A constitutionally based system of governance in a society is about the politics that prevail in that society. Politics is about the people who rule and the people who are being subject to that rule. Academically speaking, a bourgeois democratic society should subject everybody in that society to its supreme law, which is its constitution. Of course, a constitution is a piece of paper on which the socio-economic and political objectives of the ruling elites are written. However, under the authoritarian regimes such as the one Sri Lanka previously had, constitutions may not worth the piece of paper on which they are written. Recently, a question a former minister and Member of Parliament in Sri Lanka had raised during a parliamentary debate on the process of creating a constitution was subject to intensive discussions. The MP had asked “Is the Constitution for eating?” If MPs do not respect and recognise the Constitution of the land, one cannot complain about the lack of respect of the ordinary people for it.
Contribution the constitutions of 1972 and 1978 have made to the mayhem that prevailed in the country during the last few decades is verifiably evident. Lack of rule of law had been the hallmark of the previous regime, though the situation that prevailed cannot be totally and solely blamed only upon the previous regime. The successive governments we have had since 1948 increasingly disregarded the supreme law of the land. This was done through wanton disregard of the constitution, flouting it through other means available to the ruling elite of the day, or bringing in new legislation that would contradict basic tenants of social justice. Since the new regime came to power last year, the lack of respect and disregard for rule of law has slightly diminished, though on many occasions, politicians, bureaucrats and security forces can be still found flouting its tenets.
Rightly, the former regime’s Minister’s cynicism had been taken to task. These are the very people who supported and practised authoritarianism. As has been correctly pointed out legislative, executive and judicial branches of the system of governance and its people need to abide by the constitution. It is said that under bourgeois democracy, a constitution becomes a social contract between the rulers and the ruled. Yet, historically this equilibrium of a social contract has not remained an absolute, or held true for all time. When relations of production prevailing in a bourgeois democratic society hinder further development of its productive forces, its democratic form usually gets replaced with dictatorial or autocratic practices.
When constitutions cannot satisfy the interests and protect the privileges of the ruling elite, they are manipulated, or thrown out of the window through coup d’états or invasion of rights and freedoms.
This could take the form of military onslaughts from within or from without. Similarly, when constitutions do not protect socio-economic and political rights of those who are being ruled, they may overthrow the constitution through revolutionary means. Nonetheless, in the long run, after periods of social anarchy, societies adopt new or alternative systems of governance where socio-economic and political rights of people are established and assured through a new social contract.
The contrary is also true. After such social upheaval, those who held power under former regimes will manipulate the situation to regain power and strangle the new found freedoms of people. In that sense, the irreversibility of a constitution as advocated by some is not a given. Even in between social upheavals, the irreversibility of constitutionally provided fundamental freedoms and rights cannot be guaranteed simply by allowing any changes to a constitution can only be adopted by a parliamentary two thirds majority and a majority vote at a referendum to the affirmative. A two thirds majority in parliament and a majority in a referendum will ensure only the requisites of the majority of the population in a country such as Sri Lanka. This is because both those mechanisms will cave in to the demands of the majority irrespective of the lack of fairness and justice of such demands.
A better formula needs to guarantee that any such changes to a constitution will not adversely affect the rights and freedoms of any community, including those of smaller communities. A necessary and essential pre-requisite component of such a formula would be that such changes would also be affirmed by the subjects of provinces, where smaller communities predominate. Such a formula also needs to assure that smaller communities would not be benefitted at the expense of the majority. Such a formula with appropriate checks and balances will assure that best socio-economic and political interests of the majority as well as those of the smaller communities are protected.
A constitution becomes dead and buried unless people keep it alive through their civil society activities.
In fact, to move away from the autocratic and centralised traditions and practices that prevailed in Sri Lanka, significant constitutional reform is necessary. The widest participation and involvement of the people through civil society is vital for this to be successful. The very same people who had been involved in framing new constitutions on previous occasions, have not given opportunities for those constitutions to succeed. They manipulated such constitutions through other means, by adopting legislation that violated democratic governance and making those violators indemnified from prosecution. In the same vein, judicial means have been used to find technical points that overrode constitutional guarantees, or they are reinterpreted taking those provisions out of context.
It is in this light, the attempt of current constitutional making need to be looked at.
Whoever is responsible for framing the ‘new’ or ‘not so new’ constitution should stop the President being the supreme authority of the land. The person holding the Presidency should be responsible and accountable to the parliament and the people through suitable mechanisms developed for that purpose. Making the parliament the supreme organ of governance will ensure that the people will validate the decisions made by the parliament and the President in the name of development. The independent commissions to administer and investigate the conduct of bureaucrats and the management of state run entities need to continue, but their hands need further strengthening. This will help them to detect, expose and bring to justice those who plunder national and state resources, conduct scams and scandals, deny and violate peoples’ bourgeois democratic rights. The framers of the constitution need to put a heavy emphasis on these matters.
