The Need for a New Constitution for Sri Lanka – Rohan Edirisinha

Why do we need a new constitution? 

The first two republican constitutions were partisan, were not supreme, and suffered from the same basic flaws-

1. they were designed to promote the political vision and ideology of the party in power;
2. they entrenched, rather than countered, majoritarianism; and
3. they were designed with the convenience of the executive, rather than the empowerment of the People, as their primary motivation or rationale.

The First Republican Constitution of 1972 was essentially a United Front Constitution which introduced what Neelan Tiruchelvam has called the “instrumental” use of constitutions by governments to further their own political agendas. The Second Republican Constitution of 1978 was instrumental in introducing what its most credible critic, Chanaka Amaratunga, described as the authoritarian and realpolitik vision of its principal architect, J.R. Jayewardene. Both constitutions were introduced by governments that possessed two-thirds majorities in Parliament thereby removing the need for  striving for consensus across the political and ethnic divide.  Both constitutions concentrated power in a single institution (the National State Assembly or Parliament under the 1972 and the office of the Executive President under the 1978). Both were drafted and adopted with little meaningful public participation. Despite the fundamental flaws being the same, the most vocal critics of one were the principal architects of the other.

If Sri Lanka is serious about consolidating the democratic achievements of 2015, and preventing a return of the authoritarianism of a kind experienced in the country since 1982, it must introduce a new constitution that divides power, promotes effective checks and balances and empowers the People so that their elected politicians remain accountable to them between elections. A new constitution that is a non-partisan, consensus document is essential for responsive and accountable governance.

The criteria for evaluating a constitution 

A Constitution is meant to protect the People from the people who exercise political power and empower the People vis-a-vis the rulers.   Friedrich Hayek in his seminal work, The Constitution of  Liberty, highlighted this fundamental objective as follows:-

“The formula that all power derives from the people referred not so much to the recurrent election of representatives as to the fact that the people, organised as a constitution -making body, had the exclusive right to determine the powers of the representative legislature. The constitution was thus conceived as a protection of the people against all arbitrary action, on the part of the legislative as well as the other branches of government.”

If a Constitution is to achieve such an objective, the people have to be actively engaged and involved in the constitution making process. The pro-ruler and pro-executive convenience biases of the 1972 and 1978 Constitutions which undermined their people empowerment features existed because these constitutions were designed by the government, for the government and of the government. It is vital that the same mistake is not repeated in 2016.

The theory of Constitutionalism highlights what the objectives of a constitution should be.

1. It should provide a political frame for society or the institutional architecture for the governance of the country.
2. It should protect the freedom and autonomy of the individual and the rights of minorities-all minorities, not just ethnic and religious minorities.
3. It should enshrine values and principles by which the society should be governed.

A constitution is assessed on the basis of how it achieves these 3 objectives. In Sri Lanka the constitution reform debate has tended to focus almost exclusively on the first objective; the debate on whether the executive should be presidential or parliamentary; the electoral system for electing members to the legislature, should it be “first past the post” or based on proportional representation etc. While these are important issues, it is important to recognise the significance of the other two objectives.

Why do we need a constitution? If one looks to constitutional history one sees that the raison d’être for a constitution was to act as a check on majoritarianism. While it was recognized that in a democracy, decision making by determining what the majority desired was an important working principle, it was also recognized that in relation to some matters, particularly those dealing with human rights, majoritarian decision making was NOT appropriate as it would result in “the tyranny of the majority.” It was decided that such issues should then be taken outside the scope of the majoritarian decision making power of the legislature, removed from the jurisdiction of elected Parliament and placed within the scope of a supreme constitution. An example would be inserting a Bill of Rights into the Constitution to protect basic fundamental rights even from the reach of the elected representatives of the people. A constitution was therefore conceived to protect certain important matters from the reach of the legislative and executive branches of government. It was conceived in the words of Eugene Rostow, a former Dean of Harvard Law School, as a “counter majoritarian document.”

In recent years the norm setting and values and principles enshrining aspects of a constitution has been highlighted. The Constitution of South Africa, 1996, which is still seen as one of the most progressive constitutions in the world, offers an excellent example. Article 1 of the Constitution declares that “South Africa is a republic founded on the following values” and then lists a series of them. These include human dignity, non-racialism; non sexism; the rule of law; multi-party democracy; accountability, openness and responsiveness. Article 2 declares:

“The Constitution is supreme. All law inconsistent with it is void.”

