2 December, 2020

Blog

How To Make A Legitimate New Constitution 

By Rohan Samarajiva

Prof. Rohan Samarajiva

A legitimate Constitution cannot be drafted under opaque conditions in a backroom and approved with the votes of the party in power (and those of a few crossovers).  All but the 17th and 19th Amendments to the 1978 Constitution lacked legitimacy for this reason.

How Constitutions are Made

There are those who point to the way the US Constitution (the shortest, oldest, and possibly least amended) and the Indian Constitution (the longest and possibly the most amended) were drafted and adopted. The drafting and the adoption of the US Constitution took over a year of dedicated work. The Indian Constitution took almost three years. Persons not members of the then existing legislatures were among those responsible for the drafting. Both were adopted in the aftermath of a successful struggle for independence. Those modes have limited relevance for Sri Lanka in 2020.

Chile may have some lessons. Chile and Sri Lanka (and China a little later) were the first to dismantle state controls hobbling their economies. Chile’s Constitution was adopted in 1980 under Augusto Pinochet, ours in 1978 under JR Jayewardene. Chile became the richest country in Latin America under the 1980 Constitution, which later governments amended dozens of times.  

Since 1990 the economy has grown rapidly, poverty has fallen sharply, and politics have been stable with several peaceful changes of power. Despite significant recent decline from one of the world’s highest levels of inequality as measured by a GINI (where high is bad) of 56 in 1995, Chile is still more unequal than Sri Lanka, which has the highest inequality in South Asia, excluding the Maldives.

Source: https://tradingeconomics.com/

There is great unhappiness about the Constitution in Chile, expressed in the streets last year. For example, when efforts were made to strengthen the consumer-protection agency, by allowing it to impose fines on companies, the Constitutional Tribunal overruled it. Changes to laws on education, policing, mining, and elections require four-sevenths majorities in both houses of Congress.  It is a “hyperpresidential” Constitution, which gives the president the power to dictate which bills get priority in Congress. Members may not propose tax or spending bills. Regions cannot raise their own revenues, which concentrates power in the center. 

On October 25th voters went to a referendum to decide on whether drafting the new Constitution should be done by an elected assembly, half of whose members would be women, or by a convention split evenly between elected delegates and members of the legislature. The drafting assembly is to be elected in April 2021. The option to elect a 155-member constituent assembly with half the members women received overwhelming approval.

Sri Lankan Practice 

In 2015, the Sri Lankan Parliament formed itself into a Constitutional Assembly. The channel for ideas from those outside the legislature was a Committee on Public Representations headed by Lal Wijenayake, a respected lawyer independent of the two main parties then in power.  

What was promised in the 2019 Saubhagyaye Dakma was: “A Parliamentary Select Committee will be appointed to engage with the people, political leaders, and civil society groups and prepare a new constitution for Sri Lanka.” This is yet to be done. What has been appointed is a committee of nine lawyers, mostly supporters of the President. Another member is to be appointed to represent the Tamils of Indian Origin.  

A bunch of appointed lawyers headed by the man who headed the President’s stonewalling of the legal process prior to his election is completely unacceptable. A select committee will at least allow the participation of parties outside the government who will get to decide who their representatives are.

Principal-Agent Theory

It is said that war is too important to be left to the Generals. In the same way, Constitutions are too important to be left to the lawyers (as proposed), or to the politicians (as has been mostly the case in Sri Lanka). 

A Constitution sets out “the rules of the game,” by which the people’s agents must act. The people are the Principal. The individuals who won the last Presidential and Parliamentary elections are their Agents. They are supposed to act on behalf of the People, but they have their own agendas and priorities. And they have an informational advantage over the people. They engage in politics full time, while the people have to work to keep themselves and their agents clothed and fed.

It would be illogical for the Agents to unilaterally define the “rules of the game.” The Principal, the people who are not professional politicians, must play a determining role. In an ideal world, a Constitution would be made from the bottom up, extracting the rules of governance from the lived experience of the people. But this is unrealistic.

As established in 1965 by Mancur Olson in his seminal book, The logic of collective action, in public affairs small groups with concentrated interests tend to overwhelm large groups with diffuse interests. Politicians, moneyed interests, and even some intellectuals with independent livelihoods can focus their time and resources on specific issues, such as Constitution making.  Members of the public must earn a living, care for their children and parents, and do myriad other things. They lack the ability to match the focus of those with concentrated interests. They also think that someone will look after their interests, leading to the “free-rider problem.”

