The Forms and Practices of Interconstitutionalism in Sri Lanka

Shanil Wijesinha

University of Colombo

In their pioneering work, Interconstitutionalism, Jason Mazzone and Cem Tecimer provide an illuminating account of an interpretive practice involving “the use of a polity’s antecedent constitution(s) to generate meaning for that same polity’s current constitution” (p. 330). This piece is of great value as it articulates language to identify and describe interconstitutionalism by naming and cataloging its salient elements. 

The United States provides a fertile ground for exploring interconstitutionalism, given the nation’s multiple sites of constitutional interpretation and well-developed debates about constitutional interpretation. In this context, the taxonomy of interconstitutionalist practices that the authors present – constitutional continuity, stare maiorum decisis, and non-repudiation of previous exercises of governmental power – demands scholarly attention.

As the authors fittingly point out, a global account of interconstitutionalism requires attention to context. Evaluating (forms of) interconstitutionalism in Sri Lanka, a country with a history of multiple Constitutions, demonstrates the significance of this observation. 

Interconstitutionalist Practices in Sri Lanka

Several Constitutions, including the Donoughmore Constitution of 1931 and the Soulbury Constitution of 1946, governed Sri Lanka during periods of colonial rule. The 1972 Constitution (the First Republican Constitution) was the nation’s first autochthonous Constitution. Both the 1946 and 1972 Constitutions provided for a Westminster form of government. The 1978 Constitution (the Second Republican Constitution), which remains in force today, broke from the past and introduced a semi-presidential system of government. Its preamble declares that it is the “supreme law” of Sri Lanka. 

Some Sri Lankan cases sit comfortably within the interconstitutionalism framework. I focus here on several interesting cases that enhance our understanding of interconstitutionalist practices. 

Sri Lankan courts are sometimes required to examine events that occurred during a period in which an earlier Constitution was in force. When they do this, they apply not the current 1978 Constitution, but instead the earlier Constitution. In cases such as Migultenne v the Attorney General [1996] 1 Sri LR 408 and Gunaratne v Peoples’ Bank [1986] 1 Sri LR 338, courts have interpreted an antecedent Constitution in light of the Constitution in force. 

Courts have also read the 1972 and 1978 Constitutions by reference to earlier charters. In Kularatne v Chandrananda de Silva [1985] 2 Sri LR 164, the Supreme Court referred to textual contrasts between the 1972 Constitution and the 1946 Constitution, and also between the 1972 Constitution and the 1946 Ceylon (Elections) Order in Council, an ordinary law but one of constitutional significance. In Chandrasiri v the Attorney-General [1989] 1 Sri LR 115, the Supreme Court interpreted the 1972 Constitution in light of similarities with the 1931 and 1946 Constitutions. 

In addition to considering textual similarities and differences, Sri Lankan courts invoke differences in the historical and socio-political context as a basis for generating constitutional meaning. For example, in Dilan Perera v Rajitha Senaratne [2000] 2 Sri LR 79, the Court of Appeal filled a void in the 1978 Constitution by recourse to the 1946 Constitution. In its decision, the Court generated meaning in multiple ways, analyzing textual differences between Constitutions, the intention of the framers, traditions of constitutional practice, principles of good governance, and the socio-economic context.  

The Importance of Context

Interconstitutionalism in Sri Lanka thus extends well beyond attention to text. Contextual features, including constitutional structure, history, and politics are intrinsically bound to and inform textual meaning. The 1972 Constitution is a compelling example of the need for this. Sanjayan Rajasingham rightly argues that the experience of colonial domination and the coalescence of the Sinhala-Buddhist nationalist ideology prior to independence are intrinsically linked to the textual provisions of the 1972 Constitution. Evidence for this includes provisions that make Sinhala the sole official language (excluding Tamil), assign Buddhism a “foremost place,” and deem Sri Lanka a unitary state. These contextual elements must foreground any meaningful discussion of the 1972 Constitution. 

The drafting process for the 1972 Constitution reinforces the significance of context.  K.M. de Silva documents how the Federal Party, the main party representing Tamil interests at the time, boycotted the Constituent Assembly because of concerns about language rights and the failure to provide adequate minority protections. Indeed, Tamil leaders passed a resolution stating that the 1972 Constitution “has completely failed to meet the legitimate aspirations of the Tamil speaking people.”

Certain interconstitutionalist practices in Sri Lanka without full attention to context have prolonged these failings. For example, interconstitutionalist readings of the 1978 and 1972 constitutions have concluded that the Sinhala text prevails in the event of any inconsistency with either the Tamil or English versions of laws enacted after 1972. (See, for example,  Mohinudeen v Lanka Bankuwa [2001] 1 Sri LR 290.) That conclusion, focused on textual provisions without sufficient attention to the history of the drafting process and other contextual factors, has ended up perpetuating historical wrongs. 

Interconstitutionalism in the Post-Colonial Context

A related observation is how history itself may modify the meaning of text and sometimes even override textual commands. For example, as Deepika Udagama demonstrates, the 1972 constitutional framework was never intended to mimic parliamentary supremacy in the British sense. Nonetheless, courts adhered to British notions of the supremacy of parliament, vestiges of which have lingered also in judicial interpretations of the 1978 Constitution (see, for example, The Attorney General v Dr Shirani Bandaranayake SC Appeal No. 67/2013). The persistence of such ideas cannot be separated from Sri Lanka’s colonial history. More generally, in the post-colonial context, the line between cross-constitutional interpretation and interconstitutionalism can be porous.

The Requirement of Textual Change

This brings us to the final issue. Mazzone and Tecimer suggest that the practice of interconstitutionalism requires textual change to signal to courts that a break from the past is intended. That requirement assumes that constitutional drafters have the agency to impose textual changes. This may not always be true. In 2016, a Constitutional Assembly was created to draft a new constitution for Sri Lanka. By this time, as Rajasingham shows, a unitary state had become indispensable to the Sinhala polity and a federal state had become indispensable to the Tamil polity. To work around the point of conflict, some reformists used neither the terms “unitary” or “federal”; instead, they proposed a phrase that consisted of Sinhala and Tamil words, describing Sri Lanka as an “aekiya rajya/orumiththa nadu” (which the text defined as ‘a state that is undivided and indivisible’). However, this formulation was emphatically rejected by the Constitutional Assembly and was viewed with great suspicion in public discourse. The incident demonstrates that textual continuity might well result from a lack of agency to create textual change rather than any desire to preserve the status quo. Interconstitutionalist practices that rely exclusively on textual signals risk missing an important part of the story. Moreover, requiring textual signals assumes that courts are actually constrained unless there is a signal from the framers that is in the form of a textual change. That too, might well depend upon constitutional arrangements within a state.

Mazzone and Tecimer are right to conclude that interconstitutionalism cannot be ignored. The authors have done the heavy lifting to create a conceptual framework and language to talk about and critique interconstitutionalist practices. In light of the Sri Lankan experience, I do not entirely share the authors’ convictions that interconstitutionalism preserves stability and enhances democracy. Nonetheless, these benefits might exist in other contexts. 

Shanil Wijesinha is a lecturer at the Faculty of Law, University of Colombo. 

Suggested Citation: Shanil Wijesinha, ‘The Forms and Practices of Interconstitutionalism in Sri Lanka’ IACL-AIDC Blog (18 May 2023) https://blog-iacl-aidc.org/wmps-interconstitutionalism/2023/5/18/the-forms-and-practices-of-interconstitutionalism-in-sri-lanka.