Constitutionalism, Governance, and the People

by Prof. Savitri Goonesekere

Coming to the University of Peradeniya is always a special experience. It brings back memories of carefree student days in a perfect environment for friendship and learning. Who can forget the glorious “yellow showers,” the winding Galaha Road, the lawn mowers on fresh grass, “sunset and evening star” and the flute music? The memory is also tinged with sadness, for the troubled times experienced on this beautiful campus, the changes in that familiar environment that have taken place, over threescore years and ten. The changes themselves reflect my own experience, and that of all of us as citizens, on the governance of this country and our universities. I thank the Law Department for inviting me, an alumnus of the first Department of Law in our public university system, to deliver the inaugural Sir Ivor Jennings memorial lecture. Sir Ivor Jennings, the founding Vice Chancellor of the first national University of Ceylon and its twin successor the University of Peradeniya can also be described as one of the founders of Constitutionalism and governance in both the country and the national university system of Sri Lanka.

The inauguration of a lecture series in Sir Ivor Jennings’ memory by the Law Department can also be an occasion to reflect on his life and times in this country, and the changes we have witnessed in these areas. The topic I have chosen for this evening’s lecture is a tribute to a scholar and administrator of a colonial era, whose ideas are an important resource, as we respond to contemporary realities of governance in our country and the university system.

Let me clarify at the outset especially to students, that I am not one of the oldest living students of Sir Ivor Jennings. I was not a student of Sir Ivor, when he lectured in the Law Department, and was Vice Chancellor of the University of Ceylon in Peradeniya. Indeed, I discovered I was a prize winner in my secondary school, Ladies’ College, when Sir Ivor gave the keynote speech at our annual prize giving. I am sure that I was much less impressed with him, than I was with senior student Kumari Jayawardene, speaking passionately on a school platform on worker’s rights. I read through his classic works “The Law and the Constitution,” and “Cabinet Government,” and Jennings and Tambiah on “The Legal System of Ceylon,” very much in the spirit of plodding through “recommended readings.” Constitutional law paled in comparison with other law courses that inspired my interest. However, there were anecdotes that we heard about Sir Ivor. We heard that he was a “student friendly” former Vice Chancellor, quite the contrast of fearsome Sir Nicholas Attygalle. I recall my first examiners’ meeting in his room (the Vice Chancellor chaired the Board Meeting for the award of degrees.) Sir Nicholas looked at me with a steely eye and said “who may I ask are you?” Quite a contrast to Sir Ivor, who sent out a staff circular, which said, “My address is now 18, Aloe Avenue, Colpetty. A drink is always available for members of the staff who feel thirsty or otherwise sociable.”

Besides, we were the beneficiaries, the “nidahas adhyapanaya labee,” the early students to enjoy the beautiful learning environment that we knew Sir Ivor had struggled to create for us all, despite his implacable objections to the Kannangara policies of free education.¹ We enjoyed a peaceful conflict-free learning environment that had been created according to Sir Ivor Jennings’ vision of what university life should be.

When we were undergraduate, some of us women students who refused to boycott classes were met with hoots and whistles when we went for lectures. Yet our “black leg” voices were heard at a huge meeting held under the glorious tree in front of the Senate building, and the strike was over. This meeting was presided by senior politician Dr Sarath Amunugama. Barely a decade later when I was on the staff of the Law Department which had by then moved to Colombo, a student in one of the halls of residence in Peradeniya leapt from an upper floor during ragging, and was crippled for life. My students in Colombo told me they would be assaulted if they followed my advice and expressed their objections to boycotting classes “in sympathy” with the students suspended over the incident. The beautiful and conflict free learning environment that Sir Ivor Jennings, the founding Vice Chancellor had strived to create was already beginning to crumble, a decade later.

Sir Ivor’s commitment to academic excellence meant that high academic standards were maintained in the years that followed his term in office. Products of the University of Peradeniya at the time, and not just the top tier, achieved success and eminence in diverse fields. The equality of access that Sir Ivor feared would result in a “levelling down” of academic quality with free education, in fact gave equal access to a good education for those who entered through the portals of the University of Ceylon, Peradeniya.

Institutional memory in this country is very short. It is only the University of Peradeniya that has sustained our memories of Sir Ivor Jennings’ contribution to our university system and the governance of this country. When I served as Vice Chancellor of the University of Colombo there was no photograph of Sir Ivor Jennings in College House, which he had occupied for many years, or any other building. I obtained a faded copy of a black and white photograph from Prof. Kapila Goonesekere, former Vice Chancellor of Peradeniya University; nothing like the imposing painting of Sir Ivor by David Paynter that adorns the walls of your Senate room.