Pragmatic Solutions

The 2015 solution of a dedicated committee mandated to seek and organize public representations could be taken as a starting point. The documentation that was compiled is available for examination by all. Additional material can be solicited using the affordances of the Internet, and not just through newspaper advertisements seeking written submissions addressing pre-defined subject areas. Debates can be organized on late-night TV to seed the process.  

But most importantly, the key decisions must be based on consensus and compromise. In Chile, all decisions of the Constitutional Assembly require a two thirds majority. Because Constitutions are not made to steamroller minorities into submission, it is necessary to ensure that all kinds of constituencies are represented in the Assembly and that those controlling the government do not dominate proceedings.  

Because all our elections descend into partisan contests, it may not be advisable to hold elections as the Chileans plan to do. Perhaps some kinds of quotas can be agreed upon for political parties, civil society, professional associations and so on with special cross-cutting quotas being enforced to ensure representation of women and persons with disabilities.  

The whole process should be overseen by a respected individual or individuals who forswear political activity for the next five years. As in Chile, half the seats in the assembly should be reserved for persons not engaged in active electoral politics. The government can assure itself of final control because the half appointed from among legislators will be mostly their representatives. These rules should, as in Chile, be approved by a referendum. As with all referenda, the most difficult challenge is the framing of the questions. That cannot be left to the government alone. Perhaps an all-party committee may be able to do a decent job. 

Print Friendly, PDF & Email

Latest comments

  • 11
    1

    Prof. Rohan Samarajeewa: While respecting the views expressed by you in making Constitutions and the relevant examples from a wide range of countries in the world, you forgot one among most in the minds of “Rajapakse Dynasty”. That country is NORWAY and it is the “Constitution of the King of Norway”, second oldest written Constitution in Europe amended in 2018. It consists of 121 Articles grouped into chapters A to F. In it, Chapter A is about the “KING”, the “ROYAL FAMILY” consist of the “COUNCIL OF STATE” and the “CHURCH OF NORWAY.” It also states, the “KING” must at all times “PROFESS” the “Evangelical and Luthevanian” religions. It sets out the line of “SUCCESSION”, “EXECUTIVE POWER” in the hands of the “KING” and execution of power in the “NAME” of the king by the “Council of State”. Our “President” in the context of “20A” is “THE KING” and also it refers to a “COUNCIL OF THE STATE”. A “DYNASTY” consisting of “DUAL CITIZENS” is already in place together with a reference to a “SUCCESSION” (reducing the age to become President) and the “KING” will at all times “PROFESS” Buddhism and be a “SINHALA BUDDHIST”.

  • 3
    2

    A vote does not provide legitimacy. How would that work? What if a person does not like the document being presented?

    For a constitution to be truly legitimate then it would have to be signed by each and every individual, or in the case of incapacity to sign like children or mentally disabled or elderly – by a guardian or heads of families.

    Those who do not sign have no agreement. The government owes nothing for such individuals, and conversely these individuals owe nothing to the government.

    This simple measure, of explicit signature, is used in any legal document or contract. Lack of signature implies illegitimacy and judges would throw out such a document.

    • 7
      2

      Placing individual signatures is not practical involving 16M individuals especially to check authenticity or duplication. So like a proxy, ( legally acceptable ) the voters are given the opportunity to place a cross on a ballot paper to endorse a manifesto.
      Unfortunately, adherence or otherwise of that manifesto has not been made justiciable as a valid agreement.
      That is a far cry when we allow members of a party to crossover or vote against party stand, just on a fancy. That is a serious breach but thanks to S N Silva CJ, it is considered legit.
      So much for agreements and morality.

  • 23
    1

    Professor, this comparing with other nations Chile ( more than 10000 miles away) china etc is rather tiresome. We quote form British authorities, writers, US, Sweden etc endlessly. Do they have any relevance? Apples and Oranges ?

