‘You Can’t Eat the Constitution’

by Dr Laksiri Fernando

( February 27, 2016, Sydney, Sri Lanka Guardian) During the parliamentary debate to approve the resolution to make a New Constitution on the 24th, Mahinda Yapa Abeyawardena MP has asked ‘Wiyawasthawa Kannada?’ (Can you eat the constitution?). This was reported by ‘Ada’ (Today) newspaper on 25 February as a lead story. Abeyawardena has apparently quoted an American Senator, Sherman Minton, of yesteryears (1930s) quite out of context.

His question or the statement appears to have raised on behalf of the poor or the people. But it is not the case. He himself is a landed proprietor according to Wikipedia. The question also looks trendy suitable to a Facebook. But it is completely a cynical attitude on the part of a MP, a member of the so-called Joint Opposition to be more precise, showing his and their disrespect to constitutionalism.   

If it had come from an ordinary person in the street, or in the village, then there could have been some meaning. But coming from a MP, and a former minister for that matter, is quite distressing.

Out of Context         

These kind of cynical remarks usually appear when people emphasise the importance of constitutionalism or the need for positive or progressive constitutional change. Sri Lanka is in such a situation today, after a long spell of authoritarianism and anti-constitutionalism.  

What I mean by ‘constitutionalism’ is not only having a constitution. It means a system of government in which power is ‘distributed and limited’ by fundamental or constitutional laws in the constitution to which all branches of the government (legislative, executive and judicial) and also the people should obey.  

It is only under exceptional circumstances that problems arise in interpreting between the ‘spirit and the letter’ of a constitution, and even that is left not to the politicians but to the judiciary.  

When Sherman Minton made the remark that ‘you cannot eat the constitution’ it had a limited meaning in the context of the great economic depression in America in the 1930s. What he meant was that you cannot strictly follow the constitution under a crisis situation. However, even under those circumstances it was an extreme statement coming from a Senator. Many supporters of the New Deal or the Democratic Party did not approve that extreme statement. He himself changed his attitude later and even became a conservative Supreme Court judge.    

It is no surprise that this new remark about ‘eating the constitution’ in Sri Lanka has come from a politician who has supported the Rajapaksa aggression steadfastly against the country’s constitution, particularly after the difficult war victory. It was merely for power and authoritarian purposes. One major landmark in this direction was when the Supreme Court gave an unfavourable decision on the Divi Neguma Bill and then the Chief Justice, Dr Shirani Bandaranayake, was impeached as revenge. It is all history now.

Even then some of them reported to have said ‘hell with the constitution, you can’t eat it.’ Prior to that and particularly thereafter, constitutional matters were manipulated through the unscrupulous chief justices. Independence of the judiciary was prostituted. That is why the UN Commissioner for Human Rights made a major flak against the judiciary here during his recent visit.

There was no parallel with the New Deal or President Franklin D Roosevelt in any of these Rajapaksa dealings in disparaging constitutionalism. Divi Neguma was not a New Deal. Rajapaksa was not a Roosevelt.

Protecting Basic Needs

One can even go further cynically on the constitution and say ‘you cannot eat it, you cannot wear it and you cannot sleep in it.’ This was actually said by a congressman, Charles Truax, at the same time of Sherman Minton, during the great depression. All true when you think of the text of a constitution or metaphorically about a constitution without effective economic and social rights. Abeyawardena could have been trendier if he had quoted Truax rather than Minton.   

On the other hand, these are all about the right to food (eat), the right to clothing (wear) and the right to shelter (sleep). They are also about the right to work and cost of living.

If Abeyawardena or the so-called Joint Opposition is serious about what they say on the ‘impossibility of eating a new constitution,’ what they should do realistically is to present proposals to make ‘economic and social rights’ fundamental human rights in the New Constitution and propose other measures to achieve the same objective/s. But those proposals should be feasible without being just rhetoric as the matters involved are extremely complex philosophically, legally and practically. After all this is a joint government of the UNP and the SLFP, and many of these cynical critics belong to the SLFP or the UPFA.  

Anyway, what the country should do with a New Constitution is to stop delivering handouts or welfare to the poor as ‘charity or gifts’ from the ‘rulers’ or their families. This feudal mentality should stop whether from the Bandaranaikes’, Rajapaksas’ or Wickramasinghes.’ I think Dilan Perera has said something to this effect on ‘Urumakkarayos’ (heirs) and ‘Karumakkarayos’ (buyers). People do have human rights to receive them whether it is a job, health, housing, education or welfare.

It is natural for ordinary people, particularly those who struggle for their daily bread, not to understand the merits of a New Constitution, at least immediately. The government or the constitution makers should make the matters clearer. After all, it has to go before a Referendum. A survey conducted by the CPA has also revealed this fact that the people are not that enthusiastic. The Joint Opposition or any other should not exploit the situation.

This is not unique to Sri Lanka but to any ‘third world’ country, if I may use that term. When a participatory research was conducted by Brij V. Lal (‘Intersections,’ Australian National University) leading to the elections in Fiji in 2014, he found the following.

“The real issues in rural areas are not about high principles but about roads, bridges, water supply, better hospitals, the price of bread…’You cannot eat a constitution,’ a man says to me. ‘Anyway, what has the constitution done for me,’ he asks a candidate preaching its virtues.” (p. 83).                

Now this was even after the 2013 New Constitution which incorporated a fair amount of ‘economic and social rights’ including environmental rights in Fiji. This is a good lesson for Sri Lanka. As my title says, although ‘you cannot eat a constitution, but the constitution can ensure your right to eat (food).’ This is said metaphorically, and what it means is the possibility of guaranteeing some or most of the ‘economic and social rights’ in the New Constitution. But those rights should be justiciable in an appropriate manner, and people should be able to realize them progressively through other programs as well. Nothing will come instantaneously after a New Constitution.

South Africa has done it, among many other countries recently, and Sri Lanka can do it and perhaps supply a better example.

Justification

We have the justification from history and examples from