Establishing a more perfect democracy



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Today, the branches of the organized State, such as the Legislature, the Executive and the Judiciary should be vested unambiguously with the sovereignty of the people and the institutions organically deriving from them should protect and safeguard the life, human dignity, equality of rights and security of property of each of its people. Law that sets order to society should be administered by an Independent Judiciary and the Law should take its course without the impediment of interference from any political authority.


 by Fr. Augustine Fernando


It is presumed that the New Constitution is to be drafted with the consensus of the people. Based on the principle pillars of truth and justice of a people’s democratic relationships the Constitution should be a dignified document that evokes admiration of the people and succinctly expresses their mind as a people walking in solidarity the path of dialogue, reconciliation, unity and peace. Each one of the people of Sri Lanka, irrespective of the station in life, possesses equal human dignity with equal human rights and each one is of sovereign worth due to sameness of their human nature. The people have the right to group themselves to uphold certain human, socio-cultural and religious values which do not go counter to the human dignity and human values of others.


It was the abhorrent lack of consciousness and repugnant disregard of these values that brought on despotic rule and the white van syndrome and disappearances and assassinations/murders at high noon within security zones, in addition to power-holders robbing the public purse.


SOVEREIGNTY OF THE PEOPLE


Thomas Jefferson incorporated in the American Declaration of Independence, ‘…To secure the unalienable rights to Life, Liberty and the pursuit of Happiness…Governments are instituted among Men, deriving their just powers from the consent of the governed,


That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…"


These democratic norms that have universal value and a long history going back to several centuries seem to reverberate through the events of our recent political history of overthrowing an insufferable despotism and providing for ourselves new Guards.


Today, the branches of the organized State, such as the Legislature, the Executive and the Judiciary should be vested unambiguously with the sovereignty of the people and the institutions organically deriving from them should protect and safeguard the life, human dignity, equality of rights and security of property of each of its people. Law that sets order to society should be administered by an Independent Judiciary and the Law should take its course without the impediment of interference from any political authority. No political authority should be able to directly or indirectly manipulate and direct the agencies of State, to self-advantage to provide immunity – which is always on behalf of their political henchmen – from the impact of the law of the land administered by the independent Judiciary. If the foundational democratic principles of a good and stable society are focused on and firmly established by the Constitution, the other details could be consistently put in place effectively by unbiased drafters of the Constitution.


WHY A NEW CONSTITUTION?


A Constitution is about the most important, basic human and democratic values and fundamental relations of a people among themselves and especially with the State. The people and the State vis-à-vis have duties and obligations. The 1972 and 1978 constitutions skewed the relationships among the people of Sri Lanka. The basic flaws in them have to be avoided in the drafting of the New Constitution. We in Sri Lanka have been one family of brothers and sisters in spite of inevitable ‘family problems’ that arose from time to time. ‘Family problems’ should not lend themselves to the disintegration, division and violence in the family. When such things happen, it is always due to the faulty way they have been bought up. In our national family, unfortunately, it was not good counsel that was resorted to, to solve the family problems; some overbearing family members individually or collectively resorted to anger, revenge, thuggery, high-handedness, through envy, jealousy, wickedness and sheer stupidity.


When they exercise State power arbitrarily and outside the law, it brings about disorder. It is that subculture that had invaded the State that led to the syndrome of white vans, disappearances and elimination of targeted individuals. It was the failure to acknowledge this truth of family failure and casting blame on others – the vehement denial of it in principle and decision – and the politics of feudalism and its by-product of a slavish mentality that brought Sri Lanka to a pitiable state.


FELT NEED OF A NEW CONSTITUTION


The need for a new and more perfect Constitution has been felt for a long time as the people became more conscious of their human dignity, of being responsible and self determined rather than being determined by the anonymous ‘mass’ or political cabals of self-interested designing politicians who subject the masses through cunning manipulation and mislead them by resorting to various ruses and deceptive promises. It is unfortunate that the political culture in Sri Lanka had opened itself to be exploited by self-seeking, uneducated scoundrels, demagogues and megalomaniacs devoid of any civic sense or sense of social responsibility, usurping and abusing state authority – the result of the flawed education system.


The bankrupt Marxists who hung on to the last regime that brought the Country to economic ruin by their cloak and dagger policies now strive to bring back the corrupt regime and perpetuate themselves through chauvinism. They are incapable of understanding notions such as ‘human dignity’, ‘human rights’ ‘human autonomy’, self-reliance, self-respect’ and ‘equality’ that should be accorded to all people.


The phenomenon of social disorder and widespread corruption was graphically surfaced during the last regime that embraced a motley crowd that forced the people to silence and encroached into the independence of the Judiciary and manipulated State institutions and organs as a means of attaining unethical and selfish political and personal ends while enjoying enhanced privileges and perks beyond measure.


