The Constituttion is a Social Contract
June 26, 2010, 6:17 pm
By Nihal Jayawickrama
In the past four decades, whenever a political party or alliance secured a substantial majority of seats in parliament, that group of politicians has claimed the right to foist a new constitution on the people of this country. In 1972 and in 1978, the constitutions that were enacted reflected the policies of the two principal political groupings of the south. Though adopted in the name of the people, the public consultations were both superficial and perfunctory. The voice of the north, expressed so clearly and unequivocally in successive general elections, was neither heard nor recognized. In sharp contrast to governance under the 1946 Constitution, what the politicians drafted and imposed brought authoritarianism, inefficiency, corruption and divisiveness. Neither constitution enjoyed a national consensus; what this country was subjected to under both could not possibly have been what the people desired for themselves and their children.
The recent announcement by the Government that it intends to utilize its parliamentary majority to amend the present constitution reveals that no lessons have yet been learnt from past experience. It once more ignores the fundamental principle that a national constitution should be a social contract between the people and the state. It is through that social contract that the sovereign people agree to submit themselves to the power of the state, and agree to the manner in which that power will be distributed, exercised and limited among the institutions of government. Constitution-making is not the prerogative, or indeed a legitimate function, of a government. To entrust, or surrender, that task to a government is, as Mr S Nadesan Q.C. 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. A constitution that is drafted by a government, or indeed even by parliament, will reflect only the consensus among the members of the majority party, if not the imperatives of the head of that government. By no stretch of one’s imagination could it be described as a social contract.
A Constitutional Commission
If any lessons are to be learnt from the mistakes of the past or the experience of other democratic countries, the task of drafting a constitution ought to be entrusted by parliament to a small but politically independent and representative constitutional commission. Before such a body, the government and other political parties, interest groups and individuals, will be able to make representations on an equal footing and in full transparency, with the assurance that such representations will receive equal consideration. When the commission publishes its report together with a draft constitution, it will, of course, be for parliament to decide whether or not to enact that constitution. It is only then that the constitution will truly encapsulate the aspirations of all the people of the country, and not merely of the majority. Such a constitution may claim to be a social contract. There are numerous precedents from across the democratic world that we should seek to emulate, not pretend not to know or see.
As important as the process is the content of the constitution. Anyone who embarks on reforming a law will ask himself why it is necessary to change that law. In answering that question with respect to the fundamental law, regard must be had not only to the manner in which this country has been governed during the past four decades, but also to the quality of governance in the world around us with which we must necessarily interact. We need to look ahead to the next twenty-five years and ask whether the constrictive framework of governance prescribed in the 1970s is appropriate or adequate to meet the challenges of the new millennium. Despite regular and repeated assertions of independence and sovereignty, Sri Lanka, in common with the rest of the world, is now inextricably linked to the global village. As John Donne observed four centuries ago, "No man is an island, entire of itself; every man is a piece of the continent, a part of the main." If the present constitution is dissected with these considerations in mind, the following are some of the issues that may need to be addressed.
The Head of State
For a quarter of a century after independence, this country had a constitutional head of state. In the past twenty-five years, the head of state has also been the head of government. Which institution is preferable? The former symbolizes the state, not the ruling political party or alliance. He is a unifying figure who provides stability to the state. He is accessible to anyone of whatever political persuasion, especially when the heavy hand of government is felt. He performs the ceremonial functions of the office, leaving to the political head of government the resolution of the important matters of state. Although the constitutional head of state is required to act on advice, I am personally aware of several occasions when President Gopallawa requested reconsideration, and even declined to act as advised until he was furnished with good and sufficient reasons for doing so. When, in 1974, the great conflict arose between the National State Assembly and the Constitutional Court, it was only in the presence of President Gopallawa that the Judges were willing to speak with the representatives of the Government. In a highly politicised, multicultural state such as Sri Lanka, the restoration of the constitutional presidency appears to deserve serious consideration.
Since 1978, the distinction between the legislature and the executive has not merely been blurred, but has virtually ceased to exist. When nearly every member of the government parliamentary group is appointed to executive office, and members of the opposition who cross the floor are similarly rewarded, parliament is reduced to a token assembly capable only of validating government decrees. Self-interest becomes an overriding consideration, and parliamentary life is equated to employment which one cannot afford to lose. Parliament represents the people, makes laws, and holds the government to account. To perform these tasks, members should be elected from geographical constituencies as they were until 1977. They should be relieved of executive duties; and instead required to monitor, through select committees, the performance of the different ministries. In a second chamber, representation through functional constituencies may provide the unique expertise that the first chamber may not possess.
It is an indisputable fact that, with very few easily recognizable exceptions, ministers of governments formed after 1994 have possessed neither the intellectual capacity nor the experience to handle the great affairs of state. To how many of them will we entrust responsibility for our own personal affairs? The proliferation of ministries in order to extend the field of patronage has reduced government to such a state that, were it a corporate body, it would have succumbed to bankruptcy or been driven to dissolution. In an age when most governments across the continents, including Asia, consist of technocrats who are experts in their respective fields who can confidently communicate with their counterparts abroad on an equal footing, the question arises whether we too should not draw our ministers from among the best and the brightest in the professional world? They must, of course, sit in parliament but without the right to vote. They will steer legislation, and be accountable both to the legislature and to the appropriate select committee. It is desirable, however, that the Prime Minister, as head of government, should be an elected member of parliament who commands the support of a majority of its members.
