Constitutions Need Constitutionalism

Jayadeva Uyangoda-December 1, 2018, 7:13 pm 

In the present constitutional-political crisis, which began in the evening of October 26, 19th Amendment to the 1978 Constitution has come under severe scrutiny. Underlying it is a war of interpretations between two opposing camps of jurists, lawyers, political activists and of course informed citizens.

Meanwhile, Sri Lanka’s current political debate is so sharply polarized that a middle ground has not yet emerged in this war of constitutional interpretations.

The source of tension that arises from the 19th Amendment is its double hybridity. Firstly, it mixes some features of a presidential, or semi-presidential, system with many features of a parliamentary system. Secondly, it brings together minimalist republicanism and substantial parliamentarism. This constitutional double hybridity and its consequences would be a fascinating theme for a book on the 19th Amendment.

Most of the constitutions in the world today are hybrid in nature. The British and Indian constitutions are key examples. The British constitution is no longer a unitary one. It carries within it features of asymmetrical devolution. The Scottish parliament is almost like a legislative assembly in a federal state. The Indian Constitution has multiple hybridities. It combines a minimalist presidentialism with maximalist parliamentarism. It is neither a unitary, nor a federal constitution. It has weak unitary features and strong federal features. It is also a Republic with strong republican features. Yet, its president does not have a popular mandate. An electoral college elects the president. The Prime Minister is the center of real power, as in a Westminster parliamentary government.

Thus, India is a republic without a popularly elected president, almost like a nominal head of state. However, no one says that the Indian constitution with its multiple hybridities is a source of political conflict, instability and constitutional chaos. Even in times of conflict, there is a basic consensus the transgression of which politicians, jurists and judges generally abhor. That basic constitutional consensus, which is the bedrock of India’s modern republican democracy and which survives amidst many threats, has given risen to two influential doctrines, or dharma. They are (a) democratic constitutionalism, and (b) constitutional morality.

The idea of democratic constitutionalism basically lays down a normative framework to prevent capricious exercise of power by institutions as well as individuals who are entrusted with the task of managing the state and its governance functions. Taking the protection of the rights and freedoms of citizens while ensuring a well-ordered polity as the basic normative goal of constitutional government, constitutionalism sets out the limits of political power through such doctrines and practices as the rule of law, democratic accountability, checks and balances, and public good.

The concept of ‘constitution morality’ refers to ethical ideals that are derived from the core values enshrined in the constitution and also supplementary to them.These ethical foundations are unwritten norms of behavior that prevent arbitrary, capricious, and oppressive exercise of constitutionally mandated powers and authority. They provide normative yardsticks to evaluate words and deeds of those who wield executive, legislative and judicial authority. They derive their sustenance from traditions of jurisprudence, political thought and philosophy, and religio-philosophical heritage of the people, as much as the principles of law and constitution.

Modern India is an example of how a synthesis democratic constitutionalism and constitutional morality has produced a vibrant and substantive paradigm of constitutional hermeneutics. The latter’s roots can be traced to the Constituent Assembly proceedings. Founding fathers of India’s modern Republic laid down the political, jurisprudential, and ethical principles in accordance with which the constitutional provisions were imagined, formulated, and given substantive meanings. Seven decades after the founding of their constitution, even today, Indian judges, jurists and political theorists invoke the principles of constitutionalism and constitutional morality whenever an issue of constitutional application and interpretation becomes contentious. As India’s outgoing as well as incoming Chief Justices emphasized last week, when the democratic bearings of a society is at risk, it is the constitutional morality thatshould guide actions of the rulers, citizens, and judges alike.

Norms of constitutionalism and constitutional morality are most useful in making sense of hybrid constitutions that defy easy interpretation at times of political conflict and crisis. One reason is that a constitution becomes hybrid as a result of so many political compromises that it is called upon to embody. Charles Beard’s famous denunciation of the American constitution as a bundle of compromises is a very apt description of every hybrid constitution in the modern world. Hybrid constitutions, in the absence of substantive cultures of constitutionalism and constitutional morality, can develop the capacity to give rise to competing, and even hostile, approaches to interpretation. The reasons rest on the political bases of the conflicts it tends to generate and the options they call for their resolution.

