The Constitution of any State is the organic and the supreme law of that State. It explicates, regulates and articulates relationship and cohesiveness between the State and its people, people and people, State and institutions, institutions and people and also it directs and governs the State’s relationship with the rest of the world.
The Sri Lankan Government decided to bring Constitutional reforms to the existing Constitution, this process will surely heat up the debates and expression of diverging stands and contrary views, which is the typical feature of our polity.
Before ascertaining the objective, purpose and necessity for the Constitutional reforms, it is essential to understand the purpose of any Constitution for a country.
The purpose and objective of any Constitution is to define, direct and govern the terms of the social contract, the rights and obligations of all parties under this contract and enforcement mechanism of its terms. The social contract is an honoured and solemn agreement between the State and its people. The social contract will have a serious problem, when the people feel that the Constitution does not righty addressing their serious problems or when it lacks practical manifestation to meet the people’s reasonable aspiration.
Such a discontent of the people demands the constitutional reforms or replacement of the existing constitution. Hence, the Sri Lankan government proposal to reform the existing constitution indicates that it is ready to negotiate a new deal with its people.
The Constitution should have fundamental principles or values which are criteria of any Constitution making. ded nineteen times, Sri Lankan society appears like a fragmented and segmented one. Hence, uniting the country is the first and foremost duty of the State and unity does not mean that is only territorial unity, but unifying the diverse people for the single goal of national integration and nation building, is the indispensable and essential part of it.
No State could be integrated or united through regimental laws and administrative system or by making laws without considering diversity among the people or by introducing laws/rules, which are causing discrimination against any particular community or people.The unity in a pluralistic society lies in integration, but not in assimilation. The assimilation is an ideal process for a State, which has a homogenous population (one race, one religion or one culture) but for multi-religious /race and cultural State like Sri Lanka, any demand for assimilation will create chaos and confusion as no group or community, whether they are majority or minority, will not naturally or voluntarily surrender its identity.
In a pluralistic society like Sri Lanka, the integration is possible only through recognition of diversity of the people.
The unification or national integration does not demand sacrifice of the identity of any group or people, whether they are racial or religious or any other natural identities. The concept of unity without demanding uniformity and diversity without fragmentation should be clearly recognized in the constitution. This will ensure the people to be loyal for the territorial unity, national integration and nation building without sacrificing their religious, racial or linguistic identity while preserving their diversity. It should be the unity based on mutual understanding, recognition and trust.
Our Constitution should contain strong and spirited wordings which reflect the people unity and provide ways for harmony. The emotional unity among the people is very important for racial and religious harmony. Once the former Indian PM V.P. Singh, declared that, ‘the unity among the Indians could be preserved only through emotional unity among Indians.’
Similarly, the Indo-Sri Lanka Agreement to Establish Peace and Normalcy in Sri Lanka, which was signed by Sri Lanka President and the Indian PM in 1987, contained the following provisions: (1.2) Acknowledging that Sri Lanka is a multi-ethnic and multi-lingual plural society consisting, inter-alia, of Sinhalese, Tamils, Muslims (Moors) and Burghers; (1.3) Recognising that each ethnic group has a distinct cultural and linguistic identity which has to be carefully nurtured. (1.5) conscious of the necessity of strengthening the forces contributing to the unity, sovereignty and territorial integrity of Sri Lanka, and preserving its character as a multi-ethnic, multi lingual and multi- religious plural society, in which all citizens can live in equality, safety and harmony, and prosper and fulfil their aspirations.
Under our Constitution, among other rights the equality clause is entrenched in Article 12 of the Chapter 3 of the Constitution. However, many people misunderstood or knowingly or unknowingly misinterpreted this clause to mean that this clause places all people under one category for all purposes and thereby suggesting to overlook or erode diversity when it comes to areas of religions, cultures, languages and personal matters like personal laws. The equality means equal before equal and unequal before unequal.