The New Constitution should uphold the respect and safeguards for people’s human dignity, fundamental human rights, freedom equality, security and the identity and rights of legitimate community groups. These values cannot be upheld by barbaric and uncivilized elements in the legislature and other organs of government. Whether the experts in drafting constitutions and constitutional law see a hideous lacuna in the current constitution or not, the people should see that the New Constitution does not leave doors open for the uneducated, uncultured, uncivilized, dishonest and corrupt elements of barbaric conduct who do not know how to speak let alone discuss, debate and come to consensus for the common good, to enter the legislature or local government bodies or the law-enforcement organs of the State.


CONSTITUTION UPHOLDING EQUANIMITY


A New Constitution is needed because the 1972 and 1978 constitutions were based


on partisan political ideologies and unethically imposed on the people without their consent, in the heat of election victories that left little room for objectivity and sobriety. The drafters unconsciously incorporated in the constitution some of the convictions that strained through their own partial and biased social vision, attitudes and behaviour. They did not follow up on the axiom that all human beings are equal. They did not take into account and consideration the inalienable rights of the Tamil people and other minorities. All those who were not Sinhala Buddhist were practically considered second class citizens or no citizens at all. Being very short-sighted and animated by animosity, their style of government was to arbitrarily expropriate under the guise of nationalization the possessions, the collective product of the industry, labour and self sacrifice of generations of citizens.


And Sri Lankan politicians have fashioned constitutions with many inconsistencies in them, and amended them to suit their partisan political purposes, which were not at all contributory to unifying the people towards nation building. A sense of equanimity was absent in them. Reading it now, the preambles sound like an echo of only their authors’ flamboyant oratory unfaithful to reality.


NON POLITICIZED PUBLIC SERVICE


People are not vassals or serfs of politicians or of the State explicitly or implicitly. And people need not go after any politician in power to get their needs attended to and rights respected and upheld. Laws are enacted for the good order of society. If the law does not provide for certain particular human requirements that need attention, (Lex non curat de minimis - the law does not consider minute matters) there should be a benevolent pro-people State mechanism (Ombudsman ?) that sees that justice is meted out to individuals in distress.


AN INDEPENDENT JUDICIARY


For the upholding of norms of justice for the ‘Common Good’ an independent Judiciary not in any direct or indirect way beholden to political authority should be firmly established by the Constitution. While the supremacy of the law has to be adhered to, the existent system is such that however much an ordinary citizen may want to reclaim his rights, according to law, as a dignified human being, litigation is a very expensive and exorbitant affair.


Further, the legal fraternity should understand that though everyone may have a right to representation, justice is not upheld by defending what cannot be reasonably defended. It is a pity that some criminally accused who do not have a leg to stand on, somehow gain acquittal assisted by clever lawyers who jolly well know that the accused they are defending truly deserves severe punishment. Bags of money in the form of legal fees distort the norms of justice. It is a mark of civilized society when those punished for wrong doing are given the possibility of reforming and rehabilitating oneself.


Foolish and incompetent political ideologists could also think of the power of government as synonymous with straitjacketing and regimentation of the people and taking away their freedom. They are incapable of promoting solidarity and fraternity, civic consciousness and responsibility among the people beneficially using the mass media that is readily available. They are not able to create community; they are expert at creating class war, violence and clash war, alienating man from himself. They do not know that man’s nature itself is geared for self-correction and self-perfection.


NEED FOR NATION BUILDERS


It has to be also observed that the foolish decisions of unintelligent and incompetent political ideologists have tended in many subtle ways to create a bloated public apparatus of a lethargic administration in our Country. It is a very costly affair that becomes an increasing burden on the people while undermining self-reliance. The politicians in power make money for themselves and their kith and kin and depart leaving unbearable debts to be borne by future generations. The people should realize this in order to accommodate themselves to a plan of solving it, while recovering from the roguish politicians the money they have stolen and stacked away in foreign banks. Those elected to political office should be subject to a fool-proof mechanism of accountability and it needs to be there in the Constitution.


In contrast we are short of duty conscious parents, teachers, doctors, health carers, trade union leaders and social workers all of whom should be in one way or another community builders and nation builders along with the clergy. If civic values are inculcated in all citizens during their school life, they will learn from early life that true patriotism means is to honourably relate to one’s neighbour, live with self-respect, willingly sharing the burdens of the weaker brothers and sisters and not dependent on questionable privileges and perks. It is to be hoped that the experts drafting the constitution will so embody all these democratic values recognizing the good relationships that should underpin them.


 
 
 
 
 
 
 
 
 
 
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