in the case of an amendment proposed to a Bill in Parliament, the Attorney-General shall communicate his opinion to the Speaker at the stage when the Bill is ready to be put to Parliament for its acceptance. 78. ( 1) Every Bill shall be published in the Gaztllt at least seven days before it is placed on the Order Paper of Parliament. Bo. ( 1) Subject to the provisions of paragraph (2) of this Article, a Bill passed by Parliament shall become law when the certificate of the Speaker is endorsed thereon. (2) Where the Cabinet of Ministers has certified that any Bill or any provision thereof is intended to be submitted for approval by the People at a Referendum or where the Supreme Court has determined that a Bill or any provision thereof requires the approval of the People at a Referendum or where any Bill is submitted to the People by Referendum under paragraph (2) of Article 85, such Bill or such provision shall become law upon being approved by the People at a Referendum in accordance with paragraph (3) of Article 85 only when the President certifies that the Bill or provision thereof has been so approved. The President shall endorse on every Bill so approved a certificate in the following form:-

"This Bill/provision has been duly approved by the People at a Referendum."

Every such certificate shall be final and conclusive, and shall not be called in question in any court. (3) Where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be, being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever. 81. ( t) Where a Special Presidential Commission of Inquiry established under the Special Presidential Commissions of Inquiry Law, No.7 of 1978, and consisting of a member or members each of whom is a judge of the Supreme Court, Court of Appeal, High Court or the District Court recommends that any person should be made subject to civic disability by reason of any act done or omitted to be done by such person before or after the commencement of the Constitution, Parliament may by resolution passed by not less than two-thirds of the whole number of Members (including those not present) voting in its favour- 190 The Gaullist System in Asia: The Constitution rif Sri Lanka

(a) impose civic disability on such person for a period not exceeding seven years, and (b) expel such person from Parliament, if he is a Member of Parliament.

CHAPTER XII

Amendment of the Constitution 811. ( 1) No Bill for the amendment of any provision of the Constitution shall be placed on the Order Paper of Parliament, unless the provision to be repealed, altered or added, and consequential amendments, if any, are expressly specified in the Bill and is described in the long title thereof as being an Act for the amendment of the Constitution. (2) No Bill for the repeal of the Constitution shall be placed on the Order Paper of Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution. (3) I fin the opinion of the Speaker, a Bill does not comply with the requirements of paragraph ( 1) or paragraph ( 2) of this Article, he shall direct that such Bill be not proceeded with unless it is amended so as to comply with those requirements. (4) Notwithstanding anything in the preceding provisions of this Article, it shall be lawful for a Rill which complies with the requirements of paragraph ( 1) or paragraph (2) of this Article to be amended by Parliament provided that the Bill as so amended shall comply with those requirements. (5) A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with the provisions of Article So or 79 (Article 79 is an endorsement by the Speaker). (6) No provision in any law shall, or shall be deemed to, amend, repeal or replace the Constitution or any provision thereof, or be so interpreted or construed, unless enacted in accordance with the requirements of the preceding provisions of this Article. (7) In this Chapter, "amendment" includes repeal, alteration and addition. 83. Notwithstanding anything to the contrary in the provisions of Article S2- (a) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1, 2, 3, 6, 7, S, 9, 1 o and 11, or of this Article, and (b) a Bill for the amendment or for the repeal and replacement of or which is inconsistent with the prov,isions of paragraph (2) of Article 30 or of paragraph (2) of Article 62 which would extend the term of office of the President or the duration of Parliament, as the case may be, to over six years, shall become law if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present), is approved by the People at a Referendum and a certificate is endorsed thereon by the President in accordance with Article So. llf. ( 1) A Bill which is not for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, but which is Appendix III Order inconsistent with any provision of the Constitution may be placed on the Order Paper of Parliament without complying with the requirements of paragraph (I) or paragraph ( 2) of Article 82. (2) Where the Cabinet of Ministers has certified that a Bill is intended to be passed by the special majority required by this Article or where the Supreme Court has determined that a Bill requires to be passed by such special majority, such Bill shall become law only if the number of votes cast in favour thereof amounts to not less than two-thirds of the whole number of Members (including those not present) and a certificate by the President or the Speaker, as the case may be, is endorsed thereon in accordance with the provisions of Article So or 79· (3) Such a Bill when, enacted into law shall not, and shall not be deemed to, amend, repeal or replace the Constitution or any provision thereof, and shall not be so interpreted or construed, and may thereafter be repealed by a majority of the votes of the Members present and voting.

CHAPTER XIII The Referendum

85. (I) The President shall submit to the People by Referendum every Bill or any provision in any Bill which the Cabinet of Ministers has certified as being intended to be submitted to the People by Referendum, or which the Supreme Court has determined as requiring the approval of the People at a Referendum if the number of votes cast in favour of such Bill amounts to not less than two-thirds of the whole number of Members (including those not present). (2) The President may in his discretion submit to the People by Referendum any Bill (not being a Bill for the repeal or amendment of any provision of the Constitution, or for the addition of any provision to the Constitution, or for the repeal and replacement of the Constitution, or which is inconsistent with any provision of the Constitution), which has been rejected by Parliament. (3) Any Bill or any provision in any Bill submitted to the People by Referendum shall be deemed to be approved by the People if approved by an absolute majority of the valid votes cast at such Referendum: Provided that when the total number of valid votes cast does not exceed two• thirds of the whole number of electors entered in the register of electors, such Bill shall be deemed to be approved only if approved by not less than one-third of the whole number of such electors. 86. The President may, subject to the provisions of Article 85, submit to the People by Referendum any matter which in the opinion of the President is of national importance. a,. (I) Every Referendum shall be conducted by the Commissioner of Elections who shall communicate the result thereof to the President.

CHAPTER XIV The Franchise and Elections

92. Every person who is qualified to be an elector shall be qualified to be elected to the office of President unless he is subject to any of the following disqualifications- 192 The Gaullist System in Asia: The Constitution of Sri Lanka

(a) if he has not attained the age of thirty years; (b) if he is not qualified to, be elected as a Member of Parliament under sub• paragraph (d), (e), (f) or (g) of paragraph ( 1) of Article 91; (c) if he has been twice elected to the office of President by the People; and (d)· if he has been removed fr.om the office of President under the provisions of sub-paragraph (e) of paragraph (2) of Article 38. 93• The voting for the election of the President of the Republic and of the Members of Parliament and at any Referendum shall be free, equal and by secret ballot. M• ( 1) At the election of the President every voter while casting his vote for any candidate may- (a) where there are three candidates for election, specify his second preference; and (b) where there are more than three candidates for election, specify his second and third preferences. ( 2) The candidate, if any, who receives more than one-half of the valid votes cast shall be declared elected as President. (3) Where no candidate is declared elected under paragraph (2) of this Article, the candidate or candidates, other than the candidates who received the highest and second highest number of such votes, shall be eliminated from the contest, and-

