CONSTITUTIONAL EVOLUTION OF SRI LANKA SINCE INDEPENDENCE AND THE CONSTITUTION MAKING PROCESS

 

CONSTITUTIONAL EVOLUTION OF SRI LANKA SINCE INDEPENDENCE AND THE CONSTITUTION MAKING PROCESS

 

Ravindra Waidyalankara, PhD

Director CID/Interpol Sri Lanka, Deputy Inspector Gen of Police DIG

Sri Lanka

 

The state

 

“The State”, according to Harold Laski.

is a temporal society divided into government and subjects claiming within its allotted physical area, a supremacy over all other institutions. It is in fact the final legal repository of the social will……..”

 

The powers and Functions of the State

 

The state has three types of function :  Legislative, judicial and executive.  The legislative function is exercised mainly through Parliament which has the power to make laws of general applicability and to grant to other bodies the power to make delegated legislation under authority of an act of parliament.

 

 

The state also has authority to determine disputes which arise out of the operation of its laws.  Such disputes are allocated to courts,  tribunals or even to government ministers, who, increasingly, exercise functions of a judicial nature.  No clear principles determine the allocation of disputes to these bodies although the greater the element of discretion and the more important the policy considerations, the less likely it is for the courts to take on the new area of responsibility.

 

 

The state has various executive functions.  It must initiate, formulate and direct general policy.  That policy must then be put into operation, monitored and regulated.  Responsibility for this is with the government of the country, the main decisions being taken by the Cabinet and put into effect by the various government departments and a range of quasi-autonomous bodies.

 

Montesquieu argued that there were three entirely separate that these three functions should be exercised by entirely separate organs, Parliament, the Executive and the Courts.  There should, he argued, be no overlap of personnel or function.  Otherwise too much power would be concentrated in the hands of one organ and this would lead to tyranny. Indeed it is extremely difficult to establish any truly satisfactory system of defining the limits of these functions.  Rather they seem to merge.  Yet it has proved necessary to attempt this task to determine the appropriate checks and balances in the system.

 

The constitution

 

It is sometimes called the supreme law or  fundamental law of the land, and has been described as the source from which all other laws derive their validity and legality. Since it is the law behind  the law, the Constitution will deal with political authority and power.

 

The word “constitution” may be used in at least two different senses. In one sense, it is used to describe  the whole system of government of a country, i.e. the collection of rules which define  and regulate the organs of State. The rules are partly legal in the sense  that courts of law will recognize and apply them; they are partly non-legal or extra-legal, taking the form of usages, customs of  conventions which courts are not bound to recognize as law,  but which are effective  in regulating the work of government. In most countries, this system of legal and non-legal rules comprise the Constitution.

 

 

Constitutionalism

 

The principle of  Constitutionalism, sometimes referred  to as liberal constitutionalism, is the  most basic and important concept for the limitation  of power and the protection  of individual autonomy. Constitutionalism seeks to explain the objectives of a good  constitution. There are three main objectives.

 

01.         It should set out the relationship  between and among  the main organs  of government in a manner that promotes checks and balance.  The constitution lays down the basic principles or framework of political society, the composition  and powers of the  political organs – the legislature, the executive and the judiciary – and their inter relationship.

 

02.         The protection of individual autonomy,  It believes that the individual must be protected  not only from other individuals  and groups in society but also from the State.

 

03.         It declares basic values  and principles by which that society is to be governed. In other words, the Constitution is a norm setting instrument.

 

 

 

CONSTITUTIONAL EVOLUTION IN SRI LANKA

 

 

The Soulbury Constitution (1947 – 1972)

 

Acting on the interpretation of the British Government’s declaration, the Board of Ministers prepared a Draft Bill (known as the Sri Lanka Bill) which they forwarded to the Secretary of State.  Admittedly the Draft Bill had received no publicity, its preparation and the minorities with justification protested that they had not been consulted.  In a further declaration in 1944, the Secretary of State announced his intention to appoint a Commission which while examining the Ministers’ Bill would enable ‘full opportunity for consultations to take place with the various interests, including the minority communities, concerned with the subject of constitutional reform’.  Hence a Commission with Lord Soulbury as Chairman was appointed in 1944.

 

The recommendation of Soulbury Commission was accepted by the British Government with the modified suggestions made by D.S. Senanayake and the Board of Ministers.  The British rule rejected the claim for the Dominion Status for Ceylon. Finally the proposal was adopted by the State council in November 1945 with more than four third voting in it’s favour, a condition laid down by the declaration of 1943.

 

There followed the Ceylon (Constitution)Order in Council, (1946) which embodied the new constitutional framework.  The new Constitution fell short of Dominion Status because of

 

(a)   the Governor’s reserve powers in respect of legislation especially relating to defence and foreign affairs;

(b)   the powers of the king in Council to amend or suspend the Constitution, and to legislate on defence and external affairs;

(c)   the reserve power of the King in Parliament to legislate for Ceylon by virtue of the Colonial Laws validity Act, (1865);

(d)   the restriction on the right of the Ceylon Parliament to legislate extra-territorially.

