Third Republican Constitution: A Phoenix Rising From The Ashes
By Wimalanath Weerarathne
Three committees have been appointed thus far, of which Dr. Jayampathi Wickramaratne heads the committee entrusted with the task of drafting the new Constitution. Attorney-at-Law Lal Wijeratne chairs the committee mandated to engage the participation of ‘civil society’ organisations together with the public at and thereby ensure that there is good dialogue with the people. Prime Minister Ranil Wickremesinghe heads the Parliamentary maneuverings and even tabled a resolution converting Parliament into a Constituent Assembly for the purpose of formulating Sri Lanka’s Third Republican Constitution on January 09.
The Constitution is the fundamental law of the country and represents the aspirations of its people. The constitution is crucial in that it ensures that the rights and freedom of the public are is ensured.
1947 Soulbury Constitution
The 1947 Soulbury Constitution directed the newly-born Asian nation for the next three decades. The Constitution was based on the requirements of none other than the ‘Father of the nation’ and first Prime Minister of independent Ceylon – D.S. Senannayake. This Constitution was not built on the aspirations of the native people and adhered upon us by the British Raj just like the Colebrooke – Cameron Reforms (1833), Crewe MaCallum Reforms (1912), Manning Reforms (1922); and finally the Donoughmore Reforms (1931) which introduced universal suffrage to the then Ceylon.
Although, minority leaders complained to the colonial rulers that the Soulbury Commission did not represent their interests, the influence of Premier Senannayake and Lord Soulbury prevailed upon them.
1972 First Republican Constitution
According to the 1972 Constitution, Sri Lanka was born by replacing the then Ceylon and was declared as an unitary state. The leftist leader Dr. Colvin R de Silva who scoffed at discrimination against the minority by the previous United National Party (UNP) governments, made a 180-degree summersault and gave prominence to Buddhism in the constitution for the first time in the history of Sri Lanka.Sinhala was made the official language. This led the Federal Party to lodge its opposition and walk away from the 1972 Constituent Assembly. As such, Dr. Colvin R. de Silva who at one time fought for the rights and freedom of the people was no better than the colonialist Lord Soulbury.
The radical ‘left’ also condemned the Constitution as being pro-Sinhala and biased towards the interest of the elite and the bourgeois. As such, this Constitution shamefully disregarded the interest of the Tamil speaking people and did not have a pluralistic approach.
1956 Sinhala Only Act
When the then Prime Minister S.W.R.D Bandaranaike-led Mahajana Eksath Peramuna (MEP) presented the Sinhala Only Act in 1956, it was none other than Dr. Colvin R de Silva who made his all-time famous prophetic call – ‘Two Languages One Country, One Language Two Countries.’ Thereafter, the marginalised Tamils celebrated May 22 - the date on which Sri Lanka became a Republic as a day of mourning. This led to the birth of the Tamil United Liberation Front (TULF) which rejected the Republican Constitution adopted on the 22 May, 1972, and presented a ‘six-point’ demand to the Prime Minister and the government on 25 June, 1972. It also gave three months during which the government was called upon to take meaningful steps to amend the Constitution so as to meet the aspirations of the Tamils. This finally led to the passing of the ‘Vaddukoddai Resolution’ on May 14, 1976, in which the TULF espoused the notion of a separate state for Tamils.
1978 Second Republican Constitution
1978 was a bleak year in the history of Sri Lanka. Then President J.R Jayawardene who had a sweeping majority and built a regime that not only totally disregarded the minorities but also oppressed them.
The supremacy of the Parliament was replaced by the Executive Presidency and not only the Head of State i.e. the Executive President was not answerable or accountable to the Parliament but was also immune from any legal proceedings. Any person who ascended to the position of the Executive President was ‘de-facto’ or above the Law. This new model was the combination of both the French and United States Presidential structures and the oppression unleashed by the Executive President.
Learning from our past experiences it is commendable that the present National Government is taking pains to come out with an all-encompassing and all-inclusive constitution. Both Dr. Jayampathi Wickramaratne and Attorney-at-Law Lal Wijenayake emphasised that the new Constitution re-enforced the Rule of Law and guaranteed the rights of all the people.Unfortunately, former President Mahinda Rajapaksa used his powers not only to empower the people but to empower himself. By enacting the 18th Amendment he ensured that he would remain in power. However, in an unprecedented turn of events, the people voted against Rajapaksa and President Maithripala Sirisena came into power.
