By Laksiri Fernando –

Dr. Laksiri Fernando

Constitutional making in a polarized society is not an easy task. I prefer to use the term ‘polarized society’ than a ‘divided or a deeply divided society,’ with a cautiously optimistic note. Sri Lanka unfortunately is still polarized not only in ethnic but also in political terms, like many other countries in the region. However, as the two elections last year (presidential and parliamentary) and the current ‘national unity’ government, of course mainly the UNP and the SLFP, show there are some possible consensus on a New Constitution, yet uneasy.

Seemingly broad consensus, particularly among the people, appear to be on ‘democracy’ or ‘furtherance of democracy,’ after changing a difficultly entrenched ‘authoritarian regime’ in 2015. This also implied ‘justice to the minority communities’ and ‘resolution of the ethnic conflict,’ although those did not come to the forefront automatically at elections. Suspicions, old notions or determination to keep ‘majority rule’ are still lingering.

The government has declared three major areas of reform for a New Constitution. As the Prime Minister, Ranil Wickremesinghe, has outlined at the Sujata Jayawardena Oration (11 December 2015):

“The Cabinet Committee on Constitutional Reforms has already, in consultation with the Leaders of Parties in Parliament, decided to appoint a Public Representation Commission which will obtain the views of the public and forward a Report to the Constitutional Assembly by 31st March 2016. Today, the three main issues before the Constitutional Assembly are: Devolution, the electoral system and the alternative to the Executive Presidency.”

Devolution undoubtedly is a priority in this effort. As Hanna Lerner (Making Constitutions in Deeply Divided Societies, 2013) has said, “In recent years constitutions have become a leading tool for mitigating conflicts and promoting democracy in divided societies.” South Africa is one good example.

Why Need a New?

If democratic change is achieved, as claimed, why do we need a new constitution? One may ask. To consolidate the achievements and move further, could be one answer. Joseph Stalin (who has never been in my good books!) gave an important answer in justifying the need for a new constitution in the Soviet Union in 1936. He said that ‘the necessity for a new constitution arose from changes in the country that transpired since the previous constitution of 1924.’ The essence of this answer is equally valid at least partly for the need for a new constitution in Sri Lanka today.

Much water and also ‘dead bodies’ have flowed under the bridge since 1978. The changes have been both negative and positive. Although all the reasons for the war or terrorism, including the southern ones, cannot be blamed on the 1978 constitution, the system in place (an authoritarian President at the helm) was not conducive in mitigating or seeking an early solution. The economy became largely stagnated, mostly lopsided with vast social disparities.

The final outcome of the constitutional setup was the Rajapaksa family rule, emerging as an obnoxious authoritarian regime. The various promises to change the constitution and abolish the presidential system since 1994 did not materialize within the vicious cycle. Now there is a chance to break the cycle, and move beyond. The defects were/are systemic and not personal alone.

Changes in the country after 1978, and particularly recently, were not all negative, although partial. There are new generations of youth who have emerged with more liberal values, different to the values of the older generations. Even in the constitutional sphere, the 13th and the 17th Amendments were major achievements, the first creating a base for effective devolution, and the second establishing independent commissions to free the public services, the judiciary, the police etc. from political interferences and control. However, the 17th was reversed in 2010 and the 13th also was circumscribed under the presidential rule and due to other structural defects.

Some fundamental flaws of the 1978 initial document became revealed by having 16 amendments within first ten years; and one even not enacted. The 16th Amendment also was a good one on language use, although not put into proper practice. There was no amendment, unfortunately, similar to the Article 29 in the 1947 constitution. It is not merely the number of amendments that showed the weaknesses of the constitutional structure, but their erratic or ‘back and forth’ character. There are fundamental defects, disparities, uncertainties and contradictions in the present text of the constitution that needs to be harmonized through a new constitution.

For the Future

Stalin was only partially or half correct in explaining the purpose of a constitution. He was so adamant, like many leftists (!), saying that ‘a constitution should reflect the gains of a society and not the aims.’ This is disputed by the liberal tradition of constitutional making. Aims and future objectives are important. The liberal tradition fundamentally looks for the future from the present. This however should not disregard the achievements. Only a lasting constitution can be made only by mixing the two. A constitution should be both the ‘mirror and the mould of a polity, and also a society.’

The twin purposes (mirroring and moulding) could be the guiding principles in formulating provisions in the three main areas that the PM has outlined: ‘devolution,’ ‘electoral reform’ and the ‘executive system.’ There are many other areas like ‘fundamental rights,’ ‘principles of state policy,’ ‘arrangements for financial accountability,’ ‘check and balances for good governance’ that these twin principles should equally apply. Simply saying, there should be a future vision. Temptations for immediate ‘political advantage’ should be eschewed with. Even in the 19th Amendment, there are some ‘pragmatic’ or more correctly ‘opportunist’ provisions. The failed 2000 constitutional draft is a good lesson not to indulge in petty-power-schemes.

American constitution of 1787 in this sense was exemplary. It was futurist and was written in plain language. James Madison who is undisputed as a most important founder of the constitution often used the term ‘America’s destiny,’ also to include its economic future. In deliberating on the tasks of constitutional drafting he said the following.

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must enable the government to control the governed; and in the next place oblige itself to control itself.”