    Chile has a lot of Spanish and European blood. China is very different to the South Indian type race.( remember the Indian china war, India had day lights knocked out of her)

    We are a non- performing, chattering bunch of humbugs who can survive only on foreign aid, loans and supplying labour to other countries. Our productivity is very low. In everything our products are sub-standard including the services. Only we say we are good. Our ministers go to Singapore when they catch a cold, for treatment on public account !

    Even the few Sri Lankans who were lucky enough to get a foreign education, even that on scholarship, end up as all knowing pundits -talking more than really doing.

    I think there is no hope, all that the politicians are doing is earning big money, ensuring family succession or ego trips.They are so foolish, now they have begun to believe their own lies of their own capabilities .

    • 17
      1

      Well said Deepthi. How much more will the hungry masses take before there is another revolt?

      • 5
        0

        Correctly described by Deepthi and well endorsed by Stanley. In 1971, a well respected Secretary General of Parliament, known for calling a spade a bloody spade, said thus. “In 5 years 1933 – 1938, Hitler drove a hardy people – Germans – and created a miracle. What are we doing?. CONNING AROUND”. What perception and what frankness!

        To this day it is true.

  • 11
    2

    soma

    American Secretary of state visited this island met his fellow American president of this island however it was disappointing to see Pompeo avoiding a meeting with the crook in chief.
    Why?

    • 2
      2

      Native Vedda: avoiding a meeting with the crook in chief.
      Why?
      ======================
      The crook in chief was making Chinese Tea for Pompeo and his entourage.

      Pompeo doesn’t like Chinese tea , he wanted Sri Lanka tea.
      may be that is the reason he avoided the crook in chief.

    • 3
      4

      Fake Vedda,
      Pompeo avoided Mahinda Rajapakshe because he did not want to get a response similar to what those two suddas got when they went to Medamulana to tell Mahinda Rajapakshe to stop the military operation against Tamil terrorists to save your boss and take him to an unknown destination.

      • 2
        2

        Eagle,
        Don’t write what you see in dream. First wake up, read the media & write. Media reported Old King said he had nothing to talk with US State Secretary, so didn’t meet him.
        (All these meeting are scheduled with diplomatic talks following diplomatic protocol. The Lankawe Politicians are talking like the whole world is Modayas.)
        It is extremely unlikely it was cancelled from American side. If so, he wouldn’t have flown 17,000 miles to go to Lankawe.
        Can somebody from Appe Aanduwa tell why this meeting was cancelled, if they are not expecting wild stories to emancipate adoring Old King’s heroism & bravery?
        I heard (didn’t see) Mirror printed a cartoon a wild bull (Mike) jumping on King seeing the red flag (China) he was holding and the rodeo player standing smiling ready to dispose the bull in one shot. Still it is much more Buddismistic than the Jayalalitha, Manmohan Singh depiction by King’s Defense Department Media Central.
        Watch the videos and pictures: Mike Pompeo scooping hands to welcome (Tamil Vanakkam- no hand shake). Many times the arrogant Sinhala Intellectuals, the strange species of Wildlife Sanctuary SinhaLE Lankawe not reciprocating. Even the Eagle wouldn’t think that is a stunt of Lankawe’s true heroism. Would you Eagle?

      • 3
        3

        Eagle Brain Dead Blind Eye

        Have heard of Genuflection?
        That was what both your American President and American “”””Educated”””” Foreign Minister Dhinesh were doing inside the closed doors, in front of both Americans according to concerned people.

        It’s alright, it is nothing new.
        It’s about survival.

        Poor Mahinda by hiding or avoiding Gota’s fellow citizens he could dodge War Crimes and money laundering investigation. The International Community will act in fullness of time. Have you noticed Gota sat there very uncomfortably.

        You should keep quiet if you want to save the clan.

        Where is Coward-wansa?
        Where is Nayakka?
        Where is Ganapathipillai?
        Where is Coward-sekere?
        Where is Channa Jayasumana
        Where is Kamal (single handed) General (one out of 15,000)?
        Where is Seetha?
        ….
        …..
        …..
        Where were you hiding behind your grandma?

        • 2
          0

          Fake Vedda,
          “according to concerned people”

          Who are these so called ‘concerned people’?
          Have they installed secret cameras in President’s Office to see what was going on closed doors?

          Do you know why Pompeo ignored TNA cabal? They must be highly disappointed.

