6 May, 2021

Blog

Writing A Constitution

By Nihal Abeyasingha –

JSGNG Abeyasingha

Sri Lanka is presently engaged in a process of writing a new constitution. This time, it would seem that a political agenda is not in the forefront, but hopefully, one that serves to lead the country to growth and prosperity. Still, I for one, wonder whether a political agenda can be absent in the present situation, where politics enters into everything – and laughably even to get employment as a labourer in a government institution? Could that be the reason why in the newspapers and social media, there has been relatively little discussion on this project? However, a would present a few preliminary thoughts for consideration. 

To begin with, as everybody knows, there are two types of Constitutions – written in one or more legal documents duly enacted in the form of laws. It is precise, definite and systematic. It is the result of the conscious and deliberate efforts of the people, framed by a representative body duly elected by the people at a particular period in history. It is always promulgated on a specific date in history. Thus, the Constitution of India, for example, is a written constitution. It was framed by a representative Constituent Assembly and was promulgated on a definite date, i.e., 26th January 1950.

An unwritten constitution is one in which most of the principles of the government have never been enacted in the form of laws. It consists of customs, conventions, traditions, and some written laws bearing different dates. It is unsystematic, indefinite and imprecise. Such a constitution is not the result of conscious and deliberate efforts of the people. It is generally the result of historical development. It was never made by a representative constituent assembly at a definite stage of history, nor is it promulgated on a particular date. It is, therefore, sometimes called an evolved or cumulative constitution. The constitution of England is a classic example of an unwritten constitution. It is mainly the result of historical growth. 

However, a written constitution does not mean that the unwritten customs, traditions etc. no longer exist. In fact, they do exist and are very much the background against which the written constitution functions, is interpreted and its legislation enacted.   

What is important to understand is that a constitution – written or unwritten – is not primarily law. It is what I would like to call a “wisdom” document. Wisdom literature is a genre of literature common in the ancient Near East. It consists of statements by sages and the wise that offer teachings about divinity and virtue. Although this genre uses techniques of traditional oral storytelling, it was disseminated in written form. It moulds thinking. When this wisdom finds its way into law, especially in the ancient religions of Hinduism, Buddhism, Judaism and Christianity, it is enunciated in terms of mutual duties of ruler-ruled, husbands-wives, teachers-pupils etc…  Since that time, constitution writing and making have come a long way, but interestingly enough the focus on comparative constitutional law has emerged in the 20th century (Cf. the pioneering work of Boris Mirkine Guetzevich, Les Constitutions de Europe nouvelle (1928) and. Later, Carl J. Friedrich, Constitutional Government and Democracy in Europe and America (1941).

In Sri Lanka:

A group of 75 lawyers expressed themselves (GroundViews 11/12/2018) in the context of a Constitutional Crisis, which was canvassed in the Supreme Court.

We the undersigned, note with concern, the methods by which the Constitution of Sri Lanka is being interpreted to justify the appointment of a purported Prime Minister on the 26th of October, a Cabinet of Ministers and the dissolution of Parliament thereafter. As members of the legal profession who practice and/or teach law, we wish to recall that each of us has a responsibility to uphold the rule of law, respect for fundamental rights and promote justice in carrying out our professional responsibilities. Making selective references to provisions of the Constitution to justify the actions and/or intended actions of the President in complete disregard of fundamental rules of constitutional interpretation is contrary to our professional ethics. It has the effect of confusing and misleading the public. 

An analysis of how the discussion was presented before the supreme court indicated to me that the approach of lawyers who argued the case were like professionals handling the case for their clients – the Attorney General claimed that the President was entitled to act as he did according to the Constitution!

The academic discussion of is the core issue at stake, which should have highlighted the “originary” interpretation of the constitution and pleaded for necessary “updating” by judicial activism as may or may not be required.  This aspect was not touched.  If touched, it was done so only peripherally or as a lamentation of the death knell of democracy. 

