• Independence of the Judiciary, democratic governance, and the dismantling of the Executive Presidency

Today, there is so much confusion: What is Constitutionalism and a Constitution? Why do we need a Constitution? We must recognise that, it has been the civil society, including professionals, who have always articulated a voice on issues of public concern. So, the Bar Association too has expressed views on public concerns. 

They and many other leading lawyers have always led from the front. And, in that regard, in the case of the legal profession, inevitably there are areas of public concern that necessarily mean that they have to call the Government to account. When that happens, the Bar Association is required to question the Government’s action or inaction, including their policies

Now, in the past, it was not as bad as today, because today, we have such adversarial, confrontational politics that if by any chance, and an unlucky chance, the Opposition’s stand on a matter happens to coincide with that of professionals, then there is a delegitimisation of the professionals. That is wrong because professionals must have the courage to speak for their profession, even when they question the Government. Constitutionalism and Constitution-making, to be functional, must have bipartisan consensus. When that is not there, even professionals who articulate a voice are seen as either anti-Government, or worse, lackeys of the Government.

Citizens should be aware of these realities, and therefore reflect on what it means to have a Constitution. What is a Constitution? A Constitution is, after all, the basic law of a country which will regulate the governance system. And to regulate a governance system, you have to have a framework for governance.  The framework for governance then will have to have institutions of governance. That would be what you call the system of governance. Now, those institutions of governance also have to be embedded and linked with some values, and a values framework.

In the 20th and 21st Centuries, we have basically two forms or frameworks of governance. One is democracy. The other is what we call centralised power with perhaps a single leader. That kind of governance does not focus in the way that democracy does on the sovereignty of the people, the rights and liberties of citizens. Therefore, we need to understand in Constitution-making, where we stand? Is it going to be for democracy or is it going to be for another form of Government? And today, we are constantly talking of the democratic deficit, the failures of democracy. Contrasted with that are countries which have strong leadership, a single leadership, supposed to zoom our counties into economic growth and a wonderful future.

Democracy did not come overnight

In that context, therefore, we need to ask ourselves: what is the value of democracy? Now democracy, we must understand, was born of an evolutionary framework developed from a time when there was single leadership by a king, a monarch.  Democracy did not come overnight. It had to dismantle monarchy and single leadership, and that is what it did. Historically, we know that basic ideas on democracy as a form of governance can be traced to the Greek civilisation and the time of what we call the Western Enlightenment. It was the Western Enlightenment that brought together these ideas of the sovereignty of the people, a social contract between the Government and the people who are governed, and the central importance of the people of a country. That is democracy. It took centuries, ideologies and thought. It required struggle born also of blood and tears.

Today, we dismiss democracy and this history and say, “Oh, it is elitist liberalism.” We must not forget that democracy was born as an evolution from monarchy and a single leadership, replacing this with the concept of Government that respected the rights of the sovereign people. The central importance of the sovereign peoples’ rights to be protected from abuse of State power is the foundation of democracy as a form of governance. The European countries and the United Kingdom engaged with that system of governance.  

By 1948, when the United Nations (UN) Charter and the international instruments were drafted, there were two different approaches to governance. One was the Western tradition born of their experience evolving from monarchy to people’s rights and sovereignty that focused on civil liberties: freedom from torture, the freedom of speech and expression, the freedom to protest. The weakness was that there was no recognition of social and economic rights as the rights of the people: that was absent in that tradition.

On the other hand, there were  Member States from the Communist countries, which had the centralised, authoritarian system of governance. They did not  recognise civil liberties, but focused on meeting all their people’s social and economic needs as rights: health, education, and shelter.

In 1948, we must remember that there were therefore two great international treaties or covenants:  one, a Covenant on Civil and Political Rights, and another one on Economic, Social and Cultural Rights.  That was the Cold War period. But then, subsequently through the years, there were changes. In the 1990s, there was the flowering of the human rights (HR) tradition. Member States of the UN came together at the Vienna (Austria) World Conference in 1993, which then recognised that all these rights should be HR of peoples across the globe

So, the Western liberal civil liberties tradition, linked with that of the countries of the Global South like Malaysia, China, and Russia, which recognised and gave importance to social and economic rights. And then a consensus developed that all these rights are important; they are “indivisible.” We witnessed this in the 1990s, and the early years of this millennium in the development of many international conventions which declared HR on the basis of both civil liberties and social and economic rights.

One would have thought that we would have achieved a global consensus on the broadening of the meaning of democracy and a movement away from this concept of strong leadership without civil liberties. We have not had that.  In place of that, we have had a decline in multilateralism in the UN system, giving way to bilateralism, once again back to this focus on two systems: democracy or a strong single leadership.

Civil liberties

In this global context, let us compare the situation in countries like ours, which experienced decolonisation: countries which knew the impact of colonialism. What happened in those countries? These civil liberties, the legacy of the colonial powers, were used in freedom struggles. They were used to dismantle colonialism. That is why the idea that this liberal tradition of civil rights is a colonial white man’s law should be challenged. Because this is not so. These countries of South Asia and Africa internalised the values of democracy, the systems of governance known as democracy, and built for their Nations constitutions which recognised the importance of civil liberties and the control of State power and you see this in India, Nepal and Sri Lanka: we had the same concepts of the importance of civil liberties in Constitutionalism. We focused on civil liberties. Social and economic rights, in the Vienna Convention, were considered only as social policies, following the Western tradition on people’s rights. 

And what is the meaning of Constitutionalism? The sovereign people have given their consent to the rulers to rule subject to the protection of their rights. And that means that Constitutionalism must prevent the abuse of State and Government power. Today, sometimes, we talk of authoritarian Constitutionalism and abusive Constitutionalism. That is a contradiction. If Constitutionalism is to prevent the abuse of State and Government power, you cannot have authoritarian Constitutionalism or abusive Constitutionalism. What you can say is that you can have the abuse of Constitution-making to embed an authoritarian system of governance.

So, we must now, therefore, recognise that even today, if we say that there is a democratic deficit, this system of governance has been used in our countries to give a better quality of life to our people. There have been failures; there are dysfunctional areas, that does not mean that you have to reject something which has been a powerful force for recognising the importance of the citizens.

Deficit of democracy

Today, when we are challenged with all this talk on the deficit of democracy, the importance of single leadership and authoritarian governance to deliver development, we must stay the course and say: “No, for Sri Lanka, from 1948, we have had democratic governance.” Governments have not delivered in many areas  so the challenge is to focus on Constitutionalism in a new Constitution. Priority must be given to help the Government to deliver on the gaps that we have, and ensure the well-being of our people. Constitutionalism must be the basis for drafting a new Constitution.

We have to also challenge this often-repeated statement that we have a “78-year curse” in governance. We have had deficiencies, but we have had democratic governance. Central to that has been regular elections and the resilience of the people. Also, the contribution of the courts and lawyers of this country in ensuring that there has been some accountability in governance.

The writer is a legal academic

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This is Part I of a many-part series. The second part, will be published in an upcoming issue of The Daily Morning

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The views and opinions expressed in this column are those of the writer, and do not necessarily reflect those of this publication