By Basil Fernando –

Basil Fernando

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

At present, Sri Lankan fisher folk have faced a number of serious problems. One major issue is the illegal entry of Indian fishermen into Sri Lankan waters and catching fish using prohibited fishing gear and methods which are extremely detrimental to the survival of fish in Sri Lankan waters. Apart from that, the fisher folk are compelled to lead a life full of hardships and difficulties; they face many obstacles in carrying out their livelihood. There are large-scale obstacles in regard to the safety and protection of fishermen and the marine resources of Sri Lanka. Ocean is a great asset to Sri Lanka. The ocean around the island is a rich source of vast resources having great potential to add to the enhancement of the country’s economy. Protecting it and conserving marine resource and the contribution it could make for resolving the food problem of the country have a significant impact on the stability of the country. But Sri Lanka has remained extremely backward in developing and conserving this valuable resource.

Essentially special attention must be paid to the ocean which is a very valuable resource base when formulating a new Constitution for the country. On the one hand, it is related to the question of sovereignty of the country. Safeguarding the territorial integrity and sovereignty of the country are two key issues which should receive highest priority in making a Constitution for any country. Therefore, the Constitution, the supreme law of the country, should provide the basic legal basis to develop the legal framework required for that.

Although sovereignty in general has been discussed in making constitutions previously, the questions involving sovereignty of the country and the ocean that belonged to it, have not been discussed at length and in depth. In the past, this issue has been dealt with, only to the extent that issues pertaining to this sphere could be resolved by practical interventions. But experience has proved that it has not helped to create an atmosphere conducive to generating successful results.

It is therefore essential that the issues such as the protection of Sri Lanka’s coastline, reaping   maximum benefits of the sea to enrich the country’s economy and society and also the conservation of marine resources etc are carefully evaluated and a roadmap is devised to realise them while the dialogue is in progress for making a new Constitution for the country.

A democratic Constitution is a Constitution formulated with maximum participation of the people. The purpose of the Constitution is to create a strong link between the state and the people in order that a positive, creative and persistent relationship is established and maintained between the two parties involved. In terms of governance, considering the ruler as omnipotent or omniscient authority is a very backward idea.

No one can have knowledge of everything. Similarly no state could achieve that. Wisdom is something that must be achieved through hard work and constant efforts on a land (in a world) where great triumphs do occur and constant and persistent processes of nature are in   operation.

No matter how many intellectuals there are in a country, the highest knowledge on various fields of activities rests on the people who have been involved in those activities for a long time. No one else can claim to have a better knowledge on farming than the traditional farmer himself. Similarly, no one else except the fisher folk who have engaged in the fishing industry which is their traditional occupation, possess the store of knowledge gained by them.

Therefore, as an essential condition for resolving fisheries issues there should be a deep and constant dialogue between the fisher folk and the various state corporations/ institutions in the country. The cooperation is the basic principle upon which the Constitutional law is based. The principle of cooperation can be implemented through a constructive and rich dialogue between individuals and government agencies in various sectors of the country, professional groups that are constantly engaged in enhancing the knowledge of the people and the media organisations of the country etc.

It is the fisher folk themselves who are most aware of the piracy issue of marine resources of Sri Lanka. Therefore, there should be a strong relationship between the fisher folk and the Navy working for the protection of the sea. As long as this cooperation exists, the task assigned by the government to the Navy to protect the sea can be properly carried out.

Therefore, whenever a problem arises posing a threat to the safety of the fisher folk and marine resources, the fisher folk should be able to bring it to the notice of security forces of the country as soon as possible, and obtain redress. In the recent past, it was seen that the fisher folk themselves had to intervene in chasing out the Indian fishermen who used to   trespass territorial waters wherein the Sri Lankan fishermen were engaged in their profession. They were compelled to go deep into the sea in their boats and chase away the Indian fishermen entering the territory of Sri Lankan waters. In the process, there arose clashes between them, incurring damages and losses. But in a state where the rule of law prevails, there should not have been an atmosphere for fisher folk to intervene for their own safety.

But the fact that they had been compelled to adopt such measures to draw the government’s attention to this issue shows that there are significant shortcomings in regard to the safety of the oceans and the fishermen themselves.

At the same time, every community as well as the fisher folk, when they face a serious problem, should have the right to seek assistance of the judiciary if they fail to get it resolved with the relevant government agencies expeditiously. If they had been able to take up the matter with the court of law and seek immediate relief as and when the fisheries problems were arisen, it would have been possible for the court to resolve the issue efficiently and peacefully by ordering the relevant state corporations to take prompt action. However, the existing legal system has largely blocked the possibility of such easy access to court of law and obtaining orders against the authorities.

Therefore, it is essential that an in-depth and genuine discussion is held between the parties engaged in making the new Constitution and the fisher folk at the time of drafting the Constitution. Like all other communities, fisher folk to, should have the opportunity to gain an understanding of the law of the country. Also they should have the right to point out deficiencies in the law if any, and to suggest appropriate measures to protect their profession and the ocean, the domain in which they operate.

Therefore, it is essential that an in-depth dialogue is carried out between the fishing community, society and all those who are directly and practically involved in the making of the proposed new Constitution. It is a comprehensive exercise which takes time. Constitutions cannot be formulated suddenly and hastily. It is because safety issues and professional issues are not able to be resolved suddenly and hastily. They are extremely complex issues. These complex issues can only be understood through a dialogue with the people involved.

Therefore, the attempt to adopt a Constitution in a hurry should be stopped and a dialogue shall be held with the fisher folk and other communities and develop an appropriate legal framework conducive for protecting and enhancing their lives and the resources from which they earn their livelihood to make their future prosperous and also to make the said legal framework a part of the fundamental law of the country.

Some might argue that there are other laws for this. But past experience has proven convincingly that they are not forceful enough to solve the problems. Due to large ambiguities and inadequacies in the existing law as well as the methods of enforcing the law, the possibility of resolving this issue within the existing laws is very limited. The purpose of the Constitution, the supreme law of the land, is to bring all these laws under one framework. The Constitution should be made an inclusive supreme law. Depriving the opportunity to accomplish it will lead to the collapse of the whole country. If that happens, the consequences of it, have to be suffered by all communities in the country, including fisher folk.