 

Further developments took place almost immediately with the result that the original Soulbury Constitution never really operated and was telescoped into the Constitution that came into force in 1948.

 

General Principles of the Soulbury Constitution

 

The first Principle of the 1947 Constitution was that of a unitary state.  One must remember that many communal and ethnic presentation was made before the Soulbury Commission but the majoritarian democracy reflected in the supremacy of the Parliament within the unitary state, which is a classic Westminster model,  was accepted despite the minority representation.  However, the majoritarian rule was reduced to a certain extent by the judicial protection of minority rights under Section 29 of the Constitution which prohibited discrimination against minorities. 

 

The Soulbury Constitution does not reflects anything than the basis elements of a Westminster model of a government – a supreme legislature, supported by an independent judiciary and a national level civil service.  They were certainly not interested in the Constitution as an ideological document giving expression to the aspirations of new nation; nor did they deal with guidelines for economic and social decision making, except for Section 29 and the protection of minorities. 

 

It is pertinent to mention that no bill of rights was incorporated to the Soulbury Constitution and no easy amending process was envisaged.  This frame-work gave legitimacy only to the Parliamentary democracy as the primary frame-work of governance.  The Soulbury Constitution is rightly described as having given Ceylon the “Westminster model” of parliamentary government.  Westminster is the site of the British Parliament and for the first time it was sought to have a system of government on the model of the unwritten British Constitution, a Constitution which for long had been regarded as the best in the tradition of liberal democracy. This system can  very briefly be explained as government by a ‘Cabinet of Ministers chosen from the legislature, under a Constitutional Head of State.  Some help in understanding the “Westminster model” can be obtained by reference to its source, the British Constitution.

 

It would perhaps be true to say that even without the proper constitutional framework, Ceylonese politicians by reason of their close association with the British political tradition which was held in high regard saw  themselves as parliamentarians in true Westminster style.  With independence, the legitimate expectation was for  a constitution

Which would enable a system of government as in Britain to operate in the country.  But, of course, the Westminster model” was not for export wholesale into any of he colonies.  What the constitution for the new Dominion could do was to “ capture the spirit and practice of British Institutions” (de smith S.A.).  This was achieved but there were many significant departures from the model such as limitation of parliamentary sovereignty, judicial review of legislation, independent commissions  to be in charge of the public service and the conduct of elections.  Constitutional conventions which we have seen are essential  for the working of the system of Cabinet Government posed a more difficult problem.  In a Written Constitution which became the supreme law, conventions could not be left as practices without legal force.   The Soulbury Constitution by specific provisions incorporated some of the conventions  e.g. it created a Cabinet of Ministers headed by a Prime minister “charged with the general direction and control of the government … and who shall be collectively responsible to Parliament” (Section 46(1).  Other important conventions were not spelt out in this fashion but were made applicable by a general  reference e.g., the powers of the Governor-General were to be exercised ‘as far as may be in accordance with the constitutional conventions applicable to the exercise of similar powers …. In the United Kingdom by His Majesty’.

 

 

The  First Republication Constitution (the 1972 Constitution)

 

The preamble to the Constitution states,

 

We the people of Sri Lanka give  to ourselves  a Constitution which will become the fundamental law of Sri Lanka deriving its power and authority solely from the people acting  through the  Constituent Assembly established by us, hereby adopt, enact and give to ourselves this constitution.

 

 

The following points may be noted in this connection.

 

(a).    The Constitution derives  its force of law from the people,

 

(b).     No people as a mass can directly make a  constitution. The making of the  constitution was thus done  by the  formation of a Constituent  Assembly – a political  fact and not  a legal exercise  for, a mandate  for its formation was asked from the people in the government  party’s election manifesto.

 

From these  observations, we may be able to draw  the conclusion  that the people of this  country have been drawn into the very process  of constitution making. Consequently, the concept  of autochthony has been used as the very basis of the Constitution.

 

 

 

 

 

Validity  of the First Republican Constitution of Sri Lanka

 

 

Validity  may be both political and legal. The Constitution enacted in 1972 was obviously politically valid on account of  the fact that it was the logical culmination of an election pledge given by the United Front Party which was returned  to power by the  people at the general Elections held in 1970. Whether it was legally valid is the more difficult question to answer. The question  may be regarded  as a test of its self- sufficiency.  At this stage, one may observe  that we are  really passing  from the realm of legal categories  into the field of  power politics. But we must not  forget that our purpose is to understand our legal system. To achieve this  we do not require a conceptual structure which will enable  us to point indisputably to  what is legally  valid when  confronted  with controversial or remote marginal situations. What we require  for our purposes  is a conceptual structure  which will answer  to the description  of a constitutional  pattern of a reasonably well ordered state. What we need is a legal  theory which will  enable us to see  how the new constitutional provisions ( bringing about a change  in the old system)  could answer the description of “legal norms” which fit into the structure  of our legal  system.  In bringing about the change of break, a revolution has clearly been established  in that a transfer of  legal authority from  one  to the other, regardless of the legal resistance to such transfer, has successfully taken place.  The issue then boils down  to whether  this change or  revolution  of transfer  was a legal one or not, for the answer  to this would decide  the legal validity  of the Constitution. The problem must be views in two stages  namely,

 

(a).    the stage at which  the change or transfer is attempted, and

 

(b).    the stage after completing the revolutionary process.

