Making a People’s Constitution for Sri

Lanka

Friday, 4 January 2019

Sri Lanka is plunged into a historic situation in which its Constitution has
virtually lost its spirit and the functional strength due to lack of consistency
and the proper order that a Constitution ought to have. This situation has
created a necessary precondition for adopting a new Constitution for the
country soon.

In a political sense, civilised countries never attempt to play with their

Constitutions. The Constitution being the supreme law of the country, they
respect it as a solemn and unique statute which should not to be violated or
abused at any cost. Even in very rare instances in which an amendment is
effected, it is done with extreme care and in a manner enhancing the spirit
and the substance of the Constitution. Violation of Constitution is considered
a great sin.

But, on this subject, Sri Lanka does not have a good history that we can be
proud of. Sri Lanka’s history in Constitution making is dismal and infamous.
Sri Lanka has been a country which does not pay due respect for principles
and traditions in adopting Constitutions; it does not have proper knowledge
on how to make a formal Constitution; nor does it have the knowledge at least
to put the Constitution into proper use regardless of these defects and
drawbacks inherent in the Constitution.

As a country, we must be ashamed of this situation. However, we will be able

to make a lasting Constitution that will earn respect and recognition of all the
people only if we have a proper understanding of the constitutional history of
the country and also our readiness to atone for the ugly and the infamous
character of it.

The major problem to be solved

Some in Sri Lanka still think that the choice between the Parliamentary
system and the Presidential system of government is the biggest problem to be
resolved in the sphere of governance in Sri Lanka. It can be considered one
issue. Nevertheless, it is not the biggest issue to be resolved. The
Parliamentary system and the Presidential system are just two models of
governance available in selecting a system of government. There are countries
in which the presidential system works well. There are countries in which the
parliamentary system works well. Whatever the system, the fault lies not in
the system but in our ignorance and lack of discipline in using it.

In my view, the biggest issue the country has faced today is the problem as to
how to recreate the state which has been disintegrated, collapsed and being
rendered outdated. The failure to integrate the nation, our inability to heal the
wounds caused by violent struggles and the level of corruption that had
eroded the body of the state like a deadly cancer are the main causes of this
situation. In other words, the problem is how to recreate the state replacing
the outmoded old state with a better form of a state which is committed to
promote the rule of law, eliminate corruption and inefficiency and above all,
capable of integrating the disunited society into a harmonious entity which is
conducive to good and rapid development of the country that can make
everyone proud and happy.

So far as the subject of Constitution making is concerned, what Sri Lanka

requires at this historic moment is a new democratic approach instead of the
outmoded anti-democratic approach maintained so far. This implies a new
approach capable of awakening and inspiring the people who had remained
dormant all this time and encourage them to mobilise their collective strength
in achieving the above goal.

Within the old mechanism adopted in Constitution making, the people did not
have a role to play. Those who had drafted the old Constitutions had not
considered the importance of involving the people in its process. Their
approach was limited only to the representatives of the legislature and to a
limited circle of elites of their choice. The Constitutions drafted this way were
not subjected to a referendum for ratification by the people. Even the 19th
amendment was enacted arbitrarily on the assumption that it does not require
a referendum.

Making of a Constitution

Simply speaking, a Constitution can be compared to an agreement or a

contract entered into between the ruling party and the ruled (the people),
specifying the fundamental principles according to which the latter is to be
governed by the former. In view of the fact that the sovereignty rests on the
people, it is an inalienable power of people which they cannot be deprived of,
the ruling party derives the sovereignty from the people themselves and the
ruling party depends on public money for their survival, it is essential and
reasonable that the people should be considered to be the major party to this
agreement. It is like an agreement entered into between the people and a
company or a similar institution, conferring the latter the authority to manage
the properties of the people and any other item/s that fall into the category of
public property.

Despite the dark shadows of anarchy looming ahead, Sri Lanka has not yet
reached a situation where there is no rule at all or a level that a country may
fall into immediately after a revolution. We still have a ruling party and a
system of institutions that supports the rulers. The legislature constitutes the
main institutional system that supports the rulers while the President and the
representatives of the legislature elected in a general election constitute the
ruling party. It is between this ruling party and the people of the country that
a new agreement should be entered into.

