Uncertain Sovereignty: Ceylon As a Dominion, 1948-1972

Abstract

This Article, a contribution to an ICON symposium on dominion constitutionalism, examines sovereignty in Ceylon's (Sri Lanka's) Dominion period (1948-72). While the Ceylon Constitution has been the subject of in-depth historical and socio-political studies, it has received little attention from legal scholars. This Article hopes to fill that gap. It analyzes Ceylon Supreme Court and Privy Council judgments from this era on both rights-based and structural questions of constitutional law. In each area, sovereignty-related concerns influenced the judicial approach and case outcomes. On fundamental rights, both the Supreme Court and Privy Council adopted a cautious approach, declining to invalidate legislation that had discriminatory effects on minority communities. This reluctance to entrench fundamental rights resulted, at least in part, from judges' undue deference to the Ceylon Parliament, which was wrongly looked upon like its all-powerful British progenitor. On constitutional structure, the Ceylon Supreme Court deferred to Parliament even when legislation encroached into the judicial realm. The Privy Council, though, was not so passive. It upheld a separate, inviolable judicial power that Parliament could not legislate away. But by asserting itself as a check on legislative power, the Council - as a foreign judicial body intervening in Ceylonese affairs - stoked concerns that Ceylon was less than fully sovereign, which ultimately ended Dominion status.

Keywords: Dominion Constitution, Soulbury Constitution, South Asian Constitutionalism, Sri Lanka, Ceylon