By Basil Fernando –

Basil Fernando

Towards A Constitution That Fosters Peoples Participation & Economic Development – IV 

Everyone will agree that there is an unprecedented agricultural crisis in the country at present. It is also important to note that there are a number of other crises which are interrelated with the agricultural crisis. A close review of these crises reveals how much the crisis involving the Constitution of Sri Lanka has contributed to create these issues. It also appears that if the process of formulating a spurious constitution is pursued further, inevitably the problems associated with agriculture and the other related issues will intensify and create large scale destruction. It is therefore evident that the crisis involving the Constitution is inextricably linked to the crisis of agriculture.

A number of factors contributing to the agricultural crisis have already been discussed in public forums.

Fertilizer crisis

First of all, the debate was focussed on the crisis of chemical fertilizer. The crisis was exacerbated by the sudden ban on the use of chemical fertilizer. According to news reports published by some media organisations, about 20 precent of farmers has abandoned farming due to their inability to pursue agricultural activities without fertiliser. All media institutions have reported that there will be a major collapse in the agriculture harvest in the coming months leading to a large-scale food shortage which is unavoidable. Under the circumstances, it is important to find out as to how the situation has been created in Sri Lanka in which the President could make an arbitrary decision on the use of chemical fertilizer. This is an issue that no political power should be allowed to interfere with. The decisions of this nature are usually reached through comprehensive processes developed after persistent discussions held with the experts in the field and gaining a clear understanding of the subject. So much so, the farmer should be given the first priority in this process. It is the farmer who possesses the greatest wisdom in farming. Everyone else plays only a secondary role in this task.

Making far-reaching policy decisions on food production calls for having genuine, deep, long and clear discussions with the farmers to comprehend the problem in its correct perspective, identify whether their suggestions are appropriate to solve the problem, and also to ensure that the suggestions made by experts of the subject and other parties are pragmatic and realistic, and the decisions taken outside this process can be described as one among the great follies. It will not be possible to rectify the present situation or prevent occurrence of such situations in the future without probing into the circumstances that had led to create an atmosphere in Sri Lanka, where the head of state had been prompted to make an extremely a foolish decision

How can the Constitution impact on making prudent decisions? Formulating a constitution for the country intends to prevent the executive making wrong decisions disregarding the public opinion; understanding of it will certainly help gain practical wisdom for solving the problems facing the country. That is what it is meant by interfering with arbitrariness. In other words, to create a legal framework that obstructs the initiation of imprudent activities. The Constitution is at the apex of this legal framework. The Constitution enshrines the procedure to be followed in resolving issues within a legal framework and makes it an imperative requirement. That is what is meant by legalization. In fact, there should have been a provision in the legal system of Sri Lanka to repeal the ban on the import of agro-chemicals. Such provisions exist in every country where the rule of law and the supremacy of law prevail.

When the process of a certain activity is legalized it invariably gets socialized as a thing to be followed compulsorily. Failure to do so will make the activity illegal and render it an invalid process.

Revoking the wrong decisions of the executive

The executive is liable to make wrong decisions. That is why the judiciary has been vested with the right to declare certain decisions of the executive, illegal or not in conformity with the constitution. It is to facilitate the performance of this onerous task that the right to review the laws and decisions of the executive has been vested in the judiciary. If the citizens had the capacity to make an appeal to the Supreme Court or the Court of Appeal and obtain an injunction against the sudden decision of the government to ban the importation of agro- chemical, it could have been possible to overturn and revoke the government’s policy.

This provision, which is inherent in the law of Sri Lanka, has been repealed by the 1978 Constitution of Sri Lanka. Thus, all those engaged in agriculture have been rendered extremely helpless by depriving them of the right to challenge the decisions of the president, before a court of law. Helplessness means that there is no refuge. The law is the process of providing redress for all injustices. What the Constitution of Sri Lanka has done was to make all the people of the country the victims of this helpless situation. Had the power of the president been restricted and that of the judiciary restored enabling it to make speedy decisions , by the Constitution , the latter would have been able to decide whether or not the actions taken by the former on all matters of importance in the country were legitimate, just or liable to bring dangerous consequences; and the crisis over agriculture also could have been resolved.

Moreover, this problem would not have arisen at all if the judiciary had not been deprived of the right to order the government to revoke the decision taken to ban the import of chemical fertiliser; if so, the judiciary would have ordered the government to import the required fertiliser without further delay. Thus, the agricultural crisis and the other crises that have arisen in association with the Constitution of Sri Lanka are inextricably linked together. In order to develop objective agricultural policies and procedures in the future, it is important that the legal provisions are revitalised empowering the judiciary so that it could exercise its powers to control the arbitrary acts of the executive. A number of other issues related to agriculture are also being discussed now. One is the question of the modernization or technological advancement of agriculture. Experts in agriculture are of the view that this is an essential step. In this process, too, it is most likely for the above-mentioned legal situation to arise again.

Agricultural technology

The success of technological development in agriculture will primarily depend on the extent to which it will discuss with the farmers engaged in agriculture and implemented with their involvement and cooperation. It is a key factor to ensure its success. Whether this dialogue with the farmers should be pursued or not should not be decided at the sole discretion of the relevant officials or experts only. It is important that laws are enacted making it imperative to hold a dialogue on the issue. The atmosphere conducive for that can only be created by affirming the right of the judiciary to intervene in the enforcement of such laws. The Supreme Court must have the authority to stop all attempts to force technology into agricultural sector by officials, experts or government executives in an arbitrary manner. The Supreme Court takes such action only after listening to all parties concerned. Therefore, holding such debates before the judiciary is an essential step to develop the level of objectivity and intelligence of a country.

Discussing the pressing issues that arise in the country, summoning the opposing parties involved in such issues before the court, consulting their views and resolving the problems in mature way is a national task expected of the judiciary. Most of the provisions available for that have been abolished by 1978 constitution. What remains of it is destined to be destroyed by the proposed spurious constitution. The need for having a program of action aimed at reaffirming the powers of the judiciary has arisen, and is essential so that the judiciary could initiate a rich dialogue into which all the people could participate to formulate a constitution in good faith, not just a spurious one. This will be an essential condition for developing the link between technology and agriculture.

Safeguarding the land ownership of the farmer

The issue of land belonged to farmers is the next major issue surrounding agriculture. Sri Lankan farmers protect their farms with highest regard for them. Various critics have strongly pointed out that there is an attempt across the country to take out the farm lands from the farmers and pass them onto the hands of big businessmen. This is something that has often happened in some countries of dictatorial rule. This process is in operation especially in Asian and African countries where democracy is not rooted in. What they do is to transfer the lands owned by the farmers into the hands of the big business men and turn them into a source of income for the latter while making the farmers miserable and plunging them into poverty. This process is taking place in a very large scale. It is evident that Sri Lankan farmers are keen to avoid the occurrence of such a situation.

One of the issues that arise here is the protection of farmers’ land ownership; the other issue is the expansion of the extent of farmland to increase productivity. At a glance there seems to be a very deep conflict between these two issues. In many countries this conflict situation had arisen in the past and they have been able to introduce various measures to resolve them in a reasonable manner so that both objectives, that is the protection of land ownership and the establishment of large farms would be achieved simultaneously.

What matters most in this case is the question of integrity. How the farmers have been deceived and robbed of their lands by spurious means has been poignantly recorded in the history. This can be prevented by the law, by creating a situation in which one could and should act in good faith. This has become an extremely crucial issue today. The farmers are being deceived and their lands transferred to various big companies allowing them to make profit from them. There are ample chances for politicians to thrive on commissions they receive in this process. The likelihood of using the proposed new constitution for this purpose is also huge.

Therefore, the issue of protecting farmers’ lands is a very serious issue facing the nation today. In order to address this situation, a legal framework in which the property rights of the people, particularly the right of the farmer to claim for an agricultural plot and assert this right before the court of law should be enshrined in the Constitution as an essential condition. A constitutional system is required to be set up to introduce this legal framework. The Constitution can create the conditions for the achievement of the aforesaid objectives. Thus, the task of safeguarding agricultural lands and land reformation needs to suit the present day requirements could be carried out in a manner that does not interfere with the rights of the farmers.

Issues of the sale of Agricultural Crop

The other most pressing issue encountered by farmers is the severe unfairness they face in marketing their goods, that is, their produce. This is an issue that has been discussed by the Sri Lankan farmer again and again for decades. In several instances, legal steps too, had been initiated to resolve the issue. The cooperative system was one such remedy. Another aspect of this is the modern laws that have been put in place by the government regarding the purchase of farmers’ produce for sale, safekeeping and marketing. However, by repealing all these laws, the 1978 Constitution strongly protected the rights of businessmen while at the same time developing processes that suppressed the rights of the farmers.

Finding a solution to these issues is tantamount to interfering with an extremely difficult sphere. Intervention in such areas can only be achieved by enacting and enforcing reasonable principles on how to address such issues within the framework of Constitution itself. This is not just an attempt to create business entrepreneurs. In many countries we have witnessed how the agriculture has suffered a complete destruction in trying to do so. Instead, a conducive atmosphere must be created to purchase and sell the agricultural produce in a reasonable manner, and also protect consumer rights as well. The opportunity received to formulate a new constitution in Sri Lanka offers a great prospect to realise these objectives. If this opportunity is missed, the aforesaid serious problems will only get worse and will not find a solution.