Resorting to a democratic process in making a Constitution has many traditions in many countries that are being spoken of and discussed as “case studies”. The most common experience is in South Africa, where People participated in making a Constitution that dismantled the “White Supremacist apartheid regime”.
by Kusal Perera
Suspense around the 20 Amendment was blown over with the predicted 156 votes making it part of the Constitution on 22 October. Basil can now enter parliament carrying his “dual citizenship” certificate as the relevant clause was adopted separately with one more vote than the 20A itself. That allows Rajapaksas to constitute their family rule above the SLPP. While the 20 Amendment was debated in its Second Reading, Secretary to the Ministry of Justice, M.M.P.K. Mayadunne announced the Government has decided to obtain suggestions from members of the public for drafting a new Constitution. The gazette extraordinary issued on 20 October (2020) provided for the Secretary of the “Experts Committee to Draft a New Constitution” appointed by President Gotabhaya Rajapaksa to obtain suggestions from the public. Secretary, Ministry of Justice gave details as to how the public should send in their suggestions by snail mail or e-mail, to the Secretariat established at the BMICH on 11 themes mentioned in the gazette or may be on any other.
Can this request for people to send in their suggestions, make the Constitution making process any democratic? Constitution making is not just a legal exercise. Constitution making is about ensuring the “People’s” right for a decent, just and a peaceful life without any socio-political and economic discrimination and all accepted and treated as equals. Thus it is now an international norm that People make their own Constitution. It is no more the responsibility of those in power or have a claim for political power to draft and adopt “Constitutions” for the people. It is no more the “work of experts” to provide the draft for a government in power to adopt.
In a democracy, revisiting a Constitution to further “strengthen democracy”, requires the process of making the Constitution to be “democratic” too. To say it differently, the process of making the Constitution decides the democratic nature of the Constitution.
In Sri Lanka, none of the 03 Constitutions from Soulburry, to the First and the Second Republican Constitutions, went through a democratic constitution making process. Of the 20 Amendments (counting the missing 12A too) made to this Second Republican Constitution, the 17 Amendment is the only Amendment that was initiated outside governing politics. It was conceptualised by a small group of public spirited journalists like Victor Ivan, Lasantha Wickramatunge and Waruna Karunathilake, with senior lawyers like Elmo Perera and late Suranjith Hewamana. Aimed at de-politicising of the State, it was then canvassed and lobbied by social and political groups and organisations for more than 02 years. Finally, the 17A reached parliament and was unanimously adopted as a political compromise for President Kumaranatunge to hold on to power with the JVP holding hands.
This perhaps left a social need for “People centred” Constitution making among the more aware and concerned urban middleclass. The Yahapalana government patronised by them, was compelled to exhibit themselves as consulting people in formulating the new Constitution they promised. More because their 19 Amendment was pushed through with no respect for even parliamentary Standing Orders. Wickramasinghe premiership backed by the TNA leadership at every turn, openly violated the requirement to present draft legislation in all 03 languages. Clauses PM Wickramasinghe pushed through at the last moment in English was refused Tamil translation even when MP Prabha Ganeshan requested for a Tamil translation.
Thus, in formulating their “new Constitution” a committee for public representation was appointed, headed by Senior lawyer and political activist Lal Wijenayake and included a few academics as well. As chairperson of this committee, in early April 2016 Lal Wijenayake told a South Asian forum on Human Rights in Kathmandu, “The government has appointed a commission of 20 members to hear public representations on constitutional reforms. The process is on with the commission visiting all the 25 districts of the country after giving wide publicity of its visit to the district to enable citizens to make oral or written representations. At the same time, the commission has called for representations in writing through email, through a website, etc. The commission has received hundreds of representations from all layers of society, from academics, professionals, trade unions, cultivators, workers, students, and those civil society organizations.”
There certainly was no public participation as claimed. Wijenayake’s understanding of what “people’s participation in Constitution making” was far outdated and flawed. He and his committee were only a “national courier”, collecting and delivering suggestions and proposals to the Parliamentary Steering Committee appointed for drafting the new Constitution. “Hundreds of representations from all layers of society” he claims they received, were never in public domain for social dialogue. In fact, some were not even included nor mentioned in the report they submitted to the Steering Committee.
