The Constitution of India was perhaps the greatest political venture since the Philadelphia Convention’ -Granville Austin
“We need a robust campaign from civil society” said Dr. JayampathyWickramaratne, President Counsel and MP, at the first Constitutional Day of India. The ceremony which was held at the Lakshman Kadirgamar Institute of International Relations and Strategic Studies recently, focused on a presentation by Dr. Wickremaratne under the theme: ‘The making and working of the Indian Constitution- some issues of relevance’.
Dr. Wickramaratne began by describing the constitution making process of India which was traced to Gandhi’s statement in 1922: “Swaraj will not be a free gift of the British parliament; it will be a declaration of India’s full self-expression”; a demand which was accepted by the British only in 1940. The Constituent Assembly put forward eight “objective resolutions” which were unanimously adopted in 1947 and the Constitutional Assembly process was perhaps the most inspiring process to democracies with Granville Austin stating ‘the adoption of the Constitution of India was perhaps the greatest political venture since the Philadelphia Convention’ After 114 days of sitting the drafting committee, headed by Dr. Ambedkar, published the draft constitution which was discussed with public participation for over eight months. In the period between 1948-1949 the draft was discussed clause by clause with an astounding 7,635 amendments proposed out of 2,473 discussed. The final product was adopted on the 26th of November 1949 where 284/299 were present and came into force on the 26th of January 1950.
Dr. Wickramaratne highlighted several features of India which were relevant to Sri Lanka. The first was that the nature of the state was not described. There was also the concept of “state citizenship; everyone was an Indian citizen and there is no duality. The constitution was supreme and all Acts violating the constitution can be challenged. Ordinarily a 2/3rd majority is needed for amendments but some need ratification by half of the state legislature such as the election of a president and the distribution of legislative power between the union and states. Interestingly, and controversial to Sri Lanka, reorganisation of the states does not need a 2/3rd majority as per Article 3 and 4. The constitution also had an unalterable basic structure, which was highlighted through several Supreme Court cases such as GolakNathin 1937 and the famous case of Minerva Mills Ltd. V Union of India in 1980. Minerva Mills reaffirmed the unalterable nature of the constitution by striking down the 42nd Amendment which was a response to the celebrated case of KesavanandaBharati (1973) and gave Parliament a limited power of amending by defining the word “amendment”, by holding that the Constitutional Amendment itself was held unconstitutionally.
Another feature of the Indian constitution is ‘Inclusive Government’. State power is shared between the union and the states. The boundaries of the original states have been re-organised to meet the issues posed by linguistic and other challenges. Tamil Nadu was separated for the Tamil speaking people; Kerala for the Telugu speaking people and so on and there is autonomy within states such as special powers in Ladakh and Bodoland.
According to Dr. Wickramaratne Sri Lanka has a lot to learn form the case of Vishaka v Rajasthan and the use of international treaties in the absence of legislation for sexual harassment and gender equality in workplaces in the case of rape of a social worker in Rajasthan. In the absence of legislation the Supreme Court relied on provisions of The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) on the same issue to supply the law which then led to the Sexual Harassment Act in 2013.
"A modern constitution is the need of the hour and its supremacy needs to be upheld with no immunity being given to anybody"
Dr Wickremaratne moved to the constitution-making process in Sri Lanka. Unlike in India the British constitution did not provide for a Constituent Assembly. In 1972 the process was dominated by the United Front and had limited public consultations. 1978 also had very little public participation under the UNP and in both cases there was no Tamil participation whatsoever. This time in formulating a new constitution, the government intends to follow the procedure laid down in the constitution. One option in how the constitution will be formulated are the select committees but they were opaque and had little public participation. Hence the favoured method is for Parliament to sit as a committee to agree on a draft that will command a 2/3rd majority. A commission will run parallel to this committee to receive representations, both written and oral, which it will then feed to Parliament.
Civil society need to get heavily involved in the process in any manner they wish since these ideas are need to bring about an effective constitution. A referendum is a must, leaving aside the constitutional need for one with regards to several articles such as Article 11 which needs a referendum “to even change a comma”.
Dr. Wickremeratna gave his personal idea of an ideal constitution. “We need to look into the future. A modern constitution is the need of the hour and its supremacy needs to be upheld with no immunity being given to anybody. Furthermore it is vital that labels are avoided in describing the nature of the state. In addition the “different peoples” of Sri Lanka need to be recognised as ‘constituent peoples’. He also felt that being a secular state was not contradictory to the special place given to Buddhism. He was also a staunch believer in devolution, being born in a “remote village at the foot of the Knuckles Range”. Devolution is not only needed to solve the national issue but to empower people all over the country.
There needs to be devolution to empower the Sinhalese in the East as well as the Tamils all over the country with special provisions for dispersed communities. The local authorities also need to be given more power since there is a right of every community to share state power. This should be coupled with special safeguards for power-sharing. Peoples’ participation is also mandatory especially in village level governance. Furthermore the electoral process needs to have equitable representation for ethnic and political groups
An important inclusion needs to be a modern Bill of Rights. Dr. Wickramaratne thought a good example of social, economic, cultural, women’s and children’s rights was that of East Timor. His recommendation was that human rights treaties to which Sri Lanka becomes party to, should become law within two years especially since that several treaties that Sri Lanka has been part of, has never seen the light of day in domestic legislation.
It is not only evident that the process of formulating a new constitution is underway but also the shape and colour of it. The comparison done by Dr. JayampathyWickramaratne is essential in highlighting aspects that can be followed and used in bringing about a change in Sri Lanka without relying on the formulation of constitution after constitution to address that arise. “A futuristic vision is needed,” said Dr. Wickremaratna.