All the three constitutions made so far had been adopted unilaterally by the
legislature which represents the ruling party without involving the people, the
major party of the agreement. They were enacted without being subjected to a
referendum for ratification by the people. The people should not allow this
blunder to be repeated in the making of the Fourth Constitution.

In this context, the proposed Fourth Constitution should be drafted by a full-

fledged constituent assembly which consists of the ruling party which is the
legislature and a representative group of individuals selected from among the
people on a formal basis. This group should necessarily be selected to
represent a fair and reasonable cross-section of the entire population. All
marginal, under privileged and oppressed groups of people and social sections
should have representation in this group. It should also consist of eminent,
knowledgeable and intellectual personalities.

Since the sovereignty rests on the people and the agreement entered into is an
agreement with the public, the constituent assembly must be set up in a
manner that gives greater power to the group that represents the people.

It is necessary to have an interim Constitution adopted for the period from the
commencement up to the implementation of the new Constitution, the time
frame of which should involve the drafting of the new Constitution, subjecting
it to a referendum for ratification by the people, enactment of it by the
Parliament and holding a general election under the terms of the new
Constitution. All activities pertain to the drafting of the new Constitution, the
agenda of the entire program and the drafting of the interim Constitution
should be worked out by the constituent assembly consisting of both parties.
The entire process should be transparent. All discussions made in regard to
the items in the agenda must be made in a democratic frame enabling the
public outside the constituent assembly also to submit their comments and
views.

Nation building

The national harmony can be considered an essential precondition for the

development and peaceful existence of any country or any society. But, Sri
Lanka had failed to rebuild the divided nation within a framework of social
harmony and integration in which the ethnic, caste and religious differences
are moderated and equal rights and respect for all citizens guaranteed. This
situation can be considered as the main reason for the breakout of violent
struggles that caused an enormous loss of life and property, eventually
pushing the country into a level of a failed state. Failure of the state to prevent
the occurrence of such a situation which is ugly and uncivilised can be said to
be the most significant defect inherent in the past three constitutions adopted
by Sri Lanka.

In this backdrop, building of the nation by uniting and integrating the divided
nation and fostering and safeguarding the nation so built should be made a
major object of the new Constitution. Laws should be introduced declaring
any action contrary to this objective a serious and punishable offence. Anyone
violating this law should be punished irrespective of the status of the guilty
party. It should be made a major objective to be followed by the legal,
administrative and educational systems. All school text books featuring views
contrary to this objective should be edited to fall in line with this purpose. The
classification of schools by race, religion and sex should be abolished.

Caste system is a social division which is totally inappropriate for the present
day society. Everything possible should be made to eradicate it considering it
a wicked and evil system that insults and oppresses the people. The feudal
land use system together with the system of feudal land tenure should be
abolished after allocating a plot of land each, adequate for their tenure to
those who worked in feudal lands on tenure basis. All things that lead to
highlight or imply caste discriminations should be abolished.

A mechanism should be introduced to inquire into the damages and injustices

caused by conflicts caused by ethnic, caste, religious and language differences
and allow the victims to submit their grievances and obtain redress and
compensation for the losses or damages incurred.

Empowerment of people

The weakest feature in the old Constitution had been that it had restricted the
exercise of the people’s sovereignty only to voting at the elections. The
constitution did not have a mechanism to allow people to participate, interfere
with and influence actively in the governance process. There was no such
provision included in the 20th amendment presented by the Janatha Vimukthi
Peramuna (JVP) or in the Constitution Ranil Wickremesinghe had been
formulating. Therefore, these two initiatives can be considered as outdated
constitutions which allow the legislature to play the devil by preventing active
public participation and their involvement in law-making processes.

The systems of ‘popular sovereignty’ and ‘popular referendum’ are two

mechanisms operative in the constitution of Switzerland. These mechanisms
enable the citizens to participate in the governance and law making process of
the country. The ‘popular sovereignty’ or ‘citizen-initiated referendum’
empowers the citizens to propose by way of a petition with a specified number
of signatures to change even the Constitution of the country and adopt a new
Constitution.

This mechanism empowers the public to remove even the elected members of
Parliament representing an electorate before the end of their term. Under this
system of citizen-initiated referendum, citizens can demand the statutory
measures or constitutional reforms passed by the Government to be subjected
to a referendum and obtain the public approval. The Swiss method of
participatory democracy, though not in the same manner, but an amended
version of it that may suit the local conditions can be incorporated into the
constitution of Sri Lanka.