The contrast between the first two articles of the South African constitution and the Sri Lankan constitution is striking. The former highlights values and principles and their supremacy. The latter is obsessed about power and who exercises power.

The Constitution Must Really Be Supreme

A Constitution is the supreme law of the land. But even this basic and to many obvious first principle has been rejected by the drafters of Sri Lanka’s autochthonous (made in Sri Lanka) constitutions. The 1978 Constitution contains 3 provisions which not only undermine the supremacy of the Constitution, but are unparalleled in constitutional democracies.  These are Articles 16, 80 (3) and 84 of the Constitution.

Article 16 of the Sri Lankan constitution basically states the opposite of Article 2 of the South African constitution. It declares that ALL existing law, written and unwritten is valid even if it is inconsistent with the Supreme Law, the constitution.

Article 80(3) prevents the people from challenging provisions in laws that have been enacted by the legislature on the ground that the legislature has enacted an unconstitutional law. This is a right that the people in India, Nepal, Bangladesh, Pakistan, South Africa, the U.S.A., Canada,  and all constitutional democracies have and is a vital safeguard for the people in protecting their rights and upholding the supremacy of their constitution. This right, which existed under the Soulbury Constitution, was done away with by the framers of the Constitution of 1972 and continued under the present Constitution.

Article 84, believe it or not, instructs Parliament how it can introduce unconstitutional laws!

These 3 provisions are instructive in demonstrating the (lack of) commitment of Sri Lanka’s constitutional framers to the principle of the supremacy of the constitution. If the new constitution is to be compatible with international best practice and basic principles of constitutionalism and promote good governance and accountability, these 3 provisions should not be part of the new constitution.

It is not surprising that the main political parties have demonstrated little, if any, interest in the important issues highlighted above. These issues strengthen the powers of the People at the expense of the politicians and impose constitutionally mandated qualifications on how governmental power is exercised. The manner in which the 19^th   Amendment to the Constitution was adopted in 2015 reminds us of the importance of continuous public engagement in the constitution making process. The composition of the Constitutional Council under the 19^th Amendment is worse than under the 17^th Amendment; various clauses such as those on dual citizenship were inserted without any public consultation and were politically motivated. The Members of Parliament, both from government and opposition, engaged in a process of closed door “political wheeler dealing” without any sense of shame or guilt that in so doing they were violating first principles of constitution making. Can this same parliament be trusted with the task of leading the Third Republican Constitution making process?          

Some observations on current constitutional issues 

1. The Executive.

An important lesson from the experience of the Second Republican Constitution is that a person elected by the whole country tends to have an exaggerated notion of his/her own importance, legitimacy and authority. This was foreseen by Dudley Senanayake who opposed Presidentialism when it was discussed in the early 1970s:

“The Presidential system has worked in the United States where it was the result of a special historic situation. It works in France for similar reasons. But for Ceylon it would be disastrous. It would create a tradition of Caesarism. It would concentrate power in a leader and undermine Parliament and the structure of political parties.”

As predicted, the executive presidency has, since its introduction,fostered authoritarianism, undermined other democratic institutions such as the Cabinet of Ministers, Parliament and the judiciary, and through the device of the Referendum, as was seen in 1982, even elections and multi party democracy. The locus of power shifted from Parliament which, with all its shortcomings, was at least relatively open and transparent, to a closed Presidential Secretariat with unelected and powerful Presidential advisors and officials. Presidential Advisors who were often more powerful than Cabinet Ministers (especially during the Premadasa Presidency), were not accountable to the public.

An “overmighty” nationally elected President also subverts coalition government and power sharing as was seen in the brief period of co-habitation between Chandrika Kumaratunga and Ranil Wickremesinghe. J.R. Jayewardene and his admirers often defended the presidential system as promoting stability. In the Sri Lankan context, stability could mean a government consisting of several political parties across the ideological and ethnic divide, rather than the concentration of power in a single individual. There needs to be a more nuanced understanding of the meaning of stability in the context of Sri Lanka’s political culture for as was seen since 1982, there is a fine line between a simplistic definition of stability and authoritarianism.

It is a matter of concern that some elements in the government are promoting the idea of a nationally elected Prime Minister who will sit in Parliament. The Prime Minister can be defeated on a vote of confidence in Parliament, but this will in turn, cause Parliament to be dissolved. This ill conceived idea which retains the basic flaws of concentrating an unacceptable degree of power in a single person was tried unsuccessfully in Israel in the mid 1990s and subsequently abandoned.

