A Submission on the Making of a New Constitution

Photo courtesy of Newsfirst

BASIL FERNANDO- 01/06/2021

This submission is made on the assumption that the attempt to make a new constitution is an act done in good faith, motivated solely by the attempt to address what has gone wrong with the system of governance in Sri Lanka and with a view to provide for the basic legal structure for sustainable form of governance that will serve the best interest of everyone in the nation. If that were not the case, if the attempt to make a constitution would merely be a means of entrenching methods for the abuse of power, further limiting the people’s right to participate in governance, then these submissions would be of no use.

Without a sustainable legal order to achieve the objectives of the nation in overcoming the tremendous economic crisis, the result is a deepening social crisis and the descent into lawlessness and anarchy. A well-functioning transparent system encourages investment and provides both justice and stability to a nation, facilitating its development. Therefore, constitution making must be made with a free and frank discussion and an open acknowledgement of where the existing constitutional order has failed. If, instead, the purpose of the constitution making is an attempt to further strengthen the existing constitutional system on the basis of 1978 Constitution and the principles on which it is based, then such a new constitution will continue the harm that has already been done to all areas of life in society, and therefore would be further harmful to the nation and its people.

If the attempt is to undo the damage that has been done by the 1978 Constitution, the first principle on which the entire constitutional structure should be built is the principle of rule of law. The essence of this principle can be summed up in the following words from Tom Bingham:

“The core of the existing principle [of the rule of law] is… that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of law publicly made, taking effect (generally) in the future and publicly administered in the courts.”

Further to this, he articulated eight principles:

• The law must be accessible, intelligible, clear and predictable.
• Questions of legal right and liability should ordinarily be resolved by the exercise of the law and not the exercise of discretion.
• Laws should apply equally to all.
• Ministers and public officials must exercise the powers conferred in good faith, fairly, for the purposes for which they were conferred – reasonably and without exceeding the limits of such powers.
• The law must afford adequate protection of fundamental Human Rights.
• The state must provide a way of resolving disputes which the parties cannot themselves resolve.
• The adjudicative procedures provided by the state should be fair.
• The rule of law requires compliance by the state with its obligations in international as well as national laws.

The existing constitutional order under the 1978 Constitution is based on rejection of the principles of rule of law and this has led to the common consensus existing now in the whole country as well as abroad that Sri Lanka is a lawless nation. If that situation is to be changed, the constitution must provide for the principles which enable the principle of legality to be the primary concern in all the actions within the state, whether it be actions of the state or of private parties. Any law that allows the principle of legality to be undermined will only result in further continuing the situation of lawlessness, which acts against every aspect of life, including economic development, social stability, protection of all citizens and the overall functioning of public institutions.

The issue of the dysfunctional nature of all public institutions in Sri Lanka should be one of the major areas of concern for study, discussion and deliberations relating to the making of a new constitution. If the public institutions are not resuscitated again in a manner that they could perform the functions they are expected to perform, the whole exercise of constitution making will not serve a positive purpose for the nation.

While the collapse or dysfunctionality of the public institutions is a matter that requires a serious and nationwide discussion, one major reason for this collapse could be pointed out at this stage. It is the executive presidential system as introduced by the 1978 Constitution. The proper functioning of independent public institutions are incompatible with it. The executive presidential system has undermined public institutions. This dangerously dysfunctionality has manifested through almost every incident that happened in the country and in major events such as the event of April 21, 2019, the Easter Sunday bomb attack.

Among the public institutions that has fallen into disrepute is the Parliament itself. However, it can be said that the reason for this is not merely the corruption of the individuals who constitute the Parliament, but also in the relegation of the Parliament to an insignificant and unimportant institution through the creation of the executive presidential system as expressed in the 1978 Constitution, which in fact undermines the sovereignty of the Parliament itself. The attempt to make a rubber-stamping Parliament resulted in the degradation of the Parliament and its functions, allowing avenues for corruption and other forms of abuse of power. A balance must be established between the executive and legislature, which has been lost due to the circumstances described above, as well as with the judiciary, in accordance with the separation of powers and the rule of law.

The attack on the independence of the judiciary has been an ongoing process since the 1978 Constitution. Attempts to develop a type of court that merely serves the interest of the executive president reduced the judiciary to the position that it is in today. The removal of the power of judicial review, interference (in direct and more subtle forms) into appointments and promotions of judges has created a kind of situation where the courts are finding it difficult to be the sole administrators of all matters relating to the rule of law, which is a requirement of the rule of law itself. Thus, the lost balance between the executive, legislature and the judiciary should be restored in a manner that it becomes possible for all these three branches of government to contribute to the betterment of the nation and keep an ethos that is considered conducive to human wellbeing in all areas of life, including economic development.