(a) the second preference of each voter whose vote had been for a candidate eliminated from the contest, shall, if it is for one or the other of the remaining two candidat~, be counted as a vote for such candidate and be added to the votes counted in his favour under paragraph (2), and (b) the third preference of each voter referred to in sub-paragraph (a) whose second preference is not counted under that sub-paragraph shall, if it is for one or the other of the remaining two candidates, be counted as a vote for such candidate and be added to the votes counted in his favour under sub• paragraph (a) and paragraph (2), and the candidate who receives the majority of the votes so counted shall be declared elected as President. (4) Where an equality is found to exist between the votes received by two or more candidates and the addition of one vote would determine- (a) which candidate is to be declared elected under this Article; or (b) which candidate is not to be eliminated under this Article, then the determination of the candidate to whom such additional vote shall be deemed to have been given for the purpose of such determination shall be made by lot. 95• ( 1) Within three months of the commencement of the Constitution the President shall for the delimitation of electoral districts, establish a Delimitation Commission consisting of three persons appointed by him who he is satisfied are not actively engaged in politics. The President shall appoint one of such persons to be the Chairman. (2) If any member of the Delimitation Commission shall die or resign or if thr Appendix III 193 President is satisfied that any such member has become incapable of discharging his functions as such, the President shall, in accordance with the provisions of paragraph (I) of this Article, appoint another person in his place. g6. (I) The Delimitation Commission shall divide Sri Lanka into not less than twenty and not more than twenty-four electoral districts, and shall assign names thereto. (2) Each Province of Sri Lanka may itself constitute an electoral district or may be divided into two or more electoral districts. (3) Where a Province is divided into a number of electoral districts the Delimitation Commission shall have regard to the existing administrative districts so as to ensure as far as is practicable that each electoral district shall be an administrative district or a combination of two or more administrative districts or two or more electoral districts together constitute an administrative district. (4) The electoral districts of each Province shall together be entitled to return four members, (independently of the number of members which they are entitled to return by reference to the number of electors whose names appear in the registers of electors of such electoral districts), and the Delimitation Commission shall apportion such entitlement equitably among such electoral districts. (5) In the event of a difference of opinion among the members of the Delimitation Commission, the opinion of the majority thereof shall prevail and shall be deemed to be the decision of the Commission. Where each member of the .Commission is of a different opinion, the opinion of the Chairman shall be deemed to be the decision of the Commission. Any dissentient member may state his reasons for such dissent. (6) The Chairman of the Delimitation Commission shall communicate the decisions of the Commission together with the reasons, if any, stated by a dissentient member to the President. ,a. (I) The several electoral districts shall together be entitled to return one hundred and ninety-six members. (2) The apportionment of the number of members that each electoral district shall be entitled to return shall, in the case of thirty-six members, be determined in accordance with the provisions of paragraph (4) of Article g6. (3) The apportionment of the number of members that each electoral district shall be entitled to return out of the balance number of one hundred and sixty members shall be determined in accordance with the succeeding provisions of this Article. (4) The total number of electors whose names appear in the registers of electors of all the electoral districts shall be divided by one hundred and sixty. The whole number resulting from such division (any fraction not being taken into account) is hereinafter referred to as the "qualifying number". ( 5) The total number of electors whose names appear in the register of electors of each electoral district shall be divided by the qualifying number and each electoral district shall be entitled to return such number of members as is equivalent to the whole number resulting from the division of the total number of such electors in that electoral district by the qualifying number and the balance number of such electors, if any, after such division shall be dealt with, if necessary, in accordance with paragraph (6) of this Article. (6) Where the total number of members to be returned by all the electoral districts ascertained by reference to the qualifying number in accordance with 194 The Gaullist System in Asia: The Constitution of Sri Lanka paragraph (5) of this Article is less than one hundred and sixty members, the apportionment of the entitlement among the electoral districts of the balance number of members shall be by reference to the balance number of such electors and in the case of any electoral district not entitled to return a single member according to the determination made under paragraph (5), the total number of electors whose names appear in the register of electors of such electoral district, the electoral district having the highest of such balance number of such electors or such total number of such electors, being entitled to return one more member and so on until the total number of members to be returned number one hundred and sixty. (7) Where in making an apportionment under paragraph (6) of this Article an equality is found to exist between two or more balance number of such electors or two or more total number of such electors or any combination of them and the addition of one such elector would entitle one electoral district to return an additional member, the determination of the electoral district to which one such elector shall be deemed to be added shall be determined by lot. 99• ( 1) At any election of Members of Parliament, the total number of members which an electoral district is entitled to return shall be the number specified by the Commissioner of Elections in the Order published in accordance with the provisions of paragraph (8) of Article g8. (2) Any recognized political party or any group of persons contesting as independent candidates (hereinafter referred to as an "independent group") may lor the purpose of any election of Members of Parliament for any electoral district, submit one nomination paper setting out the names, in order of priority, of such number of candidates as is equivalent to the number of members to be elected for that electoral district, increased by one-third. Where one-third of the number of members to be elected for any electoral district is an integer and fraction the integer immediately higher to that integer and fraction shall be deemed to be the one-third lor the purposes of this paragraph. (3) Each elector whose name appears in the register of electors shall be entitled to only one vote notwithstanding that his name appears in the electoral register in more than one electoral district. (4) The recognized political party or independent group which polls the highest number of votes in any electoral district shall be entitled to have the candidate whose name appears first in the nomination paper of that recognized political party or independent group declared elected. (5) (a) Every recognized political party and independent group polling less than one-eighth of the total votes polled at any election in any electoral district shall be disqualified from having any candidates of such party or group being elected for that electoral district. (b) The votes polled by the disqualified parties and independent groups, if any, shall be deducted from the total votes polled at the election in that electoral district and the number of votes resulting from such deduction is hereinafter referred to as the "relevant number of votes." (6) The relevant number of votes shall be divided by the number of members to be elected for that electoral district reduced by one. If the number resulting from such division is an integer, that integer, or if that number is an integer and fraction, the integer immediately higher to that integer and fraction is hereinafter referred to as the "resulting number." (7) The number of votes polled by each recognized political party and Appendix Ill 195 independent group (other than those parties or groups disqualified under paragraph (5) of this Article), beginning with the party or group which polled the highest number of votes, shall then be divided by the resulting number and such number of candidates (excluding the candidate declared elected under paragraph (4) of this Article) as is equivalent to the whole number resulting from the division by the resulting number of the votes polled by such party or group shall be declared elected from each such party or group in the order in which their names appear in the nomination paper. The remainder of the votes, if any, after such division, shall be dealt with, if necessary, under paragraph (8) of this Artjcle. (8) Where after the declaration of the election of members as provided in paragraph ( 7) of this Article there are one or more members yet to be declared elected, such member or number of members shall be declared elected by reference to the remainder of the votes referred to in paragraph (7) to the credit of each party or group after the declaration made under that paragraph and the votes polled by any party or group not having any of its candidates declared elected under paragraph (7), the candidate next in the order of priority in the nomination paper of the party or group having the highest of such votes being declared elected the next member and so on until all the members to be elected are declared elected. (g) (a) Where the number of votes polled by each recognized political party or independent group is less than the resulting number referred to in paragraph (6) of this Article the party or group which has polled the highest number of votes shall be entitled to have the candidate whose name appears first in the nomination paper of that party or group (excluding the candidate declared elected under paragraph (4) of this Article) declared elected and if there are one or more members yet to be declared elected, the party or group having the next highest number of votes polled shall be entitled to have the member whose name appears first in the nomination paper of that party or group to be declared elected and so on, until all the members to be elected for that electoral district are declared elected under the provisions of this paragraph. \b) After the determination under paragraph (a) if there are one or more members yet to be declared elected in respect of that electoral district the provisions of that paragraph shall, mutatis mutandis, apply to the election of such members. ( 10) Where under paragraph (4) or (8) or (g) of this Article an equality is found to exist between the votes polled by two or more recognized political parties or two or more independent groups or any combination of them and the addition of a vote would entitle the candidate of one such party or group to be elected, the determination of the party or group to which such additional vote shall be deemed to have been given shall be made by lot. ( 11) For the purposes of this Article the number of votes polled shall be deemed to be the number of votes counted other than rejected votes. ( 12) A recognized political party shall have the right, from time to time after all the members for an electoral district have been declared elected under the preceding provisions of this Article, to change the order of priority of the persons whose names appear in the nomination paper submitted by it and to substitute the names of other persons in place of those who have died or ceased to be members of such party. ( 13) (a) Where a Member of Parliament ceases, by resignation, expulsion or otherwise, to be a member of a recognized political party or independent group on whose nomination paper (hereinafter referred to as the "relevant nomination 196 The Gaullist System in Asia: The Constitution of Sri Lanka paper") his name appeared at the time of his becoming such Member of Parliament, his seat shall become vacant upon the expiration of a period of one month from the date of his ceasing to be such member: Provided that in the case of the expulsion of a Member of Parliament his seat shall not become vacant if prior to the expiration of the said period of one month he applies to the Supreme Court by petition in writing, and the Supreme Court upon such application determines that such expulsion was invalid. Such petiton shall be inquired into by three Judges of the Supreme Court who shall make their determination within two months of the filing of such petition. Where the Supreme Court determines that the expulsion was valid the vacancy shall occur from the date of such determination. (b) Where the seat of a Member of Parliament becomes vacant as provided in Article 66 (other than paragraph (g) of that Article) or by virtue of the preceding provisions of this paragraph, the person whose name appears first in order of priority in the relevant nomination paper (excluding the names of any persons who have previously been declared elected) shall be declared elected to fill such vacancy. 103. ( 1) There shall be a Commissioner of Elections who shall be appointed by the President and who shall hold office during good behaviour.

CHAPTER XV

The judiciary

105. ( 1) Subject to the provisions of the Constitution, the institutions for the administration of justice which protect, vindicate and enforce the rights of the People shall be- (a) the Supreme Court of the Republic of Sri Lanka, (b) the Court of Appeal of the Republic of Sri Lanka, (c) the High Court of the Republic of Sri Lanka and such other Courts of First Instance, tribunals or such institutions as Parliament may from time to time ordain and establish.

Independence of the Judiciary 107. ( 1) The Chief Justice, the President of the Court of Appeal and every other judge of the Supreme Court and Court of Appeal shall be appointed by the President of the Republic by warrant under his hand. (2) Every such judge shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehaviour or incapacity: Provided that no resolution for the presentation of such an address shall be entertained by the Speaker or placed on the Order Paper of Parliament, unless notice of such resolution is signed by not less than one-third of the total number of Members of Parliament and sets out full particulars of the alleged misbehaviour or incapacity. (5) The age of retirement of judges of the Supreme Court shall be sixty-five years and of Judges of the Court of Appeal shall be sixty-three years. Appendix III 197 1o8. ( 1) The salaries of the Judges of the Supreme Court and of the Court of Appeal shall be determined by Parliament and shall be charged on the Consolidated Fund. (2) The salary payable to, and the pension entitlement of, a judge of the Supreme Court and a judge of the Court of Appeal shall not be reduced after his appointment. 111. ( 1) The highest Court of First Instance exercising criminal jurisdiction and created by law shall be called and known as "The High Court of the Republic of Sri Lanka" and shall exercise such jurisdiction and powers as Parliament may by law vest or ordain. (2) The Judges of the High Court shall be appointed by the President of the Republic by warrant under his hand and be removable and be subject to disciplinary control by the President on the recommendation of the judicial Service Commission established under this Chapter. 112. ( 1) There shall be a judicial Service Commission (in this Chapter referred to as the "Commission") which shall consist of the Chiefjustice who shall be the Chairman, and two judges of the Supreme Court appointed by the President of the Republic. (2) The quorum for any meeting of the Commission shall be two members. (5) The President may for cause assigned remove from office any member of the Commission appointed by him. (8) The Judicial Service Commission may make- (a) rules regarding schemes for recruitment and procedure for the appointment of judicial officers; and (b) provision for such matters as are necessary or expedient for the exercise, performance and discharge of the powers, duties and functions of such Commission.

