Autochthony

The English term ‘Autochthony ’ finds its origin in Greek term ‘Auto ’ meaning one’s own and ‘Chthon ’ meaning soil or earth1. Therefore autochthonous means,’ coming from own soil’.

Constitutional Autochthony is the home grown nature of the

constitution, or in common terms constitutional nationalism. Autochthony is closely embroiled with three concepts autonomy, self-sufficiency and legal break2. In order to a constitution to be autochthonous the people or the state which establishes the constitution has to be free without the influence of any super power i.e. autonomous. The concepts fundamental to the constitution should fulfil the will of the state and therefore be self-sufficient.

Finally the processes by which such autochthonous

constitutions been established may have instigated a break in the legal continuity. The requirement of autonomy of the nation to acquire an autochthonous constitution is a straightforward requirement since government’s obedience to a super power is directly in conflict with the sovereignty of people. In such states the the free will of the people and the purposes of the government are two competing entities rather than one complementing the other. Government is defined as ‘the device by which the state is supposed to deploy the purposes of the state’ and the purpose of the state is defined as ‘the enrichment of the quality of life of its citizens’. The capacity of a subordinated government in operating to the satisfaction of the society, ignoring its masters will, is impossible.

Therefore self-sufficient constitution, constitution, constitutionalism

and subordinated government are three concepts which can never coexist. Any state operating in accordance with the constitution cannot achieve self-sufficiency without autonomy making autonomy a requirement of self-sufficiency. Thus a nation has to be autonomous to have a self-sufficient constitution and the constitution has

1

K. C. Wheare,’Constitutional Structure of the of  the Commonwealth’, (1960), Clerendon Press, p.89. Peter W Hogg, Constitutional Law  Constitutional  Law of  of Canada Canada,, (1992), (1992), 3rd ed p.54; Quoted Lord Lloyd, The Idea of Law  of  Law (1987) (1987) p.173 2

to be self sufficient to be autochthonous. These concepts are interwoven one within the other. But legal severance is not an essential factor for a constitution to be autochthonous. A constitution can evolve in an autonomous state with self sufficiency but without a legal break. Britain is an autonomous nation having their constitution self-sufficient. But there have never been a break in the legal continuity in the evolution of this constitution3. Though such rare example exists, being the only one of such kind, in most cases constitutional sovereignty was achieved by revolutions either peaceful or aggressive. Subjects of a colony after the receipt of freedom from the super power, in most cases, has demonstrated a temperament of instigating a legal revolution in establishing own constitution. This comes mostly as a revolution against suppression. It is more of a politico-psychological resentment than an actual legal requirement.

Professor Wheare noted in this context ‘the most commonwealth

members wish to claim their constitution has the force of law through their own people and not because it is enacted in the British parliament, though such requirement is not mandatory’4. The measure of constitutional autochthony therefore has to be related to its recognition of the sovereignty of people and the social, political and philosophical requirement of the society than the method by which it is established. The constitutional history of Sri Lanka demonstrates one of the best examples in the world of a peaceful legal break in setting up a new constitution. The Peoples Front government elected in 1970 with a mandate to establish a new constitution5, in 1972

3

Unger R, ‘In Law and Modern Society’, 1976, New York, Free Press; Quoted Slapper and Kelly, ‘The English Legal Sysem’, (2003), ed.6, p.20. 4 K. C. Wheare,’Constitutional Structure of the Commonwealth’, (1960), Clerendon Press, p.89; Quoted Cooray L. J. M.,’constitutional Government in Sri Lanka 1796‐1978’,(2009), Stamford Lake, p.238 5 Cooray L. J. M.,Constitutional Government in Sri Lanka 1796‐1978, (2009), Stamford Lake, p.231

launched a new constitution called 1972 Constitution of the Democratic Socialist Republic of Sri Lanka with a break in the legal continuity of the country. This break in giving a nationalistic gloss to the constitution was very skilfully articulated by the architects of the constitution. The members of the House of Representatives did not use their office, official status or at least their normal place of assembly, the Parliament building to launch the new constitution.

Constituent Assembly as

convoked and created by a Resolution of the members of the House of Representatives

passed

on

19th

July,1970.

This

council

assembled

in

Nawarangahala proclaimed the new constitution. This constitutional council itself is an unofficial gathering as far as its legal context is concerned which in fact was accepted by the Supreme Court in the judgment of Suntheralingam v. AG .6 The legality of such declared constitution cannot be sourced from the existing legal framework since the entire course of action is extra-legal. Therefore the question whether the new constitution is legal has no meaning since such test is carried out in reference to the old constitution. The only means by which the legality of such a constitution can be established is by the acceptance of its stake holders namely, People, the Administration and the Court of Law. The people, the most important power factor rejected the 1946 constitution at the 1970 election and were in acquiescence with the concept of developing a fresh constitution. The administration was also in the same stance. The court of law was also given an opportunity to demonstrate their acquiescence to the process through

