By Laksiri Fernando –
Dr. Laksiri Fernando
During the parliamentary debate to approve the resolution to make a New Constitution on the 24th, Mahinda Yapa Abeyawardena MP has asked ‘Wiyawasthawa Kannada?’ (Can you eat the constitution?). This was reported by ‘Ada’ (Today) newspaper on 25 February as a lead story. Abeyawardena has apparently quoted an American Senator, Sherman Minton, of yesteryears (1930s) quite out of context.
His question or the statement appears to have raised on behalf of the poor or the people. But it is not the case. He himself is a landed proprietor according to Wikipedia. The question also looks trendy suitable to a Facebook. But it is completely a cynical attitude on the part of a MP, a member of the so-called Joint Opposition to be more precise, showing his and their disrespect to constitutionalism.
If it had come from an ordinary person in the street, or in the village, then there could have been some meaning. But coming from a MP, and a former minister for that matter, is quite distressing.
Out of Context
These kind of cynical remarks usually appear when people emphasise the importance of constitutionalism or the need for positive or progressive constitutional change. Sri Lanka is in such a situation today, after a long spell of authoritarianism and anti-constitutionalism.
What I mean by ‘constitutionalism’ is not only having a constitution. It means a system of government in which power is ‘distributed and limited’ by fundamental or constitutional laws in the constitution to which all branches of the government (legislative, executive and judicial) and also the people should obey.
It is only under exceptional circumstances that problems arise in interpreting between the ‘spirit and the letter’ of a constitution, and even that is left not to the politicians but to the judiciary.
When Sherman Minton made the remark that ‘you cannot eat the constitution’ it had a limited meaning in the context of the great economic depression in America in the 1930s. What he meant was that you cannot strictly follow the constitution under a crisis situation. However, even under those circumstances it was an extreme statement coming from a Senator. Many supporters of the New Deal or the Democratic Party did not approve that extreme statement. He himself changed his attitude later and even became a conservative Supreme Court judge.
It is no surprise that this new remark about ‘eating the constitution’ in Sri Lanka has come from a politician who has supported the Rajapaksa aggression steadfastly against the country’s constitution, particularly after the difficult war victory. It was merely for power and authoritarian purposes. One major landmark in this direction was when the Supreme Court gave an unfavourable decision on the Divi Neguma Bill and then the Chief Justice, Dr Shirani Bandaranayake, was impeached as revenge. It is all history now.
Even then some of them reported to have said ‘hell with the constitution, you can’t eat it.’ Prior to that and particularly thereafter, constitutional matters were manipulated through the unscrupulous chief justices. Independence of the judiciary was prostituted. That is why the UN Commissioner for Human Rights made a major flak against the judiciary here during his recent visit.
There was no parallel with the New Deal or President Franklin D Roosevelt in any of these Rajapaksa dealings in disparaging constitutionalism. Divi Neguma was not a New Deal. Rajapaksa was not a Roosevelt.
Protecting Basic Needs
One can even go further cynically on the constitution and say ‘you cannot eat it, you cannot wear it and you cannot sleep in it.’ This was actually said by a congressman, Charles Truax, at the same time of Sherman Minton, during the great depression. All true when you think of the text of a constitution or metaphorically about a constitution without effective economic and social rights. Abeyawardena could have been trendier if he had quoted Truax rather than Minton.
On the other hand, these are all about the right to food (eat), the right to clothing (wear) and the right to shelter (sleep). They are also about the right to work and cost of living.
If Abeyawardena or the so-called Joint Opposition is serious about what they say on the ‘impossibility of eating a new constitution,’ what they should do realistically is to present proposals to make ‘economic and social rights’ fundamental human rights in the New Constitution and propose other measures to achieve the same objective/s. But those proposals should be feasible without being just rhetoric as the matters involved are extremely complex philosophically, legally and practically. After all this is a joint government of the UNP and the SLFP, and many of these cynical critics belong to the SLFP or the UPFA.
Anyway, what the country should do with a New Constitution is to stop delivering handouts or welfare to the poor as ‘charity or gifts’ from the ‘rulers’ or their families. This feudal mentality should stop whether from the Bandaranaikes’, Rajapaksas’ or Wickremesinghes.’ I think Dilan Perera has said something to this effect on ‘Urumakkarayos’ (heirs) and ‘Karumakkarayos’ (buyers). People do have human rights to receive them whether it is a job, health, housing, education or welfare.
It is natural for ordinary people, particularly those who struggle for their daily bread, not to understand the merits of a New Constitution, at least immediately. The government or the constitution makers should make the matters clearer. After all, it has to go before a Referendum. A survey conducted by the CPA has also revealed this fact that the people are not that enthusiastic. The Joint Opposition or any other should not exploit the situation.
This is not unique to Sri Lanka but to any ‘third world’ country, if I may use that term. When a participatory research was conducted by Brij V. Lal (‘Intersections,’ Australian National University) leading to the elections in Fiji in 2014, he found the following.
