The right of the people to participate in the process of formulation of a constitution is also recognised by the law.
by Victor Ivan
The ‘Anidda’ newspaper of previous week had published an article titled ‘People’s Constitution, the Myth and Truth’, vehemently criticising the idea that Sri Lanka needs a People’s Constitution. The article has been written by the editor of the newspaper who is an Attorney-at-Law and a lecturer in Law, instructing the students sitting for the Law College entrance examination. He can also be considered as one who appeared strongly for the defence of the reform program of the previous Yahapalana Government.
In that article, he has raised eight key questions against the concept of ‘People’s Constitution’. They are as follows: (1) Who are these people? Do they include the 6.9 million people who voted for Gotabaya Rajapaksa? (2) Where does the so-called People’s Constitution commence from? Who will take the initiative for that, and where do they derive the authority to do that? (3) Are all the people from village to village and city to city expected to sit down and talk directly about the issues that should be included in the constitution? (4) What are the major steps taken in making such a constitution, one by one? (5) From where does the draft of the constitution compiled by the people in this manner derive the legal validity of it? Could it become law merely because it has been drafted by the people themselves? (6) Would this constitution be enacted subject to the provisions of the 1978 Constitution? (7) If it is to be enacted outside the existing Constitution, has there been a revolutionary change in the country at recent times bestowing them the power to do so? (Like in post-independence India or post-independence Africa where the black people regained power from white supremacy; or at least, has there been a mandate to free the country from Dominion status and become a republic as had happened in Sri Lanka in 1970) (8) What is the course of action to be followed, if anyone wishes to propose amendments to the draft of the People’s Constitution? If the process is to be challenged, how could it be initiated?
The answer to question number one is that the 6.9 million who have voted for Gotabaya also belong to the category of the ‘people’. In 2016, a large number of them seem to have exercised their vote against Mahinda Rajapaksa, and in favour of the candidate who stood for a system of good governance. The answer to the question number two on ‘where does the so-called people’s constitution commence from, who will take the initiative for that, and where do they derive the authority to do that’, is as follows.
The situations where nations need to go for a new constitution can emerge in many forms. The nations that have gained independence from foreign domination liberated from dictatorial or oppressive rule or achieved peace after a long and protracted internal strife may need a new constitution. Apart from that the nations can adopt a new constitution for even simpler reasons. There are certain nations that have formulated new constitutions due to strong pressure exerted by the people demanding a new constitution.
Moreover, it would be possible for a nation state to adopt a new constitution in crisis situations where it finds it unable to maintain its activities or it has fallen into a state of extreme decadence or has become a failed state, as a means of overcoming the crisis. By 1990, South Africa remained in a similar situation. Today, to a great extent, Sri Lanka also is in a situation similar to that which existed in South Africa at that time. We in Sri Lanka, which is in a deep crisis at the moment, have an important lesson to learn from South Africa. It also provides the answer to question number two raised by the questioner.
South Africa and Sri Lanka
Let’s have a brief look at the South African experience. The first meeting between Mandela, who was in prison and Prime Minister Botha, took place in 1989. On 2 February 1990, the government lifted the ban that had been imposed on the African National Congress (ANC) and the Communist Party. Ten days later, Mandela was released from prison. On 6 August 1990, the African Congress announced its decision to end the ongoing armed struggle against the government.
Official negotiations were begun in 1990, instead of the secret talks that had existed until then. Discussions began in 1991 on the process by which a new constitution could be formulated to build a democratic South Africa free of apartheid. The peace process pursued by Prime Minister Botha’s government had however provoked strong opposition from the Conservative Party, a right-wing political party of the White community in South Africa.
Under the circumstances, Prime Minister Botha was compelled to hold a referendum restricted only to the Whites as the leader of the Conservative Party continued to accuse the government of Botha that it has not received a mandate from the White people to pursue a program of negotiation with the African National Congress. Consequently, a referendum was held in March 1992, and a majority of White voters, 68.73% endorsed the ending of the apartheid policy.
Subsequently, in April 1993, the two sides reached a consensus to pass a by-law that will grant power to set up an interim government and adopt 34 principles and procedures applicable to the process of making a new constitution. The by-law, which was drafted outside Parliament, was presented to the Parliament as Act No. 200 of 1993 and passed by a two-thirds majority, on 24 April 1994.
The by-law set out the manner in which an all-party government should be set up for a period of five years, formulate a new constitution and the other reforms to be introduced until an election is held and a new constitution enacted. The all-party government was presumed to be acting in accordance with the terms and guidelines specified in the interim constitution until the new constitution was drafted and passed.
There is an important lesson that we in Sri Lanka could learn from this historic experiment in South Africa. There may be times that the hurdles encountered in the constitution-making process cannot be overcome by conventional and familiar methods. The system chosen by Mandela and Prime Minister Botha initially, and later by Prime Minister de Klerk for the transformation program for South Africa was unconventional, but was in accordance with the law.
The interim constitution which was in effect until the permanent new constitution was formulated and adopted, was drafted not in the legislature but outside it. Neither Mandela nor anyone of his team who helped formulate it were members of parliament. It shows that even a powerful and active group of people who do not represent the Parliament, could, at a time when the stage is ripe for a real transformation, make use of that space, subtly and optimally, perhaps even to a large extent, to prepare the way for the transformation even outside the traditional framework.
