By Lionel Bopage –
By Lionel Bopage
Background
Constitutional development in Sri Lanka has evolved through several phases, from British colonial days to its post-independence era. Key milestones in this process are the 1931 Donoughmore Constitution, the 1948 Soulbury Constitution of the Dominion of Ceylon, and the 1972 and 1978 Republican Constitutions. The 1978 Constitution established an executive presidential system and has been amended 21 times. One of the most significant changes came with the Thirteenth Amendment in 1987, which introduced devolution through the establishment of Provincial Councils by adding Chapter XVIIA to the Constitution. The Amendment was necessary, according to the Indo-Sri Lanka Peace Accord, for ‘preserving Sri Lanka’s character as a multi-ethnic, multi-lingual and multi-religious plural society, in which all citizens can live in equality, safety and harmony, and prosper and fulfil their aspirations’.
The current Constitution grants the President broad executive powers and privileges. Although freedom of religion is a protected right under Article 9 of the Constitution, Buddhism is given the foremost position. While guaranteeing a broad range of fundamental rights, the constitution designated Sinhala as the sole official language of Sri Lanka, and effectively, sidelined Tamil, which was the language of a significant minority population of Tamils and Muslims. It also sidelined English, restricting the benefits of English education to a privileged minority comprising sections of the ruling elite.
It is worthwhile to recollect what Lenin said in 1914: “For different nations to live together in peace and freedom or to separate and form different states (if that is more convenient for them), a full democracy, upheld by the working class, is essential. No privileges for any nation or any one language! Not even the slightest degree of oppression or the slightest injustice in respect of a national minority—such are the principles of working-class democracy.”
A national constitution and its importance
A national constitution is a set of laws that governs a country. It is a foundational legal document and outlines the structure, powers, and functions of a government. It defines the relationship between the government and its citizens. Those rules may be based on tradition or may be written down in the form of legislation or several pieces of legislation. In certain countries, such laws forming the constitution are ordinary laws that can be changed just like any other law. However, in most countries, the laws creating the constitution are given a special status.
The pithy statement “a constitution is a piece of paper not worth the paper on which it is written” is a well-known aphorism. It suggests that the document itself is less important than the principles it embodies or how they are upheld in practice. It emphasises the need for ongoing commitment to the principles of the Constitution by both the government and the citizens. The statement can be seen as an oversimplification of the role and importance of a constitution. It overlooks the fact that a constitution provides a framework for governance and protects the fundamental rights of citizens. A constitution represents more than just a document; it embodies societal values, rights, and a continuous commitment to its ideals.
A constitution is only as good as its practical application. If the principles enshrined in a constitution are not upheld, as is happening now in countries like the United States, then the document itself may become worthless. When military and/or authoritarian elites overthrow governments, or when autocrats and dictators win elections and take power, constitutions can just become mere pieces of paper.
Enshrining People’s Rights
Constitutions often enshrine fundamental principles and values, such as democracy, human rights, and the rule of law. The Australian Constitution, for example, was the result of a long process of negotiation and compromise among the colonies, and it reflects the values and aspirations of its framers. The value of a constitution lies in its ability to establish a framework for governance, protect individual rights, and provide a stable foundation for all ethnicities of the society. The importance of the practical application of a constitution and the ongoing commitment to its ideals cannot be highlighted enough. A constitution is not a static document. A constitution is a dynamic document that can be modified to reflect the evolving societal needs and values.
Process of Constitution Making: International Experiences
Creation of constitutions involves a multi-stage process. The approaches different countries have taken in this regard vary depending on the privileges and stakes held by those who wield state power. In Australia, the process involved representatives from the six states, which were then self-governing British colonies. They met in a series of conventions to draft it. This draft was then put to the people for approval at referendums, and finally, it was enacted by the British Parliament. The Australian Constitution came into effect on January 1, 1901, marking the birth of the Australian nation. The Australian Parliament was formed, and the colonies officially became states.
Soviet Union, China and Vietnam
The constitution-making processes in the then Soviet Union, and later in China and Vietnam, were all rooted in ‘socialist’ ideology. Yet, their processes differed in their contexts and specific approaches. The Soviet Union’s process involved drafting constitutions within the framework of an informal Soviet state, with input from Soviet advisors and leaders. In turn, the Soviet Union exerted considerable influence on constitution-making in its satellite states, including those in Eastern Europe, East Asia, and even in Inner Asia. It followed a hierarchical logic, with multiple actors (like domestic party leaders, legal scholars, and Soviet advisors) involved in drafting and adopting constitutions. Constitutions often established parliamentary bodies as supreme institutions, with standing bodies to handle functions between parliamentary sessions. Though each constitution ascribed sovereignty to the people, the obvious drawback was the limited public participation. The party and party advisors largely controlled almost the whole process.
