4 December, 2020

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A Democratic Approach Towards Drafting A People’s Constitution

By Lionel Bopage

Dr. Lionel Bopage

They [i.e. Constitutions] create and empower the institutions of the State by which law is made, administered and enforced. They provide the legal framework for relations between the State and those whom it recognises as the people of the State. Constitutions can protect values, principles and practices deemed important for peaceful co-existence of communities within the State. They derive their legitimacy from factors bound by the State: typically the people as putative authority and over time the effectiveness of a constitution as an instrument of government. – Cheryl Saunders[1] AO FASSA FBA, Laureate Professor Emeritus, University of Melbourne

As the above quote makes it clear, a constitution is vitally important to the political and civic life of a nation. The process of constitution-making provides a country and its people the opportunity to develop a properly democratic constitution that reflects the socioeconomic and cultural diversity of  a country. A constitution enacted without adhering to proper democratic processes and inclusive participation of that diversity has proven to be brittle.

A constitution determines the relationship between the government in power and the individual in the community. For a constitution to be truly democratic, it has to articulate clearly and precisely as possible the power and the role of the executive arm of the government, the legislature and the judiciary. A separation of these powers is essential for the proper functioning of a democracy. By determining the manner in which the sovereignty of a country and its peoples is vested, a constitution reflects and embeds the political order of the government and how it governs on behalf of all its peoples.

Thus, a properly developed constitution needs to exemplify the national, political and constitutional identity of the people that its ambit covers by seeking to embody and recognise their political, cultural, religious, linguistic and ethnic diversity into the concept of the nation it stipulates. Therefore, a constitution can be defined as a set of rules that regulate the way a government operates within a state. Institutions and agencies become part of the system that the constitution establishes. As such, a constitution determines the powers exercised by those institutions and agencies and the manner in which they deal and interact with each other.

A constitution will represent the basic, essential and fundamental law of a country and its societies, and that is why framing and developing a constitution democratically is so vital. It provides the framework for the formulation of all other laws enacted in the country and the exercise of governmental authority. It is a roadmap of the future and hence public participation in its drafting is of vital importance.

At the same time, attention needs to be focused on other key matters such as: the key players that should be included in the constitution making process and how they are picked, and how those matters are resolved and implemented. Realising this will involve a number of steps at various stages during which stake holding organisations and individuals need to be identified and included in the process. This is not an easy task. Given the legal and political complexity, it needs to be handled with empathy and careful attention to cultural nuances.

When there is agreement on the concept, ideas and the process, the next step will involve precipitating a clear picture about what the issues that the new constitution need to address and what it needs to look like. The appropriate model that can best fit in with the concepts and ideas that have been collated needs to be determined. Several models are currently in use around the globe viz. the commission model, expert model, constituent assembly model, referendum model, draft committee model, gift model, colonial model, adherence model, peace negotiation model, national conference model, etc.

The legitimacy of the constitutional making process needs to be measured by the degree to which the process has been democratic, participatory, open, socially inclusive, accountable and transparent. A constitution drafted using a democratic model and procedure is more citizen friendly as well as long-lasting and robust. It is to be noted that there is no fair rule, or a formula, or a definite method or model that could be utilised in the process of constitution making. The most suitable model that could be selected will need to conform to the nation’s geographical, social, cultural, religious, economic, historical, political and legal system. Therefore, it is essential that the focus should be first on the methodology of making the Constitution and then on the process of enacting and implementing it.

Our post-authoritarian world provides many examples justifying why a constitution drafted using a democratic model is more durable. Populist constitution making mechanisms have rarely enacted constitutions that restrict the concentration of power. However, such mechanisms have drastically undermined the rights of the individual. In fact, such populist mechanisms have made the democratic space smaller by weakening and/or eliminating transparency, accountability and the rule of law. This has been a sure-fire recipe for political and communal instability.

In contrast a constitution drafted using a democratic model and procedure is more durable because:

*It places the sovereignty of its diverse people at its heart;

*It respects and ensures the architecture of the constitution that has in its veins the separation of the judiciary, the executive and the parliament;

*It enshrines the rule of law and the independence of the judiciary; and

*It consists of clear-cut clauses making the actions of those in power accountable, transparent and they cannot exceed the rule of law.

A democratic decision-making process is essential for social harmony. It can be done by bringing our diverse nation together giving all the inhabitants of our verdant isle a say and ownership in their own constitution. A constitution that at its heart make those who exercise power do so on behalf of the nation, in a framework that is fair, accountable, transparent, and does not undermine the rule of law is the way to go.

[1] Saunders C. 2019, Constitution Making in Asia. In The Chinese Journal of Comparative Law 7(2), 252

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Latest comments

  • 1
    0

    I saw a news item that the Rajapaksa government is considering introducing a clause restricting the age limit to contest for Presidency as 55 years. Little surprise though, it looks like they have decided to be “democratic” and field someone like Wimal Weerawansa as the next Presidential Candidate in late 2024. I think that they have finally realized that people will never elect another Rajapaksa as the President and also the Pohottuwa has hardly any time to choose a new guy.

  • 5
    0

    Lionel Bopage,
    At the end, you too have fallen into the rut, believing that a Constitution is the panacea for our national ills. No, Lionel, no. The communal venom Sri Lanka is afflicted with is resistant to constitutions, however well intended, designed or crafted.

    • 1
      0

      There is a phrase in Sinhala ‘like changing your pillow to cure your headache’. Sri Lanka has changed pillows many times.

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