South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Presentation made by Lal Wijenayake, Chairman of the Public Representations Committee on Constitutional Reforms at a seminar organized by the South Asians for Human Rights (SAHR) held in Kathmandu, Nepal on ‘Citizens’ participation in Constitutional making’

Constitution of a country is said to be the basic law of the country. Constitution is also said to be the document that sets out the relationship between the three main organs of the State, that is, the Legislature, Executive and the Judiciary. Constitution is also seen to be the agreement between the State and its’ citizens as to how the citizens are to be governed. The State is the most powerful institution with powerful repressive arms, the armed forces, the Police, the administrative machinery and the Judiciary at its command. Constitution in a democracy is the instrument that protects the citizens from arbitrary and repressive actions of the State.
Therefore, it is the citizen who needs the Constitution to protect his rights. Therefore, the most important stakeholders in Constitution making are the citizens of the country.

Considering how modern societies are organized politically it is not realistic to think of complete separation of powers between the Legislature, the Executive and the Judiciary. The closest to the ideal of separation of powers that is realistic today is the existence of checks and balances between the Legislature and the Executive with a strong and independent Judiciary.

The core elements of democratic governance or good governance would be
n The right of citizens to elect their rulers from time to time at free and fair elections
n Rule of law
n Independence of Judiciary and
n Respect for fundamental rights.

In whatever way we look at it, it is the citizen who needs a Constitution to protect himself from arbitrary actions of the State and to keep democracy alive. Therefore, citizens have an important role to play in the process of Constitution making.
A Constitution made without the participation of the citizens in the process of making the Constitution will not be a Constitution of the people.
Then the question is posed as to at what stage of the Constitution making process the people should be consulted. For the Constitution to be the outcome of a consultative process, the consultation should be before deciding on the basic structure of the State, separation of powers, nature of power sharing, and in short before the basic decisions regarding the form of the Constitution is decided. Therefore, the consultative process has to be the 1st step in the making of a new Constitution.
A Constitution has to be legal as well as legitimate. The Constitution derives legality by following the accepted procedure for the promulgation of a new Constitution and the adoption of the Constitution at a referendum. The legitimacy of a new Constitution is derived through the consultative process.

Sri Lanka has a long history of Constitution making. In 1931 Sri Lankans (Ceylon as it was then) was granted universal franchise. Every citizen above the age of 21 irrespective of his / her social standing was given the right to vote to elect the Legislature. That was many years before many of the developed countries were granted universal franchise. The 1st Constitution, while the country was under British rule, was the Donoughmore Constitution of 1931, where limited legislative and executive powers were vested in an elected Legislature under universal franchise. The 2nd was the Soulbury Constitution of 1947, while still under British rule, but at verge of gaining independence, which was in 1948. Under the Soulbury Constitution, a parliamentary form of government under British/ Westminster model was established.

This Constitution lasted till 1972 when the then government on the mandate received from the electorate at a general election proclaimed the 1st home-made Constitution which is known as the 1st republican Constitution. This Constitution declared Sri Lanka to be a Republic and hence it brought about a complete break from the British crown.
This Constitution was repealed and a new Constitution was proclaimed in 1978, which created a Presidential system of government replacing the Parliamentary system of government that existed from 1947. In the making of none of these Constitutions of 1971 and 1978 were the people consulted before the making of the Constitution. In fact, the 1978 Constitution was drafted without any intimation of a new Constitution being drafted and was presented to Parliament as an urgent Bill. This must be the 1st time in the history of Constitution making that a Constitution was presented as an urgent Bill, without the people having any knowledge of its contents. Therefore, the Constitution of Sri Lanka was alien to the people and challenged by the people, which created a politically deeply divided country.
The present government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe has decided to bring a new Constitution for Sri Lanka. There is a valid reason and an urgent necessity to do so as during the last few years we have witnessed in Sri Lanka, complete breakdown of rule of law, blatant violation of human rights and fundamental freedoms and corruption unknown in the living history of our country. The constitutional safeguards made in the present Constitution have failed to protect democracy, rule of law and fundamental rights during the previous regime.

In making the new Constitution, it is to be seen that the government has decided to consult its citizens on what the Constitution should be and what the citizens expect from the Constitution. This is a vital step in the process of constitutional making.
The government has appointed a commission of 20 members to hear public representations on constitutional reforms. The process is on with the commission visiting all the 25 districts of the country after giving wide publicity of its visit to the district to enable citizens to make oral or written representations. At the same time, the commission has called for representations in writing, through email, through a website, etc. The commission has received hundreds of representations from all layers of society, from academics, professionals, trade unions, cultivators, workers, students, and those civil society organizations.
In Sri Lanka ordinary people were under the impression that the Constitution was for academics, lawyers, judges, etc. But as a result of the consultative process, the people have started discussing about the Constitution freely, in different forums and even in buses, trains and on the streets.
It is our experience that people come out with their problems which on the surface seem to be a personal problems but when looked at deeply they have something to do with the basic laws of the country including the Constitution.

Further it is seen that the main grievances of the people are
n Abuse of power by politicians.
n Disgust in the political culture
n Failure to protect people from abuse of power.
n The failure of the administrative machinery to reach the people.
n Destruction of the environment
The people have shown tremendous enthusiasm and interest by coming forward in large numbers to express their views on the new Constitution. The process has enlightened the people to the fact that the Constitution of a country is for the people and one has to seek protection under the Constitution in case of abuse of power by the State or an institution of the State or by even an individual.

Updated On: 2016-03-30