A New Constitution in the Making: The Matters that Matter

Daily Mirror

The interim report of the Parliamentary Steering Committee for Constitutional Amendments has caused a stir in all quarters concerned in terms of many pivotal aspects that has a bearing on issues such as nature of the state, priority given to Buddhism, fundamental rights, degree of devolution etc.

 While, failing to conjure up a consensus, at least prima facie, the report seems to have deepened the divide that has already existed between the North and the South in terms of the degree of devolution, which, in my opinion, is the most crucial and far-reaching upshot from the proposed constitution.  There were some positives, unmistakably, attributed to the initial stage of Constitutional Amendments in the form of a wide social debate that ensued at the Public Representation Committee level. Unlike with the First and Second Republican constitutions, this time, the amendments became susceptible to public scrutiny leading to contributions from wide sections of the populace. 

Our Independent Constitution, the brainchild of a foreigner, never had its organic roots in the native populace. The 1972 Constitution was more intent in establishing legislative supremacy of the Parliament thus alienating the minorities who felt hard done by the removal of Sec. 29 of the Soulbury Constitution, which left them at the mercy of a legislature that was dominated by the Sinhalese.
The 1978 Constitution, if one is charitable enough to term it a Constitution at all, was in fact, the consolidation of the power of a single individual in the form of the executive, to the demise of the other two organs of state power, i.e. legislature and judiciary. In any event, none of the three constitutions could be called organic shoots from the broad masses of the nation.

In that sense, the opening up of the present constitution making debate to the public domain was refreshing; yet the final making of the module still is not clear. The Prime Minister says that all is up for debate, which, under normal circumstances, is good. The President, typically, does not say anything. Dr. Jayampathy Wicremaratne, who seems to be the captain of the ship in terms of Constitution making, says that the unitary nature of the state not diluted, as the Sinhala ultra nationalist fringe screams that it is a federal module while the devolutionists express disappointment over the extent of powers devolved.

“The fundamental rights enshrined in the present Constitution are structurally skeletal and exclusively civil and political”

The Unitary Mantra

The insistence by the ultra nationalist Buddhist fringe  that the term ‘Unitary’ should be retained at all costs is peculiar indeed; in fact that premise fails to appraise the difficulty with which the state has maintained the unitary status warranting utilization of military power, emergency regulations, undermining of fundamental rights, abductions, disappearances as well as downright murder. As is obvious in the last five decades the state has had its hands full at maintaining the unitary aspect of the state; the cost at it was done is multifaceted. Economic prosperity, democratic and good governance, inter racial and religious harmony are some of the lambs sacrificed at in this struggle for unitary maintenance. 

As the authors of the amendments have pointed out the term Unitary, in its classical form, means very little in the modern day constitutional politics, in reality it hardly matters whether the Constitution brands a country as unitary, federal or something else. The ominous threats that religious fundamentalism, racial division, economic disparity poses and polarizing politics pose to the safety and health of the modern nation state is evident all around the globe.  All stakeholders, including the ultra nationalists would do well to realize the needs, which have been engendered due to a clear paradigm shift in dynamics in geo politics.

Expansion of Fundamental Rights 

The fundamental rights enshrined in the present constitution are structurally skeletal and exclusively civil and political; they fail to incorporate those imperatives, which should be met in terms of rights for economic parity and equality in terms of social and economic rights. In fact, the PRC has received many representations that social and economic rights be incorporated to a future fundamental rights chapter making them justiciable.

This has been opposed to by some quarters, yet it is essential that these be incorporated into the future constitution so that we may avert the recurrence of insurgencies such as those staged by the JVP in 1971 and 1989-90. Constitutional recognition of such rights alone would not suffice to avert armed insurgency against inequality and aimed at the base of the state that perpetuates them; yet it would send a signal that the state is genuinely concerned along such lines and will provide the marginalized and fringe sections recourse to relief for their grievances from the state in a peaceful manner. Inequality and disparity in terms of economic standing are more often than not the feeding beds for extremism, class warfare, anarchy and separatism as history suggests. Many third world countries have taken the lead in constitutionally addressing this and for all counts there is absolutely no grounds why this should not be the case in our context.

“Unlike with the First and Second Republican Constitutions, this time, the amendments became susceptible to public scrutiny leading to contributions from wide sections of the populace”

Judicial Review of legislation

The establishment of a constitutional court, presumably with the power of judicial review seems to be one of the most welcome aspects of the proposed amendments. The 1972 Constitution, did away with the right of the judiciary to inquire in to acts of the legislature under the concept of legislative supremacy. The Supreme Court’s power, at present, with regard to legislative acts of the Parliament is confined to determining whether a Bill, if referred, in its draft stage of a proposed law, is constitutional; notwithstanding a finding to the negative, if the legislature persists with the passage of such law , the apex court becomes an embarrassed spectator. Yet judicial review of laws is an integral part of separation of powers and countries such as USA and India shine as beacons in this regard, where their Supreme Courts are able to interfere for the rights of the citizenry if a purported law impinges on their rights. 

A bi cameral system, i.e. with a lower house consisting of elected representatives and an upper of eminent persons who could be of service to the country although not in active politics is yet another proposal that should be seriously encouraged.

It serves as an additional check on the otherwise unbridled power of the legislature and would be welcomed in particular by the minority parties as in their view,it could be a procedural safeguard against a Sinhala dominated lower house. Yet once again it will depend much on the caliber and quality of the people who will make it to the upper house.

Secularization aborted 

The much hyped and discussed secularization of the Republic is now a bygone conclusion; it would not be too graphic to suggest that it was aborted in the embryonic stage. The government does not seem to have the clout, although seems to be having the intellectual depth,  to push with the removal of statutory recognition given to one religion over others while the Fundamental Rights chapter guarantees  equal treatment before the law irrespective of any distinction including religious belief. 

These comically paradoxical provisions create such an absurdity and obscures an otherwise totally secular constitution and a structure of governance. Yet the insistence by the Buddhist nationalist lobby, again seems to have dissuaded the authors of the proposed constitution to pursue that cause in earnest, and by all means it has robbed us an opportunity of getting on par with modern states with secular constitutions. The process leading up to the interim committee report which could be rated positive in terms of the public participation and the proposals received by the PRC; now the ball is in the court of the legislators. Yet the civil society need not remain silent leaving it all to politicians. As it happened in South Africa and India, the populace, through their organizations, both political and apolitical, would do well to keep the pressure on the government as well as the opposition to get progressive yet sometimes unpopular amendments done to the new constitution, which in turn, will determine the political destination of our nation state.

At no point should the welfare and peaceful coexistence of the broad masses allowed to be jeopardized by the whims and fancies of the extremist fringes from either side. 

“At no point should the welfare and peaceful coexistence of the broad masses allowed to be jeopardized by the whims and fancies of the extremist fringes from either side. “