“The real issues in rural areas are not about high principles but about roads, bridges, water supply, better hospitals, the price of bread…’You cannot eat a constitution,’ a man says to me. ‘Anyway, what has the constitution done for me,’ he asks a candidate preaching its virtues.” (p. 83).
Now this was even after the 2013 New Constitution which incorporated a fair amount of ‘economic and social rights’ including environmental rights in Fiji. This is a good lesson for Sri Lanka. As my title says, although ‘you cannot eat a constitution, but the constitution can ensure your right to eat (food).’ This is said metaphorically, and what it means is the possibility of guaranteeing some or most of the ‘economic and social rights’ in the New Constitution. But those rights should be justiciable in an appropriate manner, and people should be able to realize them progressively through other programs as well. Nothing will come instantaneously after a New Constitution.
South Africa has done it, among many other countries recently, and Sri Lanka can do it and perhaps supply a better example.
Justification
We have the justification from history and examples from recent constitution making processes. As we have already seen, it was Roosevelt or his supporters who had misgivings about constitutionalism during the great depression. It was just a gut reaction to express misgivings in drastic terms like what Minton or Traux stated. But finally constitutionalism prevailed although the US is far behind the other countries in accepting economic and social rights even today.
However, where Franklin Roosevelt failed, in a way his wife, Eleanor Roosevelt, succeeded.
As we all know, Mrs Roosevelt was the first Chair of the UN Human Rights Commission which drafted the Universal Declaration of Human Rights (UDHR) in 1948 which for the first time enshrined the economic, social and cultural rights. Following that example, the UN also promulgated the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966 to which Sri Lanka is a treaty member. There are several other conventions.
Origins of the emphasis on ‘economic and social rights’ are far deeper. It was the socialist thinkers of the 19th century, Robert Owen, Gracchus Baboeuf, Karl Marx and Charles Fourrier, to name a few, who emphasised the importance of economic and social rights. As Fourrier (‘Selected Writings,’ p. 190) pronounced,
“The first right is the right to sustain life, to eat when one is hungry…This right imposes the duty upon the social body of securing to the people a minimum maintenance…As long as this duty is not recognized, there is no social compact reciprocally agreed to; there is nothing but a league of oppression, a league of the minority which possess, against the majority which does not possess the necessities of life…”
Now the liberals consider a ‘constitution as a social contract’ or compact. According to the above socialist, however, as long as the duty to secure a minimum maintenance (the right to sustain life) is not guaranteed, ‘there is no social contract reciprocally agreed to.’
A Fourrier today would definitely go beyond. Not just minimum maintenance. But if there is no guarantee for good maintenance (not minimum), the right to work, the right to good health, the right to good housing, the right to good education, there will be no ‘social contract reciprocally agreed to.’ Of course there are duties on the part of the people as well, in respect of all those rights.
paul / February 27, 2016
and worded foolishly, Constitution can eat you alive too…
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Banjiappu / February 28, 2016
These people have no knowledge what a constitution could bring. That is the reason why them to call that way. They just want to focus the day today issues. They believe those could move even without empowering the items under the constitutions. I believe, the average have not the least knowledge about the consituaton any kind of legal acts. Many would not even think even if some people have openly been attacked. They may feel that should be the way.
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Amarasiri / February 27, 2016
Dr. Laksiri Fernando
RE:‘You Can’t Eat The Constitution’ But The Constitution Can Ensure Your Right To Eat (Food)
“During the parliamentary debate to approve the resolution to make a New Constitution on the 24th, Mahinda Yapa Abeyawardena MP has asked ‘Wiyawasthawa Kannada?’ (Can you eat the constitution?). This was reported by ‘Ada’ (Today) newspaper on 25 February as a lead story. “
Yes. Can’t eat it, at least can live by it.
Can you write the Common Sense Phamplet. Yes, we cant’t eat it, but at least read it and get people to get some common sense.
That is what Thomas Paine did.
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Punitham / February 27, 2016
I always appreciate this author’s articles – they’re good lessons for all categories of citizens.
Will heplease appeal for including elements of Law in compulsory citizenship or social science lessons for 12-16 yr-olds in secondary schools. Recently Gnanasara Thero of BBS asked for it after his release on bail and Judge Weeramantry also told LLRC about his research findings
( https://www.scribd.com/doc/127226195/Sri-Lanka-Justice-Weeramantry-to-Lessons-Learnt-and-Reconciliation-Commission ) that teenagers wish to know about the Law. What better way to reduce all sorts of crimes crippling our society?
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Billa / February 27, 2016
None of the Lankan politicians or the present day legal luminaries can ‘cook up’ a good, reasonable, impartial constitution due to their biased and racist mentality, let alone ‘eating’ it ! Lankan [Edited out] have written a few ones but nothing solved the problems but created more of it.
Drafting a proper Constitution is no joke for one must possess intelligence, broad mindedness, knowledge, vision, farsightedness, fair minded and importantly,who loves the people and the country.