Among Sri Lanka’s present challenges is the task of making political and legal sense of a constitution with double hybridity. Making sense of it requires a tradition of constitutional hermeneutics that can appreciate, not monism but plurality in both form and content of a constitution. Actually, in its chequered history of evolution, the 1978 constitution has had a life swinging from extreme monism to moderate pluralism. The original 1978 constitution and its 18th Amendment were thoroughly monistic in essence, producing a unicentric and highly centralized state structure as well as a personalized rule. In contrast, the 13th, 17th and 19th Amendment re-positioned the constitution within a framework of multiple pluralisms in which dispersal of power replaced concentration of power.

Sri Lanka’s present crisis also tells us that interpretative conflicts over a constitution are always meta-legal, or political, in their origin and character. They are political, because the conflict has arisen from the essentially political nature of the application of provisions that embody the double hybridity. President Sirisena’s decisions to remove one Prime Minister from office, appoint a new PM, and subsequent decision to dissolve parliament are political applications of constitutional provisions. They therefore carry an inherent risk of prompting competing interpretations in situations of power struggle.

What is a power struggle? A power struggle is a contestation among competing claimants for state power

How would an independent body such as the judiciary interpret the 19th Amendment adhering to the liberal principle of impartiality of justice, when what is at stake are competing claims to state power? What is the foundation on which the edifice of liberal impartiality can be constructed for judicial mediation in a power struggle for state power? To find answers to these two questions, we have to wait till the Supreme Court makes it determination on the fundamental rights cases over the dissolution of parliament. The judiciary’s task is no ordinary one. It is called upon to mediate in a conflict between the two main organs of the state, the executive and the legislature.

Precisely because of this particular dimension of the on-going contestation for state power that the judiciary will need to think beyond narrow constructions of constitutional law and invoke principles of democratic constitutionalism. However, in the raging controversy on the interpretation of the clauses of 19th Amendment, there is no reference whatsoever made to any Sri Lankan source of political and legal thought articulated in the fairly long tradition of making and unmaking of constitutions. The simple reason is that we do not have a body of constitutional thought on which we can fall back in times of crisis and uncertainty. We have no B. R. Ambedkars, Javaharlal Nehrus, or Sarvapalli Radhakrishnans to summon to our assistance when we are confronted with normative puzzles thrown out by our constitution or its users, misusers, abusers, and sundry interpreters.

In post-Emergency India, constitutional problems are not resolved by employing narrow technical approaches to interpretation. Judges, lawyers and scholars constantly look for guidance from a body of very rich constitutionalist thought articulated by the Founding Fathers in the Constituent Assembly. They also derive inspiration and guidance from legal and political philosophies of republican and democratic traditions.

What should have been the sources of a modern constitutionalist thought for Sri Lanka? Given the nature of the country’s constitutional evolution, liberal and republican political and legal philosophies should have been the sources to provide a normative framework for Sri Lanka’s constitution makers as well as interpreters. However, one searches in vain in proceedings of constituent assemblies, parliamentary select committees and also parliamentary debates on constitutions any significant clues to liberal or republican normative thought that would have guided the political ideals of those who took part in the constitution making or reform processes.

We have a republic without our awareness of the fact that it has actually no republican spirit of freedom from domination and sovereignty of citizenship. We have a system of parliamentary governance, without an understanding that it is anchored on liberal democratic constitutionalism at the core of which is the principle that there are limits to the exercise of political power. We have a thoroughly hybrid constitution the normative foundations and justifications of which, or their absence, are hardly spoken of. Thus, Sri Lanka has produced constitutions without constitutionalism.

In the present crisis, Sri Lanka’s judiciary is called upon to adjudicate a major political conflict that is locked in competing interpretations of some key constitutional provisions. This indeed offers a rare opportunity for the Court also take first steps towards articulating the basic tenets of a doctrine of constitutionalism and constitutional morality for our country.

Thus, citizens will be justified in trusting that their Lordships will be mindful of this onerous task as well.