Yes, We CAN Learn Something From Other Initiatives Elsewhere!
A recent article by one of the senior journalists at Canada’s national newspaper, the Globe and Mail, brought back memories of better than three decades of life (and political activism) in that country. I speak here of John Ibbitson’s piece commemorating and celebrating the thirtieth anniversary of the introduction and adoption of the Canadian Charter of Rights and Freedoms.
Mind you, that journey and the experiences garnered are bound to bring down on my head the usual torrent of vituperation from the xenophobic hordes so determined to display their support of our Sri Lankan hegemony at every possible opportunity. Suffice it to say, though, that, having written to this newspaper for better than three years now, such abuse tends to leave my back as quickly as the proverbial water does a duck’s!
To quote Ibbitson, “Could it be that Canada has surpassed or even supplanted the United States as a leading global exporter of constitutional law? The data suggest that the answer may be yes. So conclude two U.S. law professors whose analysis of the declining influence of the American constitution on other nations will be published in New York University Law Review in June.”
Of course, those believing that China (and Russia?) provide the model for our country’s future as the “Miracle of Asia” will loudly contest this, trotting out the usual accusations of the duplicity, arrogance and hypocrisy of the so-called “Western World.” Let me say, right off the bat, that I will not contest the intellectual premise of this argument in the same way that one can never disprove the ancient argument that because a glass half full is a glass half empty, a full glass is an empty one!
Let me pause here to state what should be the most obvious FACT in the world: notwithstanding an acceptance of the truth of the accusation of hypocrisy, duplicity and arrogance leveled against the Western World, there is no gainsaying the fact that those countries – particularly the United States of America – have on their statute books a body of laws, rules and regulation that provide and have provided the best framework for democratic governance. In fact, so much as a comparison in this regard between China and the Western Democracies would be absurd in the extreme because China herself does not pretend to be a democratic state! And as for Russia, recent “electoral” history and the repression and murder of opponents within its boundaries speak loudly enough!
The Canadian Charter has the advantage of being a relatively recent piece of legislation and, therefore, had the advantage of having been able to draw from the best of previous similar documents developed by democracies elsewhere, leaving out provisions in other landmark constitutions which have proven disastrous but difficult to remove.
The U.S. Constitution, for instance, once considered the foundational document for nations seeking to establish democracy within their boundaries, has fallen out of favour because of provision such as “the right to bear arms” which had the seeds of its own perversion within it since the birth of the USA. and has contributed nothing towards the defence of the USA but has certainly been the prime contributor to that country’s status as one of the most violent nations in the world.
Also, the Canadian Charter of Rights and Freedoms goes beyond the traditional listing of “thou shalt nots” that such documents often contain and enshrines such concepts as the protection of mobility and language rights and the presumption of innocence (“white-vanning” obviously not permitted!)
An interesting provision which might be particularly applicable to Sri Lanka in the event that there is ever any devolution of powers to other levels of government is the fact that what is known as the “notwithstanding clause” gives the various levels of government only limited power to override court decisions. Also, the Canadian Supreme Court is considered a model in the matter of balancing constitutional and legislative powers, something extremely difficult, if not impossible, to replicate in a Sri Lanka post-18th Amendment!
A recent U.S study which provided a detailed comparison of constitutions around the world in the matter, not only of their individual performances but how they have interacted and influenced each other has suggested very strongly that the Canadian Charter of Rights and Freedoms is the pre-eminent document among those from democratic jurisdictions in this respect. We desperately need a new constitution and we need to look at existing models rather than try once more to reinvent the wheel. God knows we tried that approach twice before, resulting in monumental failures in both instances. To continue the same approach in our efforts to return Sri Lanka to democracy, civility and good governance is a certain recipe for failure. Do we truly want to return our country to the Middle Ages of dictatorial rule by Royal Families through amendments to a very flawed document or designing another abomination like the two that preceded it?
One major difficulty in adopting a similar approach to that used by Canada in the matter of constitution-making is the fact that Canada has been and continues to be seen as “mild-mannered” particularly as compared to its southern neighbor, the U.S.A. Consider the fact that if the stupid cultural and political arrogance displayed by our ruling junta is in any way reflected by the population at large, the last thing they’d want to be is seen as “mild-mannered!’ However, having more respect for the essential decency and good sense of Sri Lankans at large, I would doubt that the people of this country are victims of the stupid and mindless arrogance of their rulers.The Canadian Charter of Rights and Freedoms could well be a model for our future. In closing, a significant fact must be mentioned. When, thirty years ago, the Canadian Constitution and the Charter of Rights and Freedoms was repatriated from Great Britain, the (Francophone) Province of Quebec was the single hold-out to that process. Today, three decades later, the vast majority of Quebecers support that document. Don’t you think that comparisons with our current predicament in the matter of communal amity and commonality of purpose might be appropriate?