the basis for drafting a new constitution
By Savitri Goonesekere
( This is an edited version of the transcript of a talk given at a public seminar titled ‘Why should we rally for a new people’s constitution?’, held at the National Library Auditorium on 11 September 2026 and organised by the Young Lawyers’ Association. )
Today there is so much confusion: what is Constitutionalism? What is a Constitution? Why do we need a Constitution? We must recognise that, it has been civil society, including professionals in this country, who have always articulated a voice on issues of public concern. If you remember the time of COVID, we had the medical professionals articulating a voice because this was a matter of public concern. So, the Bar Association, too, has expressed views on public concerns. We have with us this evening, President’s Counsel Mr. M. A. Sumanthiran, and Mr. Geoffrey Alagaratnam, and we will have President’s Counsel Mr. Saliya Pieris, who will join us later.
They and many other leading lawyers have always led from the front. And in that regard, in the case of the legal profession, inevitably there are areas of public concern that necessarily mean that they have to call the government to account. When that happens, the Bar Association is required to question government’s action or inaction including their policies
Now, in the past, I don’t think it was as bad as today, because today we have such adversarial, confrontational politics that if by any chance—and an unlucky chance—the Opposition’s stand on a matter happens to coincide with that of professionals, then there’s a delegitimisation of the professionals. That is wrong because professionals must have the courage to speak for their profession, even when they question the government. Constitutionalism and Constitution-making, to be functional, must have bipartisan consensus. When that is not there, even professionals who articulate a voice are seen as either anti-government, against government, or worse, lackeys of the government.
I think citizens should be aware of these realities, and therefore reflect on what it means to have a Constitution. What is a Constitution? A Constitution is, after all, the basic law of a country which will regulate the governance system. And to regulate a governance system, you have to have a framework for governance. The framework for governance also then will have to have institutions of governance. That would be what you call the system of governance. Now, those institutions of governance also have to be embedded and linked with some values, and a values framework.
In the 20th and 21st centuries, we have basically two forms or frameworks of governance. One is Democracy. The other is what we call centralised power with perhaps a single leader. That kind of governance does not focus in the way that Democracy does on the Sovereignty of the people, the rights and liberties of citizens of the country. Therefore, we need to understand in Constitution-making where we stand. Is it going to be for Democracy or is it going to be for another form of government? And I say this because today we’re constantly talking of the Democratic deficit, the failures of Democracy. Contrasted with that are countries which have strong leadership, single leadership, supposed to propel our counties into economic growth and a wonderful future.
In that context, therefore, we need to ask ourselves: what is the value in Democracy? Now Democracy, we must understand, was born of an evolutionary framework developed from a time when there was single leadership by a king, a monarch. Democracy didn’t come overnight. It had to dismantle monarchy and single leadership, and that’s what it did. Historically we know that basic ideas on Democracy as a form of governance can be traced to the Greek civilisation and time of what we call the Western Enlightenment. It was the Western Enlightenment that brought together these ideas of the Sovereignty of the People, a social contract between government and the People who are governed, and the central importance of the People of a country. That is Democracy. That did not come overnight. It took centuries. It took ideologies. It took thought. It required struggle born also of blood and tears.
Today we dismiss Democracy and this history and say, “Oh, it is elitist liberalism.” But we must not forget that Democracy was born as an evolution from monarchy and single leadership, replacing this with the concept of government that respected the rights of the Sovereign people. The central importance of the Sovereign Peoples rights to be protected from abuse of state power is the foundation of democracy as a form of governance. The European countries and the UK engaged with that system of governance.
By 1948, when the UN Charter and the International instruments were drafted, there were two different approaches to governance. One was the Western tradition born of their experience evolving from monarchy to People’s rights and People’s sovereignty that focused on civil liberties: freedom from torture, freedom of speech, freedom of expression, freedom to protest—those are civil liberties. But the weakness was that there was no recognition of social and economic rights as the rights of the people: that was absent in that tradition.
On the other hand, there were member states from the Communist countries, which had the centralized, authoritarian system of governance. They did not recognise civil liberties, but focused on meeting all their people’s social and economic needs as rights: health, education, shelter.
In 1948, we must remember that there were therefore two major international treaties or covenants: one, a Covenant on Civil and Political rights, and another one on Economic and Social rights. That was the Cold War period. But then subsequently through the years, there were changes. In the 1990s, there was the flowering of the human rights tradition. Member states of the UN came together at the Vienna World Conference in 1993, which then recognized that ALL these rights should be human rights of peoples across the globe
So, the Western liberal civil liberties tradition, linked with that of the countries of the Global South like Malaysia, China, and Russia—which recognized and gave importance to social and economic rights. And then a consensus developed that ALL these rights are important; they are “indivisible.” We witnessed this in the 1990s, and the early years of this millennium in the development of many international Conventions which declared human rights on the basis of both civil liberties and social and economic rights.
One would have thought that we would achieve a global consensus on the broadening of the meaning of democracy and a movement away from this concept of strong leadership without civil liberties. But we have not had that. In place of that, we have had a decline in multilateralism in the UN system, giving way to bilateralism, once again back to this focus on two systems: Democracy or strong single leadership.