114. ( 1) The appointment, transfer, dismissal and disciplinary control of judicial officers, and (notwithstanding anything to the contrary in Chapter IX) of scheduled public officers, is vested in the Commission. (2) It shall be competent to the judicial Service Commission by Order published in the Ga.utte, to delegate its powers under paragraph ( 1) of this Article in respect of such class or category of judicial officers or scheduled public officers as may be specified, to a Committee of not less than three judges, each of whom shall be a judge of the Supreme Court or of the Court of Appeal, and one of whom shall be nominated by th('.Chief justice as Chairman. (4) The Commission may, by Order published in the Ga<:,ette, delegate to the Secretary to the Commission the power to make all transfers, other than transfers involving increase of salary, or to make acting apointments in such cases and subject to such limitations as may be specified in the Order.

CHAPTER XVI

The Supreme Court

118. The Supreme Court of the Republic of Sri Lanka shall be the highest and final superior Court of record in the Republic and shall subject to the provisions of the Constitution exercise- 198 The Gaullist System in Asia: The Constitution of Sri Lanka (a) jurisdiction in respect of constitutional matters; (b) jurisdiction for the protection of fundamental rights; (c) final appellate jurisdiction; (d). consultative jurisdiction; (t) jurisdiction in election petitions; (j) jurisdiction in respect of any breach of the privileges of Parliament; and (g) jurisdiction in respect of such other matters which Parliament may by law vest or ordain. ng. (I) The Supreme Court shall consist of the ChiefJustice and of not less than six and not more than ten other judges who shall be appointed as provided in Article 107. 1110. The Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any Bill or any provision thereof is inconsistent with the Constitution: Provided that - (a) in the case of a Bill described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83; (b) where the Cabinet of Ministers certifies that a Bill, which is described iri its long title as being for the amendment of any provisions of the Constitution, or for the repeal and replacement of the Constitution, is intended to be passed with the special majority required by Article 83 and submitted to the People by Referendum, the Supreme Court shall have and exercise no jurisdiction in respect of such Bill; (c) where the Cabinet of Ministers certifies that a Bill which is not described in its long title as being for the amendment of any provision of the Constitution, or for the repeal and replacement of the Constitution, is intended to be passed with the special majority required by Article 84, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83 or whether such Bill is required to comply with paragraphs ( 1) and (2) of Article 82; or (d) where the Cabinet of Ministers certifies that any provision of any Bill which is not described in its long title as being for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution is intended to be passed with the special majority required by Article 84, the only question which the Supreme Court may determine is whether any other provision of such Bill requires to be passed with the special majority required by Article 84 or whether any provision of such Bill requires the approval by the People at a Referendum by virtue of the provisions of Article 83 or whether such Bill is required to comply with the provisions of paragraphs ( 1) and ( 2) of Article 82.

1111. (I) The jurisdiction of the Supreme Court to ordinarily determine any such question as aforesaid may be invoked by the President by a written reference addressed to the Chief justice, or by any citizen by a petition in writing addressed Appendix III 199 to the Supreme Court. Such reference shall be made, or such petition shall be filed, within one week ofthe Bill being placed on the Order Paper of the Parliament, and a copy thereof shall at the same time be delivered to the Speaker. In this paragraph "citizen" includes a body, whether incorporated or unincorporated, if not less than three-fourths of the members of such body are citizens. (2) Where the jurisdiction of the Supreme Court has been so invoked no proceedings shall be had in Parliament in relation to such Bill until the determination of the Supreme Court has been made, or the expiration of a period of three weeks from the date of such reference or petition, whichever occurs first. (3) The Supreme Court shall make and communicate its determination to the President and to the Speaker within three weeks of the making of the reference or the filing of the petition, as the case may be. 1aa. ( 1) In the case of a Bill which is, in the view of the Cabinet of Ministers, urgent in the national interest, and bears an endorsement to that effect under the hand of the Secretary to the Cabinet-

(a) the provisions of Article 78( 1) and of Article 121, shall subject to the provisions of paragraph (2) of this Article, have no application; (b) the President shall by a written reference addressed to the Chief Justice, require the special determination of the Supreme Court as to whether the Bill or any provision thereof is inconsistent with the Constitution. A copy of such reference shall at the same time be delivered to the Speaker; (c) the Supreme Court shall make its determination within twenty-four hours (or such longer period not exceeding three days as the President may specify) of the assembling of the Court, and shall communicate its determination only to the President and the Speaker.

( 2) The provisions of paragraph ( 2) of Article 121 shall, mutatis mutandis, apply to such Bill. u3. ( 1) The determination of the Supreme Court shall be accompanied by the reasons therefor, and shall state whether the Bill or any provision thereof is inconsistent with the Constitution and if so, which provision or provisions of the Constitution. (2) Where the Supreme Court determines that the Bill or any provision thereof is inconsistent with the Constitution, it shall also state- (a) whether such Bill is required to comply with the provisions of paragraphs ( 1) and (2) of Article 82; or (b) whether such Bill or any provision thereof may only be passed by the special majority required under the provisions of paragraph (2) of Article 84; or (c) whether such Bill or any provision thereof requires to be passed by the special majority required under the provisions of paragraph (2) of Article 84 and approved by the People at a Referendum by virtue of the provisions of Article 83, and may specify the nature of the amendments which would make the Bill or such provision cease to be inconsistent. (3) In the case of a Bill endorsed as provided in Article 122, if the Supreme Court entertains a doubt whether the Bill or any provision thereof is inconsistent with the Constitution, it shall be deemed to have been determined that the Bill or such provision of the Bill is inconsistent with the Constitution, and the Supreme 200 The Gaullist System in Asia: The Constitution of Sri Lanka

Court shall comply with the provisions of paragraphs ( 1) and (2) of this Article. (4) Where any Bill, or the provision of any Bill, has been determined, or is deemed to have been determined, to be inconsistent with the Constitution, such Bill or such provision shall not be passed except in the manner stated in the determination of the Supreme Court: Provided that it shall be lawful for such Bill to be passed after such amendment as would make the Bill cease to be inconsistent with the Constitution. 124. Save as otherwise provided in Articles 120, 121 and 122, no court or tribunal created and established for the administration of justice, or other institution, person or body of persons shall in relation to any Bill, have power or jurisdiction to inquire into, or pronounce upon, the constitutionality of such Bill or its due compliance with the legislative process, on any ground whatsoever. 125. ( 1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the interpretation of the Constitution, and accordingly, whenever any such question arises in the course of any proceedings in any other court or tribunal or other institution empowered by law to administer justice or to exercise judicial or quasi-judicial functions, such question shall forthwith be referred to the; Supreme Court for determination. The Supreme Court may direct that further proceedings be stayed pending the determination of such question. (2) The Supreme Court shall determine such question within two months of the date of reference and make any such consequential order as the circumstances of the case may require. 126. ( 1) The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV. (2). Where any person alleges that any such fundamental right or language right relating to such person has been infringed or is about to be infringed by executive or administrative action, he may himself or by an attorney-at-law on his behalf, within one month thereof, in accordance with such rules of court as may be in force, apply to the Supreme Court by way of petition in writing addressed to such Court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from the Supreme Court, which leave may be granted or refused, as the case may be, by not less than two Judges. (3) Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedmdo, mandamus or quo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter I I I or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court. (4) The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundamental right or language right. Appendix Ill 201

(5) The Supreme Court shall hear and finally dispose of any petition or reference under this Article within two months of the filing of such petition or the making of such reference. 129. ( 1) If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon. ( 2) Where the Speaker refers to the Supreme Court for inquiry and report all or any of the allegation or allegations, as the case may be, contained in any such resolution as is referred to in Article 38(2)(a), the Supreme Court shall in accordance with Article 38(2)(d) inquire into such allegation or allegations and shall report its determination to the Speaker within two months of the date of reference. (3) Such opinion, determination and report shall be expressed after consider• ation by at least five Judges of the Supreme Court, ofwhom, unless he otherwise directs, the Chief Justice shall be one. (4) Every proceeding under paragraph ( 1) of this Article shall be held in private unless the Court for special reasons otherwise directs. 130. The Supreme Court shall have the power to hear and determine and make such orders as provided for by law on- (a) any legal proceeding relating to the election of the President; (b) any appeal from an order or judgment of the Court of Appeal in an election petition case: Provided that the hearing and determination of a proceeding relating to the election of the President shall be by at least five Judges of the Supreme Court of whom, unless he otherwise directs, the Chief Justice shall be one. 134. ( 1) The Attorney-General shall be noticed and have the right to be heard in all proceedings in the Supreme Court in the exercise of its jurisdiction under Articles 120, 121, 122, 125, 126, 129(1) and 131.