Wait and see how they are going to mess it up further.
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Rizwan / February 29, 2016
Sir, I post below an excerpt from ‘The Law’ by Bastiat:
“We hold from God the gift which includes all others. This gift is life — physical, intellectual, and moral life.
But life cannot maintain itself alone. The Creator of life has entrusted us with the responsibility of preserving, developing, and perfecting it. In order that we may accomplish this, He has provided us with a collection of marvelous faculties. And He has put us in the midst of a variety of natural resources. By the application of our faculties to these natural resources we convert them into products, and use them. This process is necessary in order that life may run its appointed course.
Life, faculties, production — in other words, individuality, liberty, property — this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.
What, then, is law? It is the collective organization of the individual right to lawful defense.”
“If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.”
Bastiat argues that when the law does more than this, for example, provide education, providing healthcare, or providing food, it works CONTRARY to its original premise of defending life, liberty and property.
What say you to this?
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Dr Laksiri Fernando / February 29, 2016
Rizwan,
Frederic Bastiat’s theory is a ‘natural law’ theory like John Locke’s and very much the same. That is fine.
However, we have to understand that legal theories are often advanced to defend certain interests and in this case, ‘life, liberty and property.’
When this was advanced during the English revolution (1688) or Locke’s time, it was quite rational. However, the advocates of the French revolution (1789) brought some other attributes as ‘natural’ and purported to be ‘preceding the man made laws.’ Instead of ‘property,’ they brought the concept of ‘equality.’ Bastiat wrote his “The Law” (1850) as a reverse theory to this development and against the notion of equality.
How can we know what theory is correct? I think we have to utilize rationality after comparing all the available theories or notions. If ‘life, liberty and property’ are natural, how come that ‘equality’ is not natural particularly for a God believer like Bastiat? If both ‘equality’ and ‘property’ are natural, obviously Bastiat’s notion of ‘property’ cannot be correct. At least Locke had an innocent theory of property as a ‘product of labour mixing with land.’
The Universal Declaration of Human Rights (UDHR) also gives us an answer. There is a ‘theory in Article 1’ which appears to me more acceptable than Bastiat’s metaphysical theory. It reads “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Your last argument, I think is an over-reading of Bastiat!!!
Laksiri
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Rizwan / March 1, 2016
Dear Sir,
Thank you for the comprehensive response. For your review and consideration I post below another excerpt from the essay: ‘The Law’ by Bastiat – specifically the chapter “Law is Force”:
“Since the law organizes justice, the socialists ask why the law should not also organize labor, education, and religion.
Why should not law be used for these purposes? Because it could not organize labor, education, and religion without destroying justice. We must remember that law is force, and that, consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force.
When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all.”
On the matter of the law being force, I post below another excerpt from the chapter “Law is a Negative Concept”:
“But when the law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed — then the law is no longer negative; it acts positively upon people. It substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives. When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, their property.”
Sir, as you have suggested it would be difficult to confirm which natural law theory is correct. However the empirical data from Sri Lanka, i.e. from employment to education and healthcare, the performance of public institutions, the fall in standard of living, the rise of crime, the jealously guarded right to vote, are all extremely reminiscent of what Bastiat describes in his essay as a consequence of the law being used for a purpose contrary to preserving justice.
It is for this reason that I have brought up his essay as a possible reference point in our quest to remake Sri Lanka’s constitution.
I post below two additional examples. Firstly on “The Law and Education”:
“You say: “There are persons who lack education,” and you turn to the law. But the law is not, in itself, a torch of learning which shines its light abroad. The law extends over a society where some persons have knowledge and others do not; where some citizens need to learn, and others can teach. In this matter of education, the law has only two alternatives: It can permit this transaction of teaching-and-learning to operate freely and without the use of force, or it can force human wills in this matter by taking from some of them enough to pay the teachers who are appointed by government to instruct others, without charge. But in this second case, the law commits legal plunder by violating liberty and property.”
Secondly from the chapter “The Fatal Idea of Legal Plunder”. I believe many would find the below situation to be extremely familiar.
“But on the other hand, imagine that this fatal principle has been introduced: Under the pretense of organization, regulation, protection, or encouragement, the law takes property from one person and gives it to another; the law takes the wealth of all and gives it to a few — whether farmers, manufacturers, ship owners, artists, or comedians. Under these circumstances, then certainly every class will aspire to grasp the law, and logically so.
The excluded classes will furiously demand their right to vote — and will overthrow society rather than not to obtain it. Even beggars and vagabonds will then prove to you that they also have an incontestable title to vote.”
I apologise for the lengthy comment. I shall post my reference link in another comments reply in case CT deems it non-compliant with the rules of the website and takes down this post.
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Rizwan / March 1, 2016
Sir, my reference link as follows:
“The Law” by Bastiat (1850)
bastiat.org/en/the_law.html
@CT please kindly publish the above link as it is my reference for excerpts in the previous comment.
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