By Laksiri Fernando –

Dr. Laksiri Fernando

“The Constitution doesn’t belong to a bunch of judges and lawyers. It belongs to you.” – Anthony Kennedy (US Supreme Court Judge)

Traditionally, ‘constitutional equilibrium’ talked about the balance between the legislature, the executive and the judiciary. Independence of the judiciary was of paramount importance. Montesquieu in his ‘The Spirit of Laws’ (1748), argued that England preserved constitutional equilibrium and thus human liberty because of separation of powers and checks and balances. While this is still valid and fundamental, there are many other aspects of constitutional equilibrium or disequilibrium that we need to be concerned about under modern circumstances.

Sri Lanka has gone through quite a number of constitutional upheavals particularly in the 1970s and in recent times. Take the recent examples of constitutional amendments of the 17th, the 18th, and the 19th. They were going back and forth, let alone the dictatorial orientation of the 18th Amendment. A primary objective of a new constitution, therefore, has to be to give some stability to the constitutional system. The rationale or the felt need for a new constitution is long standing while this is going to be the fourth constitution of Sri Lanka, if it is successful, since independence in 1948. Admittedly, therefore, there has been some continuous disequilibrium in the constitutional system in the country.

Why? So far no constitution was in a position to find the ‘greatest happiness of the greatest number,’ reducing the suffering for all possible souls. I am here invoking the utilitarian theory of Jeremy Bentham (‘Introduction to the Principles of Morals and Legislation’ – 1789). It is too idealistic to think that a constitution can satisfy ‘all and sundry.’ The greatest satisfaction might be the best achievable. As the Buddha said, when there is Dukkha (a problem), there is Nirodha (a solution). When the Smudhaya (causes) are identified, one can find the Magga (the way for the solution). Here in Sri Lanka we have a constitutional instability or crisis. Therefore, there should be a way out. Finding that ‘way out’ is the task for the constituent assembly formed by the Parliament.

Continuous Instability

The first constitution, popularly called the Soulbury constitution, was primarily a document drafted by the colonial state makers (Lord Soulbury and Sir Ivor Jennings), of course in consultation with the elected representatives of the country. This constitution lasted for 25 years from 1947 to 1972 without much upheaval. In contrast, the first indigenous and the first republican constitution of 1972 survived only for six years. It showed the acrimonious political culture prevailed in the country. The second republican constitution of 1978 is still in operation for 38 years, but largely due to its rigidity than any inherent quality of popular acceptance. Since 1994, there has been several fervent efforts to overhaul that constitution but without any success. In August 2000, the effort to inaugurate a new constitution came very close, but failed, the opposition members of parliament burning the draft agreed by the leaders during by-partisan negotiations.

One advantage of constitution making process today is the existence of a ‘national unity’ government of the two main political parties, the UNP and the SLFP, also with the connivance of the official opposition, the TNA, representing mainly the Northern Tamil community. Therefore, at least on appearance, there seems to be some broad consensus for the need for a new constitution. This could however be illusory, considering the rifts within the ‘national unity’ government itself on some of the key constitutional issues, and the stance of the almost breakaway ‘joint opposition’ from the SLFP/UPFA led by the former president, Mahinda Rajapaksa, among other factors. In a recently held ‘foot-march’ (Pada Yathra) by the joint opposition (28 July – 1 August), one of the main slogans was that ‘the new constitution is a death trap.’ In addition, on the issue of passing the Office on Missing Persons (OMP) Bill on 11 August, the behaviour of the joint opposition has heralded what they might do during the inauguration of a new constitution.

There is no apparent readymade agreement between the main political parties, the UNP, the SLFP, the TNA or the JVP, except the need for a new constitution, reforming many of the institutional and legal anomalies of the present constitutional system, and creating a balance between divergent political views in order that a workable constitutional equilibrium is created for a foreseeable period. This is by no means an easy task. What elements could create a sustainable ‘constitutional equilibrium’ is also not a self-evident matter.

What Constitute Constitutional Equilibrium?

There can be different understandings of what people mean by ‘constitutional equilibrium.’ But here it is mainly used to denote ‘necessary political consensuses’ for its long term sustainability. A major necessary component in this equilibrium is people’s trust in the system. As a US Supreme Court Judge, Anthony Kennedy, has declared, “The Constitution doesn’t belong to a bunch of judges and lawyers. It belongs to you.”

There can be another meaning, as highlighted at the beginning and not very distance from the above, to mean ‘equilibrium between various institutions and power centres.’ This is about ‘checks and balances’ not only between the three traditional branches of government – the legislative, executive and judicial – but also between the provincial councils and the central government. As Sri Lanka is and going to be a devolved system of government, the latter equilibrium is much more important and desired. It is assumed that if an equilibrium could be achieved in the institutional context, then it would be easy to achieve equilibrium or consensus for sustainability of the constitutional system as a whole.

Then what about the trust of the people over the constitutional system? Unless there is a necessary trust, there cannot be a sustainable constitutional equilibrium in the country. This is also called ‘constitutional legitimacy.’ Wasn’t this a reason for two insurrections in the country in the South (1971) and in the North (1983-1987)? I would count the movements after 1987 both in the North and in the South as ‘terrorism’ and not insurrection.

Three Major Controversies

There are three major areas where constitutional consensus or equilibrium obviously is necessary. First or most popular is the question of ‘presidential versus a cabinet’ system. There has been a long debate on that theme beginning from the initial works of N. M. Perera and A. Jeyaratnam Wilson. This may appear the most settled issue particularly after the 19th Amendment, nevertheless there are several leftover issues. Two of which are: (1) whether all the executive powers should be scrapped from the presidency, and (2) how even a ‘ceremonial president’ should be elected or selected.

