By R. Ramesh –
This article attempts to propound some theoretical reflections on constitution making. The present government of Sri Lanka have been engaged in a historically important venture to reform constitution with the aim of addressing socio-economic and political problems of the country. It is also widely anticipated that the new constitution would address the long-standing grievances of the Tamil minorities those who severely affected by the protracted civil war. Nevertheless, drafting constitution in a multi-ethnic societies is extremely challenging task due to various reasons. According to Andrea Bonime-Blanc (1987) ‘constitution-making is at once the most varied and the most concentrated form of political activity during the transition. In it, political maneuvering, bargaining and negotiating takes place and the political positions, agreements and disagreements between different social groups and leaders come to the fore’. How the constitution drafters handle these issues may tell us crucial things about the transition and about the regime it leads up to. The discrepancies between the words agreed to in the constitution and the political reality that emerges may point to potential serious future conflicts. The general character of both the process and its outcome may reveal clues about the new regime’s potential for stability or instability. The reason for being the process challenging is constitution is the supreme law of the land and which drives the rulers towards democratic governance within the legal framework. Although constitution-making in transition is a difficult task, a country usually has no choice but to perform it. In the same way, Paczolay (1993) argues that drafting and adopting a new constitution for a cleavage society entering a new period of existence is hard but as the same time it is also an earnest and exceptional task.
Thailand had faced this dilemma. There was a question of whether 1996-1997 was the right time for conducting the constitution-making or whether the enormous efforts involved would not have been better directed to the economic crisis. Thailand’s answer was that the economic and constitutional issues were “inextricably linked” in addressing the issue of good governance. In fact, the economic crisis made the path of Thailand constitutional reform much easier than was expected. Numerous thinkers have defined constitution in various forms in which the following statement aptly indicates the importance of a constitution.
After adoption of the US constitution, Thomas Pain (1972) a well-known political scientist stated that ‘constitution is a not an act of government but of a people constituting a government, and government without a constitution, is power without rights’. Importantly, constitution itself changing dynamics, therefore it should adopt the changing reality considering various socio-economic and political factors. According to Venter (1999) ‘there is no such thing as a ‘final’ constitution, because a national constitution is as alive as the state, consisting of a multitude of thinking human beings, for whom it exists.
Bonime-Blanc (1987) identifies “two major clusters of decisions” should be addressed in the process of constitution-making: the “political formula” and the “socio -governmental formula”. The ‘political formula’ denotes to the shape, limits and functioning of the government, while ‘socio-governmental formula’ consists of the relationship between government and society. The socio-governmental formula implies that any constitution-making process should widely include the people in order to properly cover this relationship between government and individuals. To put it differently, more the participatory process higher the ownership of the constitution. This does not mean that the people should have less concern for the political formula. Both formulae are intimately related. It is argued that there are four aspects of the process of constitution-making: (a) when it should occur; (a) how the constitution-making should be conducted; (c) who should be the constitution-making body; and (d) how should public participation be organized. It is also possible to incorporate contents of a constitution as the fifth aspect. But, I will briefly discuss only on the first four aspects.
When constitution making process should occur
Robert A. Goldwin and Art Kaufman (1988) argue that making a constitution is possible only at “certain extraordinary moments” in a nation’s history. Von Savigny (1981) argues that such a moment occurs when a nation has reached its full political and legal maturity. To conduct a constitution-making process before this maturity would be a “premature codification” and to do so afterwards would bring a country into an “act of futility”. Elster (1995) raises another point that that a constitution-making process ideally should be adopted in maximally calm and undisturbed condition.
