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A CONSTITUTIONAL DREAM

Speech made to the 74th AGM of the Sri Lanka Federation of University Women on Oct. 31.



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by Dr Nihal Jayawickrama


I was asked to speak about the Constitution – or more specifically, "what ails the Constitution; is it the Constitution or the manner it is followed?" However, a few days ago, a lawyer member of the government parliamentary group announced that the government will shortly begin drafting a new constitution.He also spoke about Parliament being transformed into a constituent assembly for that purpose.He spoke of a referendum. Therefore, it may be more productive if I do not look back on a constitution that is about to be consigned to history, but instead try to identify which features of that constitution should not be repeated, and what new features ought to be included,in the new constitution.


A national consensus


In 1762 from his small native Swiss canton of Geneva, Rousseau expounded the theory that a constitution is a social contract between the rulers and the ruled. In today’s context, it is perhaps more accurate to describe a national constitution as a document that crystallizes a "consensus" among the citizens as to the nature and character of their State and the manner of its governance. That is a legal fiction, and not a historical fact, because citizens do not actually sit down and arrive at a consensus on what their constitution should be. But it is a legal fiction that gives the constitution greater legitimacy and stronger immutability. It raises the issue as to how and through what mechanisms such a consensus may be arrived at.But whatever the mechanism, it needs to be emphasized that constitution-making is not the prerogative of the government. To entrust that task to a government is, as Mr. S. Nadesan QC observed in 1970, comparable to what the outcome might have been if at Runneymede, on the broad fields of Windsor, the Barons of England had invited King John to draft the Magna Carta. The truth of his observation is immediately evident if one looks back at the processes through which the three recent constitutions of this country were drafted and adopted.


THE DRAFTING PROCESSES


The 1946 Constitution


The 1946 Constitution was based on a constitutional scheme submitted to the British Government by the Board of Ministers of the State Council. It was called the Ministers’ Scheme and was, in fact, prepared by Sir Ivor Jennings who, at the time, was the Principal of the Ceylon University College. There was no public participation in its preparation. Theonly constraint that operated on the Ministers was the requirement imposed by the British Government that the scheme should be acceptable to three-quarters of the 58-member State Council in which 19 members belonged to minority communities. The Ministers’ Scheme was, in many respects, a replication of the Westminster system of government. It established the essential framework by creating the principal institutions and defining their separate powers and functions. It then focused on safeguards for the minority communities. Five such safeguards were included: (a) multi-member constituencies; (b) six nominated members to represent unrepresented interests; (c) a second chamber – the Senate – as an instrument for handling inflammatory issues in a cooler atmosphere; (d) an independent Public Service Commission; and (e) a prohibition of discriminatory legislation.


The British Government then appointed a commission headed by Lord Soulbury to examine the constitutional scheme. That commission spent three months in the country travelling through the provinces, meeting various interest groups, recording evidence at public sessions, and gatherng information at private discussions, and in its report basically agreed with the Ministers’ Scheme. A White Paper embodying the decisions of the British Government was published, and the proposals contained in it were accepted by the State Council by 51 votes to 3. A young assistant legal draftsman chosen by Mr D.S. Senanayake, sitting with a typewriter at his home in the small town of Panadura, gave legal shape and form to these proposals which, when incorporated in an Order-in-Council with hardly any amendments, became known as the 1946 Constitution of Ceylon.


The 1972 Constitution


This method of public consultation was not followed in the preparation of the next constitution. The 1972 Constitution was drafted by a constituent assembly – which was, in fact, the House of Representatives by another name. In it the United Front government of the SLFP, LSSP and CP had a two-third majority. With that kind of majority, a new constitution could have been drafted and adopted through Parliament. But the Trotskyite Minister of Constitutional Affairs, Dr Colvin R de Silva, insisted that it should only be through an "essentially revolutionary process" that Ceylon should sever its connection with the British Crown and establish itself as the "free, sovereign and independent Republic of Sri Lanka". He found it repugnant that that should be done under constitutional powers conferred on Parliament by an Order-in-Council issued by the British monarch. But the "revolutionary process" itself was only one of form and not of substance. The opening and closing sessions of the constituent assembly were held at Navarangahala, butall the working sessions took place in the parliament building, under the same standing orders and chaired by the same individual who was the Speaker, now designated as president of the assembly.


38 basic resolutions prescribed the framework for the new constitution. The Minister of Constitutional Affairs described these basic resolutions as being "completely in accord with the United Front and Government policy". They were initially prepared by a drafting committee of ten professionals of whom I was one. There was little scope for original contributions from us because it soon became quite evident that the basic framework had already been determined at a political level. A draft constitution to give effect to these basic resolutions was next presented, after which the assembly divided itself into eleven committees to examine it in greater detail. The public were invited to submit proposals for amendment, but cautioned that any such proposals must be in conformity with the basic resolutions. This meant that only matters of form and detail would be considered.


After 114 meetings and nearly 3000 memoranda from the public, the original draft with very slight modifications was adopted as the 1972 Constitution. Notwithstanding its chequered drafting history, the constitution began with the assertion that "We the people of Sri Lanka . . . acting through the constituent assembly established by us . . . do adopt, enact and give to ourselves this constitution." The practice of invoking "the People" in order to legitimize a constitution when the people had very little to do with its creation, appears to have begun with the Constitution of the Soviet Union.