          • 1
            0

            Eagle Brain Dead Blind Eye

            “Do you know why Pompeo ignored TNA cabal?”

            Dumbass,
            I have no idea why Pompeo ignored TNA.
            However I know for sure Sambandan is not the Prime Minister of “SOVEREIGN SRI LANKA”.
            Do you think he is?
            I am surprised why you are only interested in Sambandan’s Amude than humiliated Mahinda.

            “Have they installed secret cameras in President’s Office to see what was going on closed doors?”

            No really.
            However being an American it appears Gota must have been implanted with a sophisticated chips which can be programmed either at CIA Research & Development department or its Mind Control section.

            Kota’s actions are being controlled from Nevada desert. The controllers/handlers know everything what Gota does, including the time and places where he eases himself.

            You watch Indian toilet habits.
            They watch Gota’s toilet habits among other.

            So stop asking stupid questions.

          • 1
            0

            EE,

            Good point. Pompeo who even visited a church during his trip avoided meeting TNA! He didn’t even mention grievances and other jokes this time.

            But tell Gota to allow Americans and Indians to put up camp in SL. Americans in Trinco and Indians in Nallur. No one complains. Tamils still fondly recall their love for the IPKF.

  • 16
    1

    Chilians are a hard working community not on the lookout for free gifts from government unlike Sri Lankan. Pompeo correctly ignored MR for whatever reasons, mainly responsible for the destruction of Sri Lankan economy, plundering of Govt. organizations, murders, cheating and deceiving the society.

    Drafting of new constitution should be done by educationists from multi racial society and never by condemned politicians including GR’s acolytes. Essential to include very effective checks and balances of all Govt. institutions, politicians, and public servants. High degree of independence should be given to the judiciary. A mechanism should be devised to appoint all public servants and the judiciary without the interference from any politicians. Politicians should be confined to policy making only and never policing the society.

  • 6
    1

    Constitution making is the art of arriving at a consensus on Nation Building. A Constitution is the Law of the Land that sets the Rights and Duties of the Authorities to lead its People to a better future.

    • 16
      1

      All depends on who Makes the constitution – not necessarily to lead the People but made for the Rulers for their better future.
      May be it is the Law to “legally” plunder, allow nepotism, corruption and brook no opposition to anything against the King who appoints every Minister and top official at His sole discretion to do His bidding, so help me God.

  • 3
    1

    SL is not Chile. Any Constitution must be acceptable to most Sri Lankans. Otherwise it will be dead in water.

  • 6
    4

    Sinhalese want a king as shown by their wishes and the amendment 20A, while Tamils, and Muslims want democracy . The constitution is going to be fit for a king. How will the democratic world react to such a reactionary move by the rulers and their backers, the Sinhalese Buddhist supremacists?

    • 7
      0

      You are wrong. Almost all Muslim MPs voted for 20A. They too want the same king.

  • 4
    1

    A constitution is legitimate only when , 1) A Constitution that is worth the paper it is written 2) It has to be constitution and not constipation (which we had until now). 3)A Constitution that cannot be tinkered as and when, the low life politicians wish.4) A Constitution for all and not just for a community, religion or sector 5) A Constitution which will hold leaders accountable and not just the citizenry. 6) A Constitution to take country forwards and not regress. 7) A Constitution which is drafted by the experts and knowledged, and not by Wimal, Udaya and Vasu.

  • 4
    1

    I have heard histories of forefathers painstakingly drafting a constitution, which is tedious and lengthy. Many had arguments and debates while drafting, some to the point of altercations and few ending up as sworn enemies there after. Where as we have one drafted over days with no author, claiming responsibility. All in all an anonymous draft,called now as our constitution. How lucky we are ????? How many of those who voted would have read the material before doing so ????

    • 1
      0

      In Sri lanka constitution making has become a joke for the politicians. It has very short maturity date mostly limited to 5 to 10 years, Why ? The country’s leaders are playing a game of musical chairs because the majority of the people would not trust them at all.