By that, in addition to giving a strong space for the people to participate in the
governance process of the country, public can prevent the arbitrary actions of
the rulers. Also, this system can be used for the prevention of corruption
successfully.
Adopting the Swiss system, the citizens, if they wish, can propose a positive
change for the entire system of education of Sri Lanka. The education can be
considered one of the most important factors affecting the progress or the
backwardness of a country. The system of education in Sri Lanka lags in a
very backward level.

The education in Sri Lanka is said to be free. But, it has become almost
essential that the students receive private tuition paying a fee, if they were to
get through the examinations. This has caused to restrict the opportunities
available for the poor people to climb up the ladder of social hierarchy
through education. This situation has made the free education a class based
system. Poor salaries paid to the teachers which does not commensurate their
service and allowing them to engage in private tuition while in the
Government service have rendered their service in instructing students at the
classroom incomplete. In this backdrop, the students are compelled to attend
private tuition classes conducted by their teachers, after school hours or on
holidays to make good for the missed lessons and to complete the syllabus.

Under the present system of education, the students are compelled to learn by
rote. It needs no emphasis that this is a wicked system that blunts the creative
ability and the imagination of the students making them like parrots.
Bilingual education is not given due share in the education system. Instead,
the students receive instructions only in their primary language. The school
system is maintained in a manner giving prominence for the parochial
divisions in the social class systems. Within the government school system,
some schools are perceived as super grade schools while some schools are
looked down upon as useless and outdated.

In all developed countries, schools have been classified as primary, secondary

and tertiary schools and colleges of higher education. The student should
select the nearest school to his home. There is no competition in selecting a
school in those countries. There are no discriminatory classifications or
divisions in the school system. Adopting a simple classification like this for all
schools, the discriminatory characteristics in the school system can be
eliminated and the school administration made easy and formalised.

As usual, almost all politicians in Sri Lanka favour this corrupt system. The
prevalence of this system is to their benefit. They reap undue advantages from
this system. They continue to maintain the old system which is corrupt and
outdated using deceptive slogans like ‘The Nearest School is the Best School’.
The rulers are not prepared to accept even the reforms proposed and the
recommendations made by the National Education Commission in this
respect. We cannot expect a positive change in the education system from the
governments elected to power. But, if the system of popular sovereignty and
popular referendum operative in Switzerland can be introduced for Sri
Lanka, then the citizens can exercise their right to change the entire system of
education.

A knowledgeable group of people interested in this subject and appearing for

a far-reaching and positive change in the system of education can submit a
proposal to the legislature with the required number of signatures of the
citizens requesting for a referendum to explore the public opinion on the
subject. This need not be limited to the education sector alone. It can equally
be applied to any other sector like health, transport, power and energy,
agriculture, fisheries, industries and business atmosphere, etc.

The system of popular sovereignty is also similar to this. It implies a formal

proposal made to the legislature with a specific number of signatures. Even an
impeachment motion against a powerful person can be made under this
system. A social or a professional group can submit a proposal on a serious
grievance in this way. Even an elected MP can be removed using this
methodology. Such proposals, of course, have to fulfil certain specifications
including the number of signatures as laid down in the Constitution itself in
respect of different types of proposals. This is not an easy task. But, it cannot
be considered a difficult obstacle that a determined group of people cannot
overcome.

By incorporating a similar mechanism in the Constitution of Sri Lanka,

citizens can be granted the power to participate strongly in the governance
process of the country. Thus, the state rule can be transformed into a process
which operates with the active involvement of the people rather than leaving it
to be a process controlled by the officially elected politicians only. This can be
considered a system that enhances the sovereignty of the people. It is a
comprehensive system of checks and balances. It can also be considered a
system that awakens the social activists who control the arbitrary behaviour
of the ruling parties, keeps them on alert and promotes political consciousness
of the society. If this system is incorporated into the Constitution, the changes
that could be anticipated would be enormous. It will certainly eliminate the
undue and enormous importance attached to politicians and enable the
ordinary people who had become the political slaves of the politicians to
emerge from this unpleasant position and become a populace that work with a
sense of esteem and pride as true owners of the country.

In the next article I hope to discuss the root causes of bribery and corruption
that had plagued the entire state and its system of institutions like a cancer.
Posted by Thavam