CHAPTER XVII

Finance

14L Parliament shall have full control over public finance. No tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament or of any existing law. 1& ( 1) The funds of the Republic not allocated by Ia w to specific purposes shall form one Consolidated Fund into which shall be paid the produce of all taxes, imposts, rates and duties and all other revenues and receipts of the Republic not allocated to specific purposes. 153• ( 1) There shall be an Auditor-General who shall be appointed by the President and who shall hold office during good behaviour. 202 The Gaullist System in Asia: The Constitution of Sri Lanka

CHAPTER XVIII

Public: Security

•55• ( 1) The Public Security Ordinance as amended and in force im• mediately prior to the commencement of the Constitution shall be deemed to be a law enacted by Parliament. (2) The power to make emergency regulations under the Public Security Ordinance or the law for the time being in force relating to public security shall include the power to make regulations having the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution. (3) The provisions of any law relating to public security, empowering the President to make emergency regulations which have the legal effect of overriding, amending or suspending the operation of the provisions of any law, shall not come into operation, except upon the making of a Proclamation under such law, bringing such provisions into operation. (4) Upon the making of such a Proclamation, the occasion thereof shall, subject to the other provisions of this Article, be forthwith communicated to Parliament, and, accordingly- (i) if such Proclamation is issued after the dissolution of Parliament such Proclamation shall operate as a summoning of Parliament to meet on the tenth day after such Proclamation, unless the Proclamation appoints an earlier date for the meeting which shall not be less than three days from the date of the Proclamation; and the Parliament so summoned shall be kept in session until the expiry or revocation of such or any further Proclamation or until the conclusion of the General Election whichever event occurs earlier and shall thereupon stand dissolved; (ii) if Parliament is at the date of the making ofsuch Proclamation, separated by any such adjournment or prorogation as will not expire within ten days, a Proclamation shall be issued for the meeting of Parliament within ten days. (S) Where the provisions of any law relating to public security have been brought into operation by the making of a Proclamation under such law, such Proclamation shall, subject to the succeeding provisions of this Article, be in operation for a period of one month from the date of the making thereof, but without prejudice to the earlier revocation of such Proclamation or to the making of a further Proclamation at or before the end of that period. (6) Where such provisions as are referred to in paragraph (3) of this Article, of any law relating to public security, have been brought into operation by the making of a Proclamation under such law, such Proclamation shall expire after a period of fourteen days from the date on which such provisions shall have come into operation, unless such Proclamation is approved by a resolution of Parliament: Provided that if- (a) Parliament stands dissolved at the date of the making of such Proclamation, or (h) Parliament is at such date separated by any such adjournment or prorogation as is referred to in paragraph (4) (ii) of this Article; or Appendix Ill Ill (c) Parliament does not meet when summoned to meet as provided in paragraphs (4) (i) and (4)(ii) of this Article, then such Proclamation shall expire at the end often days after the date on which Parliament shall next meet and sit, unless approved by a resolution at such meeting of Parliament. (7) Upon the revocation of a Proclamation referred to in paragraph (6) of this Article within a period of fourteen days from the date on which the provisions of any law relating to public security shall have come into operation or upon the expiry of such a Proclamation in accordance with the provisions of paragraph (6), no Proclamation made within thirty days next ensuing shall come into operation until the making thereof shall have been approved by a resolution of Parliament. (8) Where such provisions as are referred to in paragraph (6) of this Article, of any law relating to public security, shall have been in operation for a period of ninety consecutive days or a period of ninety days in the aggregate during six consecutive calendar months, no Proclamation bringing such provisions of any law into operation, shall, if made at any time during the succeeding six calendar months, be in operation for more than ten days from the date on which such provisions are brought into operation by such Proclamation, unless such Proclamation is approved by a resolution of Parliament passed by at least two• thirds of the whole number of Members of Parliament (including those not present) voting in favour of such resolution: Provided that if-

(a) Parliament stands dissolved at the date of the making of such Proclamation, or (h) Parliament is, at such date, separated by any such adjournment or prorogation, as is referred to in paragraph (4) (ii) of this Article, or tc) Parliament does not meet when summoned to meet as provided by paragraph 4(i) of this Article. then such Proclamation shall expire at the end of ten days after the date on which Parliament shall next meet and sit unless approved by Parliament by a resolution passed by at least two-thirds of the whole number of Members of Parliament (including those not present) voting in favour of such resolution. (g) Upon the revocation of a Proclamation referred to in paragraph (8) of this Article within a period of ten days from the date on which the provisions of any law relating to public security shall have come into operation or upon the expiry of such a Proclamation in accordance with the provisions of paragraph (8) of this Article, no Proclamation made within ninety days next ensuing shall come into operation until the making thereof shall have been approved by a resolution of Parliament passed by at least two-thirds of the whole number of Members of Parliament (including those not present) voting in favour of such resolution. ( 1 o) If Parliament does not approve any Proclamation bringing such provisions as are referred to in paragraph (3) of this Article into operation, such Proclamation shall, immediately upon such disapproval, cease to be valid and of any force in law but without prejudice to anything lawfully done thereunder. ( 1 1) If the making of a Proclamation cannot be communicated to and approved by Parliament by reason of the fact that Parliament does not meet when summoned, nothing contained in paragraph (6), (7), (8) or (g) of this Article, shall 204 The Gaullist System in Asia: The Constitution of Sri Lanka affect the validity or operation of such Proclamation: Provided that in such event, Parliament shall again be summoned to meet as early as possible thereafter.

CHAPTER XIX

The Parliameatary Commi••ioaer for Admiai•tratioa

156. ( 1) Parliament shall by law provide for the establishment of the office of the Parliamentary Commissioner for Administration (Ombudsman) charged with the duty of investigating and reporting upon complaints or allegations of the infringement of fundamental rights and other injustices by public officers and officers of public corporations, local authorities and other like institutions, in accordance with and subject to the provisions of such law. (2) The Parliamentary Commissioner for Administration shall be appointed by the President and shall hold office during good behaviour.

CHAPTER XX

Geaeral

•57• Where Parliament by resolution passed by not less than two-thirds of the whole number of Members of Parliament (including those not present) voting in its favour, approves as being essential for the development of the national economy, any Treaty or Agreement between the Government of Sri Lanka and the Government of any foreign State for the promotion and protection of the investments in Sri Lanka of such foreign State, its nationals, or of corporations, companies and other associations incorporated or constituted under its laws, such Treaty or Agreement shall have the force oflaw in Sri Lanka, and otherwise than in the interests of national security no written law shall be enacted or made, and no executive or administrative action shall be taken, in contravention of the provisions of such Treaty or Agreement.

CHAPTER XXI

CHAPTER CHAPTER CHAPTER

•&J· All Judges of the Supreme Court and the High Courts established by the Administration of Justice Law, No. 44 of 1973, holding office on the day immediately before the commencement of the Constitution shall, on the com• mencement of the Constitution, cease to hold office. Notes

INTRODUCTION

1. The term "repressive developmentalist regimes" is used in Herbert Feith's brilliant analysis entitled "Repressive Developmentalist Regimes in Asia: Old Strengths, New Vulnerabilities"-paper presented at the "New York Conference of the World Order Models Project", June 1979. 2. For comments on centralised depoliticised structures, see Paul Wallace, "Centralisation and Depoliticisation in South Asia", The JourTUJI of Commonwealth and Comparative Politics, Vol. XVI, No. 1 (March 1978), PP· 3-21. 3· For the details see report of speech by President J. R. Jayewardene in Ceylon Dairy News, 13 March 1979. 4· See A. T. R. Rahman, "Administration and its Political Environment in Bangladesh", Pacific Affairs, Vol. 47, No.2 (Summer 1974), pp. 171-91. 5· Quoted by Paul Wallace, ibid., from Keith Callard, Pakistan: A Political Study (New York, 1957), p. 19. 6. See Rajeev Dhavan, "The Amendment- Conspiracy or Revolution", The Illustrated Week!) of India, 19 February 1978, pp. 34-5. 7· Ibid., p. 34· 8. Third World Quarter!), Vol. 1, No.2 (April 1979), PP· 53-70. 9· National State Assemb!J Debates, Vol. 23, column 1219. 10. The Minister ofjustice (K. W. Devanayagam) stated that the Minister of Law in post-Shah Iran had received from him a copy of the Constitution of the Second Republic and had indicated to him that in preparing a new constitution for his country, he had found Sri Lanka's constitution "a source of inspiration and a guideline", Ceylon Dairy News, 19 March 1979. 11. See Michael Leifer, "Malaysia after Tun Razak", The Round Table (April 1976), PP· 153~0. 12. Alexandre Sanguinetti at Toulouse in February 1971 reported in Le Monde, 28 February 1971 and quoted by Dorothy Pickles, The Government and Politics of France (London, 1972), p. 229.