 

 

 

 

 

 

The Attempt Stage.

 

Two factors need to be examined here, namely,

 

(i).     The power factor which attempts or launches the change, and

 

(ii).     The  ability of the existing legal system  to counter the power factor.  The legal system would be  constituted  by the people, the administration  and the courts.

 

The Power  Factor – The people

 

We have already noted  that the constitution is  politically  valid.  Accordingly,  the people become a readily  identifiable  constituent  of the power factor  rather than a  force which  wants to  counter it.

 

The   Power  Factor – The Administration

 

The factual  nexus  between the administration prior to the  attempted change and the  administrators responsible for the attempted change is maintained. The acceptance  of and acquiescence in the constituent Assembly by the  representatives of the people belonging to the various political  parties indicates  that the power  factor was not  resisted by the administration.

 

The Power Factor – The Courts

 

The important case of Suntharalingam v.  The A.G., 15 may be  considered here. In that case S brought   an injection restraining the Minister  of Constitutional Affairs from  replacing the then existing  constitutional documents  with a new one.  H.N.G. Fernando C.J.,  (Wijayathilake J., agreeing) dismissed the application  for an injunction. In discussing  the application for an  injunction  His Lordship examined the  juridical basis  of the issue at hand in the following terms. His Lordship observed  that two possible situations could  arise. One was that the proposed  Constitution  was  legal. In that situation, a challenge to the n validity  of it would be  fruitless.  The other situation  was that the proposed  Constitution lacked legal force.  But this could be  decided only after the  Constitution comes into operation by a court of competent jurisdiction having authority to make a  pronouncement to that effect in a proceeding in which the validity of some provision of the Constitution properly and actively arises for determination. Thus on either ground, the Supreme Court held that there was no basis to grant an injunction. What must be remembered here is that the  formation of a Constituent Assembly to draft a constitution was a political fact and not a purported legal exercises.

 

The Stage After Completing the Revolutionary  Process.

 

At this stage, the validity of the constitution would have depended upon it being accepted by the people, the administration and the courts.

 

Acceptance by the People.

 

The argument here is that if the  Constitution was derived from the people, acceptance  on their part was implied and consequently there was no logical reason why they should not have obeyed it.

 

Acceptance by the Administration and the Courts.

 

Until 1978 at which time, the 1972 Constitution was changed, the courts  and the administration  seem to have followed and accepted  the movement of political events  and recognized  the validity  of the legal revolution as a political fact.  Sir Ivor Jennings has observed that “ all revolutions  are legal  when they have succeeded,  and it is the success  denoted  by acquiescence which make their  constitutions law”. 16 It must be noted that resentment by a dissenting minority does not affect this principal of acquiescence. This premise emerged in the case of Amirthalingam  v. The state, 17 (1975)

 

Finally, it may be stated that legal power cannot be  interpreted by any other means than in terms of actual obedience to and acceptance by the people, the administration would be fruitless, for once a new order has been established and the constitutional rules have taken over, the new legal system assumes the regular course  of interpreting its rules on the basis of its fundamental norms.

 

Second Republic Constitution of Sri Lanka (1988)

 

For a through understanding of the present  Constitution of Sri Lanka,  namely the constitution of the democratic Socialist Republic of Sri Lanka, 1978, It is necessary to have a  good grasp of a general Principals of Constitutional  law and also a sound  knowledge of  the Constitutional  system that was in  operation in Sri Lanka  since Independence:  namely,  the Westminster Model system of government introduced by the Independence Constitution (also called the  Soul bury Constitution), modified in both principle and detail by the First Republican Constitution.

 

The Salient Features of the Second Republican Constitution of Sri Lanka.

 

 

The main features of the present Constitution are :

 

(i).     Sri Lanka is a unitary state.

 

(ii).     Sri Lanka has a written Constitution which is relatively more rigid.

 

(iii).    The legislature is elected on the basis of proportional representation  and enjoys ultimate authority in  the matter of legislation.

 

(iv).    The President is directly elected by the people and has wide ranging powers specially in respect of executive functions.

 

(v).     Provision  has been made to secure independence of judges and public officers.

 

(vi).    Constitutional guarantee of Fundamental Rights is judiciary enforceable in a limited way. The ombudsman plays an important role in the protection of Fundamental Rights.

