18 August, 2022


A People’s Constitution; The Need To Think Outside The Box

By Basil Fernando

Basil Fernando

The discussion on the making of a new constitution through an intensely participatory process, as against underhand methods, is now on. These are a few thoughts as a response to some questions that are being discussed.

In dealing with the problem of the 1978 Constitution, we are in fact confronted with the falsification of several fundamental ideas relating to constitutionalism. The purpose of these falsifications is to create a semblance of democratic legitimacy and an appearance of democratic legality to a document that is extremely crude in nature in terms of the aims it wants to achieve. The core is to displace democracy altogether.

In dealing with an issue of that nature, thinking within the box is not going to provide us with any clue as to how to get out of this situation. It is important to think out of the box and expose first of all the utter crudeness of the document that we call our Constitution.

When we think of purely technical and legalistic terms, we get trapped within the same framework of the 1978 Constitution, but it is an imperative that we do not, if we are to see the end of that Constitution. One such problem that many lawyers have got stuck in is that the way to repeal and replace the 1978 Constitution is through the way prescribed in that Constitution itself. If we think purely within the box, there appears to be no other way. So, we have lost the battle to completely reject the 1978 Constitution, at the very start, if we think within the box.

What we are dealing with is not a mere matter of sophistry. We are dealing with a very practical issue which has now put the whole nation in peril in every aspect of social, economic, legal and cultural life of Sri Lanka. We are dealing with a context in which the country that has reached the worst point by way of an economic crisis, social crisis and a law and order crisis that is many times magnified than what it has experienced in the recent past.

This is not an issue of logic or law. It is about the conditions of the lives of the people. For very many, it has become a matter of survival itself. For many others, it has become a question about whether they are going to stay in Sri Lanka or not. Thus, the constitution making is only a part of an attempt to resolve the ground realities that have caused this situation. The 1978 Constitution, is one of the important causes of such, that has brought this situation in the country.

Our starting point is that one of the causes of this evil situation is the 1978 Constitution itself. It requires to be removed if there is to be a solution to these basic ground level problems that the people are facing.

We do not say that it alone will be the solution. We only say that without the removal of the 1978 Constitution, it is not possible to achieve any other significant change to resolve the problems that we have mentioned above.

Above considerations mean that today people will get involved in problems that in the past would have been more difficult to get people interested in. The necessity is the mother of all inventions. The new invention of a constitution that could provide a fundamental, legal framework to resolve the above mentioned problem is today not an option, but a necessity.

Therefore, in the circumstances of this nature, once the people are involved, this means that we are calling upon the genius of the nation to deal with some fundamental problems that they cannot escape from if they wish to survive. If this genius is brought to play in order to consider problems of this nature, it is possible for people to develop ways to circumvent this kind of purely abstract level of problems, such as the limits placed by the 1978 Constitution as to how to repeal or replace it, Some abstractions can be found or some abstractions can be completely ignored in the process of making important changes in the circumstances of the lives of the people.

It was not possible to think beforehand of the manner in which the South African Constitution which provided a solid foundation for the apartheid could be repealed and replaced with notions fundamentally opposed to that Constitution.. Those who worked towards a movement to defeat the apartheid did not beforehand have legal formulas by which to remove the apartheid. However, as the movement progressed, the rationality and the justice of the cause became obvious, when the consequences of avoiding a just solution came also to be confronted even by the opponents to this movement and thus developed the kind of discourse that finally ended the apartheid. Various formulas which were necessary for legal purposes were developed in the midst of that kind of historically complex situation. The same could be said about many of the circumstances in which constitutional assemblies were developed as a means of formulating new constitutions in countries which were faced with far bigger problems than the kind of problems that Sri Lanka is facing. For example, in India, with the 1947 Indian Independence Act for when they left India, there was no provision in that Act for a constituent assembly. However, leading Indians knew that the people knew about the manner in which the great constitutions are made. They created their constitutional assembly, which created a national discourse on what the system of governance needed to be and created their own Constitution with a basic structure that provided a solid base for democracy.

