A People’s Constitution would require the active involvement of the country’s citizens in its creation, delivering a process where they are not left on the outside
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The need for making a People’s Constitution has become a topic of interest not only among the public but also among some candidates of the Presidential Election. Rohan Pallewatte and Mahesh Senanayake have included it in their election manifestos. The candidate of the Jathika Jana Bala Vegaya (National People’s Force) has pledged to make a constitution aimed at building the nation. Sajith Premadasa, the candidate of the Eksath Jathika Peramuna (United National Front), in a special statement made to the nation, emphasised the need to make a constitution with the people’s participation, thereby not limiting it to the Parliament.
The purpose of this article is to make clear what it means by making a People’s Constitution or a Participatory Constitution which is acknowledged to be the most effective model of constitution-making in the 21st Century.
Like Sri Lanka, some of the other states that were under colonial rule have failed to rebuild themselves after gaining independence or to adjust to the conditions that prevailed at the time of independence to adapt to the changing needs of an independent state. In most cases, violent conflicts had arisen due to the prevalence of various divisions in the local society and the rapacious nature of the rulers and gradually such conflicts had grown into crises which were difficult to resolve. In some countries, certain social groups had been fighting for the right to self-determination or separation. These states, which were engrossed in deep crises like this, were compelled to experiment with new constitution-making models when they realised that the existing model was no longer adequate to overcome the crises. It was as an outcome of these experiments that the people’s participatory model of constitution-making came into being.
The envisaged outcome of this common effort can be considered an endeavour by all social groups, big and small, to join hands, without exclusion to build a social system and recreate a state through a continuous dialogue and through consensus with an appropriate system of governance accompanied by a proper value system, common thinking and a vision. The proposed new system is not as simple and easy as the old one. It is a very complicated and controversial process.
It is important that throughout its entire process - from reaching a consensus on the making of a constitution, setting an agenda for it and eventually enacting the new constitution as law - to ensure the right of the public to actively participate in it and maintain transparency throughout the entire process from its beginning to its end so that it is kept open to the public.
In recent decades, the states of Nicaragua in 1986, Uganda and Brazil in 1998, South Africa in 1994, Eritrea and Venezuela in 1977, Rwanda in 2002 and Kenya in 2003 had made changes in major ways in the whole system by adopting this constitutional model.
While international law has recognised this model of constitution-making, the right of the public to actively participate in the making of the Constitution is also well-established.
Sri Lanka adopting a People’s Constitution model
There is hardly anyone who does not recognise that Sri Lanka needs a new constitution. There is a general consensus that there is great confusion with the present Constitution. So much so that people have recognised the urgent need for a complete change in the corrupt system that prevails in the country.
According to the Constitution of the country (Article 3), sovereign power lies in the people. It is a power that cannot be deprived. The Constitution is the fundamental law of the country for which the people have a claim which they cannot be dispossessed of, and it is also an agreement entered into between the public and the rulers on how they should be governed. International law also recognises that the public has the right to get actively involved in the drafting of a constitution. Therefore, against this backdrop where the making of a new constitution has become an indispensable condition, if people are keen, it will not be difficult for them to secure an opportunity to ensure the making of the proposed new constitution with more weight being placed on the interests of the people.
But Sri Lanka should be careful not to choose the old-fashioned and outdated system of making a constitution which was restricted to MPs. The present Parliament and the majority of its members are extremely selfish and corrupt.
The Sri Lankan Parliament cannot be regarded as an institution that has discharged its duties and obligations properly. Parliament has adopted a policy of encouraging corruption; it has not taken measures to prevent it. It has also failed to perform its responsibility of enacting laws, formulating policies and monitoring progress up to the standards expected of it, even to the smallest extent.
The Parliament is aware that the Members of Parliament were doing business with the Government contrary to the law. It has not taken any measures to prevent it. Parliament is also well aware of the inefficiency and corruption of State institutions, but has made no attempt to change the situation. Even in the sphere of legislation, it has displayed a high level of moral bankruptcy. The new Local Government Elections Act and the 19th Amendment can be cited as the latest examples of this situation.
