Sri Lanka: What Next?

by Victor Ivan- Feb 1, 2019

Feb 1, 2019

At a meeting convened by the Punarudaya Movement, which was attended by 46 people’s organisations on 19 January at Kobbekaduwa Institution, Colombo, the topic of making a new constitution for the country was discussed at length reaching a consensus on as to how the proposed new constitution should be framed. The consensus reached and the points agreed upon at this meeting can be summarised as follows.

The right to vote in elections enjoyed by the people at present can be considered the only provision that they have been granted by the current and the previous constitutions to exercise their sovereignty which is now considered inadequate and an outdated system.

Therefore, besides the right to vote in elections, it is important that a new constitution consisting of new provisions and methodologies that provide for the people to participation in the decision making process in regard to the issues of public importance be adopted. This implies that the proposed new constitution should be adopted by a constituent assembly which has a majority representation of the people rather than restricting it only to the members of the Legislature.

To achieve this objective, a decision was taken to set up an organisation called ‘Movement for Making a People’s Constitution’ and allow all people’s organisations that attended the Punarudaya meeting to become members of it with equal entitlements. Moreover, it was decided to create a wider sphere of people’s organisations and encourage them to join the ‘Movement for Making a People’s Constitution’ and also to form a powerful consortium or a “grand alliance” of people’s organisations, placing more weight on the people which exceeds the power of political parties so that the people could get the opportunity to participate in a substantial way in the process of making a new constitution capable of effecting far reaching and profound changes. It was also agreed that the members of the Movement for Making a People’s Constitution should work wholeheartedly and conscientiously towards achieving this object.

This can be considered a very important and pioneering effort displayed in deviating from the obsolete and outmoded thinking that is prevalent in the sphere of constitution making in Sri Lanka.

Constitution making and practice

Sri Lanka cannot claim to have a proud history in regard to the constitution making. Its history in this sphere is awful. Within 71 years of independence, Sri Lanka had adopted three constitutions. Yet, it still finds itself in a constitutional impasse being unable to move forward without going for a fourth constitution. Obviously the country has not taken into consideration the policies and traditions that ought to be considered in making a constitution.

All constitutions, adopted so far, can be considered as the constitutions introduced with trickery by using the majority power of the ruling party to suit its own agenda rather than with the consensus of the all parties concerned. None of these constitutions were subjected to a referendum for ratification by the people.

On the other hand, Sri Lanka has set a unique record in violating the Constitution. The provisions available for constitutional amendments had been mostly used or rather abused to achieve parochial objects and to violate the Constitution itself, rather than to rectify the drawbacks of the Constitution. There are instances in which the Executive had violated the Constitution blatantly. Similarly, there are instances in which the Legislature as well as the Judiciary had violated it. There is no political culture in the country in which the violation of the Constitution is perceived to be a serious offence.

It appears that the adoption of a constitution by a limited circle of political elites or the representatives of the Legislature had been the only model of constitution making known to Sri Lanka. All three constitutions adopted so far, in Sri Lanka, one way or the other had been framed using this model. The constitution that Ranil Wickremesinghe has been trying to introduce too has followed the same conceptual framework.

Participatory constitutional making

The old model that I mentioned above does not suit the needs of the present. It is considered an obsolete system by the theoreticians on modern constitution making. In the past, the people did not have a direct role to play in constitution making. What they considered important was only the content of the constitution. They were not concerned with how it was adopted. This system is now considered an extremely obsolete system by the constitution making theoreticians. Under the circumstances, people’s participation is considered an essential condition in constitution making today.

Similarly, in present-day constitution making, equal importance is attached to the process of making the constitution as much as the content of it. A mere statute created by a democratic government is no longer considered to be a democratic constitution. It is expected to be adopted following a democratic process. It should be a product of a close dialogue between all parties concerned.