In this global context, let us compare the situation in countries like ours, which experienced decolonization: countries which knew the impact of colonialism. What happened in those countries? These civil liberties, the legacy of the colonial powers, were used in freedom struggles. They were used to dismantle colonialism. That is why the idea that this liberal tradition of civil rights is a colonial white man’s sudda-law should be challenged. Because this is not so. These countries of South Asia and Africa internalised the values of Democracy, the systems of governance known as Democracy, and built for their nations Constitutions which recognized the importance of civil liberties and control of state power And you see this in India, you see this in Nepal, you see this in Sri Lanka: we had the same concepts of the importance of civil liberties in Constitutionalism. But we focussed on civil liberties. Social and economic rights in the Vienna Convention were considered only as social policies, following the Western tradition on people’s rights.
And what is the meaning of Constitutionalism? The Sovereign people have given their consent to the rulers to rule subject to protection of THEIR rights. And that means that Constitutionalism must prevent the abuse of State and Government power. . Today sometimes we talk of authoritarian Constitutionalism, we talk of abusive Constitutionalism. That’s a contradiction. If Constitutionalism is to prevent abuse of state, government power, you can’t have authoritarian constitutionalism or abusive constitutionalism. What you can say is you can abuse of constitution making process to embed an authoritarian system of governance.
So, we must now, therefore, recognise that even today, if we say there’s a Democratic deficit, this system of governance has been used in our countries to give a better quality of life to our people. There have been failures; there are dysfunctional areas, but that does not mean you have to reject something which has been a powerful force for recognising the importance of the citizens of a country.
I think today when we are challenged with all this talk on the deficit of democracy, the importance of single leadership and authoritarian governance to deliver development, we must stay the course and say: “No, for Sri Lanka, from 1948 we have had Democratic governance.” Governments have not delivered in many areas—true—so the challenge is to focus on Constitutionalism in a new Constitution. Priority must be given to help the government to deliver on the gaps that we have, and ensure the well-being of our people. Constitutionalism must be the basis for drafting a new constitution.
I think we have to also challenge this often-repeated statement that we have a “78-year curse” in governance. We have had deficiencies, but we have had Democratic governance. Central to that has been regular elections and the resilience of the People. Also, the contribution of the courts of this country, the lawyers of this country in ensuring that there has been some accountability in governance.
Some of you may not remember, but I have lived through dark times. I have witnessed the horror of the murder of a dear student, a politician whose head was cut off by the JVP—the Deshapremi at that time—and stuck on his gate. He had young children. I have gone with my husband in dark curfew streets to help clear a body for burial, where the first person who opened the poll, a relative, was killed at the General Election the JVP prohibited.
So, we in this country have lived through dark times. But we also have moved from that dark past to a point where those involved in an armed struggle the JVP entered into the democratic political process. They did so in 1994. Having come into that political process, the Democratic process, it is a commitment made to the people. We must hold this government with its JVP partner to deliver on Democracy, and not any other system of governance.
Let us look at our history of Constitutionalism and Constitution making. What is our history? 1948: we had the parliamentary system. We had, particularly in relation to the minorities, decisions of the appeal courts which have been criticised, which did not take into account minority rights. So, there were deficiencies. But we had a written constitution, we had courts, we had public administration and law enforcement systems that functioned. That was the dividend of post-independence freedom and political autonomy in Sri Lanka.
Then in 1972: with a massive mandate, we had a government which again brought in the 1972 “autochthonous” or home grown constitution. But what did it do? In fact, it interpreted the Sovereignty of the People as the Sovereignty of Parliament and parliamentarians. And that made Democracy dysfunctional. There is a recorded history of the abuse of power that took place at the time, including the conflict with the courts.
Now change was promised in 1978 Constitution. The people gave a massive mandate for a Dharmishta anduwa. And then what happened ? Again, we put in place all the democratic institutions as we know them, the system of democracy familiar in the liberal tradition. But a huge gap was the aggrandizement of power in the strong Executive Presidency, which has led to decades of problems in the governance of this country.
The Executive Presidency of 1978 has destabilised what were good public institutions. It has contributed to an ethos where, in institutions, the person who is considered the boss is supposed to lead, and everybody else does not question him/her. That happens in the public sector today in many institutions, and I’m told (and it looks like it does) that sometimes this also happens in the private sector. So, we have developed what you call a boss-man culture which seeps down to society, not just public institutions and governance. The Executive Presidency, therefore, has contributed to the weakening of many public institutions and also, to a large extent, a culture of corruption, and abuse of power.
This decline has been understood, and because it has been understood, since the year 2000 we have been asking for a new Constitution that will eliminate the Executive Presidency. Successive political leaders including the current President and their political parties have pledged in election manifestos to do this. At least the Chandrika Bandaranaike government fulfilled that promise and brought such a constitution in 2000 to abolish the Executive Presidency and strengthen the democratic institutions to achieve accountable governance to the People. Unfortunately, a subsequent and recent executive President and his party tore that Constitution to shreds in Parliament. That was 2000.
(To be continued)