THE GAULLIST SYSTEM IN ASIA THE CONSTITUTION OF (1978) By the same author

POLITICS IN SRI LANKA, 1947-1979 ELECTORAL POLITICS IN AN EMERGENT STATE: The Ceylon General Election of May 1970 The Gaullist System in Asia The Constitution of Sri Lanka ( 1 978)

A. Jeyaratnam Wilson, PH.D., n.sc. (Econ.), London Professor and Chairman, Department of Political Science Universiry of New Brunswick formerly Professor of Political Science and Head, Department of Economics and Political Science Universiry of Sri Lanka, Peradeniya © A. Jeyaratnam Wilson 1980 Softcover reprint of the hardcover 1st edition 1980 1980978-0-333-27276-3

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British Library Cataloguing in Publication Data

Wilson, Alfred Jeyaratnam The Gaullist system in Asia 1. Sri Lanka-Constitutional law I. Title 342' ·5493' 02 [Law] ISBN 978-1-349-04922-6 ISBN 978-1-349-04920-2 (eBook) DOI 10.1007/978-1-349-04920-2 For my elder brother Samuel Jeyasoorian Wilson, to whom I owe a debt which I can never repay Contents

Acknowledgements 1x Introduction xm

1 Origins of the Gaullist System 2 The Politics of the Socio-Economic Setting I I 3 The Making of the Constitution 23 4 The Executive Presidency 43 5 The Prime Minister, Ministers, Parliament and Proportional Representation 62 6 Fundamental Liberties and the Language Question 97 7 The Judiciary; The Public Services I 24 8 Conclusion I 45 9 Postscript: Presidentialism Reassessed I 52

Bibliographical Notes I s8

Appendix I The Leading Actors I 63 Appendix II "The Second Republic- The Constitution of September I978" -A.Jeyaratnam Wilson I68 Appendix III The Constitution of the Democratic Socialist Republic of Sri Lanka (relevant excerpts) I 73

Notes 205

Index 2I2

VII Acknowledgements

This work was conceived in , Sri Lanka, when in July of 1978 I was invited by His Excellency J. R. Jayewardene, first Elected Executive President of the Second Sri Lankan Republic, to make my comments and observations as a political scientist on the draft constitution for the proposed Second Republic. Thereafter His Excellency supplied me with information and documents, as well as giving me the benefit of his views, all of which was immensely useful to me in the preparation of this monograph. In my experience I have not come across any Head of State or Prime Minister in Sri Lanka who has been more gracious and helpful. I am also appreciative of the efforts of His Excellency's private secretary Nihal Wiratunga, who provided me with valuable material from time to time. Various ministers of the government were of great assistance; in particular, I would like to make special mention ofRonnie de Mel with whom conversation was witty and intelligent, and to the point. Lalith Athulathmudali spent long hours with me providing relevant interpretations of the Constitution. 's. com. ments were pertinent. Sri Lanka's High Commissioner to Ottawa, my friend Ernest Corea, helped to arrange interviews for me and gave me his readings of the developing political situation. My friends in the Tamil United Liberation Front were the embodiment ofcourtesy and politeness. Appapillai Amirthalingam, Leader of the Opposition, the Subhas Chandra Bose of the Ceylon Tamils, who succeeded my father-in-law, the late S. J. V. Chelvanayakam, as the leader of nationalist-minded Sri Lankan Tamils, took great pains to present me with his viewpoint. His private secretary, R. Perinbanayagam, gave me many documents. V. Dharmalingam, the aristocratic liberal thinker of the Liberation Front, put me in touch with important sources. The wise and urbane President of the Liberation Front, M. Sivasithamparam, provided me with a penetrating analysis of the changing situation, while the sharp and incisive mind of R. Sampanthan, the member of