CHAPTER I

1. See "Science and Politics" in J. R. Jayewardene, Selected Speeches (Colombo, 1974), P· 63. 2. Op. cit. 3· Loc. cit. 4· For a detailed examination of the Donoughmore constitution, see I. D. S. Weerawardena, Government and Politics in Ceylon ( 1931-1946) (Colombo, 1951)

Ceylon 206 The Gaullist System in Asia: The Constitution of Sri Lanka

and S. Namasivayam, Tlu Legislatures of Ceylon (London, 1951); also Command 3131, Report of tlu Special Commission on the Constitution of Ceylon (Donoughmore Report). 5· S. W. R. D. Bandaranaike, Speeches and Writings (Colombo, 1963), pp. 412-13; also in a memorandum submitted to the Joint Select Committee on the Revision of the Constitution, in 1959, S. W. R. D. Bandaranaike and N. M. Perera proposed that provisions be made in the constitution for advisory committees to be attached to each ministry. 6. Constituent Assemb(y Debates, Vol. 1, columns 2686, 2730. 7. Standing Orders of the House of Representatives ofCeylon (Colombo, 1970), Correction Slip, No.9, 116A-116L. 8. See his Constitutional and Administrative Law of Sri Lanka (Ceylon}, (Colombo, 1973), P· 237· 9· Op. cit. 10. Constituent Assemb(y Debates, Vol. 1, column 1428. 11. Ibid., column 2797· 12. National Stair Assemb(y Debates, Vol. 23, column 1232. 13. Ibid., 1233. 14. Ibid.; see also National State Assembly of Sri Lanka, Second Amendment to the Constitution: A Bill to Amend the Constitution of Sri Lanka (Colombo, 1977). 15. See Parliamentary Series .No. 14 oJ The Second .National Stale Assemb(y (Colombo, 1978), P· 26g. 16. National Stale Assemb(y Debates, Vol. 23, column 1239· 17. Ibid. 18. Quoted by Kamath himself in his "The Sword ofDamocles: The Emergency Provisions of the Indian Constitution and the Fate of Democracy in India", The Indian Review, Vol. 1, No. 1 (Autumn 1978), p. 6.

CHAPTER 2

1. G. Uswatte-Aratchi, "University Admissions in Ceylon: Their Economic and Social Background and Employment Expectations", Modern Asian Studies, Vol. 8, No. 3 ( 1974), p. 300. 2. Ibid., p. 301. 3. See his "Nationalism and its Impact", The Ceylon Journal of Historical and Social Studies, Vol. IV, Nos. 1 and 2 (january-December 1974), p. 72. 4· "Agriculture: Looking Back at Colonization Schemes", p. 20. 5· Bradman Weerakoon, "Emergent Leadership at the Village Level", Economic Review (January 1976), p. 14. 6. Colvin R. de Silva, "New Look at the Past" (book review article), Socialist Nation, early February 1979· 7· Hector Abhayavardhana, "State Employees in the Trade Unions", Socialist Nation, 22 January 1979· 8. Ibid. 9· Ibid.

CHAPTER 3

1. For the full text of the statement, see Ceylon Dairy .News, 22 May 1972. Notes 207 2. (1964) 66 N.L.R., 73. p. 78 (Privy Council). 3· "The Basis of Legal Sovereignty" in Cambridge Law Journal (1955), p. 191. 4· For the full text of the letter see Parliamentary Serits, No. 14, p. 170. 5· Ibid., p. 153. 6. National Stale Assembry Debates, Vol. 23, columns 1218-19. 7· Ibid., column 1225. 8. Ibid., column 1239· 9· Ibid., column 1243· 10. Ibid. 1 1. Parliamentary Series No. 14, p. 16g. 12. Ibid., p. 170. 13. For the full list of questions refer ibid., pp. 1g8-g9. 14· Ibid., P· 189· 15. Ibid., p. 190. 16. For the text of the dissent refer ibid., pp. 149-53· 17. Ibid., p. 171. 18. Ibid., p. 165. 19. Ibid., P· 166. 20. Ibid., p. 214. 21. The full text of the statement is reproduced in The Nation, 18 August 1978. 22. Socialist Nation, 8 February 1978. 23. For example see his "Don't Open the Road to Packing the Judiciary" in Socialist Nation, 9 August 1978, "Has the President broken the Constitution?: Victimisation reaches the Judiciary", ibid., 23 August 1978, "Victimisation engulfs the Supreme Court: President monkeying with the Judiciary", ibid., 30 August 1978 and "Faithless End- Ill-starred Beginning: A Further Comment on the New Courts System", ibid., 13 September 1978. 24. For the complete text refer Socialist Nation, 9 August 1978. 25. For details of their evidence refer Parliamentary Series No. 14, pp. 262-65. 26. From his presidential address (in Tamil) to the second annual convention of the Tamil United Liberation Front held on 29-30July 1978 (as translated into English by the author). 27. For further details see Ceylon Dairy News of 4 and 5 August 1978. 28. Quoted by Dorothy Pickles, The Government and Politics of France, Vol. 1 (London, 1972), p. 386-from Caliban parte (Paris, 1928), pp. 26-7. Dudley Senanayake, prime minister, 1965-70, followed such a procedure with regard to the Tamil Federalists in 1968 and Mrs Sirimavo Bandaranaike, prime minister, 1970-77, did the same to the L.S.S.P. in 1975· 29. See his "The Making and Unmaking of Constitutions" in Lanka Guardian, 1 October 1978.

CHAPTER 4

1. Parliamentary Series No. 14, pp. 209-15. 2. Ibid. 3· Ibid. 4· Ibid., p. 209. 5· Ibid., p. 218. 6. National Stale Asstmbry Debates, Vol. 23, column 1226. 208 The Gaullist System in Asia: The Constitution of Sri Lanka

7· Pierre Viansson-Ponte, Le Monde, 7 November 1961; quoted in Dorothy Pickles, op. cit., p. 368. 8. See my article "The Second Republic- The Constitution ofSeptember 1978" originally published in The Sunday Observer, 1 o September 1978 and repro• duced as Appendix III in this book. PresidentJayewardene told the author that he would if the necessity arises, adopt such a course. 9· Le Mondt, 26-7 April 1g64 quoted by Dorothy Pickles, op. cit., p. 141. 10. Dorothy Pickles, op. cit., p. 22. 11. Op. cit., p. 369. 12. Loc. cit. 13. Loc. cit. 14. Loc. cit. 15. Loc. cit. 16. Op. cit., p. 142. Note, Article 16 empowers the French President to rule by decree for as limited a period oftime as possible in the event of an emergency situation. 17. See his "Sri Lanka's New Constitution", The Parliamentarian, January 1979. 18. Quoted by Dorothy Pickles, op. cit., p. 144· 19. Dorothy Pickles, The Fiflh French Republic, revised edition, (New York, 1962), PP· 144-5· 20. In his The Gol/ffllment of France, fourth edition (New York, 1974), p. 135. 21. See Roy C. Macridis, French Politics in Transition: The Years afler De Gaulle, (Cambridge, Massachusetts, 1975), pp. 42-3. 22. One of the qualifying escape routes available to a government in respect of the guarantees on the right to equality enshrined in Article 12 of Chapter III on "Fundamental Rights" in the Constitution of the Second Republic. Ultimately it is the Supreme Court which will have to determine whether the limitations on rights in the interests of various circumstances stipulated in the Constitution are justified. In the author's view a strong-willed government can either terrify a judiciary into subservience or if the government has greater finesse, mesmerise the judiciary into submission. 23. Another of the vague and general clauses available to a government to slip out of the right to equality provided for in Article 12. 24. The Government and Politics of France, p. 125. 25. Quoted by Dorothy Pickles, op. cit., pp. 131-2. 26. French Politics in Transition, p. 28. 27. Op. cit., p. 134. 28. Politics in France, second edition (Boston, 1971 ), p. 264. 29. The Government and Politics of France, pp. 137-8. 30. Pierre Avril, Politics in France (London, 1961), p. 398. 31. French Politics in Transition, p. 29. 32. Op. cit., p. •37· 33· See for example David Wurfel, "Martial Law in the Philippines: The Methods of Regime Survival" in Pacific Affairs, Vol. 50, No. 1 (Spring 1977), pp. 5-30; Benjamin Muego's unpublished manuscript The Spectator Society to be published shortly; L. Vincent Padgett, The Mexican Political System, second edition (New Jersey, 1976). Notes Notes

