Constitutional reforms :

Reflecting the theory of social contract

by Dr. M.A.M.H. Barry

The constitution of a State is the organic and the supreme law of that State. It explicates, regulates and articulates the relationship and cohesiveness between the State and its people, people and people, State and institutions, institutions and people, besides directing and governing the State's relationship with the rest of the world.

Pic: Courtesy adaderana

Before ascertaining the objective, purpose and necessity for the constitutional reforms, it is essential to understand the purpose of a constitution for a country. It is to define, direct and govern the terms of the social contract, the rights and obligations of all parties under this contract and enforcement mechanism of its terms. The social contract is an honoured and solemn agreement between the State and its people.

The social contract will have a serious problem, when people feel that the constitution does not righty address their problems or when it lacks practical manifestation to meet people's reasonable aspirations. Such discontent results in the demand for constitutional reforms or replacement of an existing constitution. Hence, the government's proposal to reform the existing constitution indicates that it is ready to negotiate a new deal with its people.

Some of the identifiable cardinal principles which are indispensably linked with the people's interest and aspirations for which reforms are necessary, include: unity of the people, progressively realizing human rights of the people, providing economic rights to ensure people's dignity are respected, upholding constitution sovereignty, creating a corruption-free administration, making public services people-friendly and promoting good governance and freedom without damaging cultures of the people.

Although our constitution was amended 19 times, the Sri Lankan society appears fragmented and segmented.

Hence, uniting the country is the first and foremost duty of the State and unity does not mean that is only territorial unity, but unifying the diverse people for the single goal of national integration and nation building. No State could be integrated or united through regimental laws, administrative systems, by making laws without considering diversity among the people or by introducing laws/rules which cause discrimination against any particular community or people.

Unity in a pluralistic society lies in integration and not in assimilation. The assimilation is an ideal process for a State which has a homogenous population (one race, one religion or one culture) but for a multi- religious /ethnic and cultural State like Sri Lanka, any demand for assimilation will create chaos and confusion as no group or community - be they the majority or minority - will not naturally or voluntarily surrender its identity.

Integration vs assimilation

The unification or national integration does not demand sacrifice of the identity of any group or people, whether racial or religious or any other natural identities. The concept of unity without demanding uniformity and diversity without fragmentation should be clearly recognized in the constitution. This will make people loyal upholders of territorial unity, national integration and nation building without sacrificing their religious, racial or linguistic identities.

Diversity should be recognized and consolidated through constitutional guarantees and mechanisms. Generally, such guarantee is enshrined through the:

(1) Preamble of the Constitution.

(2) The nature or character of the State

(3) Equality clause

(4) Provision/s protecting the right to manifest religion and practice cultures and

(5) Provisions for promoting fraternity and prevention of hate campaign against any community

Our new constitution should contain strong and spirited words that reflect the people unity and provide ways for harmony. The emotional unity among the people is very important for racial and religious harmony.

Once the former Indian premier V.P. Singh declared that, "the unity among the Indians could be preserved only through emotional unity among Indians." The Preamble of the South African Constitution contains declares: " We, the people of South Africa,...Believe that South Africa belongs to all who live in it, united in our diversity..."

Multiple identities

The constitution should recognize the multi-ethnic, multi-lingual and multi-religious nature of the Sri Lankan society. The bill to repeal and replace the constitution, presented by former president Chandrika Kumaratunga's government in 2000, contained the following: "The State shall safeguard the independence, sovereignty, unity and the territorial integrity of the Republic and shall preserve and advance a Sri Lankan identity, recognizing the multi-ethnic, multi-lingual and multi-religious character of Sri Lankan society."

Similarly, the Indo-Sri Lanka Agreement contained the following provisions: (1.2) Acknowledging that Sri Lanka is a multi-ethnic and multi-lingual plural society consisting, inter-alia, of Sinhalese, Tamils, Muslims (Moors) and Burgers, (1.3) recognizing that each ethnic group has a distinct cultural and linguistic identity which has to be carefully nurtured, (1.5) conscious of the necessity of strengthening the forces contributing to the unity, sovereignty and territorial integrity of Sri Lanka, and preserving its character as a multi-ethnic, multi-lingual and multi- religious plural society, in which all citizens can live in equality, safety and harmony, and prosper and fulfil their aspirations.

Under our constitution, among other rights, the equality clause is enshrined in Article 12 of the Constitution. However, many people misunderstand or misinterpret this to mean that Article 12 places all people under one category for all purposes, thereby suggesting overlooking or eroding diversity when it comes to areas of religions, cultures, languages and matters like personal laws.

The equality clause is meant to be interpreted and enforced equitably. The courts in democratic countries across the globe, including Sri Lanka, have interpreted the equality clause in a context of diversity.