The 1978 Constitution


The process of drafting the 1978 Constitution commenced shortly after the general election of the previous year when a 10-member select committee of parliament, of whom seven were ministers of the UNP government, was appointed to "consider the revision of the 1972 Constitution". A questionnaire sought the views of the public, but only 281 persons or organizations responded. The committee then invited those who had made "substantial submissions" to give oral evidence. The committee held 16 meetings, at some of which I participated as legal adviser to the SLFP members, Mrs Bandaranaike and Mr Maithripala Senanayake.Finally, much to their surprise, the draft report submitted at the final meeting had annexed to it a completely new draft constitution which had never been previously submitted to the select committee. It had obviously been drafted by people outside the select committee, and was said to be in accord with "the Basic Principles accepted by the 1975 Party Sessions of the United National Party". My only contribution to that process was to draft the dissenting report of the two SLFP members. The 1978 constitution also begins with "the People", but somewhat more truthfully, admits that it is the product of the "freely elected representatives of the people of Sri Lanka".


A government/parliament drafted constitution


There is a significant difference between the two constitutions drafted by governments and the one recommended by a commission after consultation with the people. The 1972 Constitution was designed to establish the supremacy of the legislature, so that through it the objectives of a socialist democracy could be realised. The National State Assembly was to be "the supreme instrument of state power", an expression then in vogue in the communist states of Eastern Europe. There was no second chamber. The judicial review of laws was prohibited. The Public Service Commission and the Judicial Service Commission were both abolished and the Cabinet of Ministers was vested with the power of appointment, transfer and dismissal of public officers and judicial officers. The 1978 Constitution, which reproduced many of 1972, and even much of its terminology, was designed to establish the supremacy of the executive presidency as the fount of all power and patronage, and reduce parliament to be a mere cipher.


These two constitutions reflected only the consensus among the members of the majority party; or perhaps more accurately, the policies of the two principal political groupings of the south. The voice of the north, expressed so clearly and unequivocally in successive general elections, was neither heard nor recognized. By no stretch of one’s imagination could these be described as reflecting a national consensus. The arbitrary decision by the United Front Government to enable the representatives elected in 1970 for a five-year term to continue in that capacity for seven years, is an example of what a government did when it assumed the right to draft a constitution. In Parliament voting is invariably on party lines and, at the end of the day, a constitution that is drafted and adopted by Parliament, by whatever name it calls itself, will almost certainly reflect the views of the governing party. The spectacle of 100-odd amendments being moved by dozens of parliamentarians to mutilate the 19th amendment is a very recent example of constitution-making by a governing party that lacked a majority. The Constitutions that the politicians drafted and imposed brought authoritarianism, inefficiency, corruption and divisiveness. What this country was subjected to under both could not possibly have been what the people desired for themselves and their children.


Those who are familiar with life under the 1946 Constitution will recall that it had no ideological basis. It professed no economic or social objectives. It was possible for both right-wing and centrist or left-of-centre political parties to be elected to office, and for them to implement their respective programmes unhindered. It was possible for both free market and regulated economies to be practised. The parliamentary executive system of government it provided was flexible enough to withstand the tremors caused by the attempted military coup d’etat of 1962, and strong enough to survive the whiplash of the 1971 JVP insurgency. In seven successive general elections held under that constitution, the electorate demonstrated a growing political maturity when it voted in increasing numbers to change governments on five occasions. Under that constitution, the stature of a fiercely independent judiciary reached its high-water mark. The public service was able to demonstrate not only its competence but also its independence. The dominant political culture of the times was based on a widespread acceptance of democratic governance and the rule of law.


Constitutional Commission


If any lessons are to be learnt from the mistakes of the past, the task of drafting the constitution ought to be entrusted by Parliament to a constitutional commission; a small, but politically independent and representative body. Within it, the government, other political parties, interest groups and individuals, will be able to make representations on an equal footing and in full transparency. When the constitutional commission publishes its report together with a draft constitution, there should be an opportunity for a national debate. Thereafter, it will, of course, be for Parliament to decide whether to enact that constitution, with or without amendments. Such a constitution may claim to reflect a national consensus. This method has been successfully adopted in several countries of the Commonwealth. Another method that was adopted in post-apartheid South Africa was to appoint several technical committees to draft different chapters of a new constitution, according to guidelines formulated in accordance with contemporary international law and practice, by a group that comprised every shade of political opinion, however small in numbers. There are numerous precedents from across the democratic world that we should seek to emulate, not pretend not to know or see.


Referendum


The government spokesperson also referred to the likelihood that the new draft constitution will be referred to the approval of the people at a referendum. A referendum may be feasible on a specific question, such as Sunday shopping, poya holidays, or even the name of the state, but is wholly unreliable on a constitutional document. To submit a draft constitution to the people at a referendum, in the certainty that the overwhelming majority would not even read it, is to invite the people to vote against it because they disagree with a single provision or some other extraneous element. That was demonstrated two decades ago in Canada when the Charlottetown Accord, a package of very significant constitutional documents designed to recognize and give effect to the multicultural character of that country, was submitted to a referendum. Although agreed upon by all the First Ministers of the Provinces and First Nation leaders, it was rejected by a plurality voting against it for widely divergent reasons, one of which was the widespread unpopularity of the then Prime Minister, which had no relevance whatsoever to the questions at issue.


(Next week: Unecessary provisions in the present constitution)


 


 
 
 
 
 
 
 
 
 
 
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