Sri Lanka now, to a large extent, is in a situation similar to that prevailed in South Africa at that time. The Government also is in an equally bad form causing strong opposition and anger in the people despite having been elected to power with a huge mandate. The crisis facing the country is beyond the control of the Government. People are extremely vexed with the Government, but the opposition parties have not been able to exploit this atmosphere to strengthen themselves to a sufficient extent.
In the face of the growing crisis, the Government too, is in a weak position being unable to hold on to power, at least until the end of its official term. In this backdrop, it is only by directing the country towards adopting a genuine structural reconstruction program accompanied by a new constitution that it would be possible to rise to the occasion with some measure of confidence and minimise the potential of devastation likely to befall on the country.
If the people’s organisations in this country could get together and make a deep voice for this cause, like in South Africa, it would be possible to pave the way for a reform program. If the doors are opened creating a platform conducive for such a program, the President will be able to restore his image and safeguard his acceptance. Even the Government and the Opposition movements could win for them, a certain degree of recognition by active involvement in a program of this nature which will eventually help change the course of the country.
If Sri Lanka is able to achieve this objective, it will certainly be possible to kindle a new ray of hope in the people who, at the moment have lost their hopes, and also reverse the journey of Sri Lanka which at the moment is moving towards a great abyss. If the doors can be opened for such a reform program, it will require the adoption of a by-law similar to that of South Africa, to implement it. All these would be possible only if Gota could be transformed to a Botha by the prevailing social crisis.
Under the present crisis, even if this effort aimed at paving the way for a reform program fails, it will not be in vain. The stronger the effort of the public to achieve it, the more the reforms will touch the hearts of the people. Further, it will serve as the major factor affecting the next change of the government and enhancing the importance of the reform program associated with it.
The questions number three and four of the questioner is as follows: “Do all the people from village to village and city to city sit down and talk directly about the issues that should be included in the constitution? What are the major steps taken in making such a constitution, one by one? These two questions reflect that the questioner has never heard of the making of people’s constitutions or ‘participatory constitutions’. It is not a method being tried for the first time, but one that has been tried and tested by most countries in the last 40 years.
It is a system that has been acknowledged by the United Nations as well. It is recognised as the 21st Century Model of constitution-making. Some of the countries where this model of constitution-making has been implemented are as follows. Nepal (2015), Kenya (2010), Rwanda (2002), Thailand (1997), Eritrea and Venezuela (1999), South Africa (1994), Uganda and Brazil (1988), Nicaragua (1986) and Namibia (1985) adopted this method. Currently significant experiments are undergoing in Chile.
The series of events outlined above provides an indirect response to a number of arguments raised by the editor of the Anidda Newspaper. There are many important lessons that we in Sri Lanka could learn from this. Chile can be considered as a country that has aroused the interest of the people of Sri Lanka on account of the personalities of the calibre of Allende, Chile’s first socialist president and Fablo Neruda, Chilean poet-diplomat and politician who won the Nobel Prize for Literature in 1971. Chile also has a constitution formulated under the rule of Finoche in 1980, which has been amended 15 times like the J.R. Jayewardene’s constitution of Sri Lanka.
On 25 October 2019, the people of Chile rallied in Santiago city, and launched a vehement protest demanding for a constitution that would bring about a fundamental change in the overall system of governance of the country. It is reported that nearly 1.2 million people attended the event. Since then, Chile has become a country of thunderous street protests. Another important demand of the people regarding the making of a new constitution has been that the government should hold a referendum to find out the kind of change the people were demanding for.
Subsequently, a referendum was held in October 2020. 78 % approved the need for a new constitution. 79% approved the setting up of a constitutional assembly consisting of public representatives only, instead of one that gives priority for the representation of the Members of Parliament. The results of the elections held on 15, 16 May in 2021 to elect the people’s representatives to the constitutional assembly were also remarkable. The most important highlight of this election is that 49.5% of the elected representatives were women.
It is the first constitutional assembly in the world to have had 50% female representatives. The next important thing is that 66% of the elected representatives were reported to be independent representatives. The Chilean experience clearly reflects that a formulation of a constitution can be won by a powerful mass campaign even in the absence of an election victory. It also shows that a constitution can be enacted without the participation of the Members of Parliament.
Although the ‘people’s’ or ‘participatory’ constitution making is the most popular model being adopted by the countries that are formulating constitutions at present, it is still in the process of being tested further on new participatory structures and models. As Professor Vivian Hart has stated, “By experimenting participatory structures and providing the opportunity for citizens to take initiative in this process, an attempt is being made to create an open dialogue on making of participatory constitutions so that the participation of public is extended to the spheres of compiling the agenda, content and final endorsement.”
The right of the people to participate in the process of formulation of a constitution is also recognised by the law. The provisions available for the public to exercise this right optimally serves as an index that determines the extent of legitimacy of the process of the present-day constitution-making. Finally, this approach seeks to formulate and adopt a constitution which is acceptable to all and winning their respect, in a democratic manner, following a public dialogue being carried out continuously, openly and involving all relevant parties.