 

(vii).   People’s participation in governmental decision making is secured through referendum.

 

 

THE IDEOLOGIES OF THE CONSTITUTION

 

 

Principal of Constitutional Autochthony

 

Introduction

 

If the Constitution (fundamental law) of a country has its origins in its own country then  that country is said to have an autochthonous constitution. The principle of autochthony has been variously described by the use  of such phrases as “ the constitution is rooted  in the native soil” etc. The basic feature governing autochthonous constitutions  is that  they do not owe their existence to any foreign  authority, or sovereign or agency. On the contrary,  they are derived from or created  by the authority of the very people of those countries.

 

Features of the principle of Autochthony

 

Broadly speaking the principle of autochthony may be said to embrace  three ideas,  namely

 

(i).     Autonomy,

(ii).     Break in the legal continuity,

(iii).    Self sufficiency.

 

 

 

 

The Changes of Regime and the Kelson’s principle on legal validity

 

 

When the legitimate regime of the community is replaced by a new regime by way which has not been prescribe in existing legal order a jurisprudential issue has already been evolved on the legitimacy of new regime,  thus, disturb the day to day functions of the state.  Kelsen’s principle on legal validity provide certain guidance to resolve such problems.

 

Kelsen analysis portrays the legal system of a  community as a hierarchy of norms depending downwards from a basic norm.  according to Kelsen, a “particular norm” is created from a “less particular norm” which stands over it.  The “particular norm” derives its validity by creating itself in accordance with the provisions laid down in the “less particular norm” .  This “less particular norm in turn derives its validity from another norm which stands over it and possesses more generality than the previous norms.  The norm in turn rests its validity on another more general norm.  This process continues until it comes to a fundamental or basic norm on which the validity of all other norms depends.  Kelsen called this the Grundnorm.  In Sri Lanka, the Constitution is the postulate, which imparts   validity to all other laws.  Therefore the Constitution may be called the Grundnorm in Sri Lanka. 

 

When a norm is created in conformity with the authorizing norm it is a valid norm  and it remains valid as long as it has not been invalidated in a way which the legal order itself determines.  However, the norm loses its validity when the total legal order to which it belongs loses its efficacy as a whole.  According to Kelsen “The efficacy of the entire legal order is a necessary condition for the validity of every single norm of the order.  A condicttio sine qun non, but not a condictio per quam.  The efficacy of the total legal order is a condition, not the reason for the validity of its  constituent norms.  These norms are valid not because the total legal order is efficacious, but because it has been created in a constitutional way.  They are valid, however only on the condition that the legal order as a whole is efficacious; they cease to be valid, not only when they are annulled in a constitutional way, but also when the total legal order ceases to be efficacious.  It cannot be maintained that, legally, men have to behave in conformity in with a certain norm, if the total legal order, of which that norm is an integral part, has lost its efficacy.  The principle of legitimacy is restricted by the principle of effectiveness”1  But later Kelsen modified this and said that the legal order has to be effective not on the whole but “by and large” for its constituent norms to be valid2.

 

How could the validity of the Grundnorm be sought?  At the lower levels the validity of a norm depends on the authorizing norms and the efficacy of the total legal order.  But the Grundnorm has no norm over it.  It is the postulate, which imparts validity to the other norms.  Thus the validity of the Grundnorm cannot be sought out from another norm.  Therefore at the level of the Grundnorm, validity has to be sought our solely from efficacy.  At the lower levels a norm may lose its validity due to several reasons.  These could be a breech of a condition laid down in the authorizing norm, or an invalidation of the authorization norm, or the inefficacy  of the total legal order.  The Grundnorm never

loses its validity due to the first two reasons since it has no governing norm behind it.  The Grundnorm invalidates only due to the inefficacy of the legal order.  The validity of each norm in a legal order can be linked directly or indirectly to the Grundnorm.  In turn the Grundnorm rests its validity on efficacy.  Therefore as a whole, the validity of the entire legal order, including the Grundnorm, rests on the efficacy is possesses.

 

According to Kelsen, in order to effectuate the entire legal order the Grundnorm must secure for itself a “minimum of effectiveness” i.e. a certain number of people who are

willing to abide by it.  A universal adherence is not  needed, but there should not be a total disregard.  When a Grundnorm no longer derives a minimum of support, i.e. when

the actual behaviour of people no longer conforms to the Grundnorm, the entire legal order becomes inefficacious and therefore invalid.  A new Grundnorm, which acquires a minimum support , will replace it.