CHAPTER 5

1. See jerome King, "Valery Giscard d'Estaing and French Government" in Edward Feit el a/ (editors), Governments and Leaders: An Approach to Comparative Politics (Boston, 1978), p. 176. 2. Quoted by Dorothy Pickles, The Government and Politics of France, p. 367. 3· Op. cit., p. 366. 4· See Prime Minister R. Premadasa's interview to The Sunday Observer, 30 April 1978 titled "Of past lessons- and future May Days". 5· See Time, 26 March 1979. 6. National Stale Assemb{y Debates, Vol. 23, column 1242. 7· Neil Fernando, Regional Administration in Sri Lanka (Colombo, 1975), p. 40. 8. Op. cit. 9· Ceylon Dairy News, 20 October 1978. 10. See for example Neil Fernando, op. cit., p. 52. 11. Comparative Government (Pelican Books, 1975), pp. 335--6. 12. Natio111Jl State Assemb{y Debates, Vol. 23, column 1224. 13. Tribune, 3 March 1979· 14. Samuel Finer, op. cit., p. 324. 15. See his The Constitution of Ceylon, third edition (Bombay, 1953), p. 128. 16. Op. cit. 17. Ceylon News, 31 May 1979. 18. Parliamentary Series No. 14, p. 143· 19. Ibid. 2o. Ibid. 21. Ibid. 22. Ibid., p. 144. 23. Ibid. 24. See his "Electoral Systems and Political Systems: Recent Developments in Britain", Parliamentary Affairs, Winter 1976, note 16, p. 53· 25. "Sri Lanka at the Turning Point: The Future of Parliamentary Government" The Round Table (October 1974), pp. 411-22.

CHAPTER 6

1. See his The Approach to Self-Government (Cambridge, 1956), p. 110. 2. Quoted by J. A. L. Cooray, op. cit., p. 509. 3· Op. cit., p. 110. 4· (1964) N.L.R., 73. p. 78. 5· Ibid., p. 79· 6. (1967) N.L.R., 70, p. 121. 7· (1g69) N.L.R., 72, p. 337· 8. See his The Republic of India: The Devtlopmenl of its Laws and Constitution, second edition (London, 1964), p. 206. 9· In The New Commonwealth and its Constitutions (London, 1964), p. 168. 10. Op. cit., p. 169; quoted from Bentham, "Anarchical Fallacies" in Works (ed. Bowring), Vol. 2, p. 494· 11. Constituent Assemb{y Debates, Vol. 1, p. 633. 12. Op. cit., p. 168. 210 The Gaullist System in Asia: The Constitution if Sri Lanka

13. Loc. Cit., pp. 16H""9. 14. For a report of the proceedings and the Prime Minister's speech, see Ceylon .News, 30 November 1978. 15. Socialist .Nation, 29 November 1978. 16. Tht .Nation, 24 November 1978. 17. Socialist .Nation, Early March 1979. 18. International Commission ofJurists, Tht Dynamic Aspects of tht Rule of LAw in tht Modmz Age (Geneva, 1965), p. 66. 19. Dorothy Pickles quotes an eminent member of the Constil d'Etat as having expressed such a view in The Government and Politics of France, p. 8. 20. Op. cit. 21. Parliamentary Series .No. 14, p. 167. 22. A. Amirthalingam, Tht .New Constitution (Colombo, 1978), p. 35· 23. Ibid., p. 38. 24. For the details see Proposal for the Appointment of District Ministers tabled in the National State Assembly by the Prime Minister, 22 June 1978. 25. A. Amirthalingam, op. cit., p. 40. Note the Deputy Speaker Abdul Mohamed Marker Bakeer was later elected Speaker. 26. Parliamentary Series .No. 14, p. 265. 27. Op. cit., p. 541.

CHAPTER 7

1. Ceylon Daily .News, 1 1 August 1978. 2. Ceylon Daily .News, 29 August 1978. 3· See "Creation of a new society: Achievements of the Ministry ofJ ustice during the last year" in Ceylon Daily News, 17 July 1978. 4· Constituent Assembly Debates, Vol. 1, column 281 3· 5· Parliamentary Series .No. 14, p. 21 5· 6. Ceylon Daily .News, 11 December 1978. 7· Parliamentary Series No. 14, p. 167. 8. Ceylon Daily .News, 27 August 1978. 9· As quoted in N. A. Palkhivala, Our Constitution Difactd and Defiled (New Delhi, 1974), P· 95· 10. Delhi, 1973. 11. Tht Indian Political System, second edition (Boston, 197 I), p. 139· 12. See his "Selection, Background Characteristics, and Voting Behaviour of Indian Supreme Court Judges, 195o-1959" in Glendon Schubert and David Danelski (editors), Comparative Judicial Behaviour: Cross-Cultural Studies of Political Decision-Making in tht East and West (New York, 1969), p. 251. 13. For details see H. P. Ranina, "The Judgment" in Kuldip Nayar, op. cit., pp. 137-56. 14. See "Creation of a new society: Achievements of the Ministry ofJustice during the last year" in Ceylon Daily .News, 17 July 1978. 15. Ibid. 16. See his memorandum on "Constitutional Reforms" in respect of the First Republic. 1 7· See his "A Few Notes for Consideration on a New Constitution" in respect of the First Republic. Notes 211

18. Constituent Assembry Debates, Vol. 2, column 907· 19. Parliamentary Series No. 14, p. 167. 20. Ceylon Dairy News, 30 November 1978. 21. Ibid. 22. Ibid. 23. Ibid. 24. Ibid. 25. Ibid.

CHAPTER 8

1. See Ali A. Mazrui, "Human Rights and the Three Worlds of Power", The Round Table (July 1978), pp. 207-21. 2. 'The Eighteenth Fructidor' in PhilipS. Foner, The Complete Writings of Thomas Paint (New York, 1945), p. 597· 3· In her May Day speech (1979); see Ceylon News, 24 May 1979· 4· Ibid. 5· Ibid. 6. For the text of the President's speech, see Ceylon News, to May 1979. 7· Ceylon News, 24 May 1979. 8. Socialist Nation, 14 June 1978. Index

Abhayavardhana, Hector, 16-17 105--6, 108, Ill, 127, 147, 148, Administration of Justice Law (1974), 164 124 Bandaranaike, S. W. R. D., 3, 5, 6, 6s- administrative districts of Sri Lanka, 6, 165-66 66, 67 Bandaranaikes, 13, 146, 147 Algeria, 50 Bangladesh, xiv Alsace, 121 Bank Nationalisation Act (India), 129 Alsatian, 2 1 Bank Nationalisation case (India), 129 American, Bar Association, 34 President, xiv, 71, 86 Barre, Raymond, 65 system, 2, 29 Basques, 21 Amirthalingam, Appapillai, 40, 120, Batticaloa, 19 121, 165 Bayeux, 1 Appropriation Bill, 46 Bentham, Jeremy, 103 Aron, Raymond, 146 Blonde!, Jean, 51 Articles of the Constitution of the Bonapartism, xvi, 150 French Fifth Republic, so, 51, 53, Boulanger episode, 150 54, 6o, 64, 75, n-8, 81, 82, 86, Bretons, 21 120, 135 Bribery Commissioner v. Ranasinghe, Articles of the Constitution of the Second 24, 98 Republic, 2, 3, 6, 7, 8, 9, 10, 25--6, Britain, 78 34-5.37.39·40,44.46.47.49.52, British, 53.ss,6o,62,63,66,71,73·74·75· Constitutio~, 2; 78, 79.80,82-3,83-4.85, 88,89, parliamentarianism, 1o; 91, 103, 106, 107, 108---9, 110, Ill, styles of government, xiii; 112, 113, 114, 115-16, 117, 118, system, 2, 29 119, 120, 122, 127, 128, 130, 131, Brittany, 121 132, 133. 134· 138, 140, 141, 142, Buddhism, 11, 51, 102-3 143· 145. 163 Buddhists (Sri Lanka), 11 Athulathmudali, Lalith, 28, 43, 163, Attorney-General, 133, 138 Cabinet or Cabinet of Ministers, 30, 31, Attorney-General v. Kodeeswaran, 98 44•46-7,49-so,s9,62-7, 76, 79, Auditor-General, 139, 140 82, 84-5· 122, 131, 132, 133-4. 137. 138, 139. 140, 141, 142, 143· Bandaqmaike, Anura Dias, 164 150, see also Postscript Bandaranaike-Chelvanayakam Pact Canada, 20 (1957). 116 Canadians, (French), 17, 20 Bandaranaike, Felix Dias, 75, 108, 164 Carter, President, 145 Bandaranaike, Mrs Sirimavo, 4, 5, 12, Castroism, xvi 24,28,31·34o37,66,67,70,74•82, Catalans, 21