The problem of the development of the process in Chile is a protracted one. It was not one act that brought about such but a series of actions which brought down the military style rule that prevailed in the country and established a democratic way of governance.

What all that implies is that at this stage of the discussion for a new constitution to be made by intense participation of the people, what is important are the following factors:

The existing Constitution should be completely repealed and regarded as one of the most unfortunate documents ever produced as a legal document – in fact a constitution, in the history of Sri Lanka, perhaps also in the whole world.

No constitution that is based on the same model should ever be recognized to be the constitution of Sri Lanka. There is enormous consensus on both these issues. It may not be so strongly articulated so far. However, when the process starts and if it is pursued seriously, that articulation will emerge. That was what was meant earlier as calling on the genius of the people to come to the surface. Today, Sri Lanka is very different to the Sri Lanka of 1931. Over the years, people have changed. A much more sophisticated population now exists. In that population, there are people from many layers who are able to articulate their problems very clearly and very strongly. In the recent months, when some critical issues came up, we saw the capacity of the people to intervene not only physically by ways of demonstrations and protests but intellectually, articulating the reasons as to why they reject certain actions of the Government. Thus, the talent for a considerably sophisticated debate on the matter of constitution making is available.

Perhaps, the most important factor is that the people have suffered under the 1978 Constitution. The sufferings are the greatest teacher in the course of history. Now, the people could reflect on their own bitter experiences with the purpose of working out ways to overcome the repetition of such bad experiences.

What is needed at the moment is to provide the opportunity to all sectors of the society: To men and women, to all communities of varying degree of conservatism or radicalism, to every group that has been suffering under the yoke of the old Constitution. For example, entrepreneurs who cannot develop their businesses in a rational manner in an atmosphere of interferences and corrupt practices, those who are engaged in other businesses like banks and particularly the Central Bank and accountability mechanisms are all being prevented from exercising their professional knowledge to bring about a rational state of affairs in their businesses.

All those who are engaged in law enforcement divisions including the criminal investigation divisions, intelligence divisions, and the like are all being subjected to severe forms of repression, forcing them to act not according to their professional ethics but according to orders which most of them find to be absurd, including also the working people of all sorts, the farmers, the workers, the teachers, the fishermen , and also particularly, disadvantaged persons like the people in the State sector, disabled persons, and the like.

If all these people find that the new constitution that they construct offers them great benefits of living in a more rational and stable society, they would be willing to make many compromises even on issues which proved more difficult in the past, like the minority issue. To begin the discussion with a complete negative-ness towards any sector, however conservative they may be, is to lose the battle at the very beginning. The constitution must be seen as a form of rational discourse within which any problem can be solved peacefully. That will remove many fears about unfair competition and some people taking advantage of certain circumstances as against others. We are at this stage now. We have to begin the process of discourse. How to resolve certain technical issues should be left to the manner in which this discourse will take its turn.

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Latest comments

  • 1

    The first Republican Constitution enacted in 1972 was a complete break from the Soulbury Constitution, but unfortunately, the Constituent Assembly that formulated the 1972 constitution was elected at the Parliamentary General Election held in 1970 in terms of the Soulbury Constitution and the members elected to parliament including non-elected nominated members simultaneously functioned as members of the constituent Assembly and the justification was the mandate received at the General Election 1970 based on the Election Manifesto of the United Front. The United Front was elected with a two third majority, but without obtaining even 50 % of the total votes polled at that election.
    Thus the 1972 Constitution lacks legitimacy.
    Subsequently the 1978 constitution was enacted using the loopholes in the 1972 constitution and became law by a select committee process and the constitutional amendment for the 1978 constitution was passed with two third majority in the National State Assembly with dictatorial features.

