Sri Lanka needs an ‘All inclusive and accommodative constitution’

24 February 2013 07:23 pm - 4 - {{hitsCtrl.values.hits}}

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Dr. M. A. M. H. Barry
Attorney-at-Law

The constitution is the organic law of any state. It regulates and articulates the relationship among the state and its people, people and people, state and the institutions, institutions and people and it also regulates the relations of that state and other states.

The purpose and objective of any constitution is to define, regulate, enforce and give practical manifestation to the terms of the social contract which the state has entered into with its subjects (people). The constitution should address the static or impassable matters, contentious issues and chronic problems faced by the people. These problems could be political, economic or social but the constitutional provisions should provide clear guidelines and mechanisms to resolve them.
The cardinal goal and purpose of any constitution should be the establishment of unity among the people and protecting the rights of all segments of the society. There is a proposal to amend the constitution of Sri Lanka. Our present constitution was amended eighteen times but Sri Lanka still seems like a fragmented and segmented society. No state could be united through regimental types of laws and administration system. When there is a diverse society with diversity in terms of religions, races, linguists, political opinion and other differences, the formula for unity stems from the recognition of the rights of these various groups or strata of the society.

The same is the case with Sri Lankan society where people want to integrate as one nation while maintaining and protecting their identities and rights. The constitution and law should make everyone feel that he or she is a part of one nation, and then people could contribute to the task of nation building to their optimum. The formula for uniting people is a non discriminatory approach of respecting rights and dignity of diverse people and not by discriminatory or divisionary attempt to make segments of the people or community/s to realise that its/their status and position is subordinate or inferior comparatively or relatively with others.

" The constitution also should provide provisions to establish the key attributes of good governance like (1) responsibility (2) accountability (3) people participation and (4) responsiveness to the needs of the people. "

The making of a constitution or amending it substantially, needs indispensably an all inclusive, participatory and people-centred process ( making of progressive constitution) to accommodate all shades of opinion without leaving anyone out of the process, while accepting international human rights standards and principles which in result could lead to a dynamic and a truly democratic society.

Recognition of Plurality
The acceptance and recognition of plurality is the greatest unifying factor and force of any nation which has multi racial, multi religious and multi cultural social formation. If we take India for example, India is a state with many languages, races and religions and other several diverse formations. With all these diversities not only does India strongly remain as one country but also people are emotionally united as Indians and they also feel that living as Indians is better than division and separation.

The Indian constitution gives the lead by laying down legal, moral and practical basis for this unity. The preamble to the Constitution of India states ‘to secure all citizens…Liberty of thought, expression, belief and worship. The constitution guarantees the freedom of religions in the concept of secular state. Article 25 guarantees to every person the freedom of conscience and the free profession, practice and propagation of religion. This provision is further consolidated in Article 26 which specifies the freedom to manage religious affairs and in the article 30 which provides to ‘all minorities whether based on religion or language has the right to establish and administer educational institutions of their choice’ and for this purpose the constitution expressly states ‘the state shall not, in granting aid to educational institutions discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language’. According to Constitutional law expert Dr.R.G.Chaudhari, the article 30 which provides above referred right is absolute and unrestricted (Law of Fundamental Rights 3rd edition page 667) The Indian Constitution also has provisions to deter the use of religion to cause disharmony or engage in campaigns of hate.

Pluralism in short, is the acknowledgment of diversity. In a society which comprises of people from numerous different cultural, religious and ethnic backgrounds, the assimilation of them into one monolithic culture or unit is neither natural nor an answer for divisions or disunity. Only through acknowledging and allowing cultural diversity of its citizen and through the process of integration, a state could achieve unity and harmony.

