By Firdous MHM –

Firdous MHM

The discourse Doctrine of Necessity is portrayed as a negative aspect in the Sri Lankan context. However, beyond its destructive usage in the past by Zia Ul-Haq of Pakistan, we people of Sri Lanka can make use of it to strengthen the democracy and rule of law. Those who deny the application of the doctrine of necessity in the local domain for the reason of constitutional absurdity, know very well that we are already living with constitutional absurdity! But unfortunately, we the constitutional law experts feel odd to speak of it louder, and precisely as our studies of the past including our learning, teaching, and practicing are knowingly and unknowingly, and expressly and impliedly defended the existing system of constitutional anarchy without realizing its embedded absurdity.

Constitutionalism can start functioning based on the doctrine of necessity at times of popular uprising and popular demand for the people-centered constitution and accountable government. But most of the Sri Lanka legal experts, if not all, are siding with existing constitutional absurdity and they just deal with pre-dated basic theoretical reading of the doctrine of necessity in an abstract manner and counter the initiatives and demand to rescue the country and the people from the existing model of elected constitutional anarchy. 

The context of the 1972 constitution-making process evolved and the current demand for the new people-centered constitution-making framework are not similar and different from one another in many aspects. Despite the celebrity-styled learning of the 1972 constitution-making process as the development of a homegrown and autochthonous constitution, it was one of the darkest sides of the constitutional evolutionary history of Sri Lanka. Our academic studies praise it as the advancement of constitutional evolution in Sri Lanka, in the name of the so-called autochthonous constitution, what evolved is a majoritarian constitution that enables the legislators to come up with discriminatory legislation and treat minority communities differently. Let us not even think of repeating the 1972 constitutional making model as a guiding framework, because both the 1972 and 1978 models are neither promotes democratic, people centered system with accountable government and rule of law, rather both reflect the mix of majoritarianism and retention of unaccountable power  and dividing the people to distract their concentration on the demand for state accountability.

Today the constitutional law reform discourse in Sri Lanka takes places in two fronts. One segment is among the ordinary people who are not claimed expertise or authority for constitutional law studies. Other segment is the so-called constitutional law experts and judicial officers. Reading the direction of these two camps are interesting. The first camp demand for the people centered constitution with accountable government and a system change that could make the constitutional government accountable and capable to provide and sustain basic expectation of the people such as the right to live a house, right to employment, right to unemployment benefit, right to pension, right to education and health by managing the tax money collected from every person living in this county. On the other hand the later segment knowingly and unknowingly and internationally or unintentionally resist the voices of the people and guard the prevailing unaccountable system. The discourse around the concept of doctrine of necessity reveals the conceptual barriers toward progress.

 Metaphorically speaking, we will not agree with those who drive a car forward while looking for the direction from the backside mirror. Similarly, the way we interpret the Doctrine of Necessity also lost direction and objective assessment, and consideration was placed on its application to the past. 

1. In a country where people collectively feel that the constitutionally unaccountable executive, legislative, and judiciary is the curse of the country, and the existing constitution blocks all kinds of steps toward eliminating unaccountable government it necessitates different means and ways to give prominence to the aspiration of the people. 

2. In a country where elected anarchy prevails and people do not find a way to get rid of the anarchy within the system, necessitates thinking beyond the system to protect the country and transform from elected anarchy to democratically elected accountable institutions. 

 3. In a country where the constitution and constitutional reform become a tool for strengthening the unaccountable executive, judiciary, and legislative body, people feel the necessity to build a people-centered constitution, that makes the government accountable to the people and ensures that the people-centered constitution, upon established, any future amendments should take place with the super and greater, regional and the national majority of the people’s vote.

All these reasons validate the need of stressing the need for making use of the doctrine of necessity to build a democratic, people-centered constitution, capable state structures, and accountable government. Leaving all these reasons and justifications away, looking at how a dictator used the doctrine of necessity to consolidate power and build a stronger dictatorship as a reason for disregarding the validity of the doctrine of necessity is counterproductive in many fronts. 

 Let’s understand that even the democratic electoral process, and people vote can be used by dictators and murderers to enhance their power base and sustain a governing model that bring nothing but anarchy, just like how Gota used 6.9 million voters, which does not disqualify the existence of democratic framework. Similarly, the doctrine of necessity can be seen as a way of transforming the prevailing elected unaccountable constitutional slavery system of Sri Lanka toward a democratic, people-centered constitutional governing system. I urge the so-called constitutional law experts to stand with people and lead the process of building people centered constitution and accountable government and make use of the public call for system change.