On numerous occasions, elected members at different levels of government, bureaucrats and security forces have apparently violated the constitutional provisions that provide safeguards for protecting peoples’ democratic rights and freedoms. This has usually occurred under the pretext that the constitution or the proper interpretation of its provisions hinders proper functioning of the system of governance. However, as a constitution in a bourgeois democracy is regarded as a social contract between the elected representatives and the ordinary people in a society, those who are in a position of privilege needs to use constitutional provisions as instruments to defend and protect its citizens; not to depress, repress and suppress them.
Accordingly, a constitution needs to guarantee and protect the fundamental rights and freedoms of the people.
To ensure this, appropriate mechanisms need to be established to make the constitution recognise the sovereignty of people. Such mechanisms need to assure that all institutions of state power, including that of the attorney general, are wholly responsible to the people. The people by their free vote, without been subject to bribe, coercion, or preclusion should be able to elect their representatives. In turn, these representatives need to be able to exercise the supreme authority the people have delegated to them. They should not be able to cross over to political parties with other political agendas, against the wishes of the people who had already elected them. If they wish to do so, the constitution should make them seek re-election, and the voters also should be empowered to recall them.
The constitution needs to stipulate mechanisms to maintain territorial integrity of a country that would avoid division of the country by circumventing forced and autocratic centralisation of communities. Perhaps this could be achieved by making room available for various smaller communities to enjoy autonomous rule based on genuine egalitarianism. There needs to be guarantees, that under any circumstances, a person cannot be detained indefinitely without trial. As per the United Nations Charter and its Conventions on Human Rights that Sri Lanka has ratified, it needs to guarantee freedom of conscience, religious belief, religious practice, speech, publication, assembly, work, organization, movement and employment of its citizens, including their individual and community rights. Even when people are incarcerated, the constitution should provide ways of assuring their basic human rights.
Parliament in a bourgeois democracy should strengthen the independence of each arm of the system of governance; the executive, the legislature and the judiciary.
It will enhance not only the checks and balances of each arm, but also the diversity of views they hold on issues that would be dealt with. The constitution needs to clearly demarcate the separation of powers between the legislative, executive and judicial arms of governance. It needs to mandate guidelines to ensure the accountability by politicians, bureaucrats and security forces. It needs to outline the manner in which the country’s resources will be managed. It needs to hold everybody, irrespective of a person’s social, political and bureaucratic status, accountable for their activities and should ensure everybody follows the standards provided for in the constitution. The constitution must provide for formal mechanisms to investigate all instances of bribery, fraud, misappropriation and impropriety. The constitution also ought to establish appropriate mechanisms to ensure that all findings of such investigations are made available to the public. Any interpretation of constitutional matters and adjudication on legislative issues needs to be left with the judiciary.
The constitution should ensure citizens’ right to summon any official of any state institution before the law of the land. It also needs to ensure appropriate level of investment in human resource development of its citizens, and in health, without any discrimination. Citizens should be entitled to equality of opportunity in education, with guarantees to receive free education up to the end of secondary level and university education for all those who have satisfied the requisite qualifications. Every citizen should be entitled to receive medical, public health and maternity services completely free of charge.
In addition to the two official languages currently prescribed in the constitution, the three languages, Sinhala, Tamil and English need to be recognised as national languages of Sri Lanka.
The constitution needs to recognise the right to communicate, transact and engage with the state in one’s mother tongue, or in any national language of a citizen’s choice. The constitution needs to guarantee that all legislation, statutes, decrees and proclamations of the state are issued in all three national languages. To avoid complex interpretational issues that could arise as a result of this, a temporary provision could perhaps be made to allow the content of the English version to prevail.
Sri Lanka is neither a social democracy, nor a socialist democracy; but an authoritarian bourgeois democracy with strong feudal remnants dominating the public discourse.
As affirmed historically, when a regime, irrespective of its capitalistic, socialist or social democratic form, is challenged by the people it is supposed to rule, it will never hesitate to take away their democratic rights, spill their blood, resort to violence, killings, massacres, and disappearances. The civil society of Sri Lanka has a responsibility and a duty to create a system of governance to protect the freedoms of its people by continuing to demand the parliament and president to act according to the mandate people have provided them with.
The constitution will at least for the time being remain the single most important instrument that will hold the legislative, executive and judicial arms of governance, and the people for furthering the equitable development, equitable treatment and peaceful coexistence of the diverse communities in Sri Lanka. The collective well-being of its people will be vested and protected via the constitution. There is no need to further remind that this cannot be achieved without Sri Lanka having an ever vigilant and active civil society.