Photo courtesy of Al Jazeera
A fake constitution alters the rules of logic that are the basic foundations of a good constitution. The change of logic leads to irrationality. The spread of irrationality into public institutions creates rotten systems within them. Where the public institutions go rotten, every aspect of social life faces severe problems. Gradually, all systems break down and unmanageable crises develop within the society. These crises in turn create so much of demoralization of the people, who become the sufferers and victims of these institutions, that they withdraw their cooperation from public institutions. With that, society is unable to function. The dysfunctionality of public institutions that are unable to create public cooperation leads to failed states. Such is the situation of Sri Lanka today.
It is quite relevant to discuss the impact of fake constitutions at the present moment because the discussions about adopting a government sponsored draft of a constitution has provoked a debate about the very purpose and the meaning of the making of a constitution.
Can an already existing fake constitution provide the basis within which a genuine and rational constitution can be created? That is the core of the whole issue about constitution making in Sri Lanka.
The 1978 constitution is a fake constitution. It talks about being a constitution of a republic, however, it violates the most basic principle of a republic. Thomas Paine, the American philosopher and writer, whose writings played an influential role during the time of the making of the American Constitution, summed up the basic idea of a republic: In England, the king is the law whereas in the United States, the law is the king. What makes a republic is the supremacy given to the law above the ruler. If the ruler is not subjected to the law, then there cannot be a republic. Thus, calling Sri Lanka a republic is a misnomer because in Sri Lanka, it is not the law that is the king but it is the executive president who is the law. When the head of the state, whether it be an executive president or a prime minister, dictates the law, then it cannot be a republic. When such a place is called a republic while basically operating on the principles on which a monarchy is based, it may provide some kind of a title to the head of the state that sounds modern. However, there is nothing modern about the Sri Lankan constitution. It is based on a primitive principle of dictating the terms under which the society should live by a single person called the ruler.
The basis of irrationality that is inherent in the 1978 Constitution is based on the contradiction of calling itself a republic while operating on the principles that are opposed to a republic. This change in the major premise of a system of governance changes all the other premises. Thus, from a rational point of view, the public systems in which Sri Lanka operates is within an illogical framework.
However, this logic lives not only as an abstraction. Real institutions begin to malfunction to an extent that the country’s system of the regulatory framework of finance breaks down. The nerve system of any economy is the system by which financial institutions are managed. When the normal principles that govern such managements are abandoned in favor of irrational interferences, the very financial structure breaks down.
This exposes the narrowness of some who claim that Sri Lanka’s problems are only economic problems and that the questions of the constitution are not relevant problems at the moment. That is an irrational understanding of how an economy works. An economy operates on logical frameworks. When the basic premises of a logical framework are removed, then irrationality enters into the entire system. The consequences of that irrationality can now be seen in the country. The prediction is that in the coming months, these will become even worse and that life will become a nightmare. The possibilities of food shortages have been predicted. Already, the spread of malnutrition in a significant portion of the population is a fact.
Putting a Humpty Dumpty back together again is considered an impossible task. That is the way that people have begun to perceive the Sri Lankan situation. However, there is a way to put the Humpty Dumpty back together again and to get the public institutions of the nation to function. That is why it should be a return to reason. Returning to reason is a primary requirement of returning to a law-based society that is a republic.
Today’s task is to recreate a republic. By following the 1978 constitution, it is not possible to return to a republic. The first step needs to be the undoing of this fake constitution and to replace it with a constitution within the democratic framework that could operate under the principles of the rule of law.
However, it is impossible to think that the parliament in its present form will want to or is capable of producing anything other than a constitution that is based on the same principles as the fake constitution of 1978. That is the reason why there is a demand for the constitution making to be done by a constitutional convention that is a convention consisting of persons who are selected mainly for the purpose of making the constitution. The selectors are the people. What a constitutional convention would do is to bring back the people’s participation into constitutional making so that the basic principles of a rational government could be restored. That will pave the way to make a beginning in order to change the ground realities that exist in the country.
However, the next question is how to bring about that constitutional convention. This could be done by way of a referendum at which the people vote for the manner in which the constitution should be made and who should constitute the constitutional convention. Naturally, people would want the constitutional convention to be represented by persons who will faithfully contribute to create a kind of a law based system within which the people themselves are protected. By people it means everyone in Sri Lanka belonging to various sectors of the society, the workers, peasants, entrepreneurs and professionals; they need to have a direct say in the making of a constitution.
To continue with the fake constitution that exists now is to look for a future that will be much worse than the present. A constitutional convention brought about by a referendum is necessary for the survival of Sri Lanka as a law-based and rational society.