By Chinthaka Gurusinghe
Nagananda Kodituwakku, a prospective candidate for the forthcoming presidential election in Sri Lanka, has proposed a novel method to repeal and replace the existing constitution, disregarding its current provisions, for such repeal and replacement. He asks the voters to treat their votes for him not as votes for himself, but as their consent for his proposed constitution, which he presents as an ‘autochthonous constitution’. This paper attempts to examine the concept of autochthony and whether such a method, as proposed by him, has any basis in constitutional law.
Generally speaking, a constitution is the basic or the supreme law that spells out the norms and principles on which a country will be governed. It will define the structure of the government and the scope and limitation of its powers. All laws made and actions performed by the legislature, executive and judiciary are subject to this basic law.
Creation of Constitutions
1. A constitution may evolve over a long period of time based on historical factors, such as in the UK, where there is ‘no written constitution’ as such. There are, however, ‘conventions’, customs, and precedents that have evolved over a long period of time and various statutes, that form their constitution.
2. A constitution can be imposed from the top by the ruling power, such as a colonial ruler. For example, the British introduced Colebrook, Donoughmore and Soulbury Constitutions to Sri Lanka, at various stages of their rule.
3. It can be introduced by the representatives of the dominant social class, such as in the US, where the constitution was discussed and debated by delegates representing mainly rich land owners in the constituent states, but one, that formed the USA at that time.
4. It can be made by the revolutionary leaders and their experts who capture power in a country.
5. It can also be made by the people, such as in Ireland in 1937, India in 1947 and Sri Lanka in 1972, acting through their representatives.
The Nature of Autochthonous Constitutions
The word ‘Autochthony’ is derived from Greek, meaning ‘springing from the land’. It is a concept that the constitution derives its power from its own citizens and not from any outside source. It is therefore known as a ‘home grown constitution’.
Circumstances necessitating Autochthonous Constitutions
The situations that give rise to the promulgation of such constitutions are: 1 The emergence of Independent States either by gaining independence from colonial rule or breaking away from an existing State, 2 The birth of a new social order after a revolution, and 3 The necessity to change an existing legal order in the light of socio economic requirements but cannot do so due to ‘rigidity’ of the existing constitution
There are three main features of an autochthonous constitution;
1 a complete break with the previous sources of constitutional power,
2 the process for creating the new constitution has no link with the past procedures,
3 the people, more specifically, the judiciary and the officials regard the new constitution as authoritative, because of their own acceptance of it.
The legitimacy for an autochthonous constitution is derived from the consent of the citizens and its acceptance by the officials, especially the judiciary.
Some Countries that have adopted Autochthonous Constitutions
In modern times, one of the first countries to adopt such a constitution was the Republic of Ireland in 1937. Previously, it was a British dominion known as the Irish Free State. In 1937, they repudiated the Constitution introduced under the Anglo – Irish Treaty and adopted a constitution, framed by a Constituent Assembly and approved by the people at a plebiscite, making a complete break with the past.
India is another country which has adopted a new constitution through a Constituent Assembly, after gaining its independence. They did not submit the draft constitution for the assent of the Governor General and the British Parliament as stipulated in Indian Independence Act of 1947. Further, they went to the extent of repealing the Indian Independence Act itself, which the Constituent Assembly had no authority to do. In doing so, they not only renounced the source that granted them authority to frame a new constitution but also symbolically denied their independence being a bequest of the British Crown.
When in the 1960s,the experts were examining the best strategy for the introduction of a new constitution, the issues became complicated by a statement made by Lord Pearce in the Privy Council in reference to provisions on s. 29 (2) of the Soulbury Constitution that was in force at the time. This sub-section made void any law enacted by Parliament, prohibiting or restricting the free exercise of any religion or dealing with racial or religious matters. According to Lord Pearce,‘these represented the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which, inter se, they accepted the constitution, and these are therefore unalterable under the Constitution.’ Lord Pearce also declared obiter that the restrictions in s 29 (2) of the Constitution referred to “matters which shall not be the subject of legislation”.
It was, therefore, decided, to make a complete break with the past and to set up a new and distinct constitution, ignoring the existing constitution and legal order.
The joint manifesto of the SLFP, LSSP and CP, at the general election 1970 declared, inter alia, that :
‘We seek your mandate to permit the Members of Parliament you elect to function simultaneously as a Constituent Assembly to draft, adopt and operate a new Constitution. This constitution will declare Ceylon to be a free, sovereign and independent Republic pledged to realise the objectives of a socialist democracy; and it will also secure fundamental rights and freedoms to all citizens.’ ‘ The First republican Constitution that came into force thereafter, achieved this objective by recognizing and proclaiming the sovereignty of the people, breaking all ties with the Soulbury Constitution and establishing itself as a home grown ‘autochthonous’ constitution.
