Constitution Making: Some Points

for Reflection

By Jayadeva Uyangoda-January 19, 2016, 11:10 am

University of Colombo
A constitution can acquire this quality only if it
enshrines a set of collective normative goals, as suggested above, that all
citizens can share, subscribe to, defend, and be proud of, thereby giving a
new meaning and substance to the idea of patriotism. Thus, a new
constitution should be one that enables a political value based love of the
country. When each of our citizens, from Point Pedro to Devinuwara and
Kattankudy to Negombo can say, "I love my country because I love my
countrys Constitution," it would be the day of greatest political fulfillment
for Sri Lanka.
Sri Lanka has once again entered the uncertain path of drafting and
adopting a new constitution. Not surprisingly, political opinion is becoming
increasingly divided and even acrimonious over a variety of issues. The
most contentious at present is the process of constitution making. The
content of the new constitution is next in line.
Debate
Intensification of the political debate, polarization of views and
contestations among diverse positions need to be expected when what is
usually understood as the supreme law of the land is set to be revised.
There are two main reasons for this. First, constitutional reform is about

the reorganization of state power. It entails questions such as the nature,

role and place of the state in the political life its citizens. It seeks to alter
the existing framework, structures and organization of state power. It is
always the case that there is a multiplicity of incompatible views and
approaches to clash with each other at moments of reforming the state.
The second reason is tied up with the fact that in a plural society like ours,
there are many and often competing stakeholders who make claims to the
state. They are primarily stakeholders representing the interests of ethnic
communities, social groups and political formations. None of them wants to
be a loser in the competition for what it views as its legitimate share of
state power. Since these claims have the character of being zero-sum
political games, state reform debate in plural and deeply divided societies
can even run the risk of making compromises difficult and even
unattainable. Sri Lankas past experience tells us that constitutional reform
in a deeply divided society is an objective necessity, yet a most difficult
goal to reach.
Recognition of these difficulties is helpful for us to think about strategies to
make sure that Sri Lanka does not lose yet another opportunity for
reforming the political order for a better democratic future.
Prerequisites
There are certain political prerequisites addressing of which can minimize
the risks. Let us briefly identify some of them:
i. Making people owners of the new constitution: This is the primary task
of the political leadership which has taken up the responsibility of drafting
and promulgating the new constitution. Popular support for the new
constitution is necessary not only because of the referendum requirement
to alter some clauses of the present constitution, but also because without
popular backing and legitimacy, no constitutional exercise can be either
democratic or politically meaningful. After all, it is people who own the
constitution. They are the source of political power and sovereignty.
Although the drafting of the constitution is an exercise by groups of elites
and experts, ownership of a democratic constitution is with the people.
Only when the people feel that they have the genuine ownership of the
constitution would they back it, support it and provide it popular
legitimacy. It is a welcome development that the government has taken
steps to make the constitutional drafting process open, transparent and
participatory. Marshalling the democratic impulses and aspirations of the
ordinary citizens and translating them into constitutional principles is

perhaps the most creative and inspirational phase in the constitutional

drafting process.
ii. Cooperation amidst divisions: Building consensus and alliances across
the political divide is of vital importance in order to reconcile competing
agendas and widen the community of stakeholders of the new constitution.
Sri Lanka is not only a plural society, but also a divided society, with ethnic
cleavages and identity politics defining the political imaginations of its
citizens. Our democratic political institutions, structures and processes
have the peculiar characteristic of being a source providing great
incentives to competitive and adversarial politics and discouraging
cooperation, even when cooperation has become a historical necessity to
resolve fundamental problems faced by the polity. Ironically, the two
elections held last year deepened the political cleavages and sharpened the
adversarial dimension of democratic politics. The prime ministers proposal
for a national government, however well-intended, could not reverse this
process. To make the constitutional reform process successful, Sri Lanka
today needs a political consensus among a majority of political parties and
forces. Before the polarization gets sharpened, the government should
launch a major political campaign of community education so that a
groundswell of mass support would provide a popular foundation for such a
broad political consensus.
iii. Managing intra-elite conflict: Building a broad political consensus in the
country is quite different from an instrumentalist exercise in which
opposing MPs are invited to join the government in exchange of material
benefits to ensure the two-thirds majority support at the voting for the
new constitutional draft. The necessity of such a broad consensus also
arises from the fact that it will enable the government to manage the ongoing intra-elite power struggle as well. Sri Lankas conflict has many
levels. Ethnic conflict is only one aspect of it. The conflict within the
Sinhalese political class is one of the forgotten levels of Sri Lankas
protracted political crisis. If unmanaged and allowed to escalate, it has the
potential to derail the entire agenda for peace building, reconciliation and
constitutional reform. Instead of offering material incentives to individual
MPs, the government should show its capacity for political and intellectual
leadership so that forging a broad political consensus among different
segments of the political class would be a transparent and democratic
process anchored on a political vision.
iv. Inspiring messages: Providing political-intellectual leadership to build a
broad political consensus calls for the government to adopt an approach
different from its current ad hoc approach, which has repeatedly exposed

the governments vulnerability in terms of ideas. It is not yet too late for
the government leaders tobegin communicatingto the people a few
substantial and inspiring political messages about its vision for
constitutional reform. The communication can begin by inviting all citizens
across ethnic and social divisions, political parties and actors to be
partners in an understanding that after decades of war, violence and
authoritarianism, people of this country legitimately deserve (a) a better
and more democratic political future; (b) a state which all citizens from all
corners of the country, and irrespective of their ethnic, cultural, social,
gender differences, can be proud of, because it offers a shared political
future to all citizens, based on shared values and normative goals. These
values and normative goals should include equality, social and
redistributive justice, rule of law, inclusive and pluralist democracy, peace,
non-domination, non-discrimination, right to development, human dignity,
and a decent society.The government can also promise the citizens that
the new political order will be one with the capacity and political resources
to resolve social and ethnic conflicts through democratic engagement and
reform rather than by means of internal war and violence.
v. A new covenant: A new constitution should be more than a legalpolitical document. It should be a covenant among citizens on one hand
and the citizens and the rulers on the other. Although covenant is an old
liberal concept, it still encapsulates the democratic essence of the state as
a political association of citizens who continuously aspire and struggle to
be free and equal citizens in a democratic political order. The metaphor of
a new covenant will also inspire people to think that new constitutional
initiative is really the beginning of a new political life for the country.
vi. Renewal of political life: Thus, a new constitution should mark a
renewal of the political life of citizens, with a break with the past and with
positive hopes for a better political future. A constitution can acquire this
quality only if it enshrines a set of collective normative goals, as suggested
above, that all citizens can share, subscribe to, defend, and be proud of,
thereby giving a new meaning and substance to the idea of patriotism.
Thus, a new constitution should be one that enables a political value based
love of the country. When each of our citizens, from Point Pedro to
Devinuwara and Kattankudy to Negombo can say, "I love my country
because I love my countrys Constitution," it would be the day of greatest
political fulfillment for Sri Lanka.
Who should drive and champion a course of action, designed around these
pre-requisites? None other than the President and the Prime Minister. The
new constitution is their promise to the citizens of Sri Lanka. They should

not dilute the substance of their promise because of political expediency.

To be champions of a better and more democratic constitution, they also
need to put to better use the privilege access to media and the public
domain they possess to communicate with the people, with more
substantive and credible political messages.
Posted by Thavam