2. The Electoral System.

There was a consensus at the elections in 1994 that Sri Lanka should opt for a genuinely mixed system (MMP) similar to that practiced in Germany, Scotland and New Zealand. Such a system combines the best features of the simple plurality system (“first past the post system”) and the cardinal principle of Proportional Representation that representation in Parliament should be in proportion to the votes received by parties rather than the “winner takes all” principle that creates a mismatch between votes received by parties and the seats allocated in Parliament.

The mixed system is also easy for the people to understand, easy to administer, can include mechanisms to ensure inclusion and women’s representation (an important consideration given that the Sri Lankan legislature has the lowest women’s representation in South Asia) and can be designed to prevent floor crossing while ensuring that Members of Parliament also possess a degree of independence from their party leadership.

The proposed 20^th Amendment was flawed in all these respects and should be completely discarded. It was incomprehensible even to lawyers, was designed to favour of larger political parties and failed to provide an appropriate mix between the simple plurality system and proportional representation as it favoured the former at the expense of the latter.

3. The Bill of Rights

Sri Lanka’s Bill of Rights falls short of international norms and standards. The basic flaws are with respect to the rights enumerated, the restriction/limitation clause that makes it too easy for the political branches to curtail such rights and with respect to their scope and enforcement.

1. The rights and their scope need to at least be compatible with the international covenants on human rights.
2. The restriction or limitation clause (Article 15) is drafted in a manner that makes it possible for the executive and legislature to impose restrictions with no criteria of objectivity and proportionality. This weakness has been highlighted for many years including during the deliberations of the All Party Conference convened by President Premadasa in the early 1990s.
3. The First and Second Republican Constitutions both contained provisions that validated laws even though they were inconsistent with the Bill of Rights and the Constitution- Article 16 of the present Constitution. This anomalous feature that is inconsistent with first principles of Constitutionalism should be removed.
4. The provision that requires a fundamental rights application for violation by executive and administrative action be filed in the Supreme Court (Article 126) is inconsistent with principles of access to justice and the rule of law. Persons living outside Colombo find it difficult to invoke the jurisdiction of the court; this provision undermines the role of the Supreme Court as the final appellate court of the country which is expected to deal with questions of law rather than fact; it also creates the anomaly of providing for no appeal in an important area of jurisprudence which could amount to a violation of the rule of law. Allowing fundamental rights applications to be made in Provincial High Courts will not only address such weaknesses but also help to mainstream human rights among the judiciary and the legal community at a broader level.

4. The Independence of the Judiciary and other legal institutions.

The present constitutional provisions protecting the independence of the judiciary should be strengthened particularly with respect to the disciplinary control and removal of appellate court judges. However the damage done to this important institution over the past twenty years in particular means that it will need more than constitutional reform to restore the institution’s integrity and credibility.

Another institution that lacks credibility is the Attorney General’s Department. It has proved particularly incompetent in its role as a reviewer of the constitutionality of draft legislation and advising the State on the constitutional propriety of its actions. Indeed it is seen as an institution that defends and seeks to justify unconstitutional laws and actions. The reintroduction of constitutional review of legislation by the courts through the initiative of the public will not only protect the supremacy of the constitution but also serve as an incentive for the Attorney General’s Department to improve its performance in this area.

5. Devolution of Power

The devolution of power to the provinces under the 13^th Amendment to the Constitution is weak, fragile and therefore can be undermined by the centre. Significant provisions of the amendment remain unimplemented 28 years after its introduction, which again raises the question of whether our constitution is supreme. These weaknesses have been experienced by Provincial Councils, Chief Ministers and Boards of Ministers throughout the country. With respect to the subjects that are to be devolved it is vital that the Provincial Councils have the power to exercise such powers without the centre undermining or reclaiming such powers as it has often done since 1987. The powers of the centre to respond effectively to any threats to the unity and territorial integrity of the country, which in my view, already exist in the constitution, should be retained.

It is vital that following the defeat of the LTTE, the roots causes of the conflict are addressed and power sharing and genuine devolution of power are important components of such a response. It is important to recognize that the Tamil people voted for moderation at the January and August elections, rejected Tamil nationalist parties and groups and that a failure to respond adequately to reasonable demands for devolution and equality will strengthen the forces of Tamil extremism.