In making a constitution with the participation of the people, it is considered an essential condition to have all community groups that represent the society in terms of ethnicity, caste, religion, language, sex or livelihood involved in it. The theoreticians who advocate the importance of people participated constitution making are of the view that for some reason, if any one of these groups were ignored, it would not be easy to rectify the error and the injustice caused to that group.

Professor Vivian Hart, a leading expert on participatory theory of constitution making has pointed out the following important fact in regard to the American Constitution adopted in 1789. In adopting the constitution, the makers of the American Constitution had not taken into account the interests of not only the aboriginal communities and the Americans of African origin; they had even ignored the interests of American women as well. Later, when they demanded legitimate recognition, there was no immediate solution that the American Constitution could offer to them, the reason being that amending the constitution had been a long process which is complicated and time consuming. Consequently, these issues, even to date, remain as problems not fully settled.

Participatory constitution making model can be considered the most accepted conceptual framework for constitution making today. But it is still in an experimental phase and not reached a conclusive stage yet. Countries such as Nicaragua, Uganda, Brazil, South Africa, Northern Ireland, Kenya, and Rwanda are several countries which had tried the participatory constitution making model. This model has been recognised by international law. It must be said that the right of the people to actively participate in the constitution making process of the country in which they live is recognised by the international law as well. It is an inalienable right that the people have received.

International law

The judgment passed by the United Nations Human Rights Committee in 1991 with regard to the complaint made by Mikmaq Tribal Society against the Canadian Government (known as Marshal Vs Canada (CCPR/C/43/D/205/3 December 1986-1991) can be considered as the first judgment that had impacted the international law on the right of people to participate in making of a constitution.

Even though the Mikmaq Tribal Society was not fully successful in winning their claim, the United Nations Human Rights Committee admitted the right of the Mikmaq Tribal society to actively participate in constitution making process without discrimination and unreasonable restrictions.

Thereafter, on 25 July 1993, the UNCHR Textual Authority produced an interpretation on Article 25 of the International Covenant on Civil and Political Rights. By that, pursuant to a common analysis of the Article 25, the right of the people to participate in the constitution making processes has been elaborated as follows: “On instances where the citizens believe that a constitution should be adopted, it being considered a public affair, the citizens shall take part in the exercise, directly or through freely chosen representatives without unreasonable restrictions.”

Professor Vivian Hart, commenting on the Article 25 of the International Covenant on Civil and Political Rights states that it was a unique concept remained latent in the philosophy of political claims of the United Nations. Yet, this concept had not been utilised adequately and therefore it remains to be improved.

The judgment given by the Supreme Court of Canada in 1998 in regard to the legality of the claim for self-government of Quebec Province of Canada is an important judgment which had legally strengthened the concept of participatory constitution making process. This judgment highlighted the democracy as being the major principle among all other principles of the Canadian constitution. It has further stressed that the participatory constitution making is the most important determinant in the process of making a legal and democratic constitution.

Considering all these important judgements and interpretations, it can be presumed that they had contributed to build a model that could be applied practically for making a constitution by consolidating the legal right of the people to take part in constitution making process actively.

But, it should not be misconstrued as a simple and easy module to be implemented. According to Professor Vivian Hart, comparatively it is an easy task to make a constitution when it becomes a legal and expert document drafted by a limited group of social elite. Even, the time taken would be rather limited. But, it would not be simple to make a constitution following a comprehensive dialogue with all groups of the political society in a country. It is a complex and time-consuming exercise. Though it may not lead to reconcile all disputes, participatory constitution making can still be considered the best method that can be used in adopting a constitution that would pave the way for creating an atmosphere for everyone to live peacefully and harmoniously.

The path to be chosen by Sri Lanka

The veritable crisis that the country, the society and the State have faced is not simple. It is in an unusually complex and complicated mess. The present crisis of Sri Lanka can be considered a gradual development of a situation which had occurred as a result of our failure to fulfil the necessary conditions best suited to our needs which were created by independence. Also, the inability to resolve the problems that emerged as an outcome thereof has resulted in aggravating the crisis into a maximum height.

