Victor Ivan
At a meeting convened by the “Punarudaya Movement” which was attended by 46 people’s organisations on 19th January at Kobbekaduva Institution, Colombo, the topic of making a new constitution for the country was discussed at length reaching a consensus on as to how the proposed new constitution should be framed. The consensus reached and the points agreed upon at this meeting can be summarized as follows.
The right to vote in elections enjoyed by the people at present can be considered the only provision that they have been granted by the current and the previous constitutions to exercise their sovereignty which is now considered inadequate and an outdated system. Therefore, besides the right to vote in elections, it
is important that a new constitution consisting of new provisions and methodologies that provide for the people to participation in the decision making process in regard to the issues of public importance should be adopted. This implies that the proposed new constitution should be adopted by a constituent assembly which has a majority representation of the people rather than restricting it only to the members of the legislature.
To achieve this objective, a decision was taken to set up an organisation called “Movement for Making a People’s Constitution” and allow all people’s organisations that attended the Punarudaya meeting to become members of it with equal entitlements. Moreover, it was decided to create a wider sphere of people’s organizations and encourage them to join the “Movement for Making a People’s Constitution” and also to form a powerful Consortium or a “Grand Alliance” of People’s organisations placing more weight on the people which exceeds the power of political parties so that the people could get the opportunity to participate in a substantial way in the process of making a new constitution capable of effecting far reaching and profound changes. It was also agreed that the members of the Movement for Making a People’s Constitution should work wholeheartedly and conscientiously towards achieving this object.
This can be considered a very important and pioneering effort displayed in deviating from the obsolete and outmoded thinking that is prevalent in the sphere of constitution making in Sri Lanka.
Constitution Making and Practice
Sri Lanka cannot claim to have a proud history in regard to the constitution making. Its history in this sphere is awful. Within 71 years of independence, Sri Lanka had adopted three constitutions. Yet, it still finds itself in a constitutional impasse being unable to move forward without going for a fourth constitution. Obviously the country has not taken into consideration the policies and traditions that ought to be considered in making a constitution. All constitutions, adopted so far, can be considered as the constitutions introduced with trickery by using the majority power of the ruling party to suit its own agenda rather than with the consensus of the all parties concerned. None of these constitutions had been subjected to a referendum for ratification by the people.
On the other hand, Sri Lanka has set a unique record in violating the constitution. The provisions available for constitutional amendments had been mostly used or rather abused to achieve parochial objects and to violate the constitution itself, rather than to rectify the drawbacks of the constitution. There are instances in
which the Executive had violated the constitution blatantly. Similarly, there are instances in which the legislature as well as the judiciary had violated it. There is no political culture in the country in which the violation of the constitution is perceived to be a serious offence.
It appears that the adoption of a constitution by a limited circle of political elites or the representatives of the legislature had been the only model of constitution making known to Sri Lanka. All three constitutions adopted so far, in Sri Lanka, one way or the other had been framed using this model. The constitution that Ranil Wickramasinha had been trying to introduce too has followed thesame conceptual framework.
Participatory Constitutional Making
The old model that I mentioned above does not suit the needs of the present. It is considered an obsolete system by the theoreticians on modern constitution making. In the past, the people did not have a direct role to play in constitution making. What they considered important was only the content of the constitution. They were not concerned with how it was adopted. This system is now considered an extremely obsolete system by the constitution making theoreticians. Under the circumstance, people’s participation is considered an essential condition in constitution making today. Similarly, in present day constitution making, equal
importance is attached to the process of making the constitution as much as the content of it. A mere statute created by a democratic government is no longer considered to be a democratic constitution.
It is expected to be adopted following a democratic process. It should be a product of a close dialogue between all parties concerned. In making a constitution with the participation of the people, it is considered an essential condition to have all community groups that represent the society in terms of ethnicity, caste, religion language, sex or livelihood involved in it. The theoreticians who advocate the importance of people participated constitution making are of the view that for some reason, if any one of these groups were ignored, it would not be easy to rectify the error and the injustice caused to that group.