The most important part in a people’s constitution would be the consultation phase where active dialogue with the civil society organisations and general public takes place. Only the successful implementation of this phase can ensure that the path towards the new Constitution is fully transparent and truly democratic.
The technical phase too is of great importance. As such, it is commendable that authorities in this field such as Prof. Savithri Gunasekra, Dr. Deepika Udagama, Dr. Nihal Jayawickrama etc are involved. However, on the other hand Sri Lankans living overseas could have ideally been engaged in order to muster international support for this approach and make it truly all-encompassing. Some may believe that involvement of opposition groups will lengthen this process, but I believe that their involvement is crucial.
It is believed that the Constitution of our largest neighbour is highly flexible and all inclusive. It ensures that the fundamental law of their nation was the result of vibrant dialogue with all relevant parties and stakeholders and represented the will and aspirations of all its people.
There were more than 30 members of the scheduled classes, with representatives for the Anglo-Indians, Parsis, Christians, Muslims, Jains, Buddhists, Gorkhas to name a few led by a ‘Minorities Committee.’
In fact, the prime architect of the 1950 Indian Constitution Dr. B. R. Ambedkar not only hailed from the minority but was an ‘untouchable ‘(and later on converted to Buddhism). Ambedkar’s text provided constitutional guarantees and protection for a wide range of civil liberties for individual citizens, including freedom of religion, the abolition of untouchables and the outlawing of all forms of discrimination. Granville Austin described the Indian Constitution as ‘first and foremost a social document’.
This is in stark contrast to Sri Lanka where the people’s mindset is that we work only with nominees of the Prime Minister’s Office or the Presidential Secretariat.
Out of all the Constitutions in the Black Continent, the South African Constitution of 1996 is the most recent innovation. Its fundamental rights are the most comprehensive not only in Africa but the whole of the developed world. Nelson Mandela who spearheaded this ‘social reform’ and paradigm shift was a true visionary far ahead of its time and ensured that equality of all people regardless of race or colour, was more important than giving blacks prominence over whites. Its Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public and on 8 May 1996, the new constitution was adopted with the support of 86 percent of the members of the assembly.
A quick fix solution
India’s 389-member Constituent Assembly took almost three years (two years, 11 months and 18 days to be precise) to complete its historic task of drafting the Constitution for ‘Independent India.’ During this period, it held eleven sessions covering a total of 165 days. Of these, 114 days were spent on the considering the Draft Constitution. What is more surprising is that while deliberating upon the draft Constitution, the Assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled!Unfortunately, Sri Lanka has always resorted to quick fix solutions from promulgating constitutions to enacting amendments the passing of even simple bills.
The ‘public consultation’ phase is to be completed by March 31 whilst the whole process up to the point of adopting a new constitution is likely to take another six to nine months.
When asked about this ‘urgency,’ Cabinet spokesperson Dr. Rajitha Senaratne said that a longer process would make the public to think that the government was ‘dilly-dallying’ with the process. It is a different story altogether that the government’s popularity is waning but that could not be used as an excuse to unduly expedite this important process. The government has to explain the and intricacies of a constitution. If such a process encompasses the views of all people criticism which were hurled against both the 1972 and 1978 constitutions would not take place.
Some beleaguered politicians led by Dinesh Gunawardena claim that the proposed constitution will lead to a divided nation. This is hilarious as apart from a politician in the opposition, even a government minister is yet to see a draft.
Ven. Bengamuwe Nalaka Thero has stated that defeated MPs do not represent the will of the people and as such should not sit in the Constituent Assembly. This has some rational in it as some of the SLFP MPs are defeated candidates that came from the ‘back door’ to the Parliament.
However, the question arises as to whether principles of federalism and foreign systems can be implemented as they are in Sri Lanka.
Phoenix rising from the ashes
Some thirty years of civil strife has left nothing but death and destruction, ruin and ash for all sections of the divide. Now it is time for all sides to get together and rise above petty differences of colour, race, creed, caste or politics, like a phoenix rising from the ashes.