Constitution as social contract

By Dr. M.A.M.H. Barry

The constitution of a State is the organic and the supreme law from which other laws stem.

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.

The purpose of a constitution for a country 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.

Discontent

The social contract is undermined when people feel that the constitution does not rightly address their problems.

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 realising human rights of the people, providing economic rights to ensure people's dignity are respected, upholding constitutional 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 peoples for the single goal of national integration and nation building. No State could be integrated or united 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. 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 concept of unity without uniformity and, diversity without fragmentation, should be clearly recognised 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 recognised 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's unity and provide ways for harmony. The emotional unity among the people is very important for racial and religious harmony.

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

Multiple identities

The constitution should recognise 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, states: "The State shall safeguard the independence, sovereignty, unity and the territorial integrity of the Republic and shall preserve and advance a Sri Lankan identity, recognising the multi-ethnic, multi-lingual and multi-religious character of Sri Lankan society."

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."

Expanded provisions

Our Constitution 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 political opponents 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.

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.

Such a progressive role could be originated by the State playing role as 'intervenor' on behalf of the victims in fundamental rights actions. 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 recognised in the Article 13(4) of the Constitution (Kottabadu Durage Sriyani Silva case 2003).

The elaborated provision on Right to Information, 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 essential to protect the social and economic rights of the people. It is a vital part of the social contract of the modern State. For this purpose, the constitution should guarantee the economic rights of the people, such as the right have a decent life, livelhood, education, shelter, health care and, freedom from repressive labour practices. 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.

The current composition of the Constitutional Council, which is dominated by seven politicians could impair the independence of the council and needs change.

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