 

 
 

 

 

1.  General Theory of Law and State (1961), p.119, Russell and Russell, New York

2. R.W.M. Dias, Jurisprudence.  Third Edition (1970), Butterworth & Co. (Publishers) Ltd.

 

CONSTITUTIONAL MAKING IN SOUTH AFRICA

 

 

African countries have the potential to lead the way in demonstrating the essence of constitutionalism and constitutional democracy.  They are all emerging (and some fragile) democracies with underdeveloped economies.  These are also countries that still suffer the ravages of internecine regional and local conflicts and ave been the worst affected by the new global economy.  Constitution-making is no longer a matter of legal expertise alone: to this we should add popular participation, international economics, local sociology, political economy and many other factors.

 

Constitutional Process – of south Africa Political and social dynamics

 

Constitutional processes in Southern Africa have over the last 40 years (i.e. until the liberation of the South African people in 1994) been characterized by struggles against racial domination, colonialism, underdeveloped economies and infrastructure, abuse of human rights and a reinforcement of those racial, religious and ethnic divisions historically encountered.  It is therefore hardly surprising that the most prominent features of these constitutional processes have been self determination, national democracy universal franchise, the rule of law, separation of powers, regular elections, and basic human rights.  Many of these struggles revolved around access to land, natural resources, and cheap labour.

 

Not one of these countries was homogeneous in character.  Deep-rooted ethnic and regional differences between the indigenous people infused these struggles with a penchant for local and federal powers.  Unfortunately.  Africans have inherited thae artificial borders and boundaries bequeathed to them by their colonial masters that reinforce inequality and ethnic divisions.  Hence, many communities were left straddling across the boundaries of our new nation-states.  Another inheritance from our colonial and imperial masters that has come to haunt us is the struggle for the Africa’s rich resources. Unfortunately, for these and a host of other reasons, governance came to be infused with a lethal dose of ethnic chauvinism, militarism and the proliferation of arms that still lingers as a ‘legitimate’ political response to competing objectives. The sum total of these ingredients provides and explosive formula for continuing internecine regional conflicts that still persist.  Regrettably, Africans are not immune from the very xenophobic diseases of which they accused their colonial masters.

 

It is therefore hardly surprising to see these historical realities reflected in the constitutional provisions of recently independent countries.  Throughout Southern Africa, provisions relating to nationality, ethnicity, language, religion, and regionalism are given prominence within our constitutions.  Despite this retrograde and nearly feudal baggage, progressives in Africa in general and Southern Africa in particular, made persistent attempts to foster Pan-Africanism by rallying constituencies around common goals and struggles.  Unfortunately, these attempts are still rendered feeble by continuing inter-regional competition.  In stark contrast to this, the Europeans are fast learning to overcome their national and ethnic pride and prejudices to embrace the concept of a European community in a bid to leverage greater power in the new global  economy.

 

These historical realities have also produced a powerful new role-player within the political, social, and cultural discourse on our continent – that is, civil society.  Political parties have played a distinctly different role in Africa as compared to the developed world.  African experience and history has shown that political parties have rarely been able to exclusively articulate and give expression to the aspirations, vision, fears and concerns of ordinary people.

 

Structures of civil society, with all their imperfections, have arisen to fill this void.  Besides, governance solely by organs of the state has proven to be insufficient in the management of society without the role played by civil society.  Despite  the fact that many organizations of civil society suffer from being focused on single issues, are not accountable, or democratically elected, they have nevertheless been collectively and effectively able to represent the interests of ordinary people.  Unfortunately, they continue to be regarded with suspicion in many situations, where they can provide powerful and creative allies in the constitution making process.  Partnering civil society in a meaningful way is another litmus test for constitution making.

 

Legitimacy

 

The legitimacy of constitution making process is fundamental.  Legitimacy is also dependent upon and unequivocal commitment by the ruling party to a constitution that is owned by the people.  However, this principle, will invariably be fashioned by the domestic social and political realities within which the process takes place.

 

In the South African experience, the legitimacy of the process essentially started before the  actual negotiations with ‘talks about the talks’.  These ‘talks’  also produced an agreement as to the framework within which the constitution was to be negotiated.  There are also different forms in which legitimacy can be facilitated or promoted.  Recent experiences have shown that the starting point must be that the body entrusted with the drafting process has a legal mandate.  This situates the entire process firmly within the framework of the rule of law.

 

Inclusivity

 

The principle of inclusivity agreed upon by the South African Constitutional Assembly made it essential to embark upon a programme of public participation.  The function of this was to ensure that South African people not only felt that they were a part of the process, but the content itself had to be representative of their views.

 

Empowerment of Civil Society

 

By empowering civil society to participate in the constitution-making process, the respective Constitutional bodies in South Africa, Uganda, and Eritrea were able to add a new dimension to the concept of democracy in their countries.  Empowering civil society to participate also creates a culture of openness and scrutiny that becomes increasingly difficult to suppress over time.  In Zimbabwe, constitution materials were distributed through 695 secondary schools.

 

This has powerful spin-offs for civil society as well.  Their role in the constitution-making process can bring them far closer to their constituency, they can provide a link from the most marginalized to the poorest sections of the community, and the constitution-making process provides powerful and relevant issues around which to organize individually and collectively.