Given the bankrupt situation of the Parliament and the Members of Parliament themselves, the present Parliament has neither the ability nor the genuine desire to implement constitutional reforms to bring about a profound change in the system. That is the main reason why the country needs a new constitution that will place great emphasis on the interests of the people.
It would be possible to include the Members of Parliament in the Constitutional Assembly to be established for this purpose. But numerically, the public should be given a significantly higher share of representation. It can be adjusted so that the Members of Parliament get 40% of the seats in the Constitutional Assembly and the remaining 60% goes to the people’s representatives.
In formulating a system of electing the representatives of the people, it is important that a system should be developed to ensure that adequate representation of all social groups, particularly in a manner that marginalised social groups are also well-represented.
When selecting representatives from ethnic groups, it is essential that all ethnic groups of Sri Lanka should be taken into account. Yet, only three major groups - Sinhalese, Tamils and Muslims – are considered ethnic groups at present. But there are many other small factions of people that can be considered ethnic groups. There are two ethnic groups among Tamils - Tamils in the North and East and Upcountry Tamils. In addition to Sinhalese, Muslims and Tamils, there are several other ethnicities such as Malay, Veddas, Telugu, Bora, Pasi, Sindi, etc. who are not included on this list. Thus, there are many factions and clusters of people in the country that can be considered ethnic groups. So all these ethnic groups must be taken into consideration when selecting representatives to the Constitutional Assembly. Similarly, clergy can be used to represent the religions.
The caste problem in Sri Lanka is an explosive issue that has been completely ignored. Also, sufficient representation should be given to castes that can be considered oppressed sections of Sinhala and Tamil society.
Women should be adequately represented in proportion to their share of the population. The LGBTQ community should also be conferred due representation. Similarly, the disabled should be given appropriate representation, treating them as a special category of people who deserve to be recognised. Workers, farmers, fishermen, handicraftsmen, traders, businessmen and professionals should be granted representation, taking into account the factors of their profession and means of living.
The Constitutional Assembly needs to be comprised of representatives from all sectors of society because it is the best way to reach a consensus that is needed to build the nation. But it is not a simple approach. On the contrary, it is extremely difficult and arduous. The nation must be built on a system which affords equal rights and ensures human dignity to all the people of Sri Lanka, irrespective of their ethnicity, caste or creed. Reaching that end will only be possible through a continuous dialogue carried out with patience exhibited by all races, castes and religions.
Review and explore past mistakes
The review of major issues that are important for structural reforms should include the serious mistakes and errors made in the past. It can be considered an important attribute inherent in the tradition of making a People’s Constitution. Such a course of action will invariably pave the way for better understanding of the reality of the country which prevailed in the past and the reality of the present situation as well, not only for the constitution-makers but also for the general public as well. It will create an environment where the public will be able to get rid of traditional and outdated attitudes of politics and think justly, smartly and in keeping with modern trends and needs.
This retrospective analysis should include:
- Exploring instances of violation of the constitution since independence to the present day, the damage caused by such violations and those responsible for them.
- Exploring why riots and insurrections broke out in Sri Lanka after independence and finding out about their consequent loss of life and property and those who suffered the most.
- Corruption with public property perpetrated by those involved in the country’s administration including the Heads of State.
- The reasons that led to racial, caste and religious differences and the individuals and social groups that have been subjected to injustices if any.
- The reasons behind the degeneration of the Judiciary, judicial service and the legal profession.
- The reasons that had contributed to the decline of the legislature and its members.
- The reasons for the corruption and inefficiency at State institutions.
- Reasons for a lack of social responsibility and the corrupt nature of the media.
- The role of public service, its productivity, salaries and salary anomalies.
- The role of professionals, breakdown of their self-regulatory bodies and the reasons for the corruption which prevails among them.
- The backwardness inherent in the education system, anomalies in the school system, running of schools based on ethnic, caste and religious differences, backwardnes of teaching methods and the textbooks, syllabus, tuition education, teachers and their productivity and salaries.
- Exploitation in the field of public health, role of doctors, government hospitals, private hospitals and drug policy.
- The confusion in public passenger services, numerous difficulties the public are compelled to undergo and the measures to be taken to regularise and improve public bus services.
- The issue of garbage and solid waste management in Sri Lanka.
