Writing A Constitution

By Nihal Abeyasingha –APRIL 14, 2021

JSGNG Abeyasingha

Sri Lanka is presently engaged in a process of writing a new constitution. This time, it would seem that a political agenda is not in the forefront, but hopefully, one that serves to lead the country to growth and prosperity. Still, I for one, wonder whether a political agenda can be absent in the present situation, where politics enters into everything – and laughably even to get employment as a labourer in a government institution? Could that be the reason why in the newspapers and social media, there has been relatively little discussion on this project? However, a would present a few preliminary thoughts for consideration. 

To begin with, as everybody knows, there are two types of Constitutions – written in one or more legal documents duly enacted in the form of laws. It is precise, definite and systematic. It is the result of the conscious and deliberate efforts of the people, framed by a representative body duly elected by the people at a particular period in history. It is always promulgated on a specific date in history. Thus, the Constitution of India, for example, is a written constitution. It was framed by a representative Constituent Assembly and was promulgated on a definite date, i.e., 26th January 1950.

An unwritten constitution is one in which most of the principles of the government have never been enacted in the form of laws. It consists of customs, conventions, traditions, and some written laws bearing different dates. It is unsystematic, indefinite and imprecise. Such a constitution is not the result of conscious and deliberate efforts of the people. It is generally the result of historical development. It was never made by a representative constituent assembly at a definite stage of history, nor is it promulgated on a particular date. It is, therefore, sometimes called an evolved or cumulative constitution. The constitution of England is a classic example of an unwritten constitution. It is mainly the result of historical growth. 

However, a written constitution does not mean that the unwritten customs, traditions etc. no longer exist. In fact, they do exist and are very much the background against which the written constitution functions, is interpreted and its legislation enacted.   

What is important to understand is that a constitution – written or unwritten – is not primarily law. It is what I would like to call a “wisdom” document. Wisdom literature is a genre of literature common in the ancient Near East. It consists of statements by sages and the wise that offer teachings about divinity and virtue. Although this genre uses techniques of traditional oral storytelling, it was disseminated in written form. It moulds thinking. When this wisdom finds its way into law, especially in the ancient religions of Hinduism, Buddhism, Judaism and Christianity, it is enunciated in terms of mutual duties of ruler-ruled, husbands-wives, teachers-pupils etc…  Since that time, constitution writing and making have come a long way, but interestingly enough the focus on comparative constitutional law has emerged in the 20th century (Cf. the pioneering work of Boris Mirkine Guetzevich, Les Constitutions de Europe nouvelle (1928) and. Later, Carl J. Friedrich, Constitutional Government and Democracy in Europe and America (1941).

In Sri Lanka:

A group of 75 lawyers expressed themselves (GroundViews 11/12/2018) in the context of a Constitutional Crisis, which was canvassed in the Supreme Court.

We the undersigned, note with concern, the methods by which the Constitution of Sri Lanka is being interpreted to justify the appointment of a purported Prime Minister on the 26th of October, a Cabinet of Ministers and the dissolution of Parliament thereafter. As members of the legal profession who practice and/or teach law, we wish to recall that each of us has a responsibility to uphold the rule of law, respect for fundamental rights and promote justice in carrying out our professional responsibilities. Making selective references to provisions of the Constitution to justify the actions and/or intended actions of the President in complete disregard of fundamental rules of constitutional interpretation is contrary to our professional ethics. It has the effect of confusing and misleading the public. 

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