By Basil Fernando –
Part-1 – Formulating a Constitution by a Committee
A constitution is an anthology of decisions reached by the people of a country on the type and the form of political & legal frame to guide them in achieving their future needs in the realms of governance and development.
Generally, a Constitution is based on the views and principles acknowledged by the people which have been presented in the form of a binding document expressing their consent to be governed by them in regard to how a sustainable and peaceful existence in the society be maintained, the manner in which all economic activities were to be pursued in accordance with accepted norms and traditions and the legal framework of the country; how could a persistent policy of reconciliation be maintained in the society by resolving various conflicts which are likely to arise from time to time in whatever way, and how to create a fully civilized social environment while maintaining the moral values and discipline in the country etc.
The main principles to be adhered to in formulating a constitution could be summarized as follows.
The entirety of the content of the Constitution should be based on the awareness and the will of the people.
Such a document could be formulated only through a deep and clear understanding of the society on the need for having a constitution
The understanding of this nature can be reached only through profound dialogues conducted within the society itself. Accordingly, a Constitution made in the absence of an intense public dialogue will invariably become a spurious and absurd document.
In view of the above, the documents described as Constitutions can be classified into two main categories.
The first category consists of Constitutions which are genuine and credible. This implies that the fundamental structure of the society in which the people should live, and the legal framework required for facing all issues that may arise within that basic structure, would be formulated by the people themselves. A legal frame alone is not the singular solution to all problems. Problems in society arise persistently, and solving them is a practical need to be pursued constantly. What a Constitution does is to set out the guidelines and limits to be adhered to, by a society that is engaged in such a practical exercise so that it could accomplish the tasks undertaken in a proper manner. The above principle is based on the recognition of the fact that ‘doing anything anyway’ is a factor that will invariably lead to ruin and destruction. The aim of this process is to apprehend this tendency that exists in the people as well as among social groups and prevent them from committing offenses, and give a legal expression to the principles that would contribute to refraining them from doing so, and rescue the society from becoming a victim of such offenses.
By formulating a Constitution, the people give credence to a specific methodology to be followed in maintaining the social harmony without leaving room for unnecessary and unexpected confusions and problems to arise in the society. There are diverse people and social groups living in the society. But there is a wide consensus between these people and social groups. At the same time, there are issues leading to conflicts and problems also among them.
In formulating a Constitution, what is being done, is to bring the essence of all the positive aspects and agreements in the society into the Constitutional system itself, which is the supreme legal framework of the country, and at the same time to establish the legal foundation for resolving the issues between diverse individuals and social segments in an intellectual and civilized milieu.
Accordingly, on one hand, building a constitution based on strong consensus of society, gives a lasting expression to the social consensus, and on the other hand, by creating a way for resolving conflicts within the society itself, paves the way for the conflicts and disputes to gradually wither out, and also, as long as they exist, it offers a peaceful way to resolve them without resorting to violent means. This aspect constitutes an essential part of formulating a Constitution.
Usually a Constitution is formulated at a certain stage of the development of a society. That is, at a time when a series of historical events are in progress. Most likely, such an instance may arise particularly at times when a strong perception is firmly rooted in the society that some decisive change is going to take place in the society.
A country gaining freedom from colonial rule and becoming an independent state of its own is one such occasion in which a new Constitution is formulated based on the belief that some change was imminent. A country that has gained independence from colonial occupation and become a sovereign state is most likely to emerge as a new country by formulating a new Constitution based on consensus as to the type of legal frame that should be adopted in guiding it in the future governance.
There are occasions the countries tend towards adopting new Constitutions when they feel it is no longer possible for them to find solutions to deep social problems only through practical means and within the existing system, and it requires a broad social consensus and a legal framework based on that consensus. For example, instances are not rare in which certain countries have adopted new Constitutions in the event of protracted civil wars that had been going on for very long periods causing great loss of life and creating adverse consequences that have been extremely detrimental to society, as a means to resolve them, as well as to use it as a basis to re-establish the society on a new footing at the end of the civil war; and also as a new foundation to prevent the recurrence of similar kind of conflicts and civil wars in the future.
The conflicts in society are not limited to civil wars only. At some point, large-scale breakdowns could occur in society for a variety of reasons. The Constitutions are formulated when the countries are encountered with serious situations such as complete collapse of the country’s financial system; complete breakdown of law enforcement mechanism in the country; prevalence of unacceptable disparities in the distribution of state power leading to the assertion of power arbitrarily resulting in creating a great havoc in the country and occurrence of or likely to occur a large-scale food shortage in the country causing a major disaster; and these situations could lead the society to reach consensus as to the alternative remedial measures to be adopted and express it explicitly through a legal framework thereby creating a path to arrest the extremely anomalous circumstances arisen in society and rescue the society from the calamity.
The current feeling that Sri Lanka needs a new Constitution has come to the fore at a time when the country is facing a large-scale catastrophe in its modern history which is unprecedented, a fact which is widely acknowledged by the entire society. The massive collapse of the country’s financial system making it impossible to afford even the cost of essential needs of the country is one major aspect of this situation. The Government as well as all others have now admitted openly that the policy of indiscriminate and uncontrolled borrowing of money by successive governments over a long period has been the main cause of the current financial crisis facing Sri Lanka. Against this backdrop, the prices of all goods have gone up substantially, exacerbating the inflation at an uncontrollable rate while creating many more problems.
This has resulted in the depreciation of real wages of everyone affecting the cost of day-to-day expenses. Meanwhile, due to the economic crisis, a situation is created in the country in which the people find it extremely difficult to bear the cost of education, health and other basic necessities. On top of all these, there is a great fear that the agriculture, the main source of food supply of the country may be severely disrupted causing a large-scale food shortage in the near future which might even lead to a severe state of famine. The complete breakdown of the law of the land is another major problem linked with these issues; the police as a law enforcement agency has become a deteriorated institution creating a negative attitude in the public against it; similarly the public has lost faith in the legal system of the country as it has become politicised; the power, role and independence of the judiciary are greatly impaired due to undue external interferences and interventions; all these issues constitute the topics being talked about across the country gaining wide public consensus.
Under the circumstances, the process of Constitution making in Sri Lanka has come to the fore with the intention of creating a path for rescuing the country from a large-scale social catastrophe as outlined above. It is only by giving priority for this objective above all else, that a meaningful constitution could be formulated for the country.
*To be continued..