G.K. Gunatillke et al., The Judicial Mind in Sri Lanka: Responding to the Protection of Minority Rights (2014), 270 write:

When multiethnic and multi-religious societies are confronted with challenges that test the limits of coexistence, governments may be tempted to resort to populism or political expediency. Sri Lanka’s relatively short post-independence history is unfortunately riddled with examples of such compromises. Minorities have been victimised throughout this country’s history. They have had nowhere to turn, except perhaps towards the only institution that is tasked with checking power: the judiciary. Sri Lanka’s judiciary has been called upon time and again to vindicate minority rights in the face of overwhelming oppression by the other organs of government. This study has essentially sought to examine the judiciary’s record in rising to and meeting this enormous challenge. At the heart of the post-independence mandate of the judiciary to protect the rights of all communities was Section 29 of the Soulbury Constitution. As detailed in the introduction of this study, the fundamental thinking behind the protection of minority rights flowed from this constitutional provision. However, the contents of this provision were consistently undermined throughout the survival of that Constitution, and in 1972, were omitted altogether from the new Republican Constitution. The gradual undermining of Section 29, culminating in its ultimate omission, in many ways reflected the slow deterioration of minority rights in Sri Lanka”.

A body of very eminent lawyers specialized in pleading for clients has been named to write a constitution. Unfortunately, Sri Lanka, to the extent of my limited knowledge, the body lacks lawyers specialized in Constitutional law and the peculiarities of its methodology as distinct from the approach of “practitioners” of the law. For the average person, an anecdote maybe in order to illustrate the approach of practitioners of the law. An individual goes to a lawyer to appear for him. Having heard what the person had to say the lawyer told him, you must deny that you slapped the man. But the man said that would be perjury, because I did slap him. And the lawyer told him “You speak of morality. I am here to use the law to win your case.” Manipulating evidence and interpreting the law is the methodology of practitioners of the law. But constitutional law is law in its broadest connotation – not merely setting up structures; but embodying and launching the processes that would be moulded by independent and proactive judicial interpretation over the years to express the elan de vie of a people.

In this context, one requirement might be to obtain the services of professional specialists in constitutional law. The role of the presently constituted  panel of experts would be twofold – on the one hand to gather together the concerns and aspirations of the multi-ethic population of Sri Lanka and on the other hand, to what extent, these people especially those with extremist views are willing to compromise in order to establish peace, harmony and progress in the long term. For example, what kind of equality are persons willing to assign to minorities (e.g. Tamils, Muslims, Christians etc), who will always remain minorities – Economic? Social? Political? In this regard a glance at the series, Palgrave Studies in Compromise  After Conflict might be of interest. The role of the constitutional specialists would be to formulate these findings in terms of constitutional law – the required balance and checks between the executive, the legislative and the judiciary, together with constituting the institutions that could carry out this project. Particular care would be taken not to make one section or one statement in one part stand over or in contradiction to that stated in another part.  This is a very difficult manouvre. 

In any event, a second requirement would be the need to establish an independent judiciary, its independence not being liable to the whims either of parliament or the executive. If that is not provided for or there is a mechanism to “politically” remove judges (as has happened in the Bandaranaike case), it would be like asking the fox to take care of the chickens.

Thirdly, from the history of the functioning of the Constitution since 1972 and especially after the establishment of the presidency in 1977, the uses and abuses of the presidency has been laid bare. Do we as a nation wish to establish the rule of the Artha Shastra attributed to Kautilya (dating to about 300 BC)? The presence of bribery, corruption and other nefarious activities based on unlimited avarice need to mention. The increased control of politicians in the functioning of society has been experienced. Should these be allowed to continue?

Conclusion

Constitutional law as a discipline and an accounting of fundamental constitutional developments, concepts, and debates within this  discipline have grown immensely. The prominence and visibility of judges contributing to this field has been interesting. The rapid growth and expansion of the field was propelled by the transitions to constitutional democracy in Eastern and Central Europe after the fall of the Berlin Wall in 1989, followed by the making of many constitutions in the 1990s, including in South Africa and in many South American countries. Many of these new constitutions have ‘imported’ constitutional norms from abroad.   

As I indicated earlier, Sri Lanka is an ancient tradition. Amartya Sen, The Argumentative Indian (2005) Sen gives us some clues as to why India’s democracy is so vibrant. He points out that there is a long argumentative and deliberative tradition in India that celebrates diverse and unorthodox views, including dissent. He points to the enormous influence of the ancient Hindu epics, the Mahabharata and the Ramayana which articulate values more in a deliberative than prescriptive manner. In particular, he discusses at length the famous debate between Arjuna, the righteous warrior, and Krishna, Arjuna’s charioteer (a human incarnation of Lord Krishna), in the Bh­agavad Gita, perhaps the most well-known section of the Mahabharata. 

