by Elias Blum
I have recently been studying the 1946 Constitution of Ceylon.
It might seem strange to study a ‘dead’ Constitution. But to a scholar of comparative constitutional law, the Constitution of Ceylon is a very interesting specimen. The text of the Constitution has a certain clean, elegant beauty; its design and draftsmanship are simultaneously minimalist and thorough.
It is also an important ‘transitional fossil’ in the evolution of the Westminster Model, bridging the gap between the first generation (e.g. Canada 1867, Australia 1901, South Africa 1909) and second generation (e.g. Kenya 1963, Malta 1964, Mauritius 1968) Westminster constitutions.
Sir Ivor Jennings, one of the principal architects of the Constitution, wrote explanatory book on the Constitution of Ceylon that is a masterpiece of mid-twentieth century British Imperial constitutional thought, revealing both the genuine goodwill and the rather blinkered paternalism and elitism of British thinking at that time. Jennings was absolutely adamant, for example, that ‘communalism’ (the representation by quota or reservation of specific ethnic groups) should be avoided, and that a system of disciplined, inter-ethnic, programmatic parties should provide impetus to the system of government through the leadership of the Cabinet. The whole system of government was to be imported from Westminster, with only the scantest regard for local circumstances.
The Constitution got off to a reasonably good start in the late 1940s and 1950s, when the country seemed like a model of ‘dominion-style’ independence. However, as Harshan Kumarasingham’s excellent book, ‘The Political Legacies of the British Empire’, points out, the stable party system and disciplined form of Cabinet government envisaged by Jennings failed to develop. Parties remained factional and personalistic, clientelism and patronage dominated, and inter-communal tensions could not be buried. Ultimately the Constitution of Ceylon – unlike that of India, where Nehru and the Congress party embedded the norms of Cabinet government – failed to take root.
Nevertheless, it seems from the records that the British Government showed a more enlightened attitude to Ceylon then than they show towards Scotland now. There was none of the spite and scorn that characterises the current Tory (and Labour) attitude to Scotland. Neither was there a fear of ‘border posts’ or ‘bombing runways’, or whatever other scare stories the Unionist press might eagerly circulate. After Celyon’s independence, co-operation continued. There was a financial agreement and a military agreement that looked very much like the sort of arrangements for Anglo-Scottish relations that Salmond was proposing in 2014 as a form of ‘indy-lite’; sovereign statehood on fair and equal terms, but not isolated or acrimonious ‘separation’.
Furthermore, the time between adopting the Constitution and becoming independent was less than two years, with the Constitution being put in place first, and then being amended by an Independence Order.
So ultimately the lesson of the Constitution of Ceylon is, in my view, twofold: (i) that becoming independent from the UK is – in constitutional, legal and even practical terms – much easier than the opponents of Scottish independence would have us believe. It’s all been done before (and Ceylon is not, by any means, an isolated example); and (ii) that making democracy work well afterwards is much harder.
Perhaps we should not be so scared, in Scotland, about independence, and much more wary of how we design our institutions for the post-independence situation.