SRI LANKA: Making A Constitution For A Traumatised Nation

By Basil Fernando

Sri Lanka, as it faces the worst crises in terms of the economy, the society, culture and the legal and moral norms on which the society exists, is today a highly traumatised nation. All the norms of a civilised society are in the worst crisis that Sri Lanka has experienced in recent times.

That such a level of internal crisis exists is not disputed by anyone. However, what no one has yet paid adequate attention to is the psychological impact of such a situation on the individuals as well as the society at large. In short, that impact is that Sri Lanka today is a highly traumatised society.

A major sign of a traumatised person is the confusion that is spread in the mind of such a person that affects not only the mind of the person but also the capacities of such a person to keep to the moral practice of the society in order to keep sensible relationships. What happens to an individual in this manner can also happen to society. Sri Lanka today is one of the examples of such a situation. It is in the midst of such a confusion that there is a discussion about the existing Constitution, that is the Constitution of 1978 and also about a draft constitution that the Government wants to introduce soon. It is also within such a context that many social and political organisations have also proposed a different kind of a constitution that will negate and abrogate the fundamental ideas of the 1978 Constitution and also bring about a new constitution by a new mode of making a constitution, that is through a constitutional convention. Today determines the outcome of that debate, and therefore, it is essential to understand the impact of societal trauma that the Sri Lankan nation is facing at the moment.

The nation today is confused as to how it has descended to the abyss that it has reached now. There is considerable confusion about the causes of this confusion. Many as a matter of general talk say that the old problem lies with the poor leadership that has emerged in Sri Lanka over the last decades. On the other hand, there are some who attribute the present crisis to the people themselves. They argue that it is the people themselves who have elected the type of leaders who have brought the country to the present situation and that that is because the people themselves do not have any really identifiable goals for their nation. During elections, it is argued that people pursue petty interests, trying to get some type of personal benefits if the party they support comes into power. However, there are others who try to point to much deeper reasons like the failures of the political leadership as well as the failures of the people themselves.

Underneath are the deeper conceptual problems about the making of a nation. At the beginning of the period of independence, the foundation for the new society was laid on the basis of certain concepts such as equality before the law, the equality of opportunities, the functioning of all power structures and the holders of power within the framework of the law and the attachment to the ultimate principles of the supremacy of the law and the rule of law. By declaring itself a democratic republic, the country has accepted democracy as the ultimate aim of the nation’s social organisation and within that, the principle of the separation of powers will remain the foundation of the relationship between the State and the people. Within that framework that was originally conceived, the rights of trade unions were recognised, the rights of other organisations of people including the working people as well as those of the business sector were also recognised. The freedom of expression and the freedoms of association and assembly were to be the foundation within which the public is to function.

However, all these original notions were abandoned in the 1970s. Both the 1972 Constitution and the 1978 Constitutions attempted to abandon these notions although in both the Constitutions, there was an attempt to hide the real intention of abandoning these fundamental notions.

The 1978 Constitution in particular brought to existence a set of notions which are very opposite to the notions on which the original constitution was based. Instead of the separation of powers, they have developed the idea that the people by electing a Government has handed over their sovereignty to the Executive and that the Executive was the supreme branch of governance in the country. Despite trying to keep appearances of the separation of powers, the creation of an Executive that controls both the Parliament and in many indirect ways the Judiciary, was not merely a practical change but a change of the basic notions on which the nation’s foundation was built.

This process created a confusion that has now run into all the institutions in the country. No one knows what is the role, for example, of the law enforcement agencies. Do the Police have the power and the independence to inquire into crimes purely on the basis of the principles laid down by the law or has that situation now fundamentally changed? This is a fundamentally important issue in determining the people’s sense of security. What kind of security can they expect to have? About this, there is enormous confusion and even an overwhelming notion that justice, including criminal justice, is not something that a citizen could expect to take place in his/her society. Whether an act is just or not, or if it is determined purely by political and other opinions and not by objective factors expressed through the law. Then, within that society, the spread of a deep sense of insecurity and confusion is inevitable. Sri Lanka has reached that stage now for some time.

The other issue that confuses everyone is as to whether Sri Lanka is a democracy or a national security State. By the way the power is exercised by the Executive and also by the restructuring of the system through the 1978 Constitution, what has come to exist in Sri Lanka is a national security State. The use of State powers of arrest, detention and even suppressing the independence of the Attorney General’s Department and also the investigating agencies, the national security notions have taken a fundamental hold in Sri Lanka. While the language of democracy is used on the surface, the actual operations are done on the basis of national security conceptions. This is again a very fundamental form of confusion that affects the society at large as well as individuals who live in it separately.

A traumatised person begins to question who they are or where they live and even the identification of times and places. Such is also the situation that is taking place in the country. What is what, who is who, where is this or what kind of a time this is are all matters about which there is a fundamental confusion.

In such a situation, it comes as no surprise at all that none of the sectors of the society can function normally. The economy cannot function normally, various sectors of the economy including agriculture, even the limited industrial activity, the exports and imports activities and even the value of Sri Lanka’s rupee are all matters about which there is no longer any kind of rational certainties. No one is sure about the role of various functionaries. Whether these functionaries are politicians or persons holding various places in the bureaucracy or professionals, what their actual role is and what you could expect them to do are matters about which people have profound doubts.

Following is merely a very short description of the confusions that exist within a traumatised society. Naturally, such confusion leads to constant conflicts. Those engaged in these conflicts themselves often are confused as to why there are such conflicts and what would be the expected outcome. It all seems to be more like a dream than a reality.

The making of a constitution to bring a functioning State back into life requires a high degree of agreement on the basic notions on which this society needs to be reorganised and that agreement cannot be brought about from the top. That agreement could be brought about only through an intense discourse within the society itself. The task of any rational leadership under the present circumstances is to have the capacity to cause that discourse in order to enable the society to emerge out of its confusion and to have some clarity about what their society is and what it is going to be. This will also determine the identity of the individuals and groups living in that society.

What Sri Lanka needs is not just a reconciliation of one group with another but the reconciliation of all sectors of the society, all groups of communities, all genders and all people with various religious and other beliefs to come together to discuss their common confusion.

Confusion and clarity cannot coexist. Either the confusion will dominate and just create virtually dysfunctional situations or the clarity will prevail, paving the way to properly functioning institutions and also individuals.

The constitution making process has to be such a process and bringing about that process will not be easy. Emerging out of confusion is difficult for an individual and so it is more difficult for a society. However, the only option left is either to get more confused and to have worse consequences of such a confusion or to struggle towards clarity and a deeper unity of notions on which the society must be based. The unity of a nation is not just a matter of a geographical issue of living within a certain territory nor is it a question about ethnicities or about majorities and minorities. A nation’s unity is based on the fundamental notions about which there is agreement while there can be all kinds of other differences among the people involved. If on these fundamental notions there is confusion, there cannot emerge a unity within a nation. Conflicts will give rise to new conflicts and the consequences of such conflicts would be levels of greater distrust and separation. The State way to deal with that confusion would be to strengthen the national security State by allowing itself to use force instead of reason.

Sri Lanka needs to return to being a nation that uses reason instead of force. That is the path back to democracy, the rule of law and human rights. However, that could happen only if there is great agreement on these matters. Constitution making should be an occasion on which such daring attempts should be made to bring about agreement on the fundamental notions on which the Sri Lankan society is to be based on and function in the future.

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