By Nihal Jayawickrama –

A few days ago, a member of the government parliamentary group announced that the government will shortly begin drafting a new constitution. He also spoke about Parliament being transformed into a constituent assembly. He spoke of a referendum. Perhaps the time is opportune to identify which features of the present constitution should not be repeated, and what new features ought to be included, in the new constitution.

A national consensus

A national constitution is a document that crystallizes a “consensus” among the citizens as to the nature and character of their State and the manner of its governance. That is not a historical fact, because citizens do not actually sit and arrive at a consensus on what their constitution should be. But it is a legal fiction that gives the constitution legitimacy. It raises the issue as to how and through what mechanisms such a consensus may be arrived at. Whatever the mechanism, constitution-making is not the prerogative of the government. To entrust that task to a government is, as Senator S. Nadesan QC observed in 1970, comparable to what the outcome might have been if at Runneymede, the Barons of England had invited King John to draft the Magna Carta. The truth of his observation is evident if one reflects on the processes through which the three recent constitutions of this country were drafted and adopted.

The drafting processes

The 1946 Constitution was based on a constitutional scheme submitted to the British Government by the Board of Ministers of the State Council. It was prepared by Sir Ivor Jennings without any public participation. The only constraint was that it should be acceptable to three-quarters of the 58-member State Council in which 19 members belonged to minority communities. It was in many respects a replication of the Westminster system of government. It simply created the principal institutions and defined their separate powers and functions. It also contained certain safeguards for the minority communities. But the Royal Commission that was appointed to examine the scheme spent three months in the country travelling through the provinces, meeting various interest groups, recording evidence at public sessions, and gathering information at private discussions. Its recommendations were accepted by the State Council by 51 votes to 3. A young assistant legal draftsman, sitting with a typewriter at his home in the small town of Panadura, gave legal shape and form to these proposals which, when incorporated in an Order-in-Council, became known as the 1946 Constitution of Ceylon.

In sharp contrast to this method of public consultation, the drafting of the 1972 Constitution commenced within a framework of 38 immutable “Basic Resolutions” which the Minister of Constitutional Affairs described as being “completely in accord with the United Front and Government policy”. The draft constitution, prepared by a drafting committee of ten professionals of whom I was one, was published for public comment, with the caution that any proposals for amendment must be in conformity with the Basic Resolutions. This meant that only matters of form, detail and language would be considered. Consequently, the original draft with very slight modifications was adopted as the 1972 Constitution. Similarly, the process of drafting the 1978 Constitution commenced with the appointment of a select committee of parliament to “consider the revision of the 1972 Constitution”. It held 16 meetings, at some of which I participated as legal adviser to the two SLFP members, Mrs Bandaranaike and Mr Maithripala Senanayake. Finally, much to our surprise, the draft report submitted at the final meeting had annexed to it a completely new draft constitution which had never been previously submitted to the select committee. It was described as being in accord with “the Basic Principles accepted by the 1975 Party Sessions of the United National Party”. Notwithstanding this drafting history, both these constitutions begin with the assertion that “We the people of Sri Lanka . . .do hereby adopt and enact this Constitution”.

A government/parliament drafted constitution

There is a significant difference between the two constitutions drafted by governments and the one recommended by a commission after consultation with the people. The 1972 Constitution was designed to establish the supremacy of the legislature, while the 1978 Constitution, established the supremacy of the executive presidency. They reflected the policies of the two principal political groupings of the south. The voice of the north was neither heard nor recognized. By no stretch of one’s imagination could these be described as reflecting a national consensus. The constitutions that the politicians drafted and imposed brought authoritarianism, inefficiency, corruption and divisiveness. What this country was subjected to under them could not possibly have been what the people desired for themselves and their children.

Those still familiar with life under the 1946 Constitution will recall that its non-ideological flexible framework enabled both right-wing and centrist political parties to be elected to office, and for them to implement both free market and regulated economic programmes. It withstood the tremors caused by the attempted military coup d’etat of 1962, and the whiplash of the 1971 JVP insurgency. Seven general elections produced five different governments. The dominant political culture of the times was a widespread acceptance of democratic governance and the rule of law.

Constitutional Commission

If any lessons are to be learnt from the mistakes of the past, the task of drafting the constitution should be entrusted by Parliament to a constitutional commission; a politically independent and representative body. To it, the government and others will be able to make representations on an equal footing. When the commission publishes its report together with a draft constitution, there should be an opportunity for a national debate. Thereafter, it will be for Parliament to decide whether to enact that constitution, with or without amendments. Such a constitution may claim to reflect a national consensus. This method has been successfully adopted in several countries of the Commonwealth. Indeed, there are numerous precedents from across the democratic world that we should seek to emulate, not pretend not to know or see.