Professor Vivian Hart, a leading expert on participatory theory of constitution making has pointed out the following important fact in regard to the American constitution adopted in 1789. In adopting the constitution, the makers of the American constitution had not taken into account the interests of not only the
aboriginal communities and the Americans of African origin; they had even ignored the interests of American women as well. Later, when they demanded for a legitimate recognition there was no immediate solution that the American constitution could offer to them. Reason being that the amending the constitution had been a long process which is complicated and time consuming. Consequently, these issues, even to date, remain as problems not fully settled.
Participatory constitution making model can be considered the most accepted conceptual framework for constitution making today. But it is still in an experimental phase and not reached a conclusive stage yet. The countries such as Nicaragua, Uganda, Brazil, South Africa, Northern Ireland, Kenya, and Rwanda are several countries which had tried the Participatory constitution making model. This model has been recognized by the international law. It must be said that the right of the people to actively participate in constitution making process of the country in which they live is recognised by the international law as well. It is an inalienable right that the people have received.
International Law
The judgment passed by the United Nations Human Rights Committee in 1991 in regard to the complaint made by Mikmaq Tribal Society against the Canadian government (known as Marshal Vs Canada (CCPR/C/43/D/205/ 1986-1991 December 3) can be considered as the first judgment that had impacted the international law on the right of people to participate in making of a constitution. Even though, the Mikmaq Tribal Society was not fully successful in winning their claim, the United Nations Human Rights Committee admitted the right of the Mikmaq Tribal society to actively participate in constitution making process without discrimination and unreasonable restrictions.
Thereafter, on 25 July 1993, the UNCHR Textual Authority produced an interpretation on the Article 25 of the International
Covenant on Civil and Political Rights. By that, pursuant to a
common analysis of the Article 25, the right of the people to
participate in the constitution making processes has been
elaborated as follows. “On instances where the citizens believe
that a constitution should be adopted, it being considered a public
affair, the citizens shall take part in the exercise, directly or through
freely chosen representatives without unreasonable restrictions.”
Professor Vivian Hart, commenting on the Article 25 of the
International Covenant on Civil and Political Rights states that it
was a unique concept remained latent in the philosophy of political
claims of the United Nations. Yet, this concept had not been
utilized adequately and therefore it remains to be improved.
The judgment given by the Supreme Court of Canada in
1998 in regard to the legality of the claim for self government of
Quebec Province of Canada is an important judgment which
had legally strengthened the concept of participatory constitution
making process. This judgment highlighted the democracy as
being the major principle among all other principles of the
Canadian constitution. It has further stressed that the participatory
constitution making is the most important determinant in the
process of making a legal and democratic constitution.
Considering all these important judgements and
interpretations, it can be presumed that they had contributed to
build a model that could be applied practically for making a
constitution by consolidating the legal right of the people to take part
in constitution making process actively.
But, it should not be misconstrued as a simple and easy
module to be implemented. According to Professor Vivian Hart,
comparatively it is an easy task to make a constitution when it
becomes a legal and expert document drafted by a limited group of
social elite. Even, the time taken would be rather limited. But, it
would not be simple to make a constitution following a
comprehensive dialogue with all groups of the political society in a
country. It is a complex and time consuming exercise. Though it
may not lead to reconcile all disputes, the participatory constitution
making can still be considered the best method that can be used in
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adopting a constitution that would pave the way for creating an
atmosphere for everyone to live peacefully and harmoniously.
The Path to be Chosen by Sri Lanka
The veritable crisis that the country, the society and the state
have faced is not simple. It is in an unusually complex and
complicated mess. The present crisis of Sri Lanka can be
considered a gradual development of a situation which had
occurred as a result of our failure to fulfil the necessary conditions
best suited to our needs which were created by the independence.
Also, the inability to resolve the problems that emerged as an
outcome thereof has resulted in aggravating the crisis into a
maximum height.