" The making of a constitution or amending it substantially, needs indispensably an all inclusive, participatory and people-centred process ( making of progressive constitution) to accommodate all shades of opinion "

Political Pluralism
The recognition of plurality should not be confined only to ‘racial and religious pluralism’; political pluralism is a necessary part of it. The political pluralism implies an individual or groups of individuals the rights to conceive and express any political ideology or principle (except one which creates hate and disharmony among communities) which could be presented before the people for acceptance or rejection. The right also falls under the right of ‘freedom of expression’. This right should be protected by the state and state institutions irrespective of the party or parties being big or small.

The freedom to form political parties and educate people of their ideologies and principles are essential ingredients of a viable democratic society. The political pluralism is a guiding principle in a democratic society which permits and facilitates the peaceful coexistence of different interests, convictions, ideologies and policies. It acknowledges the diversity of interests and allows the members of society to accommodate and settle their differences through democratic engagements, which could to lead to a democratic equilibrium.

When the people are not free to express their views freely and their rights are proscribed, there is a natural tendency that they go underground and this in turn will cause unhealthy developments which could lead to destructions. The proscription of JVP and other two parties after the 1983 riot (for which, they were not responsible), unfairly suppressed their democratic rights of expression and sent them (especially JVP) underground which led to the second JVP insurrection. The final results were untold miseries, deaths and destructions.

Participatory Democracy
The democracy is not always numbers and majority rule. The democratic system should reflect the terms of the social contract in which the state accepts its obligation to address the grievances of its entire subjects. In General elections where the winning party/alliance obtains 51% and the opposition/s obtains 49% , by the number rules the party/alliance that won 51% will be the ruling party/alliance which will get the opportunity to implement their manifesto, and parallely the policies and programmes for which 49% of the people voted, will be discarded. In the context of modern political development, we are witnessing in several states the convergence of the ruling party and opposition (not necessarily national government) as it becomes necessary for the achievement of political/economic stability. This does not mean that the Opposition should always support the ruling party but it also could be the other way namely the government also accommodates the oppositions’ views.

The parliament should have representations to reflect all shades of opinion for which the election law should be amended to provide representations to small and minority (political) parties. Besides, there should be nominated members either through second chambers (if such chamber is created) or reserved/national lists to accommodate technocrats, eminent intellectuals, unionists and representatives of professional and intellectual bodies. Such appointment should be made on the recommendation of an independent body acting unbiasedly and who are not politically affiliated.

By creating an environment to express freely (with restriction on matters creating disharmony and intolerance) and providing opportunity to accommodate diverse opinion in the Parliament, the path could be created for participatory democracy which would have an inclusive process.
Article 21 of the Universal Declaration of Human Rights recognizes the importance of a participatory government and article 28 states that everyone is entitled to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realised.

Welfare State
Modern states are welfare states, in the areas of providing social justice and welfare they have to move beyond John Locke and Rousseau’ s concept of limited government without depriving people’s fundamental rights(even modern liberalists promote welfarism). The constitution should guarantee the economic rights of the people. These rights include (a) right to earn (b) right to education (c) right to shelter (d) rights to health care (e) freedom from repressive labour practice and other social rights which provide social benefits. Although our constitution has elaborated and included most provisions of the Convention on Economic, Social and Cultural Rights (1966), in the chapter on ‘State Directives’ these rights are not enforceable like some of the Political and Civil Rights.

One may argue that the economic rights cannot be enforced because Sri Lanka is a developing state and it lacks necessary resources to provide enforceable economic rights. To overcome the ‘lack of resources’ argument the constitution can have a provision or provisions which lay down the standard limitation to the progressive realisation of these rights by stating that these rights are enforceable ‘within the limits of available resources’.

(proposed Zimbabwean model). In interpreting enforceable economic rights the South African Constitutional Court has adopted the standard of ‘reasonableness’ as its primary adjudicative tool in relation to socio-economic rights. Our constitution could include enforceable economic rights within the standard of reasonableness and within the available resources limitation and when Sri Lanka reaches sustainable stage the Economic Rights could be given the same weightage like the Civil and Political rights by enshrining them in the constitution through constitutional amendments.