Until 1977, Sri Lanka had a competent judiciary trained in the highest traditions of the legal profession. It was fiercely independent and absolutely incorruptible. For example, it was unthinkable that a chief justice would accompany a minister on a study tour. Nor would a supreme court judge offer legal advice to a prime minister. In 1962, the Supreme Court declined to proceed with the trial-at-bar of senior police and military officers accused of conspiring to overthrow the government because the bench of three judges had been nominated by the minister of justice. In 1969, the Supreme Court acquitted a former army commander and others charged with the same offence without even calling upon their defence. No constitutional provisions can restore integrity in the judiciary. However, it would help if a new Constitutional Court is created, at the apex of the judicial hierarchy, to exercise the fundamental rights and constitutional jurisdictions, including the ex post facto judicial review of legislation. This new court, if constituted in good faith, will be able to establish and enforce standards of conduct consistent with the universally accepted Bangalore Principles of Judicial Conduct. It will also enable the supreme court and other regular existing courts to focus on disposing the enormous backlogs that have developed over the years.
The Public Service
The civil service in this country was once the pride of Asia. I have ambivalent thoughts on whether its abolition and replacement with the Administrative Service in the 1960s was a progressive measure or not. When I was appointed a permanent secretary in 1970, my colleagues included M Rajendra, C.A. Cooray, Arthur Ratnavale, Mahinda Silva, J.B. Kelegama, P.B. Karandewela, James Lanerolle, Nissanka Wijeratne, A.E. Gogerly Moragoda and Baku Mahadeva. They were men of knowledge, experience and integrity. The standards they and their predecessors set and observed are now distant memories. When the 1972 Constitution required a secretary to perform his functions "subject to the direction and control of his minister", instead of "the general direction and control of the minister" (i.e. policy directions) as previously, the process of politicising the public service began. Good governance requires the re-establishment of a competent, permanent, independent and professional public service capable of serving any government that is elected to office, and not owing either personal or political allegiance to any politician.
National reconciliation and reintegration require that Sri Lanka should assert its secular character, as India and Singapore have done. As a Buddhist, I believe that tolerance and pluralism form the basis of the philosophy that the Buddha preached. I am saddened by the worldly roles that monks have arrogated to themselves and politicians have bestowed on them. I consider that providing monks with official residences and ostentatious limousines is a desecration of Buddhist philosophy. If others too believe as I do, they would insist that there be no reference to Buddhism in the constitution. It was a mistake to have done so in 1972. It is time we recognized that in this multi-ethnic, multi-lingual and multi-religious country, everyone has the right to freedom of thought, conscience and religion, and does not need the intervention of the state to exercise that right. In some countries, the clergy are prohibited from seeking election to parliament, the rationale being that a priest is capable of exerting undue spiritual influence on the voter. Is there any good reason why we should not follow that example?
Language is not only a mode of communication; it is also the medium through which knowledge is acquired. It is unfortunate, but true, that Sinhala does not serve either purpose adequately. It is a matter of recent history that efforts to impose Sinhala as the medium of education and of administration have also resulted in tearing this country asunder, leading to the deaths of tens of thousands of our fellow Sri Lankans. Political leaders with foresight and sagacity prevented such consequences not only on the African continent, but in countries such as India, Singapore and Malaysia. By retaining English – now the acknowledged international language – they ensured that their peoples were able to acquire the status of global citizens who could communicate not only with their own countrymen but also with the wide world beyond their geographical boundaries, and acquire the new knowledge that now emerges as rapidly as the old is debunked. In a social contract with the rulers, which language will the youth of this country wish to be educated in?
The President was reported to have remarked that there are no minorities in Sri Lanka since all are equal citizens. While the latter is true, the former is fiction. A minority is a group of individual human beings who share ethnic, linguistic, religious or cultural bonds and possess a collective desire to live together. The tragedy of Sri Lanka is that many of our politicians have refused to recognize the fact – the unalterable, immutable and enduring fact – that we are a multicultural country. In the contemporary multicultural state, minority communities have rights in common with, and no less than, everyone else. Indeed, because of the need to protect the distinctive character and identity of minority communities, which is what constitutes the cultural mosaic of our world, they even enjoy additional rights. For example, contemporary international law protects the physical existence of minority groups by criminalizing genocide, by recognizing the right to seek asylum, by prohibiting discrimination, and by guaranteeing to such groups the right to enjoy their own culture, to profess and practise their own religion, and to use their own language. International law also recognizes the right of a minority to determine its political status. As the Supreme Court of Canada has held, if a minority is denied meaningful access to government, it has the right to decide to secede.
A Bill of Rights
Sri Lanka has acceded to several international human rights treaties, but has failed to give constitutional force to the rights recognized in them, or to provide effective remedies. When the citizens agree to be governed, what they insist in return from the rulers is that their rights and freedoms be effectively guaranteed. Much of the squabbling that is now taking place, especially with the EU over GSP+, may be avoided if the constitution provides, as it does in many other countries, that an international treaty, when ratified, will have the force of law, superseding any inconsistent existing law. If the government is unwilling to so provide, why ratify a treaty at all?
The whimsical intervention of a minister, acting on a sudden impulse, resulted in the inclusion of the term "unitary" in the 1972 Constitution. Some of the reasons now being adduced to justify tinkering with the present constitution suggest a desire to perpetuate individuals, families and current political groups. But today’s power-holders, as yesterday’s were, are merely trustees for the time being. This country belongs to all of us – all twenty million of us. We have the right not only to be heard, but also to actively participate, in determining the content of the social contract that will form the foundation of a new constitution for our country.
Last Updated Apr 28 2017 | 09:24 pm