The second is the question of ‘proportional representation (PR) versus first-past-the post system (FPP).’ This has also been discussed for a long period although not that systematically like the first issue. One reason seems to be the technical dimensions involved in any electoral discussion. It is not so much of the FPP that is advocated, but having a constituency (seat) system where the electors retaining a clear representative to represent them in parliament. Although one objective to advocate a quasi-FPP system initially was to have governmental stability through clear majorities, the concerns seem to settle down today as the new thinking accepts the merits of ‘consensual governments’ rather than one party dominance. The remaining issues seem to point out a necessary balance rather than one against the other.

The third and the most controversial issue today emerges out of the ‘unitary versus federal’ debate. This has been a never ending dispute in the country linked to the ethnic conflict. Although there is a system of devolution with provincial councils in operation, still there are ‘pull factors’ wanting to re-establish the old unitary system. On the other hand, there are strong ‘push factors’ asking for federalism or even beyond. What kind of a balance of power, or popularly called ‘power sharing,’ could be drawn between the central government and the provincial councils would be the key issue. Much of the efforts of the present constitution makers, if not the whole constituent assembly, should be devoted to this issue, given the sensitivity of the matters involved. It should also be hundred percent transparent to win over the people’s trust.

Other Issues

There are of course several other polarized issues such as ‘secular-state versus foremost place for Buddhism’ and the merits and demerits of ‘unicameral verses bicameral’ legislative system. In most of the above underscored controversial issues, there can be a middle ground which could be achieved, if the parties are willing. The ‘middle path’ is the best. However, ‘unicameral-bicameral’ dispute is something where a middle position cannot be achieved by the nature of the issue. It has to be either unicameral or bicameral. If a proper and a meaningful devolved system is agreed upon, it is most likely that the constitution might go for a bicameral system. Then the issues would be about the weightage given for the centre and the periphery for electing/selecting such a second chamber or a Senate.

People’s Trust

The main premise of the constitutional system in Sri Lanka, like in many other democratic countries is the concept of people’s sovereignty. What does it mean? Is it only a ‘cake decoration’ or just a popular slogan to deceive people, while the political elite holding the actual sovereignty? This is not a well debated issue in the country while there have been few attempts. There are of course several devices, apart from the system of elections or the freedom of expression and protest, which gives the impression that the people are sovereign. One is the provisions for referendum on selected matters. The other is the possibility for the people to go before the Supreme Court on fundamental rights or to mitigate legislation or executive action which goes against the constitution or its provisions. However, there are precarious limits. The full range of judicial review is also not within the present constitution. Therefore one can argue that the reinstatement of ‘full judicial review’ could go a long way in establishing people’s sovereignty and thus the trust on the constitutional system.

However, the apparent gap between the constitutional system and the people are considerable. It may appear trivial, but one can raise the question whether the language and the contents of the constitution are comprehensible for an ordinary person. If a constitution is not only for the judges and the lawyers, then a constitution or its major parts should be understood by the ordinary people. It should be citizen-friendly in its language as well.

The National Youth Survey conducted in 2009 (only survey of this kind to my knowledge) amply revealed that particularly among the youth, the alienation is quite high in respect of the political, constitutional and the state (institutional) system. There have been no direct surveys conducted to gather the opinions of the people on various constitutional questions in the country. However, partial observations or studies reveal that the knowledge or opinions of the people are quite low and shrouded in misconceptions. For example, as one constitutional expert has opined, when many people say a ‘unitary state’ what they mean is a ‘united country.’ Whether this is the case or not, the fact remains that the general knowledge on constitutional matters is abysmally low. This is one reason for the continuous imbalance between the constitutional system and the people’s aspirations, while the unscrupulous political leaders utilizing the situation for their ulterior political ends.

What Might be the Best?

The short answer is the Middle Path. The transformation of the present constitutional disequilibrium (and also ambiguities) into sustainable equilibrium is not an easy task. It requires truly a bi-partisan approach. As discussed before, almost all the issues appear to be ‘bipolar’ due to historical, theoretical, international and political circumstances. At the same time, that nature of the controversies signify the possibility of achieving a middle ground on all or most of the issues, if there is ‘political will.’ The present national unity government, President Maithripala Sirisena as the head, is in a better position to achieve such a middle ground, compared to the previous historical occasions of 1972, 1978 or the year 2000.

For the first time, a constitution making effort has taken some great pains through what termed as the Public Representation Committee (PRC) to gather the opinions of the people. Whatever the weaknesses of this process or the outcome (the Report!), the attempt is commendable. The constitution making process should be transparent and should not be confined to the Committee Rooms of the Parliament. There should be more open discussions on the media (printed, electronic and social) and there is a pressing need for weekly briefings by the Constituent Assembly spokespersons on the day to day progress. Most important is to win the ‘trust of the people’ and the outcome/s of the process should be people’s friendly in its true sense. After all, unlike in the past occasions, the matter has to be finally decided by the people at a referendum.

(You may read the full proposal submitted by the author, Laksiri Fernando, to the Public Representation Committee (PRC), unedited, on 3 March 2016 here answering all 20 questions raised by the PRC. This was not published before, and now published by the author with the intention of keeping the constitutional debate alive and going. Additional articles are listed at the end of the proposal, accessible directly by clicking the links.)

Annex I  – Draft Chapter III – Fundamental Human Rights and Freedoms – Click here to read

Annex II – Chapter XII (Proposals) – Local Government System: Objects, Structures and Functions – Click here to read