212 Index 213 Ceylon Association for the Advance• consultative committees of Parliament, ment of Science, ( 1966), 1 69-70 Ceylon Federation of Labour (C.F.L.), Cooray,J. A. L., 6, 32, 33, 122 109 Corea, Harindra, 28 Ceylon Institute for National and coup, Tamil Affairs, 40 of 1962, 9 Ceylon Tamil Christians, 13, 28 of 1966, 9 Ceylon Tamils, 11, 13, 17, 18, 19, 20, Cours d' Appel, 134 24, 28, 35. 36, 40, 89, 117' 122-3, Cour de Cassation, 134 145· 148 Court of Appeal, 73, 105-6, 111, 127, Ceylon Workers' Congress (C.W.C. 128, 132, 133 Indian Tamil), 18, 20, 35, 148 Chaban-Delmas, Jacques, 48, 49, 63 Dahanayake, W., 3 Chelvanayakam, S.J. V., 166 de Alwis, Anandatissa, 65, 163 Chief Justice (India), 128, 129 Debre, Michel, 63 Chief Justice (Sri Lanka), 6o, So, 127, decentralised budgets, 18, 67 132-3 d'Estaing, Giscard, 51, 57, 58, 63, 76 Chilaw, 19; Deferre, Gaston, 48 district, 89 de Gaulle, xiv, 1, 8, 20, 29, 43, 48, 50, Chirac, Jacques, 63, 65 51, 54. 57· 58, 6o, 68, 75· 81, 82, Citizenship Acts (1948 and 1949), 113 121, 139. 150 citizenship rights, laws, etc., 36, 102, Deheragoda, H. (retired) Supreme 113 Court justice), 124 Civil Rights Movement, 8, So, 1 11 d'Hondth system of proportional repre- C.O.D.E.R., 121 sentation, 93 Colombo, 12, 17, 21, 117; de Mel, Ronnie, 28, 65, 163 district, 15, 89 "democratic socialism", 99 Combined Services, 140 Democratic Workers' Congress Commissioner of Elections, 138, 140 (D.W.C., Indian Tamil), 20 committees or commissions (in French deputy ministers, 67 Republics), 6g, 71 de Silva, Colvin R., 2, 6, 7, 33, 39, 42, Common Market, 51 I 04, 106, 164 Communist Party (C.P. Moscow), 4, de Silva, K. M., 12 39. 109 de Smith, Samuel, 102, 103, 105 Conseil d'Etat, 81, 114, 134 Devanayagam, K. W., 28 Consolidated Fund, 47, 85 development councils, 67, 68 Constituent Assembly of the First Directive Principles of State Policy Republic, 2, 7, 23 (Second Republic), 101-2 constitution, Dissanayake, Gamini, 28, 43, 65, 163 of 1948-1972, xiii, 24, 42, 97, 98, 102; District Court, 73 of the First Republic, xiii;. district ministers, 18, 66, 67-8, 120-1 of the Second Republic, xvii, 168-72, district political authority, 18, 67 173-204 Donoughmore, Constitution (Fourth Amendment) Act constitution, 6, 69, 86; (1955, India), 129 executive committees, 6 Constitutional Council (Fifth French duravas (caste), 12 Republic), 8, 51, 53, 79, 81, 134 Duverger, Maurice, 48, 94-5 Constitutional Court (First Republic), 8, 30, 79· 96, 104, 124, 125, 128 Eelam, 40, 56, 120, 123 214 Index Ehrmann, Henry, s8 quasi-ombudsman, 1 I4; Elysee, s8 styles of government, xiii; European Common Market, 76 Third Republic, 6, 6g, 94, I 44 European Community, so, 7S fundamental liberties, 97-1 14 executive committee system (Donough- fundamental rights, I8, 32, 34, 36, 39, more constitution), 6g 40, I I2-14 Executive Presidency, 43--6I Gadbois, George, I30-I Fauvet, Jacques, 48 Galle, I2 Fauvret, M., so-I Gal Oya, 12I Federal Party (Tamil), 4 Gandhi, Mrs, xv, I29 Fernando, Mark, 33 Gaullism, xvi, 6, 10, 2 I Fifth French Republic, xvii, I, 8, IO, 30, Gaullist(s), 43.4s.48,4g,so,6o,62,63,64,69, formation, 48; 7 I, 7S, 78, 8 I, 82, 86, 94, I I4, I 20, framework, I3, I6, 42; I34, I39, su also French Fifth institutions, I so; Republic model, xvi; Filippino President, 6I practices, 8, g; Finer, Professor Samuel, 68---g, 7S--6 presidential structure, xv; First Amendment to the Constitution of super-structure, 6; the Second Republic, IOS--6, I I I system, xvi, g, 22, 29, 30, 32, 33; first-past-the-post system, 2 -type presidential system, 9 First Republic (Sri Lanka), 2, 6, 7, 8, 23, general election, 24,2S,27,29,3I,32,33.42,43.ss. I947. 8; 66,6g, 76,7g,g6,g7,99. IOI, I04, 19S6, 3, S> I I, I2, 88; I07, I I3, IIS-I6, I22, I24, I26, March Ig6o, 3; I27, I28, I33· I3S· I36, I37. I39· July 1g6o, 88; 14I, I42, I43 tg6s, s. 88; Flemish, 21 I977. 13, Ig, I20 Forward, 39 Germany, Federal Republic of, 93 France,21,29,33.43.48,6s,67,68,6g, Gledhill, Alan, 102 84, gs, 120, I2I goigama (caste), I2, I3, I4 French, Golak Nath case (India), I29 administrative courts, I I4; Goonewardene, Leslie, I64 cabinets, 9S Government Agent, I 40 centrism, 94-s; Government Parliamentary Group, 30, civil service, I 44; 67 Constitution, 2, g, 43, 44, 64, 7S, 8I; Governor-General, s6 constitutionalism, 6; Gunawardene, Philip, 3, 66, t66 Council of Ministers, xiv; Declaration of Rights (I 789), I I4; heads of departments, I 38, I 40 Fifth Republic, 6, 14, 2 1, 33, 43, I 44; Hermens, Ferdinand, 93 Fourth Republic, 6, 6g, I44, ISO; High Council of the Judiciary governments, 94; (France), I34 legislative committees, 6; High Court, 39, 73, I27, I32 political parties, s--6; High Court of Justice (France), s3-4, presidentialism, xiv, sg; 134 presidents, 4S, 4 7---g, S7, s8, 59, 63, High Courts (India), 128---g 64, 78, 81, I21, I34, 139; His Holiness Keshavananda v. State of Index Index

Kerala and the Union of India 124-34 (1973), 131 judiciary (France), 134-5 House of Representatives, 3, g, 10 Kafka, Franz (The Trial), 108 Kaleel, M. C. M., 163 Ilangaratne, T. B., 164 Kalmunai, 19 Independent members, 3, 87 Kalutara, 12 India, xv Kamath, Hari Vishnu, 10 Indian, Kandy, 12 constituent assembly, 10; Kandyan Sinhalese, 12, 13, go--1 constitution, xv, 10, 102, 128-9; Kania, Chief Justice (India), 128 emergency provisions, 10; karavas, (caste), 12, 13, 28 Law Commission, 128, 129; Kegalla, 12, 121 parliamentary system, xv; Keuneman, Pieter, 164 plantation workers, 12, 15; Khan, Liaquat Ali, xiv Tamils, 11, 13, 18, 19,20,24,28,36, Kobbekaduwa, Hector, 164 37. 88, go-•, 113, 117, 145 Kodeeswaran, 98-9 Indo-Ceylon Agreements, 1964 and Kodeeswaran v. the Attorney-General, 1974. 113 98-9 Indonesia, xiii Kotelawala, Sir John, 3, 5 Insurrection (April1971), 5, 9 Kurunegala, 12 International Labour Organisation (l.L.O.), 109-10 Language of the Courts (Special Pro• Interpretation Ordinance, 114 visions) Law (1973), 115 Iran, xiii, xv Leader of the Opposition, 70, 116 Islamic Socialist Front, 19 left wing, 41, 88, 8g, 146; Italy, 68 parties, 27; programme, 88 Jayewardene, H. W., Q.C., 33 Lt Monde, xiv Jayewardene, J. R. (President), xv, 1, Lord Pearce, g8 2, 5. 7. g, 10, 13, J8, 23, 24, 25, 28, Louis XIV, 150 29,30,31,33·38,42,43.45.50,57. Low Country Sinhalese, 12, 13 59. 6o, 66, 6g, 71, 121, 122, 124, L.S.S.P. (Trotskyist Lanka Sarna 125, 135· •39. 147. 148, 150, 163, Samaja Party- Ceylon Equal su also Postscript Society Party), 4, 6, 16, 38-9, 42, Jennings, Sir lvor, 42, 85--6, 97 66, 109 Jinnah, Muhammad Ali, xiv Joint Trade Union Action Committee Macridis, Roy, 57, 58 (J.T.U.A.C.), 109 Mahaveli river, 57, 65, 149 Journal Ofjiciel (France), 50 Malaysia, xvi, 103 Judicial Committee of the Privy mandate, doctrine of the, 23-7 Council, g8 Mannar, 19 judicial services, 137 Marikar, M. H. M. Naina, 28 Judicial Services Advisory Board (First Marxists, xiii, 3, 66, 149 Republic), r33 Matale, 12 Judicial Service Commission, 132-4, Mathew, Cyril, 157 142-3 M.E.P. (People's United Front), 3, 12 Judicial Services Disciplinary Board Mexico, 61 (First Republic), 133 Middle East, 149 judiciary, xiv, 32, 34, 35, 37, g6, 112, Muslim League (All-Ceylon), 19 216 Index

