By Basil Fernando
A fake Constitution alters the rules of logic that are the basic foundations of a good constitution. The change of logic leads to irrationality. The spread of irrationality into public institutions creates rotten systems within such public institutions. Where the public institutions go rotten, every aspect of social life comes into severe problems.
Gradually, all systems break down. Then unmanageable crises develop within the society. These crises in turn create so much demoralisation within the people who become the sufferers and victims of these institutions that they withdraw their co-operation from these public institutions. With that, not only these public institutions but even the society becomes unable to function. The dysfunctionality of public institutions which are unable to create public co-operation leads to failed states. Such is the situation of Sri Lanka today.
It is quite relevant to discuss the impact of fake constitutions at the present moment because the discussions about adopting a Government-sponsored draft of a Constitution has provoked a debate within the society about the very purpose and the meaning of the making of a Constitution.
Can an already existing fake Constitution provide the basis within which a genuine and rational Constitution can be created? That is the core of the whole issue about Constitution-making in Sri Lanka.
The 1978 Constitution is a fake Constitution. It talks about the Constitution of a republic. However, it violates the most basic principle of a republic. Thomas Paine, the great American philosopher and writer whose writings played an enormously influential role during the time of the making of the American Constitution, summed up the basic idea of a republic: In England, the king is the law whereas in the US, the law is the king. What makes a republic is the supremacy given to the law above the ruler. If the ruler is not subjected to the law, then there cannot be a republic.
Thus, calling Sri Lanka a republic is a misnomer because in Sri Lanka, it is not the law that is the king but it is the Executive President that is the law. When the head of the state, whether it be an Executive President or a Prime Minister, dictates the law, then it cannot be a republic at all. When such a place is called a republic while basically operating on the principles on which a monarchy is based, it may provide some kind of a title to the head of the state which sounds modern. However, there is nothing modern about the Sri Lankan Constitution. It is based on a primitive principle of dictating the terms under which the society should live by a single person called the ruler.
The basis of irrationality that is inherent in the 1978 Constitution is based on this contradiction of calling itself a republic while operating on the principles which are opposed to a republic. This change in the major premise of a system of governance changes all the other premises and the conclusions to be like that. Thus, from a rational point of view, the whole of the public system within which Sri Lanka operates is within an illogical framework. Such an illogical framework creates all the consequences which are mentioned earlier in this article.
However, this logic lives not only as an abstraction. Real institutions begin to malfunction to an extent that the country’s system of the regulatory framework of finance breaks down. The nerve system of any economy is the system by which financial institutions are managed in a country. When the normal principles that govern such managements are abandoned in favour of irrational interferences, violative of the law, then, the very financial structure breaks down.
This exposes the narrowness of some who claim that Sri Lanka’s problems are only economic problems and that the questions of the Constitution are not relevant problems at the moment. That is an irrational understanding of how an economy works. An economy, like any other feat of human activity, operates on logical frameworks. When the basic premises of a logical framework are removed, then irrationality enters into the entire system. The consequences of that irrationality can now be seen in the country. The prediction is that in the coming months, these will become even worse and that life in the country may become a nightmare. The possibilities of even food shortages have been predicted. Already, the spread of malnutrition in a significant portion of the population is a fact.
Putting a Humpty Dumpty back together again is considered usually an impossible task. That is the way that people have begun to perceive the Sri Lankan situation. However, there is a way to put the Humpty Dumpty back together again and to get the public institutions of the nation to function. That is why it should be a return to reason. Returning to reason is a primary requirement of returning to a law based society that is a republic.
Today’s task is to recreate a republic. By following the 1978 Constitution, a republic which rejects the basic notion of a republic, it is not possible to return to a republic.
The first step needs to be the undoing of this fake Constitution and to replace it with a Constitution within the democratic framework which could operate under the principles of the rule of law.
However, it is impossible to think that the Parliament in its present form will want to or is capable of producing anything other than a Constitution that is based on the same principles as the fake Constitution of 1978.
That is the reason why there is a demand today for the Constitution making to be done by a constitutional convention that is a convention consisting of persons who are selected mainly for the purpose of the making of the constitution. The selectors are the people. What a constitutional convention would do is to bring back the people’s participation into constitution making so that the basic principles of a rational Government could be restored. That will pave the way to make a beginning in order to change the ground realities that exist in the country.
However, the next question is how to bring about that constitutional convention. This could be done by way of a referendum at which the people vote for the manner in which the Constitution should be made and who should constitute the constitutional convention. Naturally, people would want the constitutional convention to be represented by persons who will faithfully contribute to create a kind of law based system within which the people themselves are protected. By people, it means everyone in Sri Lanka belonging to various sectors of the society, the workers, peasants, entrepreneurs, professionals and all. They need to have a direct say in the making of a Constitution.
To continue with the fake Constitution that exists now, is to look for a future within which everything will be much worse than the way they exist even now. A constitutional convention brought about by a referendum is necessary for the survival of Sri Lanka as a law based and rational society.