Terrorism

The essentials of constitution-making

by Dr. Piyasena Dissanayake,
Secretary, National Joint Committee
According to a news report in the "Daily News" of July 11,2000, at a meeting held in Colombo, Mr. Hasan Ebrahim, Chief Executive Officer of the South African Constituent Assembly made the following remarks that should serve as an eye-opener to our Constitution-makers:-

"A Constitution is much more than a set of rules about how a Government will be run. It tells us who we are, where we have come from and, most importantly, where we want to go"

He further said:

"A Constitution has to be made rather than drafted. It is vital that people are consulted in this task. A Constitution will be a crippled one unless and until people are involved in its making. Constitutions, thus, cannot be made in "smoke-filled rooms." They must be discussed among the people, for, a Constitution should be respected, by all -this is vital. Constitutionalism and democracy thus intertwine".

As regards the question that was asked in South Africa and, which is often asked in this country too - "What do ordinary people know of Constitutions?:- Mr. Ebrahim’s answer is very revealing."

"We need to speak to the people and we did", he said. "The politicians listened to the people and took note of their ideas on the Constitution. There was a transparency in the process. Therefore, it didn’t give cause for any suspicion in the people’s minds.... politicians formed multiparty panels and these were taken to selected villages to ascertain their views. Thus political adversaries come together to consult the people... We had to explain to the people what the Constitution meant and how it impacted on their everyday life. The Constitution was discussed widely in the media. At feast one article was carried everyday in the Newspapers".

Although technical expertise could facilitate the process of Constitution-making, experts should not be allowed to dictate the process. We in this country have been made to believe that Constitution-making is such an esoteric exercise that only experts in the rape of constitutional lawyers are capable of making Constitution, and, even more important, only Constitutional lawyers can understand them., this being something, quite beyond the grasp of the ordinary citizen with his limited intelligence. Besides, the constitutional document should be worded in a language which could be understood by the ordinary people.

Eye-opener

Mr. Ebrabim’s explanation of the procedure adopted by the Constitution-makers in drawing up the South African Constitution should be an eye-opener both to our Constitution-makers as well as to our people. The most striking feature of the process was its transparency and, one might even say, the enlightened manner in which the South African Constitution-makers approached their all-important task with the people being kept fully is formed of the proposals and given every opportunity of making their views known before the proposals were finalised.

In this connection it is interesting to note that, even in India, Constitution-makers intend to consult the people. According to media reports, the expert panel headed by a former chief justice recently appointed by the Indian Government to revise the Indian Constitution has decided to organise regional seminars across India "to involve maximum number of people in the exercise and to know the views ofthe people on the issue".

The contrast with the procedure adopted by our Constitution-makers could not be more striking. All the Constitution foisted on the people of our country since independence have been produced, not after a dialogue with the people, but in air conditioned rooms in Colombo. The 1972 Constitution, the 1978 Constitution and the Constitution that has now been assembled by a few persons deliberating behind closed doors were all prepared on the basis that no consultation with the people was necessary, the politicians being the sole repository of all wisdom . Unlike the Constitution-makers of South Africa and India for whom it is the people who mattered, constitution-makers of this country display an utter contempt for the people. Far from consulting the people they keep secret from the people the decisions they have reached and intend to place the draft Constitution before Parliament without disclosing its contentrs to the people.

They regarded the people as ignoramuses who have no conception of what a Constitution is, so the less they know about it, the better, their only function being to swallow the Constitution when it is thrust down their throats by "experts". In any event, there are "constitutional experts" who are prepared to explain the Constitution to the people, for a fee, of course!

We do not think it necessary to labour the point, for it should be clear to everyone what a vast difference there is between the enlightened attitude of the South African and Indian Constitution-makers who proceed on the principle that the most important consideration in constitution-making is to determine the needs of the people by consulting them and then prepare a Constitution designed to meet those needs, and the closed minds of our Constitution-makers whose attitude is that there is no need to consult the people as the Constitution-makers in their wisdom know what is best for the people who should gladly accept what they have produced after deliberating in secret in their air conditioned rooms. Such a Constitution comes nowhere meeting their needs. Moreover, even if it is inimical to their interests, they have little or no opportunity to air their opposition.

Not too late

However, since the draft Constitution has still not been placed before Parliament, we think it is yet not too late to rectify the matter by consulting the people and making them partners in the task. We think the best procedure towards this end would be to adopt some of the measures introduced by the South African Constitution-makers. This is the only way in which the drawers of the Constitution will be able to feel the pulse of the people and prepare a document that will meet their needs and aspirations.

Once this exercise has been completed, a new draft of the Constitution should be prepared which embodies the views expressed by the people. This draft should be placed before the people and their views invited. Such views can be considered by, say, a Parliamentary Select Committee which can do any fine-tuning that may be necessary and prepare the final version of the Constitution. A Constitution prepared in such a manner should have no difficulty in meeting the legal retirements for the introduction of a new Constitution, namely a 2/3 rd majority in Parliament and the approval of the people at a referendum as it would, unlike previous Constitutions, be, for the first time, truly a Constitution prepared by the people for the people.

One great advantage of adopting this procedure is that the Constitution would be brought closer to the people. Having contributed to its making it would, in a sense, be their own document, intelligible to them and no longer an arcane instrument prepared by Constitutional lawyers that can be understood only by Constitutional lawyers. It is only then that Sri Lanka would graduate to the status of a mature democracy with the people themselves fully involved in the grievance of their country, having taken an active part in the preparation of its basic law.