Among the public institutions that have undergone serious collapse is the institution of the police. While there is consensus that something has radically gone wrong with the policing system, there is no serious discussion of how to develop a functional legal system, which is the cornerstone for stability within a country, including creation of ethos for investment – local as well as foreign – where people feel that there is a fair playing field within which they could function. If a new constitution is unable to provide a legal framework within which to resuscitate Sri Lanka’s policing system to a rationally functioning, efficient system committed to the values of the rule of law, democracy and human rights, then this whole exercise of trying to make a new constitution will prove to be greatly disastrous to the future of the country.

Among the policing institutions, it is the investigative function relating to crime that collapsed most seriously. Selectivity and lack of oversight have virtually undermined the faith in the investigative system. The more serious crimes, particularly those done by the more affluent sections of society, including those who hold power, are not within the purview of criminal investigations in practice. The exclusion of many crimes from being properly investigated and prosecuted virtually makes the nation dysfunctional. The development of the relative independence these institutions need in order to function could only happen if the constitution provides a legal framework for the protection of their functions and their independence within the framework of law. A lawless criminal investigative system is a danger not only to every citizen but also to the state itself. Addressing this matter within the framework of rule of law remains one of the major tasks of developing a sustainable system of social stability, which will provide the environment necessary for all activities, including those related to economic development.

Among the institutions that also need to be rescued from what is known as the process of politicization is also the Attorney General’s department. An independent, impartial and competent prosecution service is an essential part of development of a functioning nation. Any form of arbitrariness manifested in these institutions will deeply disturb the entire balance of the state itself. Therefore, in the making of a new constitution, the review of all that has gone wrong in the past, particularly after the 1978 Constitution, within the institution of the attorney general’s department needs public debate. A consensus has to be reached on how to resituate it within the framework of the rule of law itself.

All other public institutions, such as the civil service, also suffer from the pressures generated by arbitrary interventions, which are a result of the overpowering executive presidential system introduced through the 1978 Constitution. That dysfunctionality has manifested through a deep neglect that prevails through all these institutions. The head of the state itself in recent times has complained that these institutions are failing to perform their functions. However, this is not just a matter of neglect by the individual, but an institutional question, which is based on the correlation between the excessive power of the executive, which has paralyzed the other institutions. The fears of being victimized for taking initiative and doing their functions in a manner that is required by their professions has become major preoccupation, affecting the command responsibility principle, where the leaders of the institutions are unable or unwilling to exercise the functions that they need to exercise if these public institutions are to function in a manner that is required in the best interests of the nation.

While lip service is being paid to accountability, all the institutional safeguards that prevailed previous to 1978 Constitution have gradually been undermined or deliberately displaced. This has resulted in the most unprecedented levels of corruption ever known in Sri Lankan history. However, again, this is not purely a question of individual weaknesses, but of institutional weakness; of having destroyed the balances that need to exist within the structure in order to ensure that it functions within the framework of law alone. Again, the solution to this problem cannot be found without overall assertion of the principle of rule of law as a guiding principle of the nation.

The constitution should clearly state whether the constitution is going to be one of a liberal democracy. If mere words are being thrown here and there, such as independence of judiciary, rule of law and the like, when in fact the whole institutional structure is geared towards an authoritarian form of governance, then there could be no role for a constitution at all. If the purpose of the new constitution is to further legitimize the authoritarian tendencies that have entered and developed over a period of 42 years now, then it is not a new constitution; it is a rejection of what is known in the civilized world as a constitution. Using the pretext of constitution making in order to undo the very idea of a liberal democratic constitution was what was started by the 1978 Constitution, and it has advanced to a very high degree, thereby causing the degeneration of the whole state structure to where it is today. If the continuity of that process and worsening it is what is meant by this exercise of making a new constitution, then that is a deception and not a constitution-making process at all.

It is not within the power of anyone, including the Executive President or Parliament or anyone else, to make a new constitution alone. The legislature has only legislative power, it does not have the power to make a constitution. This principle, which has been upheld in all civilized systems based on liberal democratic constitutions, cannot be rejected in the same way a cornerstone cannot be rejected. In India, this principle has been very clearly stated through the Basic Structure Doctrine, and thereby attempts by some politicians to acquire greater power for themselves at the expense of the nation have been thwarted by asserting that the legislature has only legislative power. The power of making constitutions belongs to the people and using the pretext that the representatives of the people can represent the people in making a constitution is a fallacy. People have not given a mandate and cannot give a mandate of that nature to the legislature. It belongs to the people themselves and therefore the constitution making process must be a national process, where people are vibrantly involved. It is a process which can bring about deeper national understanding and agreements that could become the basis of stability of a nation. If a new constitution is imposed on the people, then it is an abuse of language to call it a new constitution.

At this early stage, I believe that these submissions would suffice and if the genuine process of constitution making is opened up then the citizens, including myself, will participate more actively and creatively to achieve a successful process of making of a constitution that Sri Lanka can call its own genuine constitution.