 

Openness & Transparency

 

Faith in the integrity of the process must be maintained.  It must be seen as being transparent and open.  The consultation process was made transparent in Uganda through the publication of three volumes containing submissions to the Constitutional Commission, an analysis of the submissions, the subsequent recommendations, and the draft constitution.  In south Africa, everyone person who made a submission received a reply from the Constitutional Assembly along with copies of the subsequent drafts of the constitution itself.  In this way individuals could follow developments with regard to specific issues of interest to them as well as know how their input had been registered.  Their suggestions were also submitted to the relevant theme committee for consideration.

 

While transparency would ensure that the constitution is not negotiated behind closed doors, openness requires the process to be receptive to the views of all.  It is the openness of the process that goes to the heart of the legitimacy of the final product.  People must feel that the process is open to their views and opinions.

 

Accessibility

 

An important principle is that the process must at all times be made accessible to the broadest possible community.  It is not sufficient to merely advertise the invitation to make submissions.  It is important to ensure that ordinary members of the public are able to access the process both physically and intellectually, and access must be made possible for those without access to mainstream media.

 

Uganda, Eritrea and South Africa all disseminated documents needed for outstanding the context of constitutional reform in their countries to the people in both national and vernacular languages in the early stages of the consultation process.  In the case of Eritrea this involved translating international covenants into vernacular languages.  400 trainers were mobilized to educate the public, reaching half a million people.  In Uganda the existing constitution was reprinted and disseminated along with booklets entitled “Guidelines on constitutional issues”, “Guiding questions on constitutional Issues” and a booklet explaining how to prepare memoranda to submit to the Constituent Assembly.  The Zimbabwean constitutional Commission  held over 4000 meetings through the length and breath of the country.

 

In South Africa the public was provided with toll-free telephone numbers, addresses and public meetings in different localities  to take part in the process.  The principle of accessibility  was also considered and addressed from the perspective of language.  Aside from the use of the different languages, it was ensured that all information, including the constitution itself, was published in plain and accessible language.  This in turn required training in plain language drafting for those drafting the constitution, with a hoped-for-on-going effect on legislation in south Africa.  The constitution should not be the only accessible document in a nation !

 

Continuous Review

 

Taking into account the importance of the outcome of the constitution-making process and the enormous effort and human energy expended to make it all happen, the South African Constitutional Assembly undertook a series of national surveys to assess the penetration and impact of the media campaign as well as public attitude to key constitutional issues.  The results of the first survey revealed that Constitutional Assembly in calling for their involvement, and about the treatment their submissions would receive.  The survey revealed that the credibility of the process was an issue that needed  some attention.  Levels of knowledge about the constitution were fairly high, but a sizeable proportion of the population still needed education about the nature and function of a constitution.  They also needed information about he constitutional Assembly and the constitution-making process.  These were nevertheless encouraging results, and provided  information to the Assembly that could be – and was – acted upon.  The willingness to take account of popular sentiment is critical for the process.

 

Accountability

 

To remain true to the principles of public participation constitutional consultation bodies must be  seen to be accountable.  This was achieved in Uganda, Eritrea and South Africa through effective publication of developments, and by  maintaining transparency   of the process.  South Africa posted copies of all working drafts of the constitution to those who had made submissions, thereby ensuring   that contributors were aware of developments and could track the consultation bodies’ responsiveness to the people.  Zimbabwe followed a similar process with an impressive publicity campaign involving  different forms of media.

 

The role of Political Parties

 

In keeping with South Africa’s  unique history, political parties had an important role to play in the constitution –making  process.  They became  facilitators of the Constitutional  Public Meetings organized by the Constitutional Assembly to solicit  public views.  Politicians  who were members of the constitutional Assembly reported on their activities directly to the public.  Each  submission made at these meetings were then recorded and transcribed for consideration by the various  structures of the Constitutional Assembly.

 

Most of these meetings were held in rural and disadvantaged communities. The rationale was that people in these areas did not  have sufficient access to media to follow the process.  Furthermore, they were not equipped to contribute on issues  without  assistance.  Hence, it was necessary to ensure  that the programme  had an educational orientation.  To this end the Constitutional Education Programme was developed. 

 

This project adopted a participatory  workshop approach.  This exercise also consisted of consultation with local structures of civil society  to prepare for each public meeting.  Between February and August 1995, 26 public meetings were organized in all 9 provinces.  More than 200 members of the Constitutional Assembly  were involved at these meetings, 20,549 people attended and 717 organizations participated.

 

For most, this was the first experience in which they were able to directly interact with this elected representatives.  More important, this was the first occasion in South Africa that public meetings were held where politicians previously at war with each other jointly spoke to the people.  The public meetings held were very successful.  Discussions were lively, ideas original and the exchange of views appreciated.  These meetings also served to highlight the point that constitutions  are about basic values affecting  society and are understood  by even the most uneducated.  It was a humbling experience for Assembly members to realize  that constitutional debates  and issues are not the sole domain of the intellectual elite. They belong to all.

