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In a divided and polarised society like Sri Lanka, constitution-making presents unique challenges and opportunities of its own. These opportunities are more likely to be realised if the constitution-making processes are inclusive, transparent, representative and democratically led. However, political will and careful planning are required to overcome the challenges, minimize the risks and seize the opportunities. The ultimate objective is to create a democratic system of governance that redresses social inequity, addresses ethnic conflicts, and accommodates universally accepted values and norms by consensus building.
At the moment, Sri Lanka is facing a number of daunting challenges. Lanka cannot be proud of its history of changing constitutions at the whim of the ruling elite and making amendments thereto to strengthen their political power as and when required. Several constitutional reforms introduced in Sri Lanka have ultimately caused Sri Lankan society to be increasingly fragmented and disharmonized. To question the behaviour and direction of governments has become nigh an impossibility. In such fragmented societies, sustained peace and reconciliation can be achieved only through inclusive political settlements under consensually developed constitutional arrangements.
Political leaderships and bureaucracies need to invest significant time and resources to implement inclusive and participatory constitution-making processes. Such processes will have the potential to make a constitution so-developed – and the governments appointed in conformity with that constitution – legitimate in the eyes of its citizens. This form of constitution building provides a forum for inclusive national dialogue to promote reconciliation and trust-building, thus fostering consensus on the fundamental principles of the nation and the framework of the State.
In Sri Lanka, like anywhere else in the world, people demand transparency, accountability and rights. They want to define their identities, set precedents for inclusive political processes, and create a constitution that caters to their aspirations. Yet, the odds at the moment seem stacked against such democratic transformations. It is high time that those in power listened, and adopted a constitutional reform process that is more inclusive and participatory instead of themselves determining what the people want.
There is no single blueprint to follow on how to make a constitution. Nevertheless, as the South African lawyer and diplomat Nicholas Haysom said, “The right answer through the wrong process will not usually yield an acceptable solution.”
Conquerors of vanquished nations and new rulers who intend on consolidating their power usually drafted their constitutions behind closed doors. Times have changed. In post conflict settings, constitutions tend to be negotiated instruments.
Any constitutional reforms leading to new governing arrangements must be formed on carefully constructed compromises following broad participatory processes that are nationally owned. Such reforms should lead to the formation of new social contracts that overcome fractured relationships between communities.
Everything in our constitution needs to be critically examined. What is the nature of citizenship? What is religion’s role in society? What are the core values of the nation we intend to build? How do politically marginalized citizens such as women, youth and non-majoritarian communities gain their civil, political, social, economic and cultural rights? How could they access justice mechanisms? And on what terms can the historically or deliberately fragmented societies and the multiethnic and religiously diverse communities in Lanka can coexist peacefully?
To overcome the legacies of non-participatory and autocratic methods of governance by the elites of the past and present, transitional leadership and mechanisms should be employed. Previously marginalised communities should be taken into the political fold through national dialogue, public consultations and civic education. Any government can function better as a robust democracy if all its citizenry participates and contributes towards its governance.
Historically, constitution-making was concerned with the content of the document rather than how that content finally came about. Until recently, the writing of a constitution was generally an act of power consolidation more than a political negotiation. At the time of granting independence, colonial countries pre-determined the terms under which such independence would be granted and the parties that would take charge of the government, and thereby safeguard the interests of the colonial powers and those who newly gained power even after the departure of the colonial overlords.
In recent decades, constitution makers have been exchanging experiences, lessons learned, and guidance to provide options on how to overcome intractable conflicts and divisions through inclusive participation, dialogue and consensus building. Leaders can look to their past experiences in constitutional reform, but should also draw from the examples of other countries to maximize the likelihood of meeting new demands from citizens in changing political landscapes.
Constitution makers can enhance their participatory efforts by working in tandem with civil society. The ability of civil society to monitor and report on such processes can improve the transparency of the process, and by extension its legitimacy. When space is created for civil society to advocate for their needs and special interests, constitution makers can gather useful information about the needs and priorities of society. At the same time, there is a requirement to determine carefully, judiciously and sensibly as to who these groups represent and how to weigh and balance their inputs.
Even the most well-planned and participatory process will be fraught with challenges, including the need to deal with decades of oppression and mistrust, the fragmentation of social and political actors, a weak history of transparency and consultation in governance, and illiberal tendencies within old regimes and many social movements.
There is no guarantee of success.
Some of those who propose constitutional reforms in Sri Lanka also advocate for a referendum at the end of such a constitutional process. But such a referendum in a divided society can mostly undo carefully constructed compromises. There have been autocratic regimes such as those in Eastern and Western Europe, who have used referenda to legitimize certain elite-dominated processes to curtail the rights of their citizens and justifiable constitutional freedoms.
Yet, when public participation becomes more than an exercise in public relations, it increases the likelihood of achieving a more durable and sustainable peace and the building of democratic foundations. This is especially pertinent in countries attempting to repair the damage done by and autocratic rule, ideological, ethnic and sectarian divisions and decades of non-participative governance methods.
Furthermore, embarking on the participatory model will strengthen and promote a sense of belonging, national unity and identity by acknowledging and incorporating the aspirations of citizens who have been previously marginalized – such as women, young people, and the people from non-majoritarian communities. It will help broaden the constitution’s social and economic agenda, and transform the understanding of constitution makers themselves, as they learn about the hopes and concerns of their people and see and hear firsthand the problems they face. It will help break from an autocratic past and lay a foundation for more democratic practices, a culture of rule of law, and ongoing citizen participation in decision making in the future.
It is essential to the health of a democracy that there is an inclusive nationwide process of civic education, dialogue, consultation, and negotiation, in which people meaningfully participate and leaders seriously consider their views, seeking acceptable compromises and consensus to achieve a more legitimate social compact and a durable peace. And it is important to acknowledge that citizens’ needs and demands cannot be addressed by political elites horse-trading behind closed doors.
Democracy allows us to recognise individual and group interests and make compromises, so that self-centred individual interests are not placed over the collective interests. In that way we can form a more endurable democracy with transparency, accountability and social justice as its core values.
This can only be achieved if the citizenry of Lanka constructively works with one another, putting aside their past differences.