  • 1
    1

    Diana said SJB is her husband’s party, so nobody can fire her from that party (Does she mean she appoint the party Members, Chair and Secretary?). But Party secretary Kiriella says he has fired all the 8 members voted for 20A. He issued an order to Speaker “Mr. Speaker, remove these filth out of my site please”. These members has not yet shown interest to be with government, though Hakeem said earlier he was talking his party dissidents to reattach them with SJB. I am not sure if Hakeem has been taking to Diana’s husband or Keirielle to take them back to SJB. Further I now not sure either if court may have to play any role here. Media says 20A has come into effect from today, so here after whatever King says is the constitution, criminal law, business law, budgetary procedures……

    I wrote something wrong earlier in CT, few days ago, so please let me correct it now. ” Sampanthar Ayya was best Opposition Leader Lankawe Parliament ever had. But that time I thought Sampanthan Ayya not opposing anything in parliment so he was not Opposition Leader at all. Now I have corrected it”

  • 3
    0

    Thank you Prof. Rohan Samarajiva for the out of the box fresh thinking and soliciting discussions for alternate way of formulating a new constitution.

    If the present committee for formulating a new constitution is allowed to continue, their product will be a disaster.

    The new constitution should be a participatory Constitution – a People’s Constitution, otherwise
    it could not be considered as a legitimate constitution.

    The 1972 and 1978 constitutions were formulated by Political parties claiming that they had received mandates from the people in the 1972 and 1978 General Elections..

    The two third majorities they received were illusionary and could not be sustained for a longer period..
    The whole process of constitution making should be taken away from the politicians and lawyers

    The political parties have short vision, amply demonstrated by their behavior in producing
    17 A, 18A, 19A and now 20A.with a short term perspective.

  • 0
    1

    Thank you.

    There is a fundamental difference between the 1972/1978 Constitutions then and now

    (1) More accountable electoral system now
    (2) No stage after stage of hate speeches /disruption of meetings/out right thuggery/mis information on party political news papers none could ever be fact checked/physical harm/bullying/name calling etc.—1977 Separate mandate is a good example. Am sure it was no different down south too.
    (3) Now we had killing fields after killing fields for the past 40 years an unpresidented record of human right violations by all participants….no one…repeat I mean no one exempted. From North to South and East to West families have lost their loved ones in one way or the other.
    (4) We are all over the world as political or economical refugee at a scale it never was the case before………be it miserable we have learned the lessons too.
    (5) From all that came the current scenario of moving forward with a storing leadership to lay foundation for a future Nation Building exercise where we do the work and the elected head of state and the military run the governance.

    • 0
      1

      (6) Having seen the Ghetto makers all active as though nothing happened in their Nation as per the last Constitutional assembly is a prove we do not let the same to destroy whatever left of this Nation.
      Hence the 2/3 a mandate given by the people who are intelligent enough to make their mind up based on our history for change for a better tomorrow does not require input from the sqaundrals in the last parliament thank you.

      Ajith

      I take your point below regards to the ongoing amendments forever since 1977 election a TULF/UNP achievement for the good of the Nation an un-mandated thuggery of an event in the first place result of an 1972 onwards events JVP and FP should answer too.

  • 4
    0

    What is the point of constitution if those in power change the constitution frequently depending on their need? Two third majority now becomes a joke and you can buy and sell MPs as they wish. For example, was the changes put in 20th amendment was in the manifesto of SLPP Presidential election or Parliamentary election? Will those supported 20th amendment have the mandate from the people they were elected? None of the constitutions or constitutional amendments in this island brought to the benefit of people or rule of law. Those who voted for 18th amendment also voted for 19th amendment and 20th amendment. Are we going to produce a constitution for every five years? In this island, do you need a constitution?

    • 5
      0

      In this island, do you need a constitution?

      Yes, it looks so, going by the past. So that each change of govt. gets legitimacy for their actions, legal and illegal.
      Like changing the Rules and thereby change the Umpires as well, just AFTER the start of a Cricket Match.
      Next series, change the Rules again.
      That indeed is Paradise – for some.

      • 4
        1

        In 42 years 20 Amendments. How is that for an average of a change every two years.

  • 1
    0

    Constitution(s) of Srilanka are a temporary phenomena depending on the whims and fancies of the politicians and their ‘clannism’. It is not for the welfare of the country.

Leave A Comment

Comments should not exceed 200 words. Embedding external links and writing in capital letters are discouraged. Commenting is automatically disabled after 7 days and approval may take up to 24 hours. Please read our Comments Policy for further details. Your email address will not be published.