The Buddhist Emperor Ashoka was an avid promoter of public discussions and civic participation in the spirit of Lord Buddha, without ill-will or rancour. Certainly, a far cry from what passes off as Buddhist practice in Sri Lanka today. Despite the sectarian strife that flares up in India from time to time, it is inconceivable that the teeming masses of India would survive together for so long without an underlying acknowledgment of pluralism. Where there is religious pluralism, cultural pluralism too follows. Sen cites many examples of literary classics of India which appreciate the rich cultural diversity of the Sub-Continent, one of which is the great poet Kalidasa’s classic, the Meghaduta.

For good or ill, Buddhism has been given paramount status in the 1972 and 1978 Constitutions of Sri Lanka. It is hardly possible to change that in the present context, but why not try to launch the teaching of the Lord Buddha as a process initiated and moulded by the Constitution? In the Parinibbana Sutta, we read of his discussion of the conditions for the growth of a nation. If that is successful, then, as the Buddha says the growth of this country is to be expected and not its decline. 

4. At that time the Venerable Ananda was standing behind the Blessed One, fanning him, and the Blessed One addressed the Venerable Ananda thus: “What have you heard, Ananda: do the Vajjis have frequent gatherings, and are their meetings well attended?”

“I have heard, Lord, that this is so.”

“So long, Ananda, as this is the case, the growth of the Vajjis is to be expected, not their decline.

“What have you heard, Ananda: do the Vajjis assemble and disperse peacefully and attend to their affairs in concord?”

“I have heard, Lord, that they do.”

“So long, Ananda, as this is the case, the growth of the Vajjis is to be expected, not their decline.

“What have you heard, Ananda: do the Vajjis neither enact new decrees nor abolish existing ones, but proceed in accordance with their ancient constitutions?”

“I have heard, Lord, that they do.”

“So long, Ananda, as this is the case, the growth of the Vajjis is to be expected, not their decline.

“What have you heard, Ananda: do the Vajjis show respect, honor, esteem, and veneration towards their elders and think it worthwhile to listen to them?”

“I have heard, Lord, that they do.”

“So long, Ananda, as this is the case, the growth of the Vajjis is to be expected, not their decline.

“What have you heard, Ananda: do the Vajjis refrain from abducting women and maidens of good families and from detaining them?”

“I have heard, Lord, that they refrain from doing so.”

“So long, Ananda, as this is the case, the growth of the Vajjis is to be expected, not their decline.

“What have you heard, Ananda: do the Vajjis show respect, honor, esteem, and veneration towards their shrines, both those within the city and those outside it, and do not deprive them of the due offerings as given and made to them formerly?”

“I have heard, Lord, that they do venerate their shrines, and that they do not deprive them of their offerings.”

“So long, Ananda, as this is the case, the growth of the Vajjis is to be expected, not their decline.

“What have you heard, Ananda: do the Vajjis duly protect and guard the arahats, so that those who have not come to the realm yet might do so, and those who have already come might live there in peace?”

“I have heard, Lord, that they do.”

“So long, Ananda, as this is the case, the growth of the Vajjis is to be expected, not their decline.”

5. And the Blessed One addressed the brahman Vassakara in these words: “Once, brahman, I dwelt at Vesali, at the Sarandada shrine, and there it was that I taught the Vajjis these seven conditions leading to (a nation’s) welfare.  So long, brahman, as these endure among the Vajjis, and the Vajjis are known for it, their growth is to be expected, not their decline.”

Thereupon the brahman Vassakara spoke thus to the Blessed One: “If the Vajjis, Venerable Gotama, were endowed with only one or another of these conditions leading to welfare, their growth would have to be expected, not their decline. What then of all the seven? No harm, indeed, can be done to the Vajjis in battle by Magadha’s king, Ajatasattu, except through treachery or discord. Well, then, Venerable Gotama, we will take our leave, for we have much to perform, much work to do.”

All success to those attempting to formulate the new Constitution.

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