Sir Ivor Jennings and the Road to Peradeniya

The life and times of Sir Ivor Jennings are documented in his own autobiography, published with an introduction of great professional skill, and with admiration, by the distinguished librarian, late Ian Goonetilleke. This is a rich resource. Professor Lakshman Marasinghe’s essay in a book on legal personalities supplements the autobiography with interesting insights on his work as a legal scholar and jurist. Sir Ivor was a controversial figure during the time he spent in the island, then Ceylon, where he had an important impact on public life and the education sector. His views and his engagement in the political life of the country, attracted criticism, but also admiration.

Sir Ivor began his tenure as Vice Chancellor of the University of Ceylon in the University of Colombo of today. He recalls in his autobiography how the law creating the University of Ceylon was passed on April 2, 1942, three days before the Japanese air raid on Colombo. He unfurled the university’s flag on June 12 on the grounds of College House. He remarks wryly, “being a little sentimental, [seeing] the flag sagging at one end [he] climbed the tower and adjusted it with a safety pin.” No Kandyan dancers, drummers and fanfare at this event.

An educationist of colonial times like Rev. W S Senior of Trinity College Kandy, when he left the island, could record in poetry, “my soul you will break with longing – it can never be goodbye.” Sir Ivor, the legal scholar, jurist, educationist, and administrator, could say with somewhat clinical objectivity, “I am in no way tied to Ceylon and can leave when the spirit moves.” Yet he had a vision and commitment to laying the foundation for a national university, which he believed could become “one of the finest small universities in the world.

Sir Ivor believed that a residential University in an attractive environment was one of the essential attributes of a great university. He was, as he describes himself, “a Cambridge [university] man.” His appreciation of the physical environs of that University created a desire to build a university campus on a site in Peradeniya, which he thought was one of “the most beautiful environments in the world for a university.”

The architecture and landscaping of this university continues to be a model for well-planned and attractive landscaped surroundings, creating a near perfect environment for scholarship and learning. His contribution in this regard has outlived Sir Ivor, even if the values on governance and university education that inspired him have been challenged in the realities of our nation’s post independence experience. However, if Sir Ivor’s surprising inclination to “pull down” College House and construct a women’s hostel had been realised, Colombo University would not have even that colonial heritage of great beauty on its campus surrounded by a wilderness of concrete box like structures.

Sir Ivor had a spectacular student career, receiving first class honours at every level. His approach to study is perhaps relevant to all law students who want to achieve academic honours in their law schools. He was a disciplined workaholic, even as a student. He saved his lunch money to buy books, and “study took precedence over everything.” He studied with “regularity and consistency,” developed a timetable for this, studied the “technique of examinations,” striving to obtain “not only a first, but a brilliant first.” Yet he did not believe only in examination success and paper qualifications. He believed that a residential University could create an environment for extra curricular activities providing an education that was interdisciplinary, stimulating interest in poetry, philosophy, and the arts. His own scholarship crossed the boundaries of law, politics, and political science. He gave up mathematics to study law. He thought “the boundaries between academic subjects very artificial, for knowledge … knows no boundaries.”

The Law Department of Peradeniya is the first to integrate an interdisciplinary perspective, an initiative very much in harmony with Sir Ivor’s concept of a good legal education. Law schools, have, in general adopted what legal theory in the Anglo American tradition describes as “Austinian positivism” that teaches students how to learn and analyse the content of laws. However, in the early years the focus on reference and reading meant that students read widely and understood the core norms and concepts that linked law and administration of justice. This approach produced lawyers of great professional skill and eminence at a time when legal education was exclusively in English. It has had serious drawbacks for teaching and research in a challenging environment where very little literature is available in local languages, and most lawyers obtain a monolingual legal education with lecture notes in Sinhala or Tamil. Sir Ivor was uncompromising in his commitment to excellence in teaching and research. When my husband, as one of the young lecturers in the Law Department, was to go to Oxford for post-graduate studies, Sir Ivor advised him to read for a taught post-graduate degree in Civil law, (the BCL). Undertaking research he said, was the post qualification obligation of all University teachers, and a law teacher could then apply for a higher doctorate! This advice was clearly based on his personal experience as a scholar and jurist.

Though Sir Ivor’s scholarship and vision span law, politics and an interdisciplinary perspective, he was cynical about all “isms” – Marxism, nationalism, communalism, considering them political rhetoric. He had a poor and mistaken impression of the country’s cultural heritage. He thought that transferring the University to Peradeniya could help “a cultural desert in Ceylon to blossom like a rose.” Yet he established a Faculty of Oriental Studies in the University of Ceylon, encouraged the development of these disciplines, and stressed the importance of scholarship and learning that was sensitive to local social and economic realities. He supported the creation of a university endowment fund, and a museum for sculpture, paintings and objects of art. He thought “pious benefactors” from the private sector would contribute to such a fund, and wanted the sales of his autobiography used for such an initiative. I believe that late Ian Goonetilleke who treasured his own stunning collection of artworks by George Keyt and many other reputed Sri Lankan artists, was inspired by Sir Ivor’s vision to donate this priceless collection to the University of Peradeniya. An Ivor Jennings memorial lecture is surely an occasion to also pay tribute to that joint vision. Universities are receiving substantial funds from Government to improve their infrastructure. Is it not possible to give a museum project maximum priority in university planning, supplementing this with support from “pious benefactor” alumni in business and the professions?