In China, the making of the 1954 constitution involved a broader representation of various social groups. The initial step in establishing a framework for the national government involved the formation of the Chinese People’s Political Consultative Conference, a multi-party congress to advise the government. The Chinese Communist Party (CCP) ultimately guided the constitution-making process, ensuring the constitution reflected its ideology and goals. The first election of the National People’s Congress involved members of various backgrounds, including party members and non-party members, reflecting a united front approach. It is this Congress that adopted the first constitution in 1954.
Vietnam’s constitution-making process, while guided by the Communist Party, has seen improved efforts towards public consultation and engagement. Vietnam’s constitution-making power resides with the National Assembly as the country’s supreme organ. It can both make and amend the constitution. While retaining significant control, the Communist Party of Vietnam has made efforts to ensure public consultation and engagement. Due to the society’s homogeneity, Vietnam remains a unitary state, and the government and judiciary are responsible and accountable to the National Assembly.
South Africa, Nepal, and Chile
The constitution-making processes in South Africa, Nepal, and Chile involved extensive consultation procedures. Yet, the specific methods used, and the levels of participation varied significantly. South Africa’s process focused on inclusive negotiations and broad stakeholder engagement, including the establishment of guiding principles. The process was part of the journey of a complete transition from apartheid to democracy. It started with the establishment of 34 binding constitutional principles that guided the content of the final constitution. Extensive consultations involved various stakeholders, and included political parties, civil society organisations, and community groups. The process aimed to be inclusive, ensuring representation from different segments of society in the drafting and negotiation of the constitution.
In Nepal, the process involved a constituent assembly and various consultation mechanisms. However, it faced challenges in achieving consensus and representation. The process of constitution-making was linked to a post-conflict transition from a monarchy to a federal republic. A constituent assembly was elected to draft the constitution, but the process faced challenges and delays. Various consultation mechanisms were used, including public hearings, engagement with civil society, and consultations with stakeholders. However, achieving full representation and consensus among different political and social groups proved challenging.
In Chile, the process was initially driven by a popular referendum. It involved a Constitutional Convention and later a multi-stage process with expert committees and a Constitutional Council. This process experienced both successes and failures in citizen participation and elite consensus-building. Citizen participation was a key aspect, but the process also highlighted the importance of elite consensus and political agreement. The Chilean experience offers valuable lessons on the importance of trust among political elites, the impact of historical contexts on constitution-making, and the need for robust mechanisms for citizen participation and consultation.
Australia
In Australia, the Constitution holds a unique status: it cannot be amended in the same manner as other laws. It is a supreme law and overrides other laws. Before 1901, the present Australian states were separate colonies of the then British Empire. When the colonies decided to join together in a federation, representatives from each colony were elected to attend constitutional conventions to draw up a new constitution for the nation. The draft constitution was later approved by a vote of the people in referendums held in each colony. The Constitution outlines the structure of the federal government (that is, whether Commonwealth, national, or central government) and defines the relationship between the Commonwealth and the states.
What is significant in the Australian Constitution is that while the Parliament can change ordinary laws by enacting amendments to them, it can only initiate proposals for changes to the Constitution. Initially, the approval of the Australian people was a crucial step in the process of creating the Constitution. The Constitution also outlines the specific procedures for amending it. However, unlike the constitutions of some Western countries, the Australian Constitution does not contain a Bill of Rights—a list of the rights the citizenry enjoys.
A proposal to alter the Constitution starts with a bill presented to either the Lower House or the Upper House of Parliament, introduced by any member or senator. A constitution alteration bill follows the same procedures in each House as any other bill. However, it has the important exception that its third reading must be passed by an ‘absolute majority’, meaning that it must be agreed to by more than half of the total number of members of the House. The other bills need only a ‘simple majority’, i.e., the agreement of the majority of members voting at the time. When a constitutional amendment bill passes both Houses of Parliament, it is put to a referendum for the Australian people to vote on within a specified time frame.
For the referendum to be successful, the proposal must be approved by the majority of voters nationwide, as well as by the majority of voters in the majority of the states (that is, in at least four states). If a proposal affects only a specific state rather than all states, it must also receive majority approval within that particular state. Since 1901, several official bodies have reviewed the Constitution, including Commissions, conferences, conventions, and select committees. However, only eight of the forty-five proposals to amend the Constitution that the Parliament passed have won in the referendums.
Some of the central features of Australia’s system of government are not set down in the Constitution but are based on custom and convention. These include the role of Prime Minister and the Cabinet, who effectively lead the nation by making important administrative and policy decisions. On some matters, the Constitution sets down temporary arrangements ‘until Parliament otherwise provides’. The Parliament does this by subsequently enacting legislation.
The High Court of Australia is responsible for interpreting the Constitution, but it does not provide advisory opinions. Such interpretation is needed not only to settle disagreements over the meaning and application of particular provisions, but also due to developments that may arise, which were unforeseen at the time the Constitution was written. The High Court issues rulings on specific cases on constitutional provisions.
To be continued.
