A Constitution Or A Con-Situation? 

By Raj Gonsalkorale –AUGUST 2, 2018

Raj Gonsalkorale

Recent years have witnessed renewed attention to constitutions by both academics and policy makers. This is hardly surprising given that constitutions are the foundation for government in virtually every society around the world. They simultaneously create, empower, and limit the institutions that govern society. In doing so, they are intimately linked to the provision of public goods &services. Outcomes, like democracy, economic performance and human rights protection, are all associated with the contents of countries’ constitutions. It is little wonder, then, that constitutions are often blamed for poor economic and political outcomes or that such outcomes commonly result in constitutional change. ~ Constitution Unit, UCL University, UK

The late Walter Murphy, one of the most distinguished scholars of constitutional law, was of the view that the written text is not perfectly contiguous with the larger constitutional order of a country, an order that might include “super-statutes,” decisions of judges and agencies, and even informal institutions. If one is to understand the difference between a country’s written constitution and its larger constitutional order, it is important to distinguish between the functions of a constitution and its form.

The proponents of a new constitution as a panacea for all ills in Sri Lanka should seriously consider whether they are more concerned with the functions of a constitution or its form. Of course one has a relationship to the other, but a form could exist without functionality although functionality cannot exist without a form.as the legitimacy of functionality (what people can and cannot do) has to be within the framework of a constitution. 

Is a form, in the generally understood context of a form necessary? For most people, especially abroad, the United Kingdom does not have a constitution at all in the sense most commonly used around the world — a document of fundamental importance setting out the structure of government and its relationship with its citizens. All modern states, saving only the UK, New Zealand and Israel, have adopted a documentary constitution of this kind, the first and most complete model being that of the United States of America in 1788. However, in Britain, they have a constitution, but it is one that exists in an abstract sense, comprising a host of diverse laws, practices and conventions that have evolved over a long period of time. The key landmark is the Bill of Rights (1689), which established the supremacy of Parliament over the Crown following the forcible replacement of King James II (r.1685–88) by William III (r.1689–1702) and Mary (r.1689–94) in the Glorious Revolution (1688). From a comparative perspective, there is, what is known as an ‘unwritten constitution’, although some prefer to describe it as ‘uncodified’ on the basis that many laws of a constitutional nature that are written down in Acts of Parliament or law reports of court judgments. This aspect of the British constitution, its unwritten nature, is its most distinguishing characteristic.

In many ways, the mother of all Parliaments, as some describe the British Parliament as, appears more to focus on functionality rather than a conventional form.

Functionality is a reflection of behaviour and by that it must mean how peoples of a country behave amongst themselves and with other. Behaviour is influenced by many factors such as culture, religion, ethnicity, caste systems, distribution of wealth, power centres etc.

Sri Lankans still have not reached the point of behaving or living with each other within this context, as equals but with the acceptance of what divides them.

In the much discussed and debated need or otherwise for a new constitution, the question to be asked perhaps is whether such a document will address the behavioural  issues that Sri Lankans have with each other or whether the country should be looking at other approaches to bridging the behavioural divide.  

Will a new constitution facilitate greater equality? The term greater equality is oxy moronic as equality cannot be less or more. Equality is equality. On paper, the existing constitution gives equality to everyone in Sri Lanka irrespective of their divides. So, how would a new constitution give more than what is already given?

The need for a model that provides greater power sharing and a degree of self-determination to the Tamil people in the North, and some argue, to those in the East, is given as a reason why a new constitution is required. Proponents of this model do not seem to regard the Tamil people of the country as a homogenous group, as Tamil people in other parts of the country including the more recent Tamil arrivals in the country, those Tamils living in the central part of the country, are not included in the model that is proposed. 

If discrimination of Tamils by the Sinhala dominated governments is the reason why a new model is needed, then such discrimination will not abate in the rest of the country as Tamil people in such areas will continue to be dominated by and large, by Sinhala governments.

It is a fact, one could say due to an accidental arithmetical fact, that Sri Lankan governments since independence have been dominated by the Sinhala Buddhists. In a country where the population is 70% Sinhala Buddhist, this is bound to happen.

The challenge therefore is how one could bring all communities into a governance model so that power is shared equitably, not equally, as there cannot be equal power sharing in unequal arithmetical contexts.  

Power sharing could and should mean equity in decision making where a set of people elected as the representatives of a broader mass of people, act in such a manner to ensure those who they represent benefit equitably when decisions are made at national level and sub national level. Authority to make decisions that are equitable on behalf of the people they represent, must therefore be shared at national level and at sub national level (whether it is at provincial or local government level).

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