Addressing the reasonable demands for genuine and secure devolution of power to the provinces by overcoming the weaknesses in the 13^th Amendment to the Constitution is the best way to generate trust and goodwill among the Sinhalese, Tamils, Muslims and other communities in the country. Creating such good will through genuine power sharing is the best guarantee against threats to the unity and territorial integrity of the country.

How should a new constitution be adopted? Challenges of process 

In recent weeks, there has been a debate with respect to the process of constitutional reform. The Government has made it absolutely clear that it intends to follow the procedure for constitutional reform spelled out in the existing constitution (Articles 82 and 83). Parliament will have to pass the new constitution with a two-third majority vote and thereafter the constitution will have to be approved by the people at a national referendum.

Given the rationale for a constitution outlined above it is far from ideal for Parliament or a Select Committee of Parliament to draft and adopt a constitution. Parliament is a creature of the Constitution and should be subordinate to the Constitution which is expected to reflect the will of the sovereign People and protect and empower the People from the politicians. A committee of Parliament designing a constitution without active and effective public engagement will involve a serious conflict of interest. In some countries which have been mindful of the need for a broader and more inclusive approach to constitution making such as South Africa and Nepal, special measures such as the election of an inclusive Constituent Assembly to draft and adopt a new constitution, were adopted to ensure that the sui generis character of constitution making was recognized. A Constituent Assembly has constitutive powers to draft and adopt a new constitution. Such an option is not available in Sri Lanka as there was no mandate from the People to support such an extra-constitutional process. Furthermore, notwithstanding the theoretical anomalies with respect to parliamentarians drafting constitutions, practical considerations and political realities require that Parliament which consists of the elected representatives of the people provide leadership in the constitution making process. One can only hope that they recognize the special responsibilities involved in constitution making as opposed to their normal legislative functions.

The government has therefore proposed a process that seeks to provide for effective public engagement in the constitution making process, ensure that Members of Parliament recognize their special responsibility when participating in the constitution making process, while also following the amendment and repeal procedures in the existing constitution. It has proposed that Parliament resolves that it should sit as a Constitutional Assembly (not a Constituent Assembly) to focus exclusively on deliberation on the substance of a new constitution in a manner that facilitates maximum public scrutiny and engagement. The Constitutional Assembly will then present the draft Constitution to Parliament so that Parliament can adopt it with a two thirds majority vote. If this is done then the draft Constitution will be presented to the People for their approval in a national referendum.

It is regrettable that certain opposition political leaders have opposed the process outlined above without offering a better alternative. Most of these leaders have opposed the Constitution of 1978 since its adoption and repeatedly highlighted the need for its repeal and replacement. If they have reservations about the process proposed by the government it is incumbent on them to propose a better alternative that is compatible with first principles of constitutionalism outlined above.

The argument that the basic features doctrine developed by the Indian Supreme Court to protect core constitutional values and principles is applicable in Sri Lanka is ludicrous. The Indian Constitution was adopted after an inclusive and democratic process of constitution making by a Constituent Assembly soon after Indian independence. The Indian Constitution was not a partisan document designed to serve the party in power at the time. It stands above party politics, is supreme, and remains broadly a consensus document. It was in such a context that the Indian Supreme Court developed the basic structure doctrine to protect the people and their constitution from their politicians. Applying the basic structure doctrine to a partisan, fundamentally flawed constitution that reflected the interests of J.R. Jayewardene’s United National Party, would be utterly inappropriate and demonstrates a lack of appreciation of the fundamental rationale for the doctrine on the part of its Sri Lankan proponents.

Conclusion

A new Constitution which is compatible with first principles of Constitutionalism and which includes these features can only be adopted if the President and his party, the Prime Minister and his party, the Leader of the Opposition and his party work together and also harness the support of minority parties and the JVP. These parties and forces will inevitably have differences and rivalries in the next few months. They must resolve however to transcend such divisions with respect to the vital responsibility of providing leadership to the constitution making process. This must coincide with a process of public education and engagement to ensure that the new Constitution is not just a political deal of convenience, but rather, a genuine attempt to learn the lessons of the past, consolidate constitutionalism and democracy and forge a new social contact that has a broad consensus among the various political, ethnic and religious groups in the country. The process of constitutional change that will commence in 2016 must not suffer the same fate as the process of 1995-2000 when the then opposition United National Party behaved irresponsibly and effectively sabotaged the reform process. Our politicians must stop “monkeying” with the Constitution. Sri Lanka deserves a new constitution that is truly a non partisan, consensus, supreme law.

courtesy – Groundviews