ix X Acknowledgements Parliament for Trincomalee, articulated very clearly the goals of the Liberation Front to me. My brothers-in-law, C. Vaseekaran,J. C. Ravindran and S. C. Chandrahasan, sons of the late S. J. V. Chelvanayakam, gave me their views, the result of long years of tutelage under their great father. There are many others to whom I am much indebted. My friends were extremely helpful; namely, the historian, K. M. de Silva; the economist, H. A. de S. Gunasekera; Ian Goonetileke, the erudite chieflibrarian of the University ofPeradeniya; the Right Reverend Lakshman Wickremasinghe; and Tissa Wijeyeratne, the former diplomat, a brother of the Minister of Education and Higher Education, who has his ears close to the ground. My conversa• tions with C. R. de Silva, W. A. Wiswa Warnapala, Ranjith Amerasinghe and Laksiri Fernando, from the Departments of History and of Political Science at the University of Peradeniya, helped me to set my views in perspective. They are friends and all of them former students. My friends Stanley Kalpage, Secretary, Ministry of Higher Education and his wife Chitrangani, W. T.Jayasinghe, Secretary, Ministry of External Affairs, and my former student, Sarath Amunugama, Secretary, Ministry of Information gave me the benefit of their experiences and supplied me with documents. So did other equally good friends- S. P. Amarasingam, the redoubtable editor of Sri Lanka's most informed and independent weekly Tribune; T. W. Rajaratnam, a fearless and upright former judge of the Supreme Court of Sri Lanka; and my friends from university days, K. H.Jayasinghe, a political scientist whose wealth of critical information was of considerable assistance; and Stanley Tillekeratne, the distinguished ex-Speaker of the National State Assembly and now one of the front line leaders of the Sri Lanka Freedom Party. One ofSri Lanka's most independent and top flight journalists, my sincere friend, M. A. de Silva, proved a constant source of encouragement and information. Two former students, Malkanthi Nanayakkara, the librarian of Marga Institute, Colombo, and S. Vamadevan, an economist, were generous in giving or mailing to me materials I needed. My family were unfailing in their patience, forbearance and friendship. My wife, Susili, my only constant friend and companion through the years, who is versed in my discipline, read my drafts, gave me hints and rendered invaluable advice. My daughters, Mallihai and Maithili, provided me with the inspiration that only Acknowledgements XI young university students looking into a bright and immediate future can give. To my little son, Kumanan, I owe many apologies. He asked me a multitude of questions when I was busy with my script and invariably received the same replies. In my work there are two persons to whom I am deeply grateful. Dr Peter G. Kepros, Dean of the Faculty of Arts, the kindliest of deans, gave me all the encouragement in the world. Mr Tim Farmiloe of Macmillan never failed me in his patience; his generosity and kindness helped me to accomplish a difficult task. Mrs Anne Pugh produced an accurate and perfect typescript of the final draft. The Social Sciences and Humanities Research Council of Canada gave me the much needed financial assistance to enable me to conduct interviews, obtain information and docu• ments in Sri Lanka, as well as to write a Postscript to this book. Above all Ms Susan Metham helped to bring out this work in good time and I am indeed grateful to her for all her efforts. Maurice and Susan Collins, Arun Datta, Vicki Gray, Andy Wood and his wife Margaret Henderson Davis gave of their warm friendship to me, l'etranger in Fredericton, New Brunswick.

AJ.W. Fredericton July 1979 Introduction

Political structures mean nothing unless they are goal-oriented and seek to accomplish certain defined objectives. To that extent the I948-I972 constitution let governments drift in mid-ocean, un• anchored, rudderless and with no seemingly charted destination. The constitution of the First Republic in its brief existence of a little more than five years (I 972-I 977) provided evidence of a search for a kind of socialism which was neither here nor there, the result of weak compromises borne out of the conflicts and rivalries of social democrats, Sinhalese Buddhist ethnic militants and Marxists. It foundered in its own morass of incompetence, corruption and intrigue. The Second Republic of I978 is more definitive and provides evidence of a conviction ofwhat needs to be done. It is a hybrid, a cross between the French and British styles of government with a little bit of the United States thrown in. More importantly it is a strained effort in the direction of developmental depoliticised government, the prime purpose being to promote economic growth and national unity. There is a deliberate attempt to avoid copying either the "repressive developmentalist regimes" 1 characteristic of the Shah's Iran, South Korea, Indonesia, the Philippines and Singapore or the centralised and excessively depoliticised struc• tures2 in the countries of the neighbouring subcontinent. Thus the principal delineating feature in Sri Lanka's case is the hankering after democratic constitutional government. Behind the facade however is the harbinger of political authoritarianism and firm streamlined bureaucratic performance. Only time can tell whether the delicately poised system can weather the storms ofstreet battles, trade union struggles, student unrest, ethnic rebellion from the Ceylon Tamil minority which nurses a strong sense ofgrievance and retaliation from the forces of majoritarian ethnocentric Sinhalese nationalism. The Second Republic is vice-regal in character. Members of the Cabinet are the Executive President's lieutenants, not his col• leagues. It is an attempt at experimentation with pseudo-

