Dr. Dinesha Samararatne
Department of Public and International Law, University of Colombo, Sri Lanka
Public consultation is increasingly described as an essential ingredient in constitution-making and as one that performs a legitimation function. Citizens are considered as having a right to participate in such processes. Public consultation in constitution-making is an affirmation of the ‘constituent power’ of the people and of participatory democracy. However, would this idea apply in the same way to democracies in post-war contexts under what have been described as ‘extreme conditions’ such as ‘unresolved ethnic tensions’ and ‘fragile peace’? Is there a need to develop an uneven and qualified approach to public participation in constitution making, based on context specific realities?
Sri Lanka’s public consultation on proposals for constitutional reform, January-April 2016 was unprecedented both in form and in substance. For the first time in Sri Lanka’s history of constitution- making, a Cabinet appointed Public Representations Committee (PRC) visited all 25 districts of the country to consult the public. Within five months, the Committee entertained just over 4,000 submissions (in a country of approximately 20 million people), based on which it recommended wide sweeping constitutional reforms that would address the long-standing conflict with regard to the recognition of equal rights of the Tamil minority, as well as reforms that would provide for a more transparent and accountable state. The reform process has been slow and modest progress has been made with no significant developments since November 2017.
In the run up to the debates of the Constitutional Assembly, October-November 2017, some leaders of the Buddhist priesthood called on the government to halt the constitution drafting process. They claimed that there was no necessity for a new constitution or even for amendments to the existing constitution. They were particularly opposed to any reform of the ‘unitary’ character of the state and of proposals for devolution of power. In an opinion poll on constitutional reform conducted in March 2017 it was found that 85% were of the view that the government was not successful in informing people about the constitutional reform process. 56.4% thought that the government was not successful in obtaining citizen perspectives regarding the new constitution. Only 23.5% were of the view that Sri Lanka needed a new constitution. 66.2% were of the view that there are more important issues other than constitutional reform and transitional justice that should be addressed by the government. The wider political context suggests that the public consultation process was followed as a formality as it was primarily an opinion gathering exercise. The inconsistencies in political will for drafting a new constitution, the slow progress in bringing about transitional justice and issues related to bribery and corruption are factors that negatively impacted public perception of the constitutional reform agenda which could not be effectively countered even through the public consultation process.
Considering these developments, and in the absence of preparatory interventions, what is the relevance of public participation in constitution-making in such difficult contexts? What value can be given to the public consultation process in Sri Lanka? What did the process promise? What results has the processes yielded?
Transnational thought on public participation for constitution-making runs the risk of glossing over the need to pay attention to internal contextual factors, such as the ones described above. It is helpful in that it identifies the normative basis as well as models and strategies for such consultations. However, it offers little in terms of tools for accounting for political challenges of public consultation in the constitution-making process.
The ‘public’, in this field, is often contrasted with ‘the experts’ who advise constitutional reform processes. But who is represented in ‘public consultations’ and what weightage is to be attached to the different views that are expressed by the public? In what ways can the inequalities, histories of dominance and marginalisation be accounted for in defining ‘the public’? The recognition of the right to participate in the conduct of public affairs in Article 21 of the Universal Declaration of Human Rights and in Article 25 of the International Covenant on Civil and Political Rights has been used to defend ‘a right to participate in constitution-making.’ What are the implications of defining public participation in constitution-making as a right?
Consultation has an intrinsic as well as a consequential value. It can be viewed as discrete events or as ongoing, it could be viewed as a process for archiving diverse views. It could also be viewed as a mutually transformative long-term process – one that reaches beyond the adoption of a constitution and pays attention to public participation in substantive and procedural aspects of the constitution. An example for this would be the provision of liberal rules of standing for petitions for violations of fundamental rights, and the provision for judicial review of legislation.
Another conceptual challenge in public consultation is that of legitimacy. How is legitimacy achieved through public participation? Is it only through democratic institutions or through a combination of the democratic and the other types of institutions, such as religious institutions?
Excessive focus on public consultation may take away the much-needed attention on how consultation and participation should be ensured in the constitution itself (both procedurally and substantively). There should be some sense of balance and proportion between focusing on public participation in constitution-making and in ensuring public participation in the actual substantive and procedural aspects of the constitution that is being drafted.
Public consultation in constitution-making is a method of off-setting elite capture of constitution-making and/or its capture by interest groups. It can introduce an organic, unpredictable and even inspiring element to the entire process. It deepens the democratisation process in society. However, in post-war societies where the constitution itself is viewed as a tool/strategy for conflict resolution the stakes are very high and the political, economic and social conditions are far from ideal. Sri Lanka’s context and other similar contexts, makes constitution-making more like bargaining as opposed to deliberation. It has been argued in these contexts that bargaining might be more effective and manageable behind closed doors. The constitutional reform process in Sri Lanka at the moment can be characterised as being in a situation of having to avoid ‘worst-case outcomes’ and as seeking best-case outcomes for limited purposes. Given these realities, the focus should perhaps be on obtaining the buy-in of key stakeholders, particularly the buy-in of non-democratic institutions, and public participation and consultation as a method that facilitates that process.
Public consultation is, at least in part, about legitimacy and about re-distribution of power amongst the different stakeholders in constitution-making. Given Sri Lanka’s context, public consultation in and of itself may not yield that kind of legitimacy. In fact, the participation of Non-Governmental Organizations (NGOs) and foreign donor agencies in these processes itself may de-legitimise the process. If existing power structures remain, as they do in Sri Lanka, then the re-distributive promise and the legitimation promise of public consultation in constitution-making could very well be subverted. The challenge is to adopt a more complex and critical approach to public participation that acknowledges and accounts for these dangers as far as it is possible. How this challenge is met would determine whether the democratization potential of public consultation will be maximized and whether public consultation would inform constitution-making in meaningful ways.