However, our constitution should provide further elaboration on how it could be enforced equitably. The South African Constitution has set out examples of it, such as its Article 9 (Equality Clause) which contains five supplementary provisions to further explain the equality clause. Article 9(2) states: "Equality includes the full and equal enjoyment of all rights and freedoms."

Extended provisions

Our cconstitution contains provisions on freedom of religion in Articles 10 and 14(1e), which resembles Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR). The right to manifest his religion was not defined or elaborated in ICCPR but the UN General Assembly Declaration (A/RES/36/55, 25 November 1981) has given an inclusive list which could be regarded as the minimum standard.

Several constitutions contain expanded provisions on freedom of religion. For instance, the Indian Constitution has elaborated provisions contained in Articles 25 to 30. Article 25 guarantees the freedom of conscience and the freedom to choose a profession, practice and propagation of religion. Articles 26, 27 and 30 further consolidate Article 25.

There have been debates on how to prohibit hate speech or campaign and recently the government intended to bring an amendment to the sections 292-294 of the Penal Code. The best way of prohibiting the hate campaign is the insertion of a provision on this prohibition in the constitution. For instance, the South African Constitution contains the following provisions: The right in subsection (1) (Freedom of Expression) does not extend to ­ (a). propaganda for war (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The Penal Code also could be amended to supplement the constitutional provision. The fear that it could be used against the opponents for political purpose, could be addressed in the same constitutional provision.

Since the modern states are empowered with expanded state powers, there is growing demand and indispensable necessity for states to play a generic role positively, beyond the traditional negative role of protecting rights.

To make fundamental rights protection more meaningful, our constitution should include and impose a generic obligation on the state, similar to the South African constitution which in Article 7(2) enacts, 'The state must respect, protect, promote and fulfil the rights in the Bill of Rights. This covers the respect bound, protection and fulfilment bound obligations of the State.

Although our Constitution has enshrined certain rights as fundamental rights, due to many reasons the victims do not normally seek redress in the Supreme Court.

For instance, since the victims have to file an action against some powerful state authority, the fear or threat (real or perceived) contributes decisively for the victim when making decisions on this matter.

Such a progressive role could be originated by the State playing role as 'intervenor' on behalf of the victims in fundamental rights actions. One may argue that it is incompatible for the state to act against its own officers, but it should be justly noted that no state has the right to defend wrongdoers or human rights violators, but it has the obligation to stand with the victims of the human rights' violation and appear or intervene on their behalf.

Further, the fundamental rights provisions in our constitution have to be expanded and consolidated. Our constitution does not have a provision on 'Right to Life' though it was implicitly and tacitly recognized in the Article 13(4) of the Constitution (Kottabadu Durage Sriyani Silva case 2003).

The constitution needs to have a separate and distinct provision on this right. The elaborated provision on Right to Information, the provision that declares that people's dignity should be respected and protected, right to privacy, rights of people with disabilities are among the other rights needed to be considered for inclusion.

Welfare state

The welfare state is not a superfluous requirement, but it is imperatively essential to protect the economic rights and dignity of the people. Establishing social justice and helping people with welfare measures is a vital part of the social contract of the modern state. Hence, states have to move beyond John Locke and Rousseau's concept of limited government without depriving the people's fundamental rights (even modern liberalists promote welfarism).

For this purpose, the constitution should guarantee the economic rights of the people. These rights should include, right have a decent life, right to earn a living, right to education, right to shelter, rights to health care and freedom from repressive labour practices and other social/economic rights which provide social/economic benefits. These rights should be enforceable or justiciable rights.

Since Sri Lanka is a developing state which lacks necessary resources to provide for enforceable economic rights, the constitution could limit the state's obligation 'within the limits of available resources' as enshrined in the South African Constitution.

With regard to this, the South African Constitutional Court has adopted the standard of 'reasonableness' as its primary adjudicative tool in relation to social/economic rights. Our constitution could include enforceable economic rights within the standard of reasonableness and within the available resource limitation. The significance of enshrining economic rights is (1) it provides opportunity for the people to demand their economic rights within the limitation of the guarantee and (2) it imposes key obligations on the government of the day, to ensure optimum performance with the view of providing maximum package to the people, including economic rights.

If the constitution is all inclusive and accommodative and contains provisions on fundamental values and progressive protection of people's rights, then there is necessity to uphold the supremacy of the constitution.

Although with the enactment of the 19th amendment, the legal mechanism for good governance is established to some extent, the composition of the Constitutional Council, which is dominated by seven politicians could impair the independence of the council.

The constitution should not be reformed or amended to serve political expediencies of any party or to ensure the dominance of any group against others. The purpose and object should be, to establish distributive justice, including in political, economic and social spheres, to all Sri Lankans.

'The writer is an Attorney-at-Law and Senior Lecturer in Law and International Politics.'