Dr. Sudath Gunasekara. (SLAS) and President Senior Citizens Movement Mahanuwara

20. Sept. 2010.The constitution is supposed to be the most sacred document that guaranties good governance in any country. It embodies the supreme law that directs and administers its governance. But sometimes eloquent and cunning interpretations by eminent lawyers and high powered political power make it a travesty as well. That may be why some times law is called an ass by some wise men. What I am going to discuss in this paper below I think will enhance this perception of the law. Any way constitutions have come to stay as instruments that lay down the parameters and norms within which a country has to be governed. A constitution need not be always a written document. As such there are written constitutions as well as unwritten constitutions; some are both written and unwritten. The British Constitution is an example for the later. The unwritten part of a constitution is composed of conventions.

ƒÆ’-¡ƒ”š‚ Niti Niganduwa a treatise of Sinhala law composed during the Kandyan period gives evidence of a number of ancient legal treaties that had been composed during the times of the Sinhalese Kings. It has defined law as the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-implementation of the charters of ancient Kings without breachƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ (ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Niyati ti NiitiƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚). PƒÆ’-¦ƒ”š‚rƒÆ’-¾ƒ”š‚na rƒÆ’-¾ƒ”š‚juhi panccantta dhamman na samuccindiyanti ti niti ni pƒÆ’-¾ƒ”š‚punaneƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚). It further identifies three broad division in law .They are a) Raja niiti, b) Dharmaniiti and Loka Niiti. Raja Niti is law laid down by the King. Dharma niiti is law that is prescribed by the Dhamma; in our case as they appear in the various suttas. Finally Loka niiti are the conventions that have evolved over time by popular acceptance which are mostly conventions. According to the ancient tradition the law is laid down after general acceptance by the people and it is called Mahasammata, approved and ratified by the people. In this context ultimately all laws have to be enacted for the good of the people and therefore they cannot be designed for the benefit of the Ruler. According to Buddhist teachings, like all other things, the law has to be there for the good of the many and happiness of the many. But unfortunately since 1815 during the Colonial times the law in this country has been designed for the benefit of the British Empire until Independence in 1948 and thereafter it is often designed more for the benefit of the native rulers more than the subjects. The successive events after 1987 have made things worse than ever before. As a result the legality of our Constitutions has undergone rapid erosion during these few decades.

ƒÆ’-¡ƒ”š‚ In this back ground the object of this note is to draw the readerƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s attention to some very important legal aspect of our Constitutions hitherto has not been given serious attention by our legal luminaries or the general public. I hope this point will open a new forum, for a wider and open discussion on this issue.

ƒÆ’-¡ƒ”š‚ Let us begin with the Kandyan convention of 2^nd March 1815. This was entered upon between two parties namely Robert Brownrigg, Governor and commander-in-Chief of Ceylon, on behalf of the King of Great Britain and Ireland, on the one part, and the Adigars, Dissawas, and other principle chiefs of the Kandyan provinces on behalf of theƒÆ’-¡ƒ”š‚  inhabitantsƒÆ’-¡ƒ”š‚  of the Kandyan Provinces (Sinhale) on the other part. The Sinhala Translation clearly has said that it was an agreement between the Kingdom of Britain and Sinhale, which meant the whole Island and its maritime territories including the Maldives Islands and the ocean around. This historic Convention had only 12 sections and it was issued at Kandy as a Royal Proclamation on the 2^nd of March 1815.

ƒÆ’-¡ƒ”š‚ The most important features of this Convention.

ƒÆ’-¡ƒ”š‚ 1 It was a Convention singed between two countries (parties)

2 It was drawn and entered upon between Great Britain and Sinhale

3 King Sri Wicrama Rajasingha and all his relatives and all their claims to the dominion

ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  of the Kandyan provinces (Sinhale) is abolished and extinguished. (Sec.2)

4 The deposed King and all his relatives are declared enemies of the Kingdom (Sec.3)

5 The Dominion of the Kandyan provinces is vested in the Sovereign of the British

ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  Empire to be exercised through the Governors or Lieutenant Governors and their

ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  Accredited Agents (Sec 4).

6 The religion of Buddha is declared inviolable, and its rites, ministers (monks) and

ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚  places of worship are to be maintained and protected. (Sec.5)

ƒÆ’-¡ƒ”š‚ Of the above, the item directly relevant to this discussion is no 1. Since this was an agreement between two parties any amendment to that instrument, addition or its replacement by repeal needs the explicit consent of both parties, for such amendment to be legally valid.