In other words, the equality clause should be interpreted and enforced equitably. The courts in democratic states across the globe, including Sri Lanka, have interpreted the equality clause in the context of diversity. However, it is submitted that our Constitution should provide further elaboration on how it could be enforced equitably. The South African Constitution has set out examples of it; the Article 9 (Equality Clause) contains 5 supplementary provisions which further explain the Equality clause. For instance, Article 9(2) states ‘Equality includes the full and equal enjoyment of all rights and freedoms’.
The Manifestation of Rights (Progressive Realization of Rights)
Since the modern States are empowered with expanded State powers, there is growing demand and indispensable necessity for states to play a generic role positively, beyond the traditional negative role of protecting rights. To make Fundamental Rights protection more meaningful, our Constitution should include and impose a generic obligation on the State, similar to the South African Constitution which in Art. 7(2) enacts,
State should stand with the Victim/s
Although our Constitution has enshrined certain Rights as Fundamental Rights in its Chapter 3, due to many reasons the victims do not normally seek redress in the Supreme Court.
For instance, since the victims have to file an action against some powerful State authority, the fear or threat (real or perceived) contributes decisively for the victim, when making decisions on this matter. Several States play a positive role for progressive realisation of the rights.
Such a progressive role could be originated by the state playing role as ‘intervener’ on behalf of the victims in Fundamental Rights actions.
One may argue that it is incompatible for the state to act against its own officers, but it should be justly noted that no state has the right to defend wrongdoers or human rights violators, but it has the obligation to stand with the victims of the human rights’ violation and appear or intervene on their behalf.. The Constitution needs to have a separate and distinct provision on this right.
The elaborated provision on Right to information, the provision that declares that people’s dignity should be respected and protected, right to privacy, rights of people with disabilities are among the other rights needed to be considered for inclusion.
The freedom of expression should be consolidated by explicitly permitting expression in all forms and in all media. (With the restriction to create harmony among communities and religious/ethnic groups.)
Economic Rights and Welfare State
The welfare State is not a superfluous requirement, but it is imperatively essential to protect the economic rights and dignity of the people.
Establishing social justice and helping people with welfare measures is a vital part of the social contract of the modern State. Hence, States have to move beyond John Locke and Rousseau’s concept of limited government without depriving the people’s Fundamental Rights (Even modern Liberalists promote welfare). For this purpose, the Constitution should guarantee the economic rights of the people.
These rights should be enforceable or justiciable rights.
Since Sri Lanka is a developing State which lacks necessary resources to provide for enforceable economic rights, the Constitution could limit the State’s obligation ‘within the limits of available resources’ as enshrined in the South African Constitution.
On the question of enforceable economic rights, the South African Constitutional Court has adopted the standard of ‘reasonableness’ as its primary adjudicative tool in relation to social/economic rights. Our constitution could include enforceable economic rights within the standard of reasonableness and within the available resource limitation.
Upholding Supremacy of the Constitution
If the constitution is all inclusive and accommodative and contains provisions on fundamental values and progressive protection of people’s rights, then there is necessity to uphold the supremacy of the constitution. The Articles 16, 80(3) and 84 of the Constitution undermine the concept that our Constitution is Supreme.
According to Rohan Edrisinha, the Article 84 instructs Parliament how it can introduce unconstitutional laws (Sunday Observer, 10 January Pg 16).
We had judicial review of laws till the introduction of 1972 Republican constitution. The popular argument against the judicial review is the concept of Parliamentary Supremacy, which is based on the UK Parliamentary Supremacy concept. However, after the UK accepted the legal regime of the European Union the UK Parliament is virtually no more supreme. The Constitution should provide mandatory provisions to ensure that good governance is really established in both letters and spirit.
Whatever the race or religion the people of Sri Lanka may belong to, they want to live a peaceful life with freedom and mutual respects. Hence, the constitution should be reformed to achieve this objective.
The constitution should not be reformed or amended to serve political expediencies of any party or to ensure the dominance of any group against others. The purpose and object should be, to establish distributive justice, including in political, economic and social spheres, to all Sri Lankans.
The writer is an Attorney-at-Law and Senior Lecturer in Law and International Politics.