It will thus be seen that the authors of the First Republican Constitution had sought to achieve autochthony by setting up a constituent assembly of all the sitting MPs as a separate body meeting at a place outside the Parliament.
During its proceedings, he representatives of the Tamil speaking people became distraught, as their submissions containing their demands and aspirations were not accepted .They and almost all the other members of the Opposition walked out leaving only the government members to adopt the new constitution.
The end result was the imposition of the will of the ruling party which had an overall majority in Parliament.
Despite the non participation of the opposition, the deciding factor that gave legitimacy to the new constitution was the fact that all the MPs including those who walked away, the judges, and all the public officials took the oath of allegiance to the new constitution.
Why Now another ‘people’s Constitution’ in Sri Lanka?
The so-called autochthonous constitution was repealed and replaced by a new constitution in 1978. At the 1978 general election , the United National Party led by J R Jayewardene in its manifesto, pledged to introduce a new constitution.
They won 5/6 of the seats in Parliament under the first past the post system. The Constitution was then drafted by a team of experts under the guidance of JR, which made fundamental changes to the constitution, thus introducing an executive president elected by the people, a legislature subservient to the president, a system of proportional representation in Parliament, replacing the first pass the system, at the general elections. It also introduced provisions for amending certain articles of the Constitution by a 2/3 majority vote in Parliament and approval by the people at a referendum.
The new constitution was not however approved by the people at a referendum.
The 1978 Constitution incorporated the political ambitions of JR and not any aspirations of the people. He sought absolute power and to ensure his party to be in power for a long time. According to calculations, his party had a vote base of a minimum of 35%. Due to the first pass the post system that prevailed in 1970 his party’s representation got reduced to 17 seats in Parliament even though 37.9% votes were received by his party. The SLFP, however, which obtained 36.5% of the votes had secured 91 seats in Parliament. He would have thought that under a proportional representation system, that his party would not have suffered such a defeat. When it came to the next general election in 1982, , realising he would not be able to secure such a large number of seats as he had secured in 1978, he held a referendum to extend the life of the existing Parliament by another six years.
Thereafter, many amendments were introduced using his majority in Parliament, to suit his political ambitions, ignoring the spirt of the constitution.
Although later, other political parties led by the SLFP, formed alliances with other minor parties to defeat the UNP, no one single party has been able to secure a comfortable majority in the Parliament. As a result, cross overs from one party to another, wheeler dealings, the inability to deal with corrupt politicians have become common place. Under the present system, the same persons, like chameleons, by changing party affiliations, continue in office, in perpetuity. They have also groomed their progeny to take their place in the future.
It is apparent that under the proportional representation system, no meaningful change could be made,. The attempt by the SLFP led coalition under the leadership of Ms Chandrika Bandaranaike, to introduce a new constitution in 2000, serves as a good example. The draft constitution had many positive features, including a likely solution to the issues of Tamil speaking people.
The UNP who were in the opposition at the time, refused to cooperate and they went to the extent of creating a huge commotion in Parliament. The MPs made a spectacle of themselves by burning copies of the draft constitution inside the Parliament chamber. Thus, a great opportunity had been lost.
Then again in 2018 – 2019, the UNP led government made a serious attempt to introduce a new constitution, but it too met with the same fate, as the SLFP led opposition resorted to various strategies to sabotage it. There appears to be no solution to any of the country’s problems under the present system, such as the concerns and anxieties of the minorities, corruption and nepotism. Hence, the necessity to think ‘outside the box’
The necessity arises, therefore, to find an alternative method to restore the rule of law and prevent the abuse of power, corruption and nepotism. It appears that the only non-violent alternative would be to go directly to the people, who are deemed supreme under the present constitution.
Precedents for ignoring constitutional provisions and requirements, due to necessity. The US, Canada, Pakistan and Cyprus, provide some such examples.
During the American civil war, rebellious Confederate states set up their own governments in violation of the US constitution and passed their own laws, which had no validity from the perspective of the country’s constitution. At the end of the war. the question arose as to the validity of those laws enacted by Confederate legislatures. The Supreme Court of US, taking into account the fact that these laws had impacted on the lives of those who lived in those states, held those laws to be legally effective, except those that were directed towards prosecuting the war against the US government. In the Court’s opinion the doctrine of necessity sustained these laws.