But Governor Brownrigg unilaterally abrogated this Convention by his Royal Proclamation No 21 of 1818. ƒÆ’-¡ƒ”š‚ It declared the supremacy the British Crown, exercised through the Governor and his Agents and to which obedience of all citizens is due.ƒÆ’-¡ƒ”š‚  The Board of Commissioners and the resident Agents of the Government were vested with the sole power over the affairs of the territory. This was issued on the wake of the so-called rebellion 1818. The last section (56) stated ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-He (Governor) also reserves full power to alter the present provisions as may appear hereafter necessary and expedient: and he requires, in his MajestyƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s name, all officers civil and military, all Adigars, Dissavas and other chiefs, and all other His MajestyƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s subjects, to be obedient, aiding, and assisting in the execution of these or other his orders, as they shall answer the contrary at their perilƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚. ƒÆ’-¡ƒ”š‚ 

The word Convention was only once mentioned in Sec 2 just to refer to its date. But nothing was mentioned about the legal validity or other wise of its provisions thereafter. This shows the arrogance and the manner in which the Kandyan Convention has been ignored and abrogated by the British government. Therefore any ex-parte action will have no legal validity. It appears that there was no protest by the locals either on this draconian Proclamation by the Governor. So the presumption is that the Kandyan Convention died a natural death on the 21^st of Nov.1818. There is no argument about the authority of the King of Britain over Ceylon and its territories even under the Kandyan Convention. ƒÆ’-¡ƒ”š‚ But the powers of the native chiefs were severely curtailed by the Proclamation of Nov 1818. It also removed provisions of Section 5 of the Convention and it was replaced with some mild reference to respect to priests and processions of Buddho religion, adding some new provision to general protection to all other religions ƒÆ’-¡ƒ”š‚ This contravenes section 5 of the Kandyan Convention. ƒÆ’-¡ƒ”š‚ In sum the Proclamation has tightened the grip of the British authority over the Island and set the process of gradual erosion of power of the local aristocrats and the Priests

ƒÆ’-¡ƒ”š‚ Thereafter until 1948 this country was governed under royal declarations and statutes that inherited the illegal Proclamation of 1818. In fact one can say that even the Soulbury Constitutions of 1948 to that extent was not legally valid. According to the provisions of the1815 Convention Independence should have been given to Sinhale as the convention was singed between Chieftains of the Sinhale and Brownwrigg on behalf of Great Britain.ƒÆ’-¡ƒ”š‚  But it was given to a hybrid State called Ceylon.

ƒÆ’-¡ƒ”š‚ There is also no mention any where in any of the subsequent legislations that the 1815 Kandyan Convention was repealed, though it was physically thrown in to the dust bin of history by the British. The 1972 Republican Constitution repealed the 1948 Soulbury Constitution but it also has not said anything about the Kandyan Convention. But it had rekindled the Sec 5 of the Kandyan Convention by inserting Sec 10 on Buddhism. The 1987 Constitution also followed suit. All these law makers appear to have acted on the presumption that what they inherited from 1818 onwards was legal. But I think the Kandyan Convention of 1815 is still valid in law as it had not been legally repealed by any subsequent legislation up to date.

ƒÆ’-¡ƒ”š‚ The Kandyan Convention was published as part of the legislative enactment of Ceylon and it is included as a chapter in the Legislative enactment Vol X1 Chapt.390 (P376-378). It also appears in Vol XX. This was done when Dr Nissanka Wijeratna was the Minister of Justice in the 1977 government. The person behind this decision was Dr. Harischandara Wijetunga the Officer In Charge of the Sinhala translation of the Legislative enactments at that time. There were two other persons involved in this historic decision. They were W. J. M. Lokubandara, the present Hon. Speaker and Hector Deheragoda who was in charge of the English Edition. This also confirms my contention that the Kandyan Convention is still a living and valid part of our law. It is said that Brown WriggƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s 1818 Nov 21 Proclamation was ratified by the British Parliament. It also now appears as a Chapter in the legislative enactments of Sri Lanka under Vol XX Chap 638 (P319-329) under the title Declaration of British Sovereignty. I wonder whether an illegal Proclamation could be declared legal by such ratification, by the British Parliament that represents only one party to the 1815 Convention. As such I opine that such ratification by the British Parliament is null and void. Therefore I think the 1815 Convention still holds good in law. In this back drop both the Proclamation of November 21. 1818 and all laws enacted after the prescribed date of that Proclamation and all actions taken there under should stand illegal and questionable.

ƒÆ’-¡ƒ”š‚ One may get temped to think that this is only wild imagination of one man. But I think there is a strong and valid point in what I see. Therefore I invite those interested, constitutional experts, lawyers and all others interested to initiate an open debate, a serious one too, on this all important issue at a time of our history when radical changes are taking place in the political scenario in this country, since Independence