Featured image courtesy constitutionnet.org (photo credit: Hemmathagama)

Constitutional design processes are loaded with expectations

about endurance, efficacy, the resolution of conflicts, and political reconstruction.

In the real world, however, most constitutions fail” (Ginsburg et al. 2009: 22;). 

Ever since the political changes which ensued in 2015, there appears to be another social contract between the government and the people of Sri Lanka forming. Clear signs are on the horizon that people are now waking up to the reality that the country needs a qualitative change of the political culture and a national reconciliation platform, in order to go forward, and that such changed realities are calling for their active participation, inclusion, and transparency to overcome many socio-political challenges including ethnic discord, widespread corruption and abuse. Thus, it is not possible for the drafters to ignore these realities, when the country is in the process of drafting another constitution, to ensure that it incorporates and reflects the needs and aspirations of the citizens it is intended to govern. How the government responds to these calls for public participation and inclusion may determine whether the constitution-making process unites or further divides this society, whether they help or hinder the creation of a national consensus on fundamental principles and values, and whether the processes and documents that result from them will be deemed legitimate.

There is no single blueprint for how to make a viable constitution, but our Post –Independence decades of constitution-making experience and from elsewhere, underscore that mere top-down approaches are rarely effective, without a supportive inclusive and participatory constitution making approach. There should therefore be a healthy blend of an expert-based drafting process, with adequate public consultation, which would more effectively address root causes of conflict and sectarian divisions, and ensure that the political process benefits from the full contribution of all citizens, including women and youth. To achieve optimal results, constitution makers must have the political will to carry out a genuine process of civic education and consultations, in which the views of citizens are not only carefully considered, but they are also educated in the process, on the national priorities and inherent dangers of following partisan policies. The constitution makers must carefully apply guiding principles, such as transparency and inclusion, and ensure that sufficient time and resources are allocated to the process. Otherwise, political opportunism will take root and people will once again be taken up a blind path to oblivion. We cannot afford to have repeat 1972s/1978s which has polarised our communities and divided our nation.

One of the most pressing national priorities will therefore be to ensure unified communities; durable peace through genuine amity and harmony amongst various communities which make up our nation. National reconciliation should be uppermost, without which no progress as a nation is possible. What President Sirisena stressed, speaking in Parliament when the proposal was made by PM Ranil Wickremesinghe to convert the Parliament into a constituent assembly to discuss and draft a new constitution for Sri Lanka, shows promise in this regard. He said constitutions since Sri Lanka’s independence from Britain in 1948 have not focused on unifying different ethnic communities. Objections from the majority ethnic Sinhala community to power sharing deals with minority ethnic Tamils in the early years led to terrorism and war; “I believe now, through our past bitter experiences, we must prepare ourselves for future challenges”. It is in this regard, a comprehensive process of education/ consultation that will help immensely. Sinhalese should not feel marginalised in the process of addressing the grievances of the minorities, if lasting results are to be achieved. Majority community should be educated regarding the immense importance of accepting the ‘multi-ethnic, multi-lingual nature of Sri Lanka, rather than falling into the majoritarian trap.

Of course, there are other national priorities too. It is heartening to learn that the proposed Constitution intends, besides strengthening democratic rights and promoting national reconciliation, to establish a political culture that respects the rule of law and is also designed to guarantee fundamental rights and freedoms that assure human dignity and promote responsible and accountable government; the main idea is to devolve power to the grassroots level and strengthen democracy in order to prevent another war. We can perhaps learn lessons from comparative constitution-making experiences of India and South Africa too, apart from our own experiences. The success of the Indian Constitution drafted by Dr Ambedkar owes heavily to it being a highly inclusive document, laden with ethnic, minority, and religious considerations. By this, the Indian Constitution has served its purpose of uniting all Indians under one flag and one identity, and it has only contributed in strength and might to India’s development. Similarly, Nelson Mandela and F.W. de Klerk’s campaigns for the abolishment of apartheid and subsequently the formulation of a new Constitution was greatly to the benefit of a united South Africa as it took into account of all diverse representations, after a wide public consultation and education process.

