Uncertain sovereignty: Ceylon as a dominion 1948-1972

• Published in: International journal of constitutional law Vol. 17; no. 4; pp. 1258 - 1282
• Main Author: Abeyratne, Rehan
• Format: Journal Article
• Language: English
• Published: Oxford Oxford University Press 01.10.2019
• Subjects: Constitutional law; Constitutionalism; Councils; Human rights; Immunities of foreign states; Judges & magistrates; Judicial powers; Legislation; Legislatures; Privy councils; Sovereignty; Supreme courts
• ISSN: 1474-2640; 1474-2659
• DOI: 10.1093/icon/moz079

This article, a contribution to a symposium on dominion constitutionalism, looks at sovereignty in Ceylon's Dominion period (1948-1972). While the Ceylon Constitution has been the subject of in-depth historical and sociopolitical study, it has received less 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 the 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.