During the over 225 years, there are only 27 amendments. Ten of them were within few years to incorporate a Bill of Rights but not to change the existing provisions. There were only few amendments since then. There was no attempt to overwrite the matters. The judiciary was allowed to interpret; and the institutions were allowed to evolve. This does not mean that everything went in the right direction, but stability and sustainability prevailed. In the Sri Lankan context, this may be too idealistic to expect. Therefore, there is nothing wrong in a detailed document, however, a lasting vision is important.

If a constitution is not framed for the future, it is doomed to fail. This is what happened in France, having five republican constitutions since 1789. This weakness was there in the 1972 Sri Lankan constitution although it was drafted well. The purpose of changing the 1947 constitution was different. The 1978 constitution has lasted for more years than the 1972 because of its rigidity and for other reasons. Sri Lanka is now poised to go for a third republican constitution, and if it fails in its future vision, it also would fail as a constitution.

Another important element is forging consensus. Consensus does not necessarily mean all agree. It is impossible in the present Sri Lankan context, given the niggling power interests and schemes. However, the main stakeholders should be able to ‘give and take’ and ‘compromise.’ But this should be done on the basis of ‘principles, justice and morals’ and not on ‘power interests.’ In my opinion, it is wrong to consider what has to be resolved, particularly in the case of the ethnic conflict, is a ‘power problem.’ If the constitution is drafted on a future vision, justifiable on ethical, moral and practical grounds, it would last and it would be easily approved by ‘We the people.’

The Road Map

The PM, apparently as the primary mover of the New Constitution, has put forward a ‘draft resolution’ to be tabled before Parliament on 9 January. It gives a feasible road map for making a New Constitution. The opening clause says the following.

“There shall be a Committee of Parliament hereinafter referred to as the ‘Constitutional Assembly’ which shall consist of all Members of Parliament, for the purpose of deliberating on, and seeking the views and advice of the people, on a new constitution for Sri Lanka, and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of its powers under Article 75 of the Constitution.”

The resolution is clearly written and contains cohesive 39 clauses. Clarity is important in constitution making. As it is clear from the above paragraph, a Committee of Parliament will sit as a ‘Constitutional Assembly.’ This is important. As I happened to advocate 12 years ago at an interview (Sunday Observer, 30 May 2004), “The benefits of a Constituent Assembly are many because the process is more democratic. In a Constituent Assembly there is no division between parties, no atmosphere for confrontation, parties will consider questions differently, rules of procedure will be different, seating arrangement is different and the members will participate as representatives of the people.” I had called it a ‘constituent assembly,’ following the vocabulary of that time, but it is more correct to call it a ‘constitutional assembly’ today.

The main tasks of the Constitutional Assembly (CA) would be (1) to deliberate on a New Constitution, (2) to seek views and advice of the people for the above, and (3) to prepare a draft of a Constitutional Bill for the consideration of Parliament. Then Parliament will exercise its powers under Article 75 of the Constitution in deliberating on it. Hopefully, there will be no legal hurdles in the process.

The resolution also outlines the secretarial and organizational arrangements for the CA. There shall be sub-committees of the CA. There shall be a Steering Committee to steer the deliberations, to conduct necessary consultations, and then for the nitty gritty drafting. All the inputs from other sub-committees would come to that. The proceedings of the CA will be open to the public. An important link between the CA and the public will be the ‘Public Representation Commission.’ It shall setup and maintain a website and use other appropriate methods, towards giving due publicity to the process. Most importantly, it will also be the main conveyer belt of people’s submissions to the Constitutional Assembly.

It is the Steering Committee which is tasked to submit a ‘final report’ and a ‘resolution on a draft constitution.’ However, there is no time frame given at the moment. The procedure is outlined in detail in adopting and/or amending the draft (Clause 26). For example, “If two-thirds of the Constitutional Assembly does not approve the resolution on the draft Constitution, the Constitutional Assembly and the Committees referred to in this Resolution shall stand dissolved.”

The legal or the constitutional procedure outlined in the draft resolution is not discussed here. On its face value, it appears feasible and constitutional. The procedure also includes the submission of the draft after it becomes a “Bill to every Provincial Council, and seek their views as required by Article 154G (2) of the Constitution.” Then comes the referendum.

To Dispel Doubt!

It is important to quote in full the two last clauses of the draft resolution ‘to dispel any doubt’ about the legality or the constitutionality of the procedure outlined.

“38. For the avoidance of doubt, it is hereby declared that the adoption or rejection or adoption subject to amendment of such a draft Constitution as proposed by the Constitutional Assembly, shall be the responsibility of Parliament.

39. For the avoidance of doubt it is hereby further declared that a Constitution Bill shall only be enacted into law if it is passed in Parliament by a special majority of 2/3 of the whole number of the Members of Parliament, including those not present and subsequently approved by the people at a Referendum as required by Article 83 of the Constitution.”

The effort to draft and adopt a New Constitution is consistent with the mandate of President Maithripala Sirisena, at the presidential elections on 7 January 2015, who is now the leader of the SLFP, and the Manifesto of the UNP at the parliamentary elections on 17 August 2015. The origins of the people’s mandate for a New Constitution could even be traced back to the 1994 presidential elections, and subsequent presidential and parliamentary elections.