  • 1

    If it is contemplated to formulate a new constitution after repelling 1978 constitution, it has to overcome many stringent features in Art 82, 83 and 84 of the 1978 constitution.

    It may be necessary to adopt innovative ideas to enact a new constitution that is democratic participatory and reflect the aspirations of all the people without burdened with the past.

    The lessons learnt from Indian and South African experiences in constitution drafting may be worth pursuing.

    An election to elect members of a constituent assembly with a mandate to repel and bring in a new constitution with human rights and democracy rather than meddling with the 1978 constitution is desirable..

  • 2

    Thinking outside the box is thinking outside the failed and unfortunate framework of one island one nation.

    Sri Lanka as a nation has failed completely.

    What more evidence do we need?

    The only solution is one island, three mono ethnic nations. The 3 nation solution must be implemented at all cost. It is worth it in the long run.

  • 0

    The above article is very well-detailed about the mother of all crisis, which is none other than the 1978 Constitution.

    Passive coercion of Citizens suffrage by those in control of the minds of the majority of people among all ethnicities who have consented to can not be relied upon to think outside the box, no matter how sophisticated they may be.

    • 2

      You may call the mother of all crisis is only the 1978 Constitution but the foundation was built with 1972 Constitution or earlier than that the introduction of Buddhism in the constitution. I am not against any state giving support to major religions and their contribution to well being of the people but that misused in bringing forward racism and fundamentalism which is the major factor in impacting the rule of law , justice and war and economic disaster to this country. The current constitution is in favour of violators of law and none of the governments followed after 1978 are also contributed to this crisis and they are fathers of crisis. Now people have to take the responsibility and need to get rid of those mothers and fathers and replace with new faces and new constitution.

  • 1

    The issue in Sri Lanka is not the inability to think within or outside a box by the politicians but the box starts expanding to accommodate the racist, illegal and unjust decisions of the MPs who have received nominations even though they are not educated or decent enough to be in the Parliament. Most of the MPs are crooks, rapists, murderers, and paga kings. We need a President with guts who will not take sides due to political affiliations but will stand for law and order and the implementation of justice. Even the AG and Chief Justice have to be kicked out if they are not acting in the best interest of the citizens.

  • 1

    The 1972 Constitution was to be replaced by one that gives more power to the people and not to replace it with an executive Presidency.

  • 1

    Regrettably, induced emotional prejudice has become a convenient tool to manipulate people’s decisions.

  • 2

    What is needed is first and foremost to decentralize powers and get people engaged in the governance of their administrative districts.

    Then reduce the number of parliament members.

    The MPs should work with the people of the electorate where they are elected, it makes no sense to have them all permanently stationed in Colombo.
    Have their budget, collect the taxes and develop their area without expecting to be nannied by the central government, the self-administered area Ministers, and the people should take responsibility.
    This is the kind of Constitution that will work.

  • 2

    Sri Lanka has lost the opportunity of becoming a 1st world Country, due to many interferences, refusal to embrace diversity through our multiculturalism, refusal to recognize the importance of sincerely convincing the International community that we have learned lessons from the past war and other conflicts, and now able to establish a stable and secured environment.

    It is simply not possible even in the future because there is not a single Politician in this Country who does not have the iron in them or the wisdom in them to keep governance exclusively to take care of the administrations that are to maintain law and order, ensure equal opportunities to all, freedom but checked to not allow sedation.

    I do not see this nation ever being able to produce such a Leader who is willing to be so even if it antagonizes anyone.
    So we now have to understand that we are people who refuse to use our independent reasoning and are willing to go with the flow by accepting anything and everything that the politicians keep feeding us with.
    Politicians just use what the people are programmed with.

  • 1

    Beg your pardon, meant to say has the Iron in them or the Wisdom,
    Sorry about the typos

  • 2

    As long as we do not realize that it is not about changing political parties or politicians the answer, but rather it is about changing the system completely, we will be left far behind.

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