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Every time Sri Lanka has ventured on making a constitution, it has always been viewed from the angle of the ruling party rather than that of the people and the country. This demonstrates the extent of ignorance of Sri Lanka on the subject of constitution making.

By’

Victor Ivan

The country has got caught in a whirlwind of anarchy. Although there are dictatorial aspirations and tendencies looming in the air, they are not likely to materialise and secure a firm foothold against the whirlwind of anarchy. The anarchy that sweeps the country will shatter both the limited democracy that prevails as well as the dictatorial aspirations. Yet still all the eyes are fixed on the 20th Amendment.

In regard to the subject of the Constitution particularly the knowledge of philosophical, legal and political concepts related to the Constitution is concerned, Sri Lanka lags far behind. The rulers of the country have often tended to violate the Constitution as if it was an act of heroism. Such actions of rulers do not seem to have provoked strong public protest. Also, instances were not rare when even the judiciary which is bound to defend the sanctity of the Constitution tends to support the rulers when they violated the Constitution, blatantly.

The Constitution

Generally the Constitution of a nation is reckoned to be the most supreme legal document over all the laws of the land that exemplifies the main functions and the structure of the State and their interrelationship, and the principles governing them.

Usually, the Constitution of a nation or a country is enacted for long-term purposes as against short-term objectives. The unwritten Constitution of Great Britain is more than 800 years old. The American Constitution is 230 years old. No matter how old the Constitutions of these two countries were; they haven’t got tired of their constitution.

So far, Sri Lanka has adopted three Constitutions in the last 72 years. The Government is now contemplating on making the fourth Constitution. This reflects that Sri Lanka has yet to acquire the knowledge and discipline needed for autonomous democratic rule despite 72 years having passed since independence.

None of the Constitutions enacted so far can be considered as being based on national consensus. This is another significant fact demonstrating the backwardness of Sri Lanka as far as the knowledge on Constitution making is concerned. Sri Lanka has not yet reached the stage of contemplating more on the importance of national consensus than that of the majority in making a Constitution. In enacting both the First and the Second Republican Constitutions, prominence was given to the majority power of the ruling party and not the national consensus.

Ignoring the public

Every time Sri Lanka has ventured on making a constitution, it has always been viewed from the angle of the ruling party rather than that of the people and the country. Even the present Government appears to be dreaming of a new constitution in a similar way. This is also an inherent fault that demonstrates the extent of ignorance of Sri Lanka on the subject of constitution making.

It is a widely accepted fact that the Constitution is an agreement the people who own the sovereignty have entered into with the ruling party on how they should be governed. The Constitution can be considered as the main source that confers legitimacy on the State. Accordingly, the ruling party must govern the country in accordance with the Constitution, and the citizens must abide by the power of the State and the Law of the country.

The real owners of sovereign power are the people. The power of the rulers is not arisen spontaneously, but derived from the sovereignty of the people themselves. Therefore, the power of the ruler is always subject to the will of the people. Democracy is built on the concept that sovereignty lies in the hands of the people. It is an essential condition acknowledged not only by domestic law but also by international law. According to Article 3 of the Constitution of Sri Lanka, the sovereignty of the Republic rests on the people and it is an inalienable power.

Under the circumstances, the people have the right to actively participate when amendments to the Constitution are made or in making a new Constitution. It is a condition recognised by International Law also. But the people have not been actively involved in enacting any of the three previous Constitutions of Sri Lanka. None of these Constitutions have been subjected to a referendum for public approval.

After independence

Sri Lanka, by the time it gained independence in 1948, lacked the knowledge on democracy and political discipline required for successful functioning of a democratic system of governance of its own. Yet, the British bequeathed Sri Lanka a fully-fledged Westminster-style parliamentary system of governance. But, Sri Lanka did not have the knowledge on democracy and discipline required to maintain that in a formal way.

The national leaders of Sri Lanka lacked the vision to build a modern nation by bridging racial, caste and religious divisions that existed in the society; as a result, soon a situation arose creating conflicts over race, caste and religious differences. As these conflicts were not nipped in the bud and instead were left to escalate, they rapidly turned into protracted violent struggles completely disrupting the socio-political system.

The First Republican Constitution of 1972, aimed at ceasing the binding obligations of Sri Lanka to the British Crown, weakened and distorted the foundation of devolution of power laid by the Soulbury Constitution. The 1972 Constitution also abolished the monitoring and supervisory authority vested in the judiciary by the Constitution. The independence of Civil Service was also eliminated. Provisions of protection of minorities were also abolished.

The Second Republican Constitution of 1978 further reduced the powers of the Legislature and the Judiciary and created a system in which all State power was vested in a President elected by the people. The democratic system of governance is built on the principle that completely rejects the concept of monarchy. But the system of governance established in 1978 was very much resembled a Monarchy rather than a Republic. This situation weakened the democratic philosophical foundation of the State and caused it to be severely distorted.

At the same time, the President, who was at the helm of the State hierarchy and the Ministers and MPs of the ruling party who had ganged up with him, collectively adopted a system to plunder the State property. With that, exploitation and plundering of public property became a regular feature of the State rule. This situation led to corrupt the State and the entire institutional system of it and weakened their activities to the maximum eventually creating a state of anarchy in the country. Now Sri Lanka can be considered as a country caught up in a whirlpool of anarchy.

Understanding the essence of the problem

Basil Fernando has defined anarchy as a disorderly situation created by the absence of authority or any other alternate governing structure or loss of authority of corporations which are law-abiding; or disregard of the authority of such corporations. This disorderly situation is not something that exists in one place or several places; it can be considered a common feature present everywhere overwhelming the entire system.

The entire social system of the country is in a state of dismal disorder; it has lost its order, consistency and cohesion completely. The whole social system is in disarray. The State itself is in a similar situation. The Executive, the Legislature and the Judiciary, the three main power centres of the State, are in a pathetic state of confusion in which they have lost the authority and recognition they ought to have preserved.

This situation of disorder has permeated into almost every sector such as education, public health, passenger transport and energy, and has become a common feature. Although certain policies and actions pursued by the newly elected Head of State and the new Government seem to be dictatorial in appearance, they can be seen as policies and measures that might add to and further aggravate the anarchic situation in the country.

Overcoming the crisis

The socio-political system in Sri Lanka is now in a state of complete collapse due to poor management and maintenance of it for a long period of time. Also, this collapse is irreversible with simple reformations; it needs a complete revamping and reconstruction. In political and legal terms, Sri Lanka is now at a historic juncture where the foundations of law and civil authority have to be completely re-established. Making of a Participatory Constitution, or a People’s Constitution, can be considered the best way to do this. This model of Constitution making was used by Nicaragua in 1986, Uganda and Brazil in 1988, South Africa in 1994, Venezuela in 1997 and Rwanda in 2002 to bring about a profound change in the socio-political system in the respective countries. This model can be adapted to suit Sri Lanka and used to make a change in the system of governance.

I hope to produce more information and make a further analysis of this issue in the next article

Courtesy:Daily FT