xiii XIV Introduction representative devices- proportional representation, the parapher• nalia of referenda, a plebiscitary presidential election, the mainten• ance of Parliament, though as the house without windows. The showcase of democracy is there for all the world to see - fundamental rights, language concessions to the principal minority, the Tamils (Sri Lankan and Indian) an independent judiciary, the Ombudsman, a functional separation of powers and fairly per• manent roadblocks to stop any movement towards dictatorship. At the same time there is the expressed premise of a desire for national consensus at all levels. Government must be a partnership of race, caste, religion, region and class. There is an emphasis on a vague ideology depicting a "New Course", a "just and righteous society", participation, the basic needs of society, the will of the people.3 There are fewer political arrests, hardly any persons held in detention for indefinite periods and bans on torture and degrading forms of punishment. But as an effective substitute to all these there can come into being the more complex computer state. The whole framework hangs on the skill and ability of one person- the elected Executive President. That person, if he wants to, can press the nuclear button which will launch the totalitarian holocaust. He can only be kept on the straight and narrow path by the socio-political forces that are permitted to operate in the oases of freedom. The example of Sri Lanka is bound to be infectious. Already the military rulers of Bangladesh have indicated interest in our constitutional experiment. Even previously under Sheikh Mujibur Rahman the office of prime minister became so important as to approximate to that of an American President.4 And prior to all this there was the legacy of the Quaid-i-Azam (the greatest leader), Muhammad Alijinnah. In his lifetime, "he was not to be treated as a colleague or even primus inter pares, for he demanded lieutenants who would serve him rather than partners who would argue with him" .5 And his successor, Liaquat Ali Khan appeared to follow the same path when an assassin put an end to his career in October 1951. Compare the statement onjinnah with Le Monde's (24june rg6g) report on what a new minister had to say about General de Gaulle's behaviour, even in his last year, at meetings of the French Council of Ministers- "the rule was that nobody spoke unless asked to and nobody expressed an opinion opposed to that of the President"-and the trends and similarities are there to observe. French presidentialism in a South Asian setting can however go further in the direction of authoritarian government. Introduction XV Nor is India exempt from the winds of change. Mrs Gandhi was in fact moving towards a Gaullist presidential structure. In 1975 she appointed a committee under the chairmanship of one of her cabinet ministers, Swaran Singh, to examine the difficulties and inadequacies of the Indian constitution.6 It was said that the committee recommended that India's parliamentary system be replaced with a more centralised presidential system and an observer noted that in a debate in that year in India's second chamber, the Rajya Sabha, Mrs Gandhi "seemed to be familiar with some of the literature on the presidential system." 7 There is yet another Indian apologist for strong presidential government in the person of Pandit Nehru's cousin, B. K. Nehru, a former Indian I.C.S. now turned diplomat. More than a year and a half after Sri Lanka had adopted a similar model, he advocated a like structure without a single reference to the island's example. Writing in April 1979 on "Western Democracy and the Third World", B. K. Nehru emphasised that&

the requirement of stability as well as the requirement that the executive should be capable of enforcing unpopular laws, rules out the parliamentary system altogether. In the presidential system no amount of backstage manoeuvring by party politicians can affect the president himself. He is therefore in a much stronger position to do what he thinks is right than is a prime minister.

The author was clearly unaware of President J. R. Jayewardene's remarks on a similar model. In introducing this model in Sri Lanka's National State Assembly in September 1977 Jayewardene insisted that9

in a developing country the executive should be stable and not dependent on the whims and fancies of the House .... Under the reformed constitution the President, we are suggesting, should be in office for a period of six years but not simultaneously with the House because his election may be independent of elections to the House. He will not change with any change in the composition of the House; he will continue for that period of six years ....

It is not only in the subcontinent that presidential style government will probably come to stay. Malaysia on the east and post-Shah Iran XVI Introduction on the west will in all likelihood come to adopt variations of this model though the trend in these two states may be towards a greater authoritarianism.10 Malaysia has already achieved a kind ofsurface national consensus via the inter-communal National Front Coalition .11 Sri Lanka's hybrid constitutional child is perhaps, as it will be in the other countries which might adapt it to their own circum• stances, the last obstacle to praetorianism and dictatorship. It is the last telling piece of evidence that the export version of Westminster has failed to take root in alien environments. Whilst failures in other parts of the world have brought in their wake various types of totalitarian rule, some of the former British colonies in South and Southeast Asia have still not abandoned their adherence to qualified forms of constitutional government. The presidential system stands midway between classical democracy and con• temporary authoritarianism. It could be the style for pluralistic developing societies. But there is the ever present prospect that it could degenerate into the Asian counterpart of Castroism or Bonapartism. The greatest problem is to maintain a just equilib• rium. That would be the test of success or collapse. The criteria for determining whether a constitutional structure adheres to the Gaullist model are in the first place the will to develop a united and strong nation state which is under the direction and supervision of a powerful and independent executive. Secondly the continuance of Parliament but in an attenuated form and in a subordinate capacity, its principal functions being to articulate particular interests and adjudicate when there are conflicts between competing interest groups. Finally there must be an emphasis on citizen participation so that the chief executive will be able to conduct a dialogue with the electors and consult them through the instrument of the referendum on important policy matters. It has also been said that "Gaullism means economic freedom- a third way between wholehearted capitalism and wholehearted collectiv• ism" .12 The Second Sri Lankan Republic conforms to these standards and could therefore be fairly accurately described as a Gaullist system. The purpose of this study is sevenfold. Firstly the Constitution, which is solely the product of legal minds, is examined from the angle of political science. In terms of this approach, we, secondly, endeavour to point out the difficulties and dangers inherent in the system, matters which escaped the attention of the government's Introduction XVII constitutional lawyers. Thirdly suggestions are made to overcome the obstacles that could otherwise create deadlock and result in the Constitution being ended rather than mended. We therefore, fourthly, place the Constitution in its political context with a view to determining present attitudes and predicting future possibilities. In the light of our investigations we fifthly seek to bring out what appears to be the unexpressed premises that shape the operation of the Constitution. Sixthly an attempt is made to ascertain the goals and objectives of the new dispensation. Finally at various points comparisons are made with the model that inspired the framers, the Gaullist Fifth French Republic. These should enable the political and administrative elites to decide which precedents must influence their conduct and behaviour patterns.