Manitoba was a province of in Canada where there were English and French speaking populations. The provincial constitution, stipulated that all laws passed by its legislature should be enacted in both English and French languages. This requirement was , however, ignored and laws were passed only in English. After a number of years, a person who had been convicted of a traffic offence contested the validity of the particular law, under which he was convicted. In the ensuing number of suits that followed, the Supreme Court declared that all laws enacted only in English were invalid. Not even the provincial legislature could rectify the omissions by reintroducing the impugned laws, in English and French, because in the ensuing years the laws pertaining to the eligibility of voters, the composition of the legislature had been passed only in English, hence, the legislature too, was invalid. This brought the government of the entire province to a standstill.
In order to get over this impasse, the Supreme Court permitted those laws enacted only in English to have legal validity and effect until such time that the provincial legislature was able to re-enact them, in both English and French languages .
Pakistan is another example where the doctrine of necessity was adopted. When the Indian subcontinent was partitioned by the British, into two states as India and Pakistan, the Indian Independence Act of 1947, provided for each country to form its own constituent assembly and enact new constitutional laws with the assent of the Governor General. During a period of seven years, they enacted 44 such laws, but refrained from forwarding them for the Governor General’s assent, as done in India, so that they could, too, have an autochthonous constitution.
The Federal Court of Pakistan, however, declared that these laws were void as they were not in compliance with the Independence Act. Accordingly, not only were those laws invalid but all the other laws and regulations that were made under the Constitutional laws, were also invalid, throwing the country into chaos. In order to avoid such a disastrous situation, the Governor General stepped in and issued a proclamation validating the 44 Constitutional laws, although the Independence Act had no provision for the Governor General to make such a proclamation. Nevertheless, the Federal Court of Pakistan, relying on the doctrine of necessity, upheld the proclamation by a majority.
Similarly, when Cyprus gained independence from the British, the constitution that was adopted had special provisions for sharing power between its majority Greek and minority Turkish communities. The superior courts were to have judges of both ethnic groups, and laws were to be enacted in both languages. These provisions were entrenched in the constitution so that they could not be altered by any means whatever.
In 1963, when Turkish insurgents took control of certain parts of the country, the Turkish community withdrew their participation in the superior courts, Parliament and the administration. The Cypriot government then declared a state of emergency. The Parliament, sans its Turkish members, enacted a law in the Greek language only, providing for the setting up of superior courts without mixed representation, effective only for the duration of the emergency. The Court of Appeal in Cyprus upheld the emergency law, although it was contrary to the express terms of the constitution, on the grounds of necessity, to ensure the very existence of the State.
These narratives refer to particular instances where certain express constitutional terms were intentionally ignored, owing to circumstantial exigencies and not to cases where a post-independence constitution had been replaced in its entirety, on the grounds of necessity, by peaceful means The only such case where it had been done in toto was in Sri Lanka, with the first Republican constitution. The background and the justification for such a bold and challenging exercise have been described in the paragraphs above.
There are, of course, theories in jurisprudence which explain such changes in constitutions by violent and non-violent revolutions. For example, Professors Hans Kelsen and H L A Hart provide the legal basis for such changes.
Fears have been expressed that if the Nagananda model is followed, that others too might adopt the same method to change the constitution from time to time, resulting in uncertainty and instability in the country. Constitution making is a form of social engineering where the conflicting interests in the country should be taken into account and finely balanced. Failure to do so will result in the break down of the entre social order, like the collapse of a badly constructed building.
The country has suffered communal disharmony and insurgencies because the constitution makers failed to take cognisance of the interests and aspirations of the minority communities, especially the Tamil speaking people. Nagananda‘s method provides a way of freeing ourselves of the entrenched clauses of the present constitution which had no approval of the people of the country, except of those in power. If Nagananda manages to achieve the correct equilibrium, there will not be any necessity for any other to suggest another constitution.
In summary, it could be said that an autochthonous constitution is possible under exceptional circumstances. It does not require any other law to validate it, but it should be approved by the people and accepted by the judiciary and the officials.. In order to ensure its longevity, the framers should attain the correct equilibrium, taking into account the interests and aspirations of all the peoples who inhabit this land.
1. See Bribery Commissioner v Ranasinghe  2 W L R 1301, p. 1307
4. Cooray, J A L, Constitutional and Administrative Law of Sri Lanka ( 1995) p.58
5. Manitoba Language Rights Order  2 S C R 347