Referendum

The government spokesperson also suggested that the new draft constitution may be referred to the approval of the people at a referendum. A referendum may be feasible on a single, specific question, such as Sunday shopping, Poya holidays, or even the name of the State, but it is wholly unreliable on a constitutional document. To submit a draft constitution to the people at a referendum, in the certainty that the overwhelming majority will not even read it, is to invite them to vote against it because they disagree with a single provision or some other extraneous element. Two decades ago in Canada, the Charlottetown Accord, a significant constitutional agreement designed to give effect to the multicultural character of that country, agreed upon by all the First Ministers of the provinces and the First Nation leaders, was rejected at a referendum for widely divergent reasons, one of which was the widespread unpopularity of the then Prime Minister.

Unnecessary Provisions 

There are several provisions in the present Constitution which are unnecessary, meaningless, emotion-charged, divisive and destructive. Let me identify a few of these.

Name of the State

The Republic of Sri Lanka was not enhanced in stature or repute by the change of its name in 1978 to the grandiloquent ‘Democratic Socialist Republic of Sri Lanka’, a description borrowed from North Korea. Countries do not usually change their names, but we had already done that six years previously from “Ceylon” to “Sri Lanka”, putting in peril one of our principal sources of foreign exchange, “Ceylon Tea”.

Sovereignty

To assert that “sovereignty is in the people and is inalienable” is wholly unnecessary because in a Republic sovereignty resides in the People. This provision was introduced in 1972 to emphasize that power was no longer derived from the British Crown. It served a symbolic purpose as a declaration of independence through a constitution enacted outside the existing legal framework. It was reproduced in the 1978 Constitution without any explanation, and has been repeatedly misinterpreted by judges to stultify the legislative process.

Unitary state

It is unnecessary for the Constitution to proclaim that Sri Lanka is a “Unitary State”, whatever that might mean. The People’s Republic of China, with its numerous autonomous provincial governments, is a unitary state. Within that unitary state, Hong Kong has its own legislature, its own judicial system based on English common law, its own court of final appeal consisting of both local and foreign judges, its own currency, and its own immigration laws which require other Chinese citizens to obtain a visa to enter the territory. What then does “unitary state” mean? The whimsical intervention of a minister, acting on a sudden impulse, resulted in the inclusion of the term “unitary” in the 1972 Constitution. He may not have anticipated the consequences of his action. The 1978 Constitution not only adopted this section, but made it unamendable except by a referendum. This impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogeneous Sinhalese-Buddhist State on this island.

Buddhism

As a Buddhist, I believe that tolerance and pluralism form the basis of the philosophy that the Buddha preached. I am saddened by the worldly roles that monks have arrogated to themselves and politicians have bestowed on them. I consider that providing monks with official residences and ostentatious limousines is a desecration of Buddhist philosophy. If others too believe as I do, they would insist that there be no reference to Buddhism in the constitution. It was a mistake to have included it in 1972. The question of constitutional protection for Buddhism was first raised on that occasion by lay organizations such as the All Ceylon Buddhist Congress and the Maha Bodhi Society who urged that Buddhism be declared the state religion. Some senior monks emphatically opposed the concept of a state religion, and appeared to be more interested in the establishment of ownership of property required for the performance of rites and rituals. The original provision sought to impose a duty on the state to protect the institutions and traditional places of Buddhist worship, but that metamorphosed over time into a requirement that the state shall give to Buddhism “the foremost place”, and shall “protect and foster the Buddha Sasana”.

This requirement, whatever it means in respect of what is essentially a philosophy of life, identifies those who profess their belief in the great religions such as Hinduism, Christianity and Islam as being “the other” in the Sri Lankan polity. It is time we recognized that in this multi-ethnic, multi-lingual and multi-religious secular country, everyone has the right to freedom of thought, conscience and religion. If Buddhism was able to survive in the hearts and minds of the people through 450 years of western colonial rule, the intervention of the state is surely not necessary to keep it alive in the free, sovereign and independent Sri Lanka. National reconciliation and reintegration require that Sri Lanka should assert its secular character, as, for example, India and Singapore have done. In some countries, the clergy are prohibited from seeking election to parliament, the rationale being that a priest is capable of exerting undue spiritual influence on the voter. Is there any good reason why we should not follow that example?

