Lessons from South African experience

Past and present constitutional reform process in Sri Lanka was subjected to a scathing attack recently by Rohan Edirisinghe, a lecturer at the Law Faculty, University of Colombo. Mr. Edirisinghe was speaking on the new South African Constitution and the lessons that can be learnt by Sri Lanka. Following are excerpts from the lecture

The South African constitution is unique in several aspects. Firstly, it distinguishes itself in the manner in which it was drafted with all political parties and the public approaching the task in a spirit of true reconciliation and hope for a better future.

Secondly the substance of the constitutional document itself emphasizes fundamental constitutional values and principles, besides unafraidly introducing new rights which make it one of the most striking constitutional documents the world has recently seen.

In almost every way possible, the South African constitutional reform process can be contrasted with our experience. One becomes sad but also angry at the immensity of the contrast. This was so in 1972, in 1978 and the present does not seem to be any different. Look at the entire level of debate, how many political parties in the country have brought their draft constitutions for discussion, how many of them will be able to answer upfront on what their position is on specific constitutional issues.

There are even rumours that the select committee on Constitutional Reform cannot meet because of a lack of quorom. And it is almost as if all of us in Sri Lanka have developed a vast cynicism and complacency that makes us unwilling to demand professionalism and competency from our political leadership.

In substance, the new South African constitution differs in certain fundamental aspects from our constitutional position, including the recent draft of the PA Government. The South African constitution is categorical is its rejection of the supremacy of the Parliament. This is a bitter lesson learnt from the past where Parliament had the power to do anything under the aparthied regime. Instead, the new constitution emphasizes the supremacy of the constitution itself and fundamental rights. In contrast Sri Lankan constitutional principles continue to stress that all existing laws in the country are valid notwithstanding the fact that they violate the constitution.

Fundamental rights protection in South Africa also differs from ours in that the protection is extended to all acts of the executive, legislature and even the judiciary. Restrictions on rights can be upheld only if they are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

It is emphasized that when interpreting the rights, the court should emphasize these values, not as perhaps of the Sri Lankan supreme court would say, the letter of the laws or the literal meaning of the section, or even the intention of the framers of the constitution.

The South African Bill of Rights is also unique in that it makes social and economic rights justifiable as well as civil and political rights. It outlaws discrimination on grounds of sexual orientation. In fact, one of the most respected supreme court judges in South Africa is a practicing homosexual who was active in the gay rights movement before he assumed office as a supreme court judge.

The Constituton emphasizes the secular nature of the state. It is interesting to note that the campaign to establish a secular state was in fact led by the South African church and headed by Archbishop Desmond Tutu.

The new constitution also contains some illustrative provisions on devolution of power. In some aspects, the South African provisions are more federal in nature than the 13th amendment or the PA legal draft that talks of provincial regions. In this context, the fact that certain parties in Sri Lanka who oppose federalism seem enchanted with the South African legal provisions is puzzling to say the least.

A provincial South African legislature has executive power over certain subjects, it can draft its own constitution and it cannot be dissolved by the President. The principle of provincial autonomy is constitutionally entrenched and a provincial administration is referred to as a provincial government. Thus, central, provincial and local government is both separate in certain respects and inter-related in others.

All legislature on the concurrent list have to be approved by a National Council of Provinces which consists of provincial politicians. If it is not approved, it is sent to a mediation committee which consists of politicians both from the centre and the provinces. If this too fails, then only can the Central Government pass the legislation with a two thirds majority. With regard to matters not on the Provincial list and on the concurrent list the National Council can still participate in the law making process and if it rejects the proposed laws they have to be sent back to Parliament for reconsideration.

The new South African Constitution is also noteworthy in the manner in which it protects the independence of the judiciary. This is important for us at a time when the independence of the Sri Lankan judiciary is being assaulted in very serious manner.

The South African constitution provides that judicial authority is vested in the courts. Parliament does not enter the scene at all. In fact, the word 'Parliament' does not appear anywhere in the chapter on the judiciary. In our own constitution we have the judicial power exercised by Parliament through the courts.

The constitutional court is the most important court in Sri Lanka and it is striking in that it consists of judges, human rights activists, academics and practitioners. It is required moreover that the court should reflect the gender and racial composition of South Africa. A similarly widely representative body is constituted by the Judical Services Commission which recommends judical appointments to the President. Judges can be removed only if the Judicial Services Commission finds that they are grossly incompetent or has engaged in gross misconduct. It is only if they are guilty that parliament can remove them with a two thirds majority. The present Sri Lankan constitutional amendments on the independence of the judiciary largely reproduce the '78 constitutional provisions. As it might be remembered, it was under the '78 constitution that we saw the sorry spectacle of supreme court judges including the Chief Justice being hauled before Parliament and asked to justify their independence.

In South Africa the entire process of constitutional reform was both exhaustive and transparent. When the process got under way in 1990, the various political actors in the country had tremendous differences of opinion. The National Party which was about to give up power and face a general election was concerned about safeguards that protected the minorities. The ANC on the other hand was primarily concerned about the issue of legitimacy, they stressed that the constitution should be drafted by the representatives of the people. A compronise was reached. It was agreed that an interim constitution should be drafted after which there would be a general election following which the elected representatives would decide on the final constitution. What should be noted here is that the interim constitution contained thirty four fundamental constitutional principles that the new Constitution could not depart from.

After elections in April 1994 therefore, the constituent Assembly consisting of 419 elected representatives set itself the task of adopting a final constitution within a period of two years. The Assembly set up a Directorate to oversee the entire process and then divided itself into six thirty-member committees which were assisted by technical experts, lawyers and legal draftsmen. The assembly also appointed a forty-six member executive committee which looked into all difficulties that came up and decided on the final draft.

Parallel to this process a well structured media campaign was also conducted which incorporated widely differing views on controversial constitutional issues and asked for responses from the public. It is recorded that some two million signatories were marked on the petitions that came before the assembly each of which was individually acknowledged.

Above all, what elevated the South African constitutional reform process above petty politicking was the amazing statesmanship of President Nelson Mandela. He personified the spirit of reconciliation in which the South African constitution was drafted, notwithstanding the turbulent political climate of that time