Values on university autonomy free from political interference were very much the foundation for Sir Ivor’s vision of university education. The 1942 University Ordinance, which he drafted, also incorporated the concept. This law established Councils, Senates and Faculty Boards, modelled on the institutional arrangements of British universities. For Sir Ivor, the institutions, (still embedded in our university system, in 1978/1985 legislation), could provide academics with the tools to resist abuse of political and official authority and interference in university administration. When the University of Ceylon Bill was being debated in the legislature, Sir Ivor who sat behind the Minister C.W.W. Kannangara, drafted quick amendments that prevented clauses being introduced that could erode university autonomy. Though he and the Minister opposed each other in the Committee on Education on the proposals for free education, they shared the same perspective on the importance of maintaining the autonomy of universities in the area of higher education.

Academics from the university community in Peradeniya gave leadership when university autonomy was under attack in the late 1960s and 1970s. The current Universities Act with strong provisions on this principle, was adopted once again in 1978 with the contribution of senior academics from Peradeniya University. It was intended to restore the autonomy of universities. It was unfortunately amended in 1985, creating new provisions on the appointment and dismissal of Vice Chancellors with an expanded regulatory role for the University Grants Commission. These changes undermined the authority of the highest university bodies (Councils and Senates) and has encouraged political interference.

Two university Vice Chancellors have been recently removed without, it is alleged, following even the required procedures. A few academics have publicly challenged these actions. But we have, in general, become accustomed to erosion of university autonomy by political authorities, even though the institutional arrangements introduced in 1942 by Sir Ivor continue to be part of our university system. State universities are being blamed for not sustaining excellence in education and contributing to human resource development. No link is made to the toxic impact of politicization of university education.

Constitutionalism and the Sri Lankan People

Constitutionalism, as law students know, refers to the theoretical underpinnings of Constitutional law. The theories in turn impact on the institutional arrangements for governance, and the concepts incorporated in Constitutions. Constitutions and their theoretical concepts are often dismissed as irrelevant for the People. Yet, governance impacts on peoples’ lives. Constitutions and the people are therefore all connected.

Nelson Mandela referring to Constitution making in South Africa in 1996, said that a Constitution is “a law that embodies the nation’s aspirations.” Sir Ivor Jennings wrote an Article published in the Ceylon Daily News three decades earlier in 1962 commenting that, “any lawyer can draft a Constitution for anywhere. The difficulty is to persuade a people to make it work.” The “aspirations” justification for Constitution making in Mandela’s words, places the concept of the “Sovereignty of the People” at the centre of Constitution making. Sir Ivor’s comment focuses on the responsibility of both rulers and the governed to make Constitutions work.

The weeks and months prior to the Presidential elections 2019 witnessed an outpouring of public anger against politicians and our legislators. A constant refrain is the failure and defects of democracy, and Constitutionalism as lawyers know it, and a desire to replace it with new institutions and “strong individual leadership.” Another discourse calls for rejection of any links to Constitutional norms and standards derived from what are described as implanted and alien “colonial” or “Western elitist” norms and standards of governance. The idea of governance based on “jathika chinthanaya” or national conscience advocated the need to link political ideology with a local, rural, traditional culture. This has now been reinvented in a new discourse on the need to reject for all time “Suddha law.” This is a phrase used by the monk Gnanasara when he disrupted Court proceedings and was convicted of contempt of court. The public display of abuse of power, arrogant, irresponsible and corrupt governance, selfish political leadership and waste of national resources despite regime changes, has created a demand by some for a complete rejection of Constitutional theories and the institutions of governance.

Such trends are visible in other countries too. The furore over Brexit in the United Kingdom and the conflict between Parliament and the Prime Minister is sometimes traced to the absence of a written Constitution with specific provisions on how to cope with challenging problems of governance. Sir Ivor Jennings, the British constitutional lawyer and jurist, drafted written Constitutions for many countries, and wrote his seminal work on “The Law and the Constitution.” He would have contested the suggestion that Constitutional law and Constitutionalism could only be embedded in a written Constitution. From his perspective, governance that limited State power, and based on written or unwritten Constitutions was the responsibility of the rulers and the governed.

(Excerpted from “Inaugural Sir Ivor Jennings lecture of the Department of Law University of Peradeniya,” included as part of the new book “Perspectives of Constitutional Reforms in Sri Lanka” edited by Dr. Hiran W. Jayewardene and Sharya Scharenguivel. Published by International and Contemporary Law Society).