 

The Role of Civil Society

 

The terms public participation denotes the involvement of broader society in decision-making.  When consulting with the public to develop a new constitution, governments should preferably work with and through structures of civil society.

 

In South Africa the National Sector Public Hearing Programme emerged out of a need for the various Theme Committees in the Constitutional Assembly to consult  and engage those structures of civil society with an interest in particular debates.  Examples of this were the consultations on the different rights in the Bill of Rights, the judiciary, security services, and institutions supporting constitutional democracy and public administration.  Each issue required consultation with a particular sector of civil society.

 

The preparation for these hearings was executed by a partnership between the Constitutional Assembly and structures of civil society.  This was a deliberate part of the strategy.  It avoided the possible accusation of being partisan.  It also ensured  the greatest possible representation in the hearings and an agenda that was acceptable to all stakeholders.

 

The majority of hearings took place over a four-week period.  Given the limited time that the Constitutional Assembly had to develop and implement this programme, it was to its credit that 596 organizations were consulted.  In addition, Theme Committees hosted many seminars and workshops when expert opinion and further debate was required on specific issues.  Many of these workshops included international experts.

 

It was only after the Easter recess of 1996 that the issues of deadlock potential crystallized.  To facilitate agreement, parties held various bilateral and multilateral meetings.  This was not well regarded by either media or civil society.  Moreover, consultations with affected interest groups were limited to those areas of deadlock only.  Also, when these consultations did take place, they were carried out with very little time to plan or prepare.  With the benefit of an excellent database, developed in previous rounds of consultations, the organization of these consultations did not prove too difficult.  However, this did not mean that there were no problems.

 

The Constitutional Assembly had throughout  prided itself on an excellent relationship with structures of civil society.  This relationship  was based on the concept of partnership in the process of drafting the single most important legal document in the country.  However, several structures saw themselves as still being outside the process.  This was particularly true when political parties found it necessary to hold bilateral multilateral meetings.  The complaint was that even if consultations did take place, the agreements reached between  the elected representatives in the Constitutional Assembly still had to be open  to comment  by civil society structures.

 

Some sectors, which lobbied  for particular views that were not endorsed in agreements, became disenchanted with the process itself.  Examples of this can be found in the views of the Human Rights Committee, Business South Africa, religious organizations such as the Roman Catholic Church, Animal Rights groups and the South African gun Owners Association (SAGA), and others.  Fortunately, this discontent did not reflect the views of the public or the majority of the structures of civil society.

 

In the final drafting of the constitution, experts were engaged in three different capacities.  They were retained in Technical Committees attached to each Theme committee to assist and advise political parties in formulating various constitutional arguments.  Additionally, a Panel of Independent Experts was established as part of the dead-lock breaking mechanism.

 

However,  structures of the South African Constitutional Assembly often invited foreign experts to assist in sharing experiences from other parts of the world to t he various public meetings.  In spite of this, there was a generally held belief that while experts would be indispensable, they would be engaged purely to advise the politicians and not to play any more direct a role in the process itself.  There was a determination that the process was not going to be led by academics and experts.  It was the elected and mandated representatives  who were to play this role.

 

 

CRITICAL ANALYSIS ON THE DRASTIC EROSIONS OF IDEOLOGY IN TERMS OF LEGALITY

 

 

First Republican Constitution

 

On the 22nd of May 1972, the government of Sri Lanka, through a constituent assembly introduced a new constitution and declared Sri Lanka to be a free, sovereign and independent republic.  By this, the constitution of 1946 under which  Sri Lanka was granted dominion status by the Crown of England was nullified.  However, the constitution that was introduced on 22nd May 1972 was illegal from the point of view of the 1946 constitution, though this had no impact on the validity of the new constitution.

 

During the elections of 1970, the United Left Front (a political alliance) sought a mandate from the people for the next parliament to work as a constituent assembly to draft a new constitution.  On the 27th of May 1970, the United Left Front was swept into power  and His Excellency the Governor General invited the leader of the United Left Front, Mrs. Sirimavo Bandaranaike to from the next government.  Addressing the first session of the 7th parliament of Ceylon,  the governor General said “by their vote, democratically cast, the people  have given you a clear mandate to function as a constituent assembly to draft, adopt and operate  a new constitution which will declare Ceylon to be a free,  sovereign and independent republic”.  Therefore, the authority to create a constitution was derived neither from the British Crown and parliament of the United Kingdom nor from the 1946 constitution, but exclusively from the mandate given by the people at the general elections.  This mandate showed that the 1946 constitution was no longer efficacious.  This in turn showed the people’s willingness to abide by the new constitution.  Hence, the fact that the constitution that was enacted on the 22nd of May 1972 was illegal from the point of view of the 1946 constitution had no impact on the validity of the 1972 constitution.  The shift in the people’s willingness to abide by a new Grundnorm, i.e. by the 1972 constitution, effectually nullified and replaced the existing Grundnorm, i.e. the 1946 constitution.