The independence gained in 1948 cannot be considered an outcome of a strong and organised social struggle. Thus, the independence gained through devious and crafty means did not become a powerful social phenomenon capable of promoting social harmony and integration. It did not contribute to create a strong democratic political atmosphere or generating matured political leaders. It did not become a social phenomenon capable of developing a common identity integrating and harmonising the society irrespective of ethnic, caste, religious or linguistic differences.

None of the leaders who emerged after independence attempted to integrate and build the nation disregarding the recognition accorded to ethnic, caste, religious or linguistic differences. Instead, what they have done was aggravate the differences. In fact, since independence, Sri Lanka has become a country going from crisis to crisis. As an outcome of it, it had become a country of protracted and large-scale violent conflicts and bloodshed. Even after ending the large-scale violent conflicts and bloodshed, the country has failed to engage in a committed effort to realise the serious errors and rectify them.

The final outcome of this situation is such that the country, the society and the State have degenerated into a veritable state of extreme bankruptcy, failure and wretchedness.

The Constitution of the country having been violated repeatedly has now become a weak document which cannot be used any longer. In spite of the fact that the political leaders do not seem to have penitence on the destruction that they had caused to the Constitution, the supreme law of the country, all of them admit the need for a new constitution. But, the political leaders have not made it a priority item in their political agenda. They all are dreaming of the forthcoming election.

The ship sails in the distance sea. The sea is rough. The captains who navigate the ship know that the compass is out of order and beyond repairs. Yet, they all seem to believe that the ship should be navigated to the destination even in the absence of a compass and the question of the compass could be attended to after completing the journey. They do not realise the importance of delaying the journey till a new compass is secured, considering the big risk involved in navigating the ship without a compass to guide them.

Responsibility of the people

If the people of the country feel the need to adopt a new constitution, it can be converted into a golden opportunity to rescue the country from the wretched level it has fallen into. By making it a people’s program without letting it be an exercise confined only to the Legislature under the old model, as had been the case in the past, the proposed new constitution could certainly be converted into a democratic and revolutionary creation capable of effecting a complete transformation of the country, its society and the State for good.

If the people’s organisations in the country can get together and form a consortium or a “Grand Alliance which exceeds the people’s power commanded by the political parties, then it would be possible to make the Legislature also a part of it. Thus, if it can be made the main machinery that guides the people’s participation in the constituent assembly, it would certainly be possible to make a revolutionary change in the overall picture of the constitution making process in Sri Lanka.

By now all political parties in Sri Lanka and their leaders are in a deep crisis in which they have not only lost the public confidence but also have lost their proper sense as well. Though they refuse to admit it openly, they all know for sure that they are responsible for the wretched state of the country. They all know that they are the main source of the corruption of the State. They are also aware that they are unable to control the way things happen in the country now.

There is no capacity for the Legislature or the political parties to oppose but adapt themselves, willingly or unwillingly, to a constitution making process which does not exclude the Legislature, but gives more power to the people. They all know that the sovereignty lies not with them but with the people. A constitution is an agreement entered into between the ruling party and the ruled. In Sri Lanka’s context, the head of the Executive and the members of the Legislature can be considered the ruling party. Therefore they cannot have the capacity to oppose a constitution making process with active participation of the people.

If this golden opportunity offered by the history to the people’s organisations to join in district, provincial and national level and form in to a consortium or a grand alliance of people’s organisations, the impact it could make on the constitution making process will be immense. It could be geared for nation building.

A new state that wins the respect of everyone can be recreated. A modern constitution that would not confine the sovereignty of the people into a narrow frame of exercising their vote at elections only, can be adopted; it will allow the people to participate actively in the governances process of the country and all loopholes leading to corruption, bias and inefficiency can be closed thereby ushering a new era for the country.

Shouldn’t the intelligent, sensible people and the people’s organisations of the country seriously think about it?