This request for public suggestions by the present government would not be any better. It is certainly narrower than the Wijenayake committee of the Yahapalana rule. It would be comparatively more open if the Expert Committee requested people to comment on their draft than asking for suggestions to consider them for drafting. Yet in this modern world, where People have a “Right” to partake in policy making and “public affairs”, Constitution making is the responsibility of the People. Not of political establishments alone. Thus it is important to see how the opposition political parties including Tamil and Muslim parties, social and human rights activists would respond to this call for proposals. Will they engage People in formulating their proposals?
Resorting to a democratic process in making a Constitution has many traditions in many countries that are being spoken of and discussed as “case studies”. The most common experience is in South Africa, where People participated in making a Constitution that dismantled the “White Supremacist apartheid regime”. Justice Albie Sachs as one of the justices of South Africa’s first Constitutional Court in 1990 is quoted on the preliminary negotiations that took about 02 years that eventually led to a new Constitution as having said, “….It was a country that was racist, authoritarian, and narrow. This very South Africa had to be converted into a country – with the same people, the same physical terrain, the same resources, and the same buildings – into a country that was democratic and respected human rights. It had to be a country where people of widely different backgrounds would respect each other, where everybody could live in dignity, and where social peace prevailed. This was not a small task.”
Constitution making in South African context required a two-phase approach. First was necessary to agree on the process of Constitution making and on fundamental principles. The second was about carrying out the process. In reaching out to people and engaging with them. Not just to include their aspirations, but to entitle them. There were hiccups in between. There were sabotaging efforts by vested interests. But was overcome by ANC’s resolve to strengthen people’s participation in the process of making the Constitution and taking every effort to keep the process “all inclusive”. Bottom line is South African experience proves a democratic Constitution depends on how democratic and inclusive the process is and how democratically committed the political leadership is.
There are other similar experiences where the fundamental principle of Constitution making was with people’s participation as in Kenya, and in East Timor. Yet the best and the most modern approach was in Mexico City, when the municipality wanted to re-constitute the city of 10 million resident population as an autonomous entity in 2016, very much like the Washington DC. Their approach was dubbed “Digital Democracy” and “Crowdsourcing” in US media. City Mayor, Miguel Angel Mancera, was quoted as saying, the whole process was designed to “bestow the constitution project with a democratic, progressive, inclusive, civic and plural character.”
People’s participation was garnered for the Constitution making process from March to September through a digital platform specially created with the online petition “change.org”. For those without internet access, the municipality established 300 internet kiosks in the city with staff to assist. People could canvass support for their proposals or drafts and any with over 5,000 signatures from city residents would be taken as a base document when drafting the Constitution. Those with over 10,000 signatures were allowed to meet with 03 members of the drafting committee to convince of its importance. Any proposal with over 50,000 signatures had a full audience with the drafting committee and was considered as initial parts of the draft Constitution.
In a society where a survey by the national electoral authority in 2013 said, nearly 33 percent do not trust the federal government and more than 40 percent do not trust political parties and politicians, this digital crowdsourcing in Constitution making with no precedents anywhere before, led to massive campaigns in the city halls too. This also led to very strongly argued debates.
The drafting committee was constituted with politicians, journalists, human rights advocates and even a Paralympic gold medallist. This drafting committee was provided with weekly summaries of proposals with over 5,000 signatures that were also made public.
The draft proposal was presented to a 100 member Constituent Assembly, 60 of them elected by the People. On 05 February 2017 the Mexico City adopted its People’s Constitution. The new constitution – all 71 articles of it – reads like a progressive manifesto and guarantees environmental conservation, equal rights for minorities and LGBTQ residents and includes provisions for parental leave, animal rights and free time, along with strict transparency rules for public officials. Medicinal use of cannabis and the right to “die with dignity”.
That leaves a democratic precedent the Opposition, both the SJB and the JVP can pick on, in responding to the government’s call for proposals to their new Constitution. The government will not provide democratic space, other than what is offered by way of accepting proposals. But, if opposition parties including Tamil and Muslim parties, social and human rights activists use some of these open digital tools they would be mobilising people to participate in very broad forums to discuss contents to the Constitution. They can organise drafting committees in districts and provinces. The opposition can in fact submit a draft Constitution, written with people’s active participation.
The most difficult question to answer nevertheless is, “Will they?”
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