The constitutional provisions are needed to ensure satisfactory and efficient public services. The bureaucratic red tapism and lethargic attitudes of those who work in public service not only cause negative service to the public but they also negatively contribute to the development of the country. The public services should be made people centred. There should be an effective mechanism to entertain and resolve the peoples’ grievances which stem out from poor service of the public servants. Such a mechanism could be decentralized and departmental based with the two tiers- first instance and appellate. The present ‘Ombudsman’ system is centralised and does not redress the public’s real problems in this sphere. The government servants also should be protected from political or any undue influence

Expression of Rights
In our time, there is an increasing demand for enforcement of rights as a response to rapid expansion of state power. The fundamental rights provisions in our constitution have to be expanded and consolidated. Our constitution does not have a provision on ‘Right to Life’ though it was implicitly and tacitly recognised in the Article 13(4) of the Constitution (Kottabadu Durage Sriyani Silva case 2003). The constitution needs to have a separate and distinct provision on this right. The Right to information, Right to privacy, right of people with disabilities are among the others 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 groups)

" The Right to information, Right to privacy, right of people with disabilities are among the others 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 groups) "

Reinforce the justiciability of the Fundamental Rights
The Constitution should explicitly grant locus standi to any interested person to file fundamental right action on behalf of third parties – including members of an association, group or class of persons. It should have provisions to mitigate all the technical or prescriptive difficulties currently faced by the litigants in the fundamental right action.

The victims whose fundamental rights are violated need to be redressed and justice should be done. There could be several cases where justice is denied to the victims because they failed to prove their cases due to some failures or technical defects. To mitigate this situation the victims should have at least another opportunity to appeal against the defeated case to the Superior Court. This could be done only if the fundamental rights action contains two tiers – (1) first reference/hearing and (2) Appellate jurisdiction. The Court of Appeal could be given the power to hear the case in the first instances, while the victim/applicant retains the right to appeal to the Supreme Court. This will serve as a deterrence and confidence factor. The deterrence to the potential violators and confidence to the people who could believe that their remedy seeking opportunity is further consolidated. This is not to suggest that the present system is ineffective but made as a suggestion to promote further and strengthen the enforcement process.

Good Governance
The constitution also should provide provisions to establish the key attributes of good governance like (1) responsibility (2) accountability (3) people participation and (4) responsiveness to the needs of the people. The concept of good governance is not exhaustive or few words definition, all the good and benefits to the people could be included under it. It is through good governance that human rights could be respected and protected in a sustainable manner.

Until and unless our constitution leads through its dynamic and protective provisions to act as the symbol and the legal basis for the unity to keep together the various people with different religious, racial, ethnic, social, political, economic and other diverse identities, and guarantees them freedom and protection; the unity and harmony among different people become remote and uncertain. The absence of apparent harmony among the various people causes multiple alarms and suspicions which must be completely eliminated. The constitution should provide entrenched provisions which protect rights and unite people which in result provide common space and equal opportunity to everyone regardless of ethnicity and religion to contribute for the well being of each other and prosperity of this nation in the path of establishing a vibrant, dynamic, functioning and tolerant democracy.

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Comments - 4

Gamarala Sunday, 24 February 2013 08:51 PM

All the problems of the S/L Presidency could be attributed to that swollen headed megalomaniac Junius Richard Jayewardene the worst leader we have had since Independence.

Pol Pot Monday, 25 February 2013 08:16 AM

No wonder Sri Lankans of all Faiths and Ethnic Backgrounds get on dangerous leaky Boats to reach Australia and Canada.

Pasel Monday, 25 February 2013 01:01 PM

What do you mean all inclusive?

White van, murder,media to threat , family law, parliament control the justice system

Charles Samarasekara Friday, 01 March 2013 10:25 AM

Sir this is an awesome article....I really enjoyed reading it...I agree with you!!

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Sri Lanka needs an ‘All inclusive and accommodative constitution’

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