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faced today is the problem as to how to recreate the state which has been disintegrated, collapsed and being rendered outdated.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.
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.