SRI LANKA: The Neanderthal stage of constitution making – 1978

By – Basil Fernando

With to the 20th amendment, once again Sri Lanka will return to the 1978’s constitution in its original form. From the making of that constitution up to now has been a wasted time for Sri Lanka from the point of view of the development of an organized society capable of meeting the demands of modern times. A short list of catastrophes, which resulted from the 1978 constitution for 42 years, is as follows:

Ever increasing debt which has become the major obstacle to economic development – near annihilation of local entrepreneurship and the development of the local enterprises – uncontrolled and uncontrollable corruption – unimaginable levels of collapse of the system of the administration of justice – ever increasing unemployment – constant decreasing of the real value of wages accompanied by increase of prices – no significant improvements in health, education, transport, and other facilities – increase of crimes and particularly increase of child abuse, sexual abuse and harassment of the women and general increase of public insecurity – loss of morale of all those who are engaged in public services due to ever increasing politicization – displacement of the rule of law with the direct rule of politicians in power – ever increasing impunity and absence of the accountability – in short spread of situation of disorder and lawlessness – impact of all this on morale ethos of the country, which has led to a general agreement that the country is living through a period of degeneration and decadence.

With the full reinforcement of the 1978’s constitution, all these factors will continue and get worse. What kind of crises and catastrophes will emerge is hard to predict.

What all these bring to the focus is the fact that the Sri Lankans has not yet agreed on what type of society they want. This lack of collective understanding on the goals the country should pursue in order to create an orderly and a peaceful society, which guarantees opportunities for all to better their living conditions, is on the root of the constitutional crisis.

When the British declared independence for India, the Indian leaders representing various divergent views and representing conflicting causes sat together for almost two years to discuss what is the type of society they want to have in the future. What they really wanted was enshrined in the preamble of the constitution, and the rest of the constitution merely worked out what they proposed then as the ways to achieve the goals that they had agreed upon. This constitution has survived despite of some serious threats posed against it by some powerful political leaders like, for example, Indira Gandhi who wanted to remove the judicial review powers of the Supreme Court relating to the power of the legislature to amend any laws. However, the Supreme Court relying on the Indian Constitution was able to prevent this attempt by developing what is now famously known as the Basic Structure Doctrine.

What this basis structure means is that the basic agreement of the people represented by a non-partisan constituent assembly as to what the people want as a permanent part of their social organization. The Indian leadership showed the capacity to understand what should be the permanent part of their way of governance and those that can be changed to meet the requirements of time.

Sri Lanka has not arrived at this stage of constitutional wisdom. In evolutionary terms, the stage at which the Sri Lanka is in terms of organizing the society from the point of view of constitutions and laws could be called the Neanderthal stage. For Homo Sapiens to separate themselves completely from the Neanderthals took many millions years. How long Sri Lanka will take to develop a constitution that is not tailor made to any particular individual or party but one that really represents the basic interest of the people, it appears will take a long time.

The blame for the delay cannot be merely placed on politicians. The development of a consensus on what is best for themselves can only be a collective agreement. Such collective agreements do not come from above or by whatever this or that politician think is best for the people. This does not also come from mere electoral majorities.

Such a collective understanding and a will has to be worked out from within the society itself. In this, more articulate sections of society plays a significant role. The unwritten constitution of Britain was a product of work over a long period of time by many persons such as political thinkers, judges, political movements, intellectuals at every level of society, movements that represent the poorest section of society as well as those articulating the views of specific groups such as women and minorities and the like. The people who come under the influence of these debates gradually learn to think for themselves and to make the demands that will best protect everyone’s interests.

In Sri Lanka, the society has not reached this stage nor has it been trying to reach such a stage of consensus.

Last 42 years has been spent not on finding ways to displace 1978 constitution, but to make various minor amendments. Thus, last 42 years can be considered a lost time. Obviously, the years that immediately followed the 20th amendment, will be an addition to these wasted years. 
We may ask with Peter Seeger ‘when will we ever learn?’

September 09, 2020

An Article by the Asian Human Rights Commission