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| Thursday, 22 July 2004 |
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A constitution rooted in the soil, country's prime need by Chandra Edirisuriya There has been a set of rules governing affairs of State from the very inception of organised human society. Monarchical forms of government where the king had the final say in executive, legislative and judicial matters, had no written constitution. Britain that has evolved a constitutional form of government, from monarchy has no written constitution to this day. In other constitutional monarchies where there are figurehead kings and queens there are written constitutions promulgated by the people represented by their legislators. Constitutions that have derived power from the people on the spirit of the people (folk geist) have as their power base the Grand Norm or the basic idea as enunciated by Hans Kelsen by his thesis the Pure Theory of Law. In other words, such a constitution is grounded on the People's Will. The constitutional history of our country goes back to the days when we first had an organised form of government by kings. The last vestiges of such rule by our kings disappeared with the annexation of Kandyan Kingdom in 1815 by the British who were already masters of the Maritime Provinces. From then onwards upto February 4th, 1948 we were ruled by the British monarch through a Governor. The only safeguard we had for the continuation of our traditions was the Kandyan Convention of March 2, 1815. The constitution given to us by the British with the granting of independence on February 4th 1948, named the Ceylon (Constitution) Orders in Council 1946 and 1947 was made in Westminster. Hence that system of government was called the Westminster system of government. This system was, generally, an evolution by the various concessions given to the people of this country to rule themselves, in a limited way, from the Colebrooke Cameron Reforms of 1833 through the Manning, MaCullum reforms and the Donoughmore reforms of 1931. The British enacted pernicious legislation like the Wastelands Ordinance by which the Kandyans were deprived of their pasture land from where they also got their firewood and bees honey. The British used repression to quell the rebellions of 1818 and 1848. They imposed martial law and acted in an unjust and punitive manner towards the Sinhala people to put down the Sinhala-Muslim riots of 1915. The Kandyan chiefs, the chief among whom was Pilimathalawe Maha Adikarama, were eager to replace Sri Wickrama Rajasinghe, the last of the Nayakkar Kings brought in to rule this country for lack of a proper male person to bear the crown, among the Sinhala people. The British were worse than the Nayakkar King in that they crushed the people with their iron boots and reminded the people of the remark made when the Portuguese were replaced by the Dutch in 1656: "Exchanging pepper for ginger". It is true that the British were more liberal than the Portuguese and the Dutch who were more interested in proselytization and trade than with good governance. But we should not have been satisfied with the British Constitutional dispensation. What we should have done after over 400 years of foreign domination was to have drawn up for our motherland a Constitution going back to our roots on the Principle of Constitutional Autarky i.e. an Autochthonous Constitution. In other words, we should have gone for a Constitution to bring back our lost glory politically, economically, socially and culturally. This is what most countries where the leaders love all the people have done. The United States of America, France, China, Cuba, Vietnam and other countries that drafted their Constitutions after popular revolutions have very comprehensively and clearly preserved the interests of the people in making their Constitutions. India, Pakistan, Indonesia and a host of countries in the great African continent promulgated their Constitutions in similar fashion. Some countries that gained independence from the so-called multi-party Western democracies opted for one party rule writing their Constitutions to suit them best. They boldly resisted the imposition on them of the Westminster model or any other model for that matter. India is the supreme example of a great country, both in size and spirit that adapted the Westminster system in keeping with indigenous requirements. Far-sighted leaders like Sri Jawaharlal Nehru devised a Constitutional system that has withstood the test of time. The recent Hindutva concept itself was designed to cement the majority wish undisturbed by minority fancies. Burma, now called, Myanmar is on top of the world as regards preserving indigenity. One can call it "splendid isolation" but the reality is that ever since super patriot General Ne Win assumed power through a military coup that country has firmly and steadfastedly warded off every attempt by do-gooders to penetrate and deflower her virginity. As someone said some time ago it may be that the majority in our country suffers because a truly indigenous leadership unspoilt by alien influences has been lacking. Our leaders have been, rather in advertently, drawn to favour outside influences divorced from and alien to the traditional ethos. Therefore this is the most opportune time to give serious thought to promulgate a home grown Constitution rooted in our soil. |
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