Muslims (Sri Lankan), II, I3, I9, 20, Petain, Marshal, 150 2S, S9, I03 Philippines, xiii, 6I Muslim United Front, I9 Pickles, Dorothy' 49· 54. sS, I I 4 Poher, Alain, 4S Naganathan, E. M. V., I66 Pompidou, Georges, 4S, 49, 57, sS, 6g, Napoleon, Louis, ISO 76, S2, I39-40 National Assembly (France), so, 53, Ponnambalam, G. G., S7, 166 65, 7I, 77-s, SI, s2, I5o Powles, Sir Guy, I I2 National Front (Malaysia), xvi prefect (France), 6S-g national government, 5, 9 Premadasa, R., 2, 2S, S7, 163 national government of Dudley President (Executive), xiii, xiv, S, I3, Senanayake, 4 IS, I9, 20, 26, 27, 2S, 29, 3I, 32, 33, national languages, I I 9 35· g6-7, gS, 4I, 43~1, 62-S, 72, National State Assembly, xv, 7, S, 25, 74-7, So, S2, Sg-s, S6-7, 9I, 96, 27,2S,19,30,33.35.36-7.39·40, I I2, I2S, I30, I31, I32, I33, 134, 66, 76-7, 96, I24, I27, I42, I47 137, IgS, I39• I40, I43, I46, I47, Nayar, Kuldip, I29 ISO Negombo, I9, 117; presidential, district, S9 commissions, 34, 73, 74, 105~. I 10- Nehru, B. K., xv I I, I24 Nehru government, I29-30 election, xiv; Nehru, Pandit, xv government, S7; New Zealand (Ombudsman), I I2 Press Council Law, I I4 Prime Minister, go, 3 I, 39, 42, 43, 44, Official Language (Sinhala), 40, SI, 45·46-7,ss,6o,6I,62~,7o, I33· 9S-g I3S Ombudsman,xiv, II2-I3, I20, I39, 145 Principles of State Policy (First Opposition, I30 Republic), 99-IOO proportional representation, xiv, 2, I4, Pada:viya, 121 16, I9,32,35,36,g7,39,40,66,7I, Paine, Tom, I46 72,73.S2,S6-7,S7-g4,145· I47-S Pakistan, 103 Protestants, 28 Palkhivala, N. A., I 29 Proven,.al, 2 I Palmer, Norman, I30 province, Panditharatne, N. G. P., 163 Eastern, I 7, IS, 2S, 36, 6S, 116, I 17- Paris, 21; IS, 119, I20, 121-2; -controlled administration, 6S Northern, 17, g6, 68, I 16, 1 17-1S, Parliament, xiv, xvi, 35, 37, gS, 4I, 43, I 19, 120, 12I-2; 52-3, 55, 56,62,66,7o, 71, 72, 73, Sabaragamuwa, SS, I 21; 74, So, Sg, Ss-7, 9I, 96, 106, 10S, Southern, SS; I2S, , 3o, 137, 146, I47· •so; Western, SS, 12 I dissolution of, S4-5 Public Petitions Committee, 1 I2 Parliamentary Commissioner for Public Security Act or Ordinance, 32, Administration (Ombudsman), 55, I 12 see Ombudsman Public Service Commission, 34, I 35, parliamentary government, 42 136, 137-g Pathirana, Justice Jaya, I24 Puttalam, 19, 1 I7 People's United Front, set M.E.P. Perera, N. M., 6, gS-g, 166 Rahman, Sheikh Mujibur, xiv Index 217 Rajya Sabha, xv Sinhala as the Official Language, tt6- Ranasinha, Sir Arthur, 135 t8, ttg, 145 Ray, Ajit Nath (Indian Supreme Court Sinhalese, 1 1, 13; justice), 129 Buddhist ethnic militants, xiii; referendum (France), so-t, 6o, 68, 82 Buddhist movements, 82; referendum (Sri Lanka), xiv, xvi, 49- Buddhists, 12, 13, 14, 15, 17, tg, 20, 50, 51-2, 74- 5, 83- 4, 86, 96 21, 52; regional councils (France), 68-g, 75-7 linguistic movements, 82; Roman Catholic Church, 21 nationalism, xiii; Roman Catholics, 28 Roman Catholics, 12, 19, 20 Rose, Saul, g6 Sinhalese and Tamil languages in the Constitution of the Second Republic, salagamas (caste), 12, 13 113 Samarakoddy, Edmund, 159 Sinhalese-Tamil ethnic disturbances Sanmuganathan, M., 32-3 (•gs8), s Second Amendment to the Consti• Sivasithamparam, M., 40, 159 tution of the First Republic, 29-30, "socialist democracy" (S.L.F .P.), 1o 1 31, 43, 66, 71 Socialist Nation, 38----9 Second Republic of 1978, xiii, xvi, 1, 2, 6, South Korea, xiii 10, t8,22,24,26,27,28,38,42,55, Soysa, Bernard, 165 s6, sg, 62,84,85, 94, 96, 99, •oo, Special Presidential Commissions of 101,103, Ill, 120,121,124,127, Inquiry Act (February 1978), 105 133, 135, 137, 139, 142, 143, 145 Special Presidential Commission of secretaries to ministries, 138, 139, 140- Inquiry Law (March 1978), 110 1, 143-4 Special Presidential Commissions of Section 29( 2) of the 194 7-72 consti• Inquiry (Special Provisions) Act tution, 24, 97, 98----9 (November 1978), 106, 111 Select Committee of Parliament on Sri Lanka Freedom Party (S.L.F.P.), 4, Appointments (Sri Lanka), 70-1 5, t6,25,27,3I,3~35,36,37,38, Select Committee of Parliament to ex• 41, 42, 43, 70, 87, 88, 8g, 95, 115, pel members (Sri Lanka), 72-3 125, 126, 136, 137, 146, 147, 148, Select Committee on the Revision of 149 the Constitution of the First State of Emergency, 55-6 Republic, 28, 29, 31, 32, 33, 34, 36, Statement of Government Policy, 46-7 37, 38, 40, 43, go-t, 121-2, 125, State Services Advisory Board (Fin/ 126, 137 Republic), 135, 136, 142 Senanayake, Don Stephen, 3, 39, 42, strikes, 109-1 o 87, t67 Supersession of Judges (Kuldip Nayar), Senanayake, Dudley-Chelvanayakam 129 Pact (tg6s), 116 Supreme Court (Indian), 128-g, 130-1 Senanayake, Maithripala, 147, 164 Supreme Court (Sri Lanka), 35, 39, 52, Senana yakes, 13 6o, 71, 73, 78-81, 98----9, •o4 -s, Senate (France), 50, 53, 6o, 71, 81,82 I 06, I 07, I 09, II I, 115, I 17, 120, separation of powers, xiv, 23, 29 122, 124, 125, 127-8, 130-3, 145 Shah (Iran), xiii Swiss voter, 94 Sikri, Sarv Mitra (Indian Supreme Court justice), 129 Tamil, Singapore, xiii Congress, 87 Singh, Swaran, xv language, tg, 51; 218 Index

Tamil (contd.) United Kingdom, 29 language concessions, xiv; United Left Front (U.L.F.), 16, 87, language in the Constitution of the 88-q Second Republic, 113, 115-20, 145; United National Party (U.N.P.), 2, 3, language rights, 34, 115-16; 4·5· 16, 18, 23, 26, 27, 31,36, 3~ problem (U .N.P. manifesto of 1977), 39.41,42,43, 71,73,87,88-g,95. 115 115, 116, 120, 122, 126, 127, 133. Tamil Language (Special Provisions) 136, 148, 149 Act (1958), 115 United States, xiii, 78; Tamil United Liberation Front congressional committees, 71; (T.U.L.F.), 18, 19, 27, 35. 40, 68, government, w; 87, 91, 116, 119-21, 122, 148 Senate committee on appoint• Tamils, Indian and Sri Lankan, xiv ments, 71 The United .National Party in Opposition, 1970 (February 1971, J. R. Vice-President, 59, 6o Jayewardene), 5 Vichy regime, 150 Thondaman, S., 18, 28, 35, 36, 40, 163-4 Wade, H. W. R., 24 Tillekeratne, Stanley, 37, 125, 147, 164 Westminster, 59, 64, 150; Tiruchelvam, M., 167 model, 8, 9, 42, 57; Tiruchelvam, Neelan, 42 style politics, 1, 23, 57, 65; trade unions, 16 type of cabinet and parliamentary Trudeau, Pierre, 20 government, 3 Wickremasinghe, Ranil, 164 unemployment, 14-15 Wickremasinghe, S. A., 165 United Front (U .F.), 2, 4, 5, 17, 24, 34, Wijeweera, Rohana, 165 39 Wijeyeratne, Nissanka, 164