Sri Lanka should particularly learn from its’ own past, having had the experience of going through 3 constitutions, which can provide many lessons to ensure that the country will not repeat the historic blunders. Majoritarian approaches in statecraft since Independence culminated in a 30 year war and failure to build a common Sri Lankn identity. Take for example, the fate of the oft-quoted Section 29(2) , which was a safeguard for minorities included in the Soulbury Constitution, which was even quoted by the then Sinhala leaders to reassure the Minority leaders to vote for independence without a division. As Prof G.L. Peiris(1997) said : ‘..It was on the basis of this safeguard that the Tamils acquiesced in the granting of independence in 1948..’This safeguard was unfortunately removed by the drafters of the 1972 and 1978 Constitutions and introduced a regime of fundamental rights, which the minorities felt as a betrayal. Judging by what transpired in the recent context, the fears of the minority communities appears justified. However, those who defended the removal of this Section, argued that despite Section 29, disfranchisement of upcountry Tamils and discrimination against Tamil speaking people, due to the Sinhala Only Act went ahead.

Dr. Jayampathy Wickramaratne, in an article on ‘Constitutional Protections since Independence’ also opines that Section 29(2), did not turn out to be efficacious as expected and says that ‘a future Constitution, apart from providing for the sharing of State power by all communities through extensive devolution of power and power sharing at the Centre, should also recognize the supremacy of the Constitution. Recognition of identity is also important’. Prof Lakshman Marasinghe in an article sees the removal of Section 29(2) from a psychological viewpoint. when he says ; ‘As for the minorities, they were entitled to feel that they have been left in the hands of a governing autocracy with wide and unfettered powers. Besides, the 1972 constitution also permitted the establishment of Administrations with an abundance of uncontrolled power to govern. The people in Sri Lanka under the 1972 constitution were denied of any meaningful constitutional protections of their “Fundamental Rights and freedoms”.

The ‘notorious’ 1978 Constitution which has been haunting the nation ever since, basically left the aforesaid ‘1972’ changes intact,, in addition to many other substantive changes, and is deemed to be at the root of Sri Lanka’s present crisis of governmentality, and responsible for much of the country’s ills, enabling the corruption and politicization of public administration, the police force, and contributing directly to the erosion of press freedom and the general climate of violence, lawlessness, and fear. As subsequent history has shown, these provided a fertile breeding ground for political dissent and for agitation and violence.

What Dr. Wickramaratne quotes from the proposals made in this regard in the Majority Report will be relevant to new constitution making :‘The People of Sri Lanka shall be described in the Constitution as being composed of “the constituent peoples of Sri Lanka”. The right of every constituent people to develop its own language, to develop and promote its culture and to preserve its history and the right to its due share of State power including the right to due representation in institutions of government shall be recognised without in any way weakening the common Sri Lankan identity. He adds , ‘To ensure the supremacy of the Constitution, all action inconsistent with the Constitution must be considered void. Post enactment judicial review is a must. The fundamental rights chapter should be consistent with Sri Lanka’s international human rights obligations and should also include social, economic, cultural, group, women’s and children’s rights apart from strengthening civil and political rights. Remedies for infringement of fundamental rights should be easily available and be efficacious. These are but some of the essential features of a future Constitution of a united, peaceful and democratic Sri Lanka’

As Nehru said, ‘the Constitution is after all some kind of legal body given to the ways of Government and the life of the people. A Constitution if it is out of touch with the people’s life, aims and aspirations, becomes rather empty: if it falls behind those aims, it drags the people down. It should be something ahead to keep people’s eyes and minds made up to a certain high mark’. But a mere constitution itself, however great it may be ,will not be of any viable use, if those in power chose to ignore its’ nuances and spirit. Lord Soulbury too, in 1963 admitted this fact with regard to Constitution he spearheaded , thus: ‘As Sir Charles Jeffries has put it… ‘the Soulbury Constitution… had entrenched in it all the protective provisions for minorities that the wit of man could devise’.. Nevertheless, in the light of later happenings, I now think it is a pity the Commission did not also recommend the entrenchment in the Constitution of guarantees of fundamental rights… (However)… the reconciliation … will depend not on constitutional guarantees but on the goodwill, common sense and humanity of the Government in power and the people who elect it.”

What Prof. Marasinghe said in 2003 in foresight was true : ‘We have reached such a stage here in Sri Lanka, where it has now become necessary to arrive at a constitutional settlement which would not only provide cast iron constitutional guarantees to all persons equally, which human ingenuity could devise, but also provide the legal institutions that could protect and enforce those guarantees. Unless that is achieved now, this nation would have lost yet another opportunity to solve its ethnic conflict which might in its next phase wrench the country apart’. Do we need any more ethnic conflagrations, which will sow more discord and hatred among communities, to wake up?