Sunthorlingam v. AG.7  where H. N. G. Fernando C. J. dismissing Suntharalingam’s application for injunction to prevent and prohibit the Minister for Constitutional Affairs from taking any steps to repeal the Ceylon (Constitution and Independence Orders in 6

Suntheralingam v. Attorney General (1972), 75 N.L.R. 126 and Suntheralingam v. Attorney General (1972), 75 N.L.R. 318 7 Suntheralingam v. Attorney General (1972), 75 N.L.R. 126 at 127

Council, 1946 and 1947) and to substitute therefore a Constitution entitled a 'Constitution of Sri Lanka' stated; "If and when such a new Constitution is established or is purported to be established, one of two possible situations will in my opinion exist: (1) That the new Constitution is a legal and valid instrument which will in law supersede the Constitution and Independence Orders in Council which are presently law; in which event a challenge of the validity of the new Constitution will be fruitless. (2) Alternatively, if the true position be, that the new Constitution established by the Constituent Assembly does lack legal force and validity, and if a competent Court will have jurisdiction so to pronounce, the occasion for the making of such a pronouncement can arise only after the Constitution is established” This is a clear demonstration of the Sri Lankan court of law using its discretion in support of the constitutional transformation when compared with the Privy Council decision with respect to the Irish free State constitution Act in 1922. There is no reason to believe that the attitude towards the Sri Lankan constitutional transformation would be different to one demonstrated in 1922 with respect to Irish Free State constitution Act if ever Suntheralingam’s case was referred to Privy Council in 1972. In fact the law reform act in 1970 addressed this exact issue in removing Privy Council from the hierarchy of Sri Lankan Court system setting up the stage for the envisaged legal revolution. The architects of the constitutional revolution were skilful to eliminate the marginal risk of Privy Council intervention to the constitutional revolution process.

The same acquiescence demonstrated by the force factors, people, administration and the judiciary continued after the revolution ensuring the legality of the constitution. As stated by Sir Ivor Jennings ‘all revolutions are legal when they have succeeded and it is the success denoted by acquiescence which make their constitution law’8.

Having all three power factors, people, administration and the

  judiciary demonstrating their acquiescence both in attempt and post establishment stages, the Constitution of the Democratic Socialist Republic of Sri Lanka attained its full power as the of supreme law of the state.

The 1978 constitution is a legal

continuity of the 1972 constitution and therefore it and its subsequent amendments, 18 in number up to date, also derive their legality through the acceptance demonstrated in 1972. Undoubtedly this is the most perfect course of establishing a peaceful legal break available in the history of world politics. The Sri Lankan case, when compared with the Irish case of their unsuccessful attempt in 1922 and the subsequent successful attempt in 1937 as well as the Pakistani and Indian cases of quasi legal breaks, is far superior in legal foresight and wisdom. But a critical question remains whether such skilfully articulated constitutional revolution gave birth to a more people friendly and self-sufficient constitution than the one it replaced. The major changes it introduced were the omission of the second chamber to convert the previous bicameral legislature to unicameral legislature, the omission of the independent Public Service Commission and the Public servants and  judges were brought under the control of the Cabinet of Ministers in respect of their appointment, transfer, disciplinary control and dismissal, omission of the Judicial Service Commission, which was intended to guarantee the independence and

8

W. I. Jennigs, Law and the Constitution, (1959), p.85; Quoted Cooray L. J. M., Constitutional Government in Sri  Lanka 1796‐1978, (2009), Stamford Lake, p.239

integrity of the judiciary resulting in no court could call in question any decision of the Cabinet, and the omission of the nominated members in the legislature, who were intended to represent unrepresented interests and the expressive prohibition of the   judicial review of legislation9. None of these introductions changes in actual terms can be categorised as people friendly. None of these changes were towards the extension of the sovereignty of people. Instead these changes were ‘completely in accord with the United Front government’10 The second Republican Constitution in 1978, in effect, re-enacted the 1972 Constitution together with two important changes. The two significant changes which made in 1978 were the introduction of Proportional Representation and the introduction of the office of the President combining the Head of State and Head of Government elected by the people to hold office for six years.

Both of these

changes empowered the executive and depowered the legislature and judiciary which again is in question with respect to the sovereignty of people. One may argue that the executive president is appointed by people and therefore the sovereignty of people is ensured. But the concentration of power to a person previously available with the National State Assembly is certainly not a people friendly concept. Therefore, we the citizens of Sri Lanka, having obtained the political break from Britain in 1948 becoming an autonomous nation and having obtained a legal beak through a wisely articulated legal revolution in 1972 are yet deprived of an autochthonous constitution due to the incompleteness of our constitutions in terms of self sufficiency.

9

Nihal Jayawickrama, The Philosophy  and  Legitimacy  of  Sri  Lanka's Republican Constitution, FederalIdea, March 2008 10 Colvin r. De Silva addressing a seminar on the International Covenant on Civil and Political Rights