In reality, however, both Savigny’s ‘political and legal maturity’ requirement and Elster’s ‘calm and undisturbed conditions’ are difficult to reach. It is extremely difficult to define the exceptional moments when a just constitution can be drafted. In fact, the momentum of a constitution-making process often occurs in a difficult and turbulent period. Elster argues that constitutions are often written in “times of crises that invite extraordinary and dramatic measures”. Further, Elster identifies eight events which trigger constitution-making: social and economic crisis; revolution; regime collapse; fear of regime collapse; defeat in war; reconstruction after war; creation of a new state; and liberation from colonial rule. Thus, Sri Lanka fits in many events in the constitution making. Though the long-standing civil war ended in 2009, the then government did not take substantive measures to reform the state, address grievances of the Tamil minorities and overcome economic crisis. Interestingly, the previous government had given much attention on infrastructure development instead of winning the hearts of Tamils by ensuring justice, political rights and fundamental freedom, which did not bring any meaningful outcomes in building lasting peace and solidarity. Further, political dynasty and rampant corruption paved the way for regime change in Sri Lanka. In this light, the present government in the name of ‘good governance’ have engaged in creating a new nation through making of a new constitution. Thus, now several discourses and debates have been taking place in and around the country on constitution making, which has created a momentum on this hot topic. McWhinney (1981) argues that successful acts of constitution codification almost consistently happen in, or immediately after, such difficult periods; or after periods of great public enthusiasm followed by public euphoria. These are times when the constitution-making bodies find it easier to discover the nature of the public mood and to transform it into technical constitutional text.
Bogdanor (1988) argues, political turmoil is necessary for reforming a constitution, because the turmoil: … comes to be pressure for constitutional change when the constitution of a country to be ceases to be congruent with changing social values and political tendencies; in these circumstances, political parties will be able, with some degree of success, to adopt the reform of the Constitution into their programs. Holding the same opinion as Bogdanor, Wheare (1958) argues that the feasibility of constitutional reform depends not only on the legal provisions that stipulate the method of change, but also the configuration of political and social groups. As long as these groups are satisfied with the performance of the constitution, constitutional reform will be unlikely. Consequently, in a political turmoil situation, when the configuration of politics usually changes dramatically, the possibility of constitutional reform is greater.
Elster argues that important and substantial constitution-making is unlikely to happen except when a crisis is impending. This paradox may be a blessing in disguise. The difficult circumstances during a transition period may create a critical situation allowing for different elements in a country to unite and address its problems, including making a better governance system through constitutional reform. Notably, a country must have a sense that its back is to the wall for its leaders and its people to have the will to accommodate their differences.
For Huntington (1991), crises are the perfect time to stimulate a wave of democratization. This wave is a transition from totalitarian to democratic regimes which happens within a specified period of time. According to Huntington, there are three waves of democratization which have occurred in the modern world. The first wave, from 1828 to 1926, was started by the American and French revolutions. The second wave, from 1943 to 1962, occurred after World War II. Whilst, the third wave had its roots in the end of the Portuguese dictatorship in 1974. Within fifteen years, approximately thirty other countries throughout Europe, Asia and Latin America had followed Portugal in replacing a dictatorial regime with a democratic one.
Since the 1990s to early twenty first century, substantial number of countries have been adopted new constitutions. Pointing to documentation on the University of Wuerzburg’s (2004) website, more than sixty new constitutions that have been brought into effect within the last two decades. The site also shows that, over the same period, more than twenty-six other constitutions have been substantially altered. This group of sixty include South Africa after the apartheid regime; the Philippines after Ferdinand Marcos; and Nigeria and Thailand after the fall of military regimes in the 1990s and the Indonesian Constitution amendment process of 1999-2002.
How constitution making should be conducted
It is widely argued that constitution making process should be a short period. The art of constitution-making is to profit from such brief periods. Making delay in commencing the process too long is to risk of losing both the stimulus for constitutional reform and also strong popular support for a people’s constitution to enable a “break with a dark past and bridge to a promising future”. Nevertheless, in regulating the time for making the constitution, one should consider that it should not be too long or too short. Too long a period of constitution-making adds to much uncertainty to the transition. Too long a period also increases the possibility of a country losing the constitutional ‘moment’ to make a democratic constitution.