 

A replacement of a Grundnorm can take place only in a way which has not been prescribed by the Grundnorm which is being replaced.  Any change other than this results only in a constitutional reform.  Therefore and replacement from the point of view of the existing Grundnorm is illegal.  But this doesn’t affect the validity of the new Grundnorm because according to Kelsen the validity of a Grundnorm doesn’t depend on another norm since it is a postulate.

 

 

 

The Second Republican Constitution 1978  Is it Autochthonous.

 

In keeping with  the election  pledge given in their election  manifesto  the United National Party  took the initiative  to  draw up a new  Constitution which  was adopted and came  into operation on the  21st day of July, 1978. It is significant  to note that this  Constitution  was enacted following the  procedure  laid down in the 1972 Constitution for  constitutional amendment  in Section  51(5) of that constitution . Consequently,  It may be argued  that there was no break  in the legal continuity  of the 1972  Constitution when the  1978  Constitution came into operation. Accordingly, it may maintained  that the present  Constitution being a creature  provided for by   Section 51(5) of the 1972 Constitution, is a  derivative of the 1972 Constitution  and that, for  that reason it is a  Constitution which responds  to the principle of autochthony.

 

Constitutionalism and Majoritarianism

 

The fundamental feature of constitutionalism is the duty of protecting individual freedom autonomy of the citizens.  Specially from the hands of the majority.  Thereby the constitutional should reflect the rights of every citizens of the country and it should be a document with the consciences of all the groups of the country.  Specially an extra protection should be given to the minorities as they are vulnerable to exploit in the hands of the majority. 

 

The principles of democracy, the fundamental rights, are meant to preserve the rights of all the citizens of the country.  However,  like in most of the Asian countries the democracy of the majority had been converted to the democratic process.  This is clearly seen in enacting 1972 Constitution and the referendum held to extend the period of the Parliament, which is not the essence of true democracy but only the wishes of the majority in power. 

 

The true validity of the constitution based on it’s acceptance by the people.  As Kelson mentioned in his pure theory of law a “minimum of effectiveness”  should be secured by the Grundnorm  by the acceptance of certain number of people of the country.  Since both 1947 and 1972 constitutions have disregarded wishes and sentiments of the minorities and the other groups of the country.  It is unfair by anyone to argue that both constitutions reflects the acceptance of all groups of the country, thereby the validity of the Grundnorm  had been challenged by certain groups which has now extended to a major arms struggle.  It is also noted that the so called autochthonous or home-grown Constitutions of 1972 and 1978 were rejected by the oppositions and the minority groups, but enacted, as the respective government possessed two thirds majority in the Parliament.

 

The enactment of 1978 Constitution  derived upon the provisions of 1972 Constitution.  Since the legitimacy of 1972 Constitution is at stake it is doubtful of the legitimacy and the autochthonous the 1978 Constitution.  Further the supremacy of the Constitution had been  flawed by certain articles of the Constitutional itself. 

 

a.      Article 80 (3) – once a bill is passed it cannot be challenged even if it is unconstitutional

b.      Article 121 – the procedure of challenging a bill

c.      Article 16 – acceptance of all existing written laws and unwritten laws ateh time of the enactment of the Constitution

 

The consequences of fundamental mistakes done in all constitutions had contribute considerably to the on-going ethnic problem.  The war has been dragging on for the last 25 years with catastrophic consequences.  It has killed nearly 70,000 people taken the country by several decades.  Specially in terms of economic development.  Thus Sri Lanka needs state building with the aspiration of minority groups and without marginalizing them.  The new order should be accepted to all groups and non should not believe that they are living in someone else’s  state.  Everybody should accept the fact that the Sri Lanka is a pluralistic society and decisions of the government should not based on majoritarian democracy but with the conscience of all groups irrespective of racial, religious and language  differences.

 

Upon a critical analysis  it is clearly observed that the Constitution of South Africa is unique among the other Constitutions of the world.  The transformation from apartheid to democracy had been carried-out with the consciences of  all groups of the country which paved the way to the great success of the constitution by way of it’s acceptancy of the South African Society.  The basic human rights norms and standards are confirmed in the constitution whilst imposing proper checks and balances.  The true meaning of the constitutional supremacy is maintained throughout the document.  The drafting of the Constitution, the manner adopted in the participation of the people as given true validity to the Grundnorm. 

 

In comparison with the Constitution making process of South Africa and the substance of the document, it is consequence that the Constitution of Sri Lanka had been started and continued with fundamental mistakes in terms of true democracy and the essence of the Constitutionalism.  The drastic consequences experienced not only by the minority but also by the majority are the results of the failures these fundamentals.

 

 

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