The independence gained in 1948 can not be considered an
outcome of a strong and organised social struggle. Thus, the
independence gained through devious and crafty means did not
become a powerful social phenomenon capable of promoting social
harmony and integration. It did not contribute to create a strong
democratic political atmosphere or generating matured political
leaders. It did not become a social phenomenon capable of
developing a common identity integrating and harmonising the
society irrespective of ethnic, caste, religious or linguistic
differences.
None of the leaders emerged after independence had
attempted to integrate and build the nation disregarding the
recognition accorded to the ethnic, caste, religious or linguistic
differences. Instead, what they have done was to aggravate the
differences. In fact, since independence, Sri Lanka had become a
country going from crisis to crisis. As an outcome of it, it had
become a country of protracted and large scale violent conflicts and
blood shed. Even after ending the large scale violent conflicts and
blood shed, the country had failed to engage in a committed effort
to realise the serious errors and rectify them.
The final outcome of this situation is such that the country,
the society and the state had degenerated into a veritable state of
extreme bankruptcy, failure and wretchedness.
The constitution of the country having been violated
repeatedly has now become a weak document which cannot be
used any longer. In spite of the fact that the political leaders do not
seem to have penitence on the destruction that they had caused to
the constitution, the supreme law of the country, all of them admit
the need for a new constitution. But, the political leaders have not
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made it a priority item in their political agenda. They all are
dreaming of the forthcoming election.
The ship sails in the distance sea. The sea is rough. The
captains who navigate the ship know that the compass is out of
order and beyond repairs. Yet, they all seem to believe that the ship
should be navigated to the destination even in the absence of a
compass and the question of the compass could be attended to
after completing the journey. They do not realise the importance of
delaying the journey till a new compass is secured, considering the
big risk involved in navigating the ship without a compass to guide
them.
Responsibility of the people
If the people of the country feel the need for adopting a new
constitution, it can be converted into a golden opportunity to rescue
the country from the wretched level it has fallen into. By making it a
a people’s program without letting it to be an exercise confined only
to the legislature under the old model, as had been the case in the
past, the proposed new constitution could certainly be converted
into a democratic and revolutionary creation capable of effecting a
complete transformation of the country, its society and the state
for good .
If the people’s organisations in the country can get together
and form a Consortium or a “Grand Alliance which exceeds the
people’s power commanded by the political parties, then it would be
possible to make the legislature also a part of it. Thus, if it can be
made the main machinery that guides the people’s participation in
the constituent assembly, it would certainly be possible to make a
revolutionary change in the overall picture of the constitution making
process in Sri Lanka.
By now all political parties in Sri Lanka and their leaders are
in a deep crisis in which they had not only lost the public confidence
but also have lost their proper sense as well. Though they refuse to
admit it openly, they all know for sure that they are responsible for
the wretched state of the country. They all know that they are the
main source of the corruption of the state. They are also aware that
they are unable to control the way things happen in the country
now.
There is no capacity for the legislature or the political parties
to oppose but adapt themselves, willingly or unwillingly to a
constitution making process which does not exclude the legislature,
but gives more power to the people. They all know that the
sovereignty lies not with them but with the people. The Constitution is an agreement entered into between the ruling party and the ruled.
In Sri Lanka’s context, the head of the Executive and the members
of the legislature can be considered the ruling party. Therefore they
cannot have the capacity to oppose a constitution making process
with active participation of the people.
If this golden opportunity offered by the history to the
people’s organisations to join in district, provincial and national level
and form in to a Consortium or a “Grand Alliance of people’s
organisations, the impact it could make on the constitution making
process will be immense. It could be geared for nation building. A
new state that wins the respect of everyone can be recreated. A
modern constitution that would not confine the sovereignty of the
people into a narrow frame of exercising their vote at elections only,
can be adopted; it will allow the people to participate actively
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LISTEN to VICTOR IVAN =Punarudaya Movement – Victor Ivan
punarudaya Movement Colombo Divisional Meeting on 02-01-2017 at TrikonE Cultural Foundation