- The status of all cash crops including paddy cultivation, vegetable and fruit farming, tea, rubber and coconut plantation and the reasons for the decline of yield and income of these crops.
- The environmental issues the country is facing.
- The children’s homes run by the State. The Commissions of Inquiry should be appointed to investigate and report on the areas outlined above.
Making a new Constitution
The programs aimed at educating the public and the members of the Constitutional Assembly can be considered one of the most important elements in a people’s or participatory constitution-making program. For this purpose, the print media, electronic media and social networks should be used, and leaflets and books, public workshops, seminars and meetings must be employed.
All matters relating to the making of the Constitution should be transparent and an appropriate mechanism should be maintained, enabling anyone who wishes to comment on any issue pertains to the making of the Constitution. The drafts relating to the legislation at every level should be made available to the public.
Making a People’s Constitution does not mean that all the people of the country gather at one place and collectively draft a constitution. It means giving the people of the country every possible opportunity to get involved in the process of making the constitution so that the important ideas they have are taken into consideration, particularly those of marginalised social groups that are essentially voiceless. It is a democratic practice that allows the public to be actively involved in the process. It can also be seen as an instance in which the direct democracy is in operation in making a constitution.
Generally, the need for making a People’s Constitution exists only in countries where there is a huge collapse or stagnation in the functioning of the State itself, and not in countries which have a sound constitution and an efficient system of governance which is acceptable to the people.
At this historic moment, Sri Lanka is in a situation which has fulfilled all the conditions required to go for a People’s Constitution. The state and the whole institutional system are in an absolute mess.The economy is in a state of near bankruptcy. The Constitution has become like a ragged cloth which can no longer be put to effective use. The system of governance is a confused mess. The traditional rulers are in a situation in which they have lost not only the trust of the people but also their proper sense. In this backdrop, there is no other option but to adopt a People’s Constitution to save Sri Lanka from its present predicament.
South Africa can be cited as the ideal model that can be emulated in designing a practical program of a People’s Constitution. There the program was implemented in two main phases. There was a deep interconnection between the two phases.
In the first phase, an interim constitution and an interim all-party government were established. The interim constitution included what was to be done in the first phase as well as in the second phase.
There was a general consensus on 34 principles on the nature of the system of governance to be adopted and the basic features to be incorporated in the constitution. These elements, agreed upon through consensus, had been included in the interim constitution as well.
Following those agreements, the members of the House of Representatives elected through a General Election, formed themselves into a Constitutional Assembly and adopted a new constitution in accordance with 34 principles laid down the interim constitution.
The entire program had been designed in a manner where the public could actively contribute, express their views and observe everything that happened during the entire process of its implementation.
There was a framework laid down in the interim constitution for the making of the new constitution, and after the drafting of the Constitution, the Court considered whether the Constitution had been framed in accordance with the 34 principles laid down in the interim Constitution. The South African model can be applied to Sri Lanka.
In adopting a system of governance for Sri Lanka, irrespective of the chosen structure for it, it is important that the measures and methodologies that would enable the public to directly intervene in the system of governance of the country be introduced rather than restricting their right to exercise their sovereignty only by voting at elections.
Certain distinctive features of constitution-making in the 21st Century, such as what is known as the right to “popular sovereignty”, an alternative referendum, the right to recall elected members, which is in operation in Switzerland and several other countries, can be incorporated in the proposed new Constitution of Sri Lanka as well. Such a system could limit the immense power that politicians enjoy at present and give considerable power to the people. It can make the system of governance efficient and make the public a vibrant citizenry that will actively intervene in the governance of the country, instead of restricting its participation to a narrow framework of simply voting in elections.
Thus, the building of a Sri Lankan nation should be made the most important objective of the process of making a People’s Constitution by integrating society by denying undue recognition accorded to ethnicity, caste and religion, and ensuring equal dignity and equal rights to all people living in Sri Lanka.
If Sri Lanka will be able to embark on a program of making a People’s Constitution as outlined above, it would certainly be possible to heal the social wounds caused by the prevailing uncivilised atmosphere during the long period of conflict, and transform it into an active and vibrant society which upholds pluralistic views and modern ideas.