The Centre for Policy Alternatives (CPA) is pleased to publish the fourth paper in the CPA Working Papers on Constitutional Reform series, on Soulbury Plus: Conceptual Foundations and Institutional Features of a Parliamentary-Constitutional State, by Dr Harshan Kumarasingham (Researcher, Max Planck Institute for European Legal History) and Dr Asanga Welikala (Research Fellow, CPA).

Aside from devolution as a form of power-sharing in Sri Lanka’s plural polity, two of the other major themes in the current constitutional reform process are the abolition of executive presidentialism and the strengthening of protections for fundamental human rights. These are to be given effect in a return to the parliamentary form of government and a new bill of rights. The public debate on these reforms is usually conducted on the basis of the practical experience of the problems encountered under presidentialism. However, returning to parliamentary government also demands a positive articulation of the theoretical and institutional basis of the new state to be created by the new constitution. This Working Paper attempts such an initial visualisation of a ‘parliamentary-constitutional state’. The model of state the authors propose blends together elements of classical Westminster parliamentarism; recent innovations within this broader Commonwealth tradition, especially in regard to methods of enhanced rights-protection inspired by the values of liberal constitutionalism; and Sri Lanka’s present constitutional needs, in the light of the country’s constitutional history and culture. The model is both descriptively ‘parliamentary’ in terms of the form of democratic government and the institutional balance of power, but also normatively ‘constitutional’ in terms of being grounded in a written and supreme constitution that entrenches certain matters, which cannot be changed by ordinary legislative procedure. The ‘parliamentary-constitutional state’ thus is a version of the comparative Commonwealth model represented in such examples as Canada and India, but which also has the antecedent in Sri Lanka of the independence constitution (demotically known as the Soulbury Constitution, which was in force from 1946-8 to 1972).

The Working Paper argues that this constitution provides a good historical precedent for imagining a parliamentary constitution for Sri Lanka in the present, with the significant proviso that we learn appropriate lessons from its failures in regard to rights protection and power-sharing: hence ‘Soulbury Plus’.

Download it as a PDF here.

The Centre for Policy Alternatives (CPA) is pleased to publish the third paper in the CPA Working Papers on Constitutional Reform series on Buddhism and the Regulation of Religion in the New Constitution: Past Debates, Present Challenges, and Future Options, by Dr Benjamin Schonthal (Senior Lecturer in Buddhism and Asian Religions, University of Otago) and Dr Asanga Welikala (Research Fellow, CPA).

This Working Paper offers a legal and historical overview of the issue of Buddhism in Sri Lanka’s constitution, with a view to advancing discussions beyond the normal terms of public debate that tend to frame the issue. At the centre of most public discussions of the Buddhism Chapter – from both defenders and critics alike – is a concern with the Buddhism Chapter’s expressive functions, its role in communicating and endorsing a hierarchy of religions. While this function is important, it is not the only important matter to consider. Also vital for constitutional discussions is an awareness of the Buddhism Chapter’s history and its regulatory functions, its legal effects on society when used as an instrument of litigation. In short, the current constitution reform process will be better positioned to undertake meaningful revision of the Buddhism Chapter – or to leave it as it is – if members have a clear understanding of why previous constitutional drafters chose the words they did, while also being aware of how litigants and judges have interpreted and deployed those words over the last 40 years.

The Working Paper is structured in four sections. Sections I and II give overviews of the Buddhism Chapter’s history and its uses in litigation, and offers several “lessons” that we might drawn from that experience. In Section III, the authors use these lessons to assess the recommendations of the Public Representation Commission on Constitutional Reform (PRC), and to discuss four options available to drafters for addressing religion in the new constitution, as well as some of the advantages and disadvantages associated with each option. A short Executive Summary appears at the end of the paper, distilling a number of key points from the Working Paper.

Download it here.