Official languages

Language is not only a mode of communication; it is also the medium through which knowledge is acquired. It is unfortunate, but true, that Sinhala does not serve either purpose adequately. Political leaders with foresight and sagacity, across the African continent and in countries such as India, Singapore and Malaysia, retained English – now the acknowledged international language – and adopted it as the medium of instruction and administration to ensure that their peoples could communicate with the world beyond their geographical boundaries, and acquire the knowledge that now emerges as rapidly as the old is debunked, and equip themselves to serve the global community in capacities other than as domestic helpers and semi-skilled workers. It would be a reality check for our politicians if they were to ask the youth of this country which language they wish to be educated in.

Essential Innovations 

What would I wish to see included in the new constitution?

A Constitutional Head of State

For a quarter of a century after independence, this country had a constitutional head of state. In the next thirty-eight years, the head of state was also the head of government. Which institution is preferable? The former symbolized the state, not the ruling political party or alliance. He was a unifying figure who provided stability to the state. He was accessible to anyone of whatever political persuasion, especially when the heavy hand of government was felt. He performed the ceremonial functions of the office, leaving to the political head of government the resolution of the important matters of state. Although the constitutional head of state was required to act on advice, I am personally aware of several occasions when President Gopallawa requested reconsideration, and even declined to act as advised until he was furnished with good and sufficient reasons for doing so. When, in 1974, the great conflict arose between the National State Assembly and the Constitutional Court, it was only in the presence of President Gopallawa that the Judges were willing to speak with the representatives of the Government. In a highly politicised state such as Sri Lanka, the restoration of the constitutional presidency is imperative.

A non-executive Legislature

Since 1978, the distinction between the legislature and the executive has not merely been blurred, but has virtually ceased to exist. When nearly every member of the government parliamentary group is appointed to executive office, and members of the opposition who cross the floor are similarly rewarded, parliament is reduced to a token assembly capable only of validating government decrees. Self-interest becomes an overriding consideration, and parliamentary life is equated to employment which one cannot afford to lose. Parliament should represent the people, make laws, and hold the government to account. To perform these tasks, members should be elected from geographical constituencies as they were until 1977. They should be relieved of executive duties; and instead required to monitor, through select committees, the performance of the different ministries. In a second chamber, representation through functional constituencies may provide the unique expertise that the first chamber may not posse

A non-parliamentary Executive

It is an indisputable fact that, with very few easily recognizable exceptions, cabinet ministers of the present and past governments have possessed neither the intellectual capacity nor the experience and integrity, to handle the great affairs of state. To how many of them will you entrust responsibility for your own personal affairs? The proliferation of ministries in order to extend the field of patronage has reduced government to such a state that, were it a corporate body, it would have succumbed to bankruptcy or been driven to dissolution. In an age when most governments across the continents consist of technocrats who are experts in their respective fields, individuals who can confidently communicate with their counterparts abroad on an equal footing, should we too not draw our ministers from among the best and the brightest in the professional world? They should sit in parliament, steer legislation, and be accountable to it, but without a vote. The single exception will be the Prime Minister who, as head of government, should be an elected member of parliament who commands its confidence.

A Constitutional Court

No constitutional provisions can restore integrity in our judiciary. Perhaps the implementation of the internationally recognized code of judicial conduct, which Sri Lanka has chosen to ignore, may restore some credibility to the institution. Meanwhile, it would help if a new Constitutional Court is created, at the apex of the judicial hierarchy, to exercise the fundamental rights and constitutional jurisdictions, including the judicial review of legislation. It will enable the regular existing courts, including the Supreme Court, to focus on disposing the enormous backlogs in civil and criminal cases that have developed over the years, especially with our judges having to also service the military dictatorship of Fiji.

Judicial Review of Legislation

It is particularly important that the judicial review of legislation be restored. It is when a law is being applied that its negative impact on a fundamental right becomes evident; not when a Bill is examined in the abstract, as is the present system. Also, the meaning and content of fundamental rights do not remain frozen in time. For example, the right to life, which was originally thought to prohibit only the arbitrary deprivation of life, has over the years been interpreted to include the right to food and the right to livelihood, and protection from the illicit dumping of toxic and dangerous substances and waste, access to medical services and the protection of the unborn child. Or the concept of torture, which now includes minimum or mandatory sentences, and corporal punishment in schools. These are contemporary definitions of constitutional provisions which judges and lawyers may not recognize at any given time when a particular bill is examined in the abstract.

The Public Service

The civil service in this country was once the pride of Asia. I have ambivalent thoughts on whether its abolition and replacement with the Administrative Service in the 1960s was a progressive measure or not. When I was appointed a permanent secretary in 1970, my colleagues included M Rajendra, C.A. Cooray, Arthur Ratnavale, Mahinda Silva, J.B. Kelegama, P.B. Karandewela, James Lanerolle, Nissanka Wijeratne, A.E. Gogerly Moragoda and Baku Mahadeva. They were men of knowledge, experience and integrity. The standards they and their predecessors set and observed are now distant memories.

The 1946 Constitution required a permanent secretary to perform his functions “subject to the general direction and control of his minister”. General direction referred to matters of policy only. In the 1972 Constitution, the word “general” was deleted. Thereby the Minister, and through him numerous parliamentarians and constituents whom he wished to humour, became directly involved in the routine administration and decision-making processes of government departments. The process of politicising the public service began. Good governance requires the re-establishment of the independence of the office of permanent secretary.

Fundamental rights

Over 30 years ago, Sri Lanka signed and ratified the two international covenants that define the universally accepted civil, political, economic, social and cultural rights. But successive governments failed to give constitutional force to the rights recognized in them, or to provide effective remedies. The 1978 Constitution selectively designated a few of these rights as fundamental rights and subjected even these to numerous restrictions. For example, the right to life is omitted. Others omitted include family rights, the right to privacy (a significant omission in the context of telephone tapping), the right to property, the freedom to leave the country, the right to seek, receive and impart information and ideas, the right to a fair hearing in respect of civil rights and obligations, and the rights of accused persons. “Birth or other status” is not a prohibited ground of discrimination, thereby enabling the perpetuation of the concept of illegitimate children. And, of course, none of the economic, social or cultural rights are recognized. Finally, all existing law is declared to be valid and operative notwithstanding any inconsistency with the chapter on fundamental rights. That means that the entire body of law enacted over a period of 176 years, a veritable armoury of archaic powers and more recent intrusions into human dignity, remained in force notwithstanding any conflict with fundamental rights.

When the citizens agree to be governed, what they insist in return from the rulers is that their rights and freedoms be effectively guaranteed. The constitution should provide, as it does in many other countries, that an international treaty, when ratified, will have the force of law, superseding any inconsistent existing law. Alternatively, at least the provisions of the two international human rights covenants should be incorporated in the constitution. That is not only a matter of sound commonsense and prudent governance; it is also a solemn treaty obligation.

Ethnic and religious minorities

The tragedy of Sri Lanka is that many of our politicians have refused to recognize the fact – the unalterable, immutable and enduring fact – that we are a multicultural country. In the contemporary multicultural state, minority communities have rights in common with, and no less than, everyone else. Indeed, because of the need to protect their distinctive character and identity, minority communities, even enjoy additional rights. For example, their physical existence is protected by the criminalizing of genocide, by recognition of the right to seek asylum, and by the prohibition of discrimination. International human rights law now guarantees the right of minorities to use their own language, to profess and practise their own religion and the right to enjoy their own culture. International law also recognizes the right of a minority to determine its political status, and the right to participate effectively in decision-making, both at regional and national levels. The application of these principles is non-negotiable, and cannot be made subject to the will of the electorate. They should form an integral part of a national constitution. We have so far failed to do so, and the consequent events, both tragic and destructive, are now a matter of history.

Conclusion

We need to remember, and never forget, that today’s power-holders are, as yesterday’s were, merely trustees for the time being. This country belongs to all of us – all twenty-one million of us. We have the right not only to be heard, but also to actively participate, in determining the national consensus that will form the foundation of a new constitution for our country. We need to look ahead to the next twenty-five years and ask whether the constrictive framework of governance prescribed in the 1970s is appropriate or adequate to meet the challenges of the new millennium. Instead of repeated assertions of sovereignty, which reminds one of the fish that grows in a pond and considers itself the king of the sea until it is introduced into the ocean, we must awaken to the reality that Sri Lanka, is now inextricably linked to the global village. We must not overstay our welcome in the pond when the ocean beckons. As John Donne observed four centuries ago, “No man is an island, entire of itself; every man is a piece of the continent, a part of the main.”

It may well be said that my thoughts are nothing but a dream. But we need to dream. Dreams are what take us forward. Unless we dream, we will not reach that new frontier.

*An edited version of a presentation made at the 74th Annual General Meeting of the Sri Lanka Federation of University Women