However, too short a period for making a constitution is not wise either. The time allocated for making the constitution should be flexible to allow the constitution-making body to conduct negotiations among the factions in the body and hold consultations with the public. There is, however, no exact formula to address the duration of such processes. The experience of different countries shows the variety of such schedules. The Thai Constitutional Drafting Assembly was allocated 240 days to draft the new constitution, while the South African Constituent Assembly had 2 years to prepare the draft Constitution.
It is better to have specific time allocated for making the Constitution. This is particularly important to give a clear mandate to the constitution-making body. The specific time helps the body to arrange its plan. In addition, the specific time puts pressure on the body to finish its work. If a specific period does not exist, it is possible that the body will keep postponing its work every time it faces difficulties in making constitutional decisions. The Indonesian constitutional reform in 1999-2002 and interestingly Nepalese constitutional reform process have been taken more than 6 years, but not yet accomplished. These two countries experienced exactly this time line problem. Therefore, it is recommended that the constitution-making body, should work with a time limit, so that no group can use delaying tactics to get its way.
Who should be the constitution making body?
A ‘better’ system needs a ‘better’ constitution or, in the words of Howard (1993), “new times require new constitutions”. Constitution making bodies have to utilize the euphoric atmosphere following the political transition. The difficult situation has to be seen by the constitution-making bodies as an opportunity and challenge. In this regard, choosing the correct constitution-making body is one of the keys of success. Very importantly, constitutional making body must have institutional independence to avoid personal, group and institutional interests or bias. Further, the body should adhere to general formula for constitution making such as deliberation, public opinion, and elimination of single party domination and ensure individual, vulnerable group and minority rights. In fact, ultimate objective of a constitution is ensuring constitutional government which means limit government power through constitutional arrangements. This can be also termed as limited government a type of government in which the functions and powers of authority are written, limited, and restricted by law to protect the citizenry. Thus, it all depends on the output that is produced by the constitution making body.
Moreover, new constitutions must comply with the democratic principles. Many countries have formally adopted constitutions, but they ignored the democratic values, therefore new constitution should be more normative in order to ensure not only constitutional but also democratic government. New constitution should be transferred into institutional stage, for which institutional design and judicial interpretations are vital. Many constitutions in the world remain simply as dead paper work, so to make it practical or substantive, institutional designs and changes are significant at all levels. One of the major challenges of constitution making is transferring it into reality and acceptance of various sections of the country. This challenge is apply to the constitutional reform committee in Sri Lanka as well, especially now there is an increasing ethno-nationalism among some extremist religious groups which would certainly be a threat/harm and risky factor for the whole constitution making process. Thus there is a timely need to set up a mechanism to effectively confront such events which indulge citizen trust on constitution making. Therefore, the constitution making process must win the hearts of the public at any cost. For which, wider deliberation at various level, media campaign, awareness creation, essays writing, debates, seminars and workshops are important. In short, the whole process should be transparent to all sections of the country to get it approved and implemented with the support of wider public. Learning the constitution making process from South Africa, Thailand, Indonesia and Hungary would a useful exercise in this regard. Without essentially universal support for reform, new constitution cannot be considered a social contract. Public should be well informed on each and every aspect of constitutional making process. This strategy was well adopted and practiced in South Africa, Thailand, Hungary and Indonesia.
In Sri Lanka, the last three constitutions were highly instrumental which precluded the consensus in the making process. In other words, they were promulgated by few political elites of the country, therefore, avenue for public participation was largely closed. Thus in the present context, there is an increasing need for inclusive constitution making in order to effectively address the three decades of grievances of all communities in general, minorities in particular. In fact, inclusive process would pave way to ensure direct people participation, representative participation (everyone cannot be met in deliberations, therefore, representatives of different groups can be sent, and where people cannot directly participate) and transparency. There are some other modern participatory methods too which includes internet, Face book, government web sites, media discussion and so and so forth.
To obtain the people’s views on new constitution as South Africa did, raising awareness among the people about the constitution and constitution making are pretty much important. According to my understanding, many people do not have a clear understanding on this topic and therefore, they do not pay much attention in taking part in this process. Media has to play proactive role in creating awareness on the constitution making and importance of people’s participation. It is sad to note that some of the Medias have been working on ethnic-line in the recent past to sabotage the whole process.
Very importantly, public participation strengthens the people’s ownership for the constitution. The recommendations from Commonwealth Human Rights Initiatives to Commonwealth Heads of government Meeting in 1999, for example, outlined twelve constitution-making principles which are closely related to the public participation: (i) legitimacy; (ii) inclusivity; (iii) empowerment of civil society; (iv) openness and transparency; (v) accessibility; (vi) continuous review; (vii) accountability; (ix) the importance of process; (x) the role of political parties; (xi) the role of civil societies; and (xii) the role of experts.
Wider public deliberation would pave way for guaranteeing minority rights in the constitutions and such practices could be seen in many countries. Sri Lanka should also could adopt such elements in order to ensure inclusive state and democracy. For instance, the Romanian constitution, recognizes the right of ethnic minorities to be politically represented in the parliament. Similarly, in New Zealand, a quota of seats is reserved for Maori representatives. Since the 1990s many countries have been adopted constitutional guarantees against exclusion and ethnic discrimination/ marginalization, of them Colombia in 1991 recognized minorities as a distinct ethnic group and ensured equal rights in the constitution, and further the constitution states that Colombia is a multi-cultural country or nation. Countries like Brazil, Ecuador, Chile, Peru and Mexico have adopted an antidiscrimination law to end problem of ethnic, racial, gender discriminations and set up an antidiscrimination commission to overlook this issue. Thus, there should be a clause in the new constitution that ‘the state shall promote with special care the fundamental rights and socio-economic interest of the minorities/weaker section of the society and shall protect them from injustice and all forms of discriminations and exploitations’. This could be one of the directive principles of state policy.
Even the preamble of the constitution should also provide a wider impression of accommodation of diverse communities in the nation and promote the idea of inclusive state. Thus I would like to state the preamble of the South African constitution which has been viewed as one of the best preambles of a constitution.
“We, the people of South Africa, recognize the injustices of our past, honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity”. The new constitution can have a similar preamble to build the sense of nationhood, common identity and solidarity among all sections’’.
In sum, constitution-making holds great promise. Constitutional politics has the potential to establish the legitimacy of a new democracy across a broad spectrum of social groups. This sort of legitimacy is the foundation of a vibrant democracy. But constitution-making is also dangerous and commonly abused; constitution-making is often seized to impose the agendas of particular social groups or, even worse, of particular actors who are trying to consolidate power. Such processes are likely to lead to poorly functioning and unstable states. Thus, an important but very difficult task is to devise ways to prevent this kind of abuse from occurring. Rather than designing constitution-making in an attempt to reach some idealized end state, we may be better served by developing a “risk averse” model of constitutionalism, where the major goal is to prevent democratic breakdown. Thus this article attempted to render some theoretical points to make more effective and vibrant the constitution making process of Sri Lanka. I would like to conclude the article with Dhal’s statement on constitution:
‘Well-designed constitution might help democratic institution to survive, whereas a badly designed constitution might contribute to breakdown of democratic constitution’.
Bogdanor, V. (1988). Constitutions in Democratic Politics
Bonime-B. A. (1987). Spain’s Transition to Democracy
Elster, J. (1995). Forces and Mechanisms in the Constitution-Making Process
Howard, A. E. (1993). Dick, Constitution Making in Eastern Europe.
Huntington, S. P. (1991). The Third Wave Democratization in the Late Twentieth Century.
Wheare, K. C. (1958). Modern constitutions (1958
McWhinney, E, (1981). Constitution-Making: Principles, Process, Practices.
Paczolay, P, (1993). Constitutional Transition and Legal Continuity.
Sartori, G, (1997). Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes
Venter, F, (1999). Constitution Making and the Legitimacy of the Constitution
*R. Ramesh, is lecturer at the department of Political Science, University of Peradeniya, and currently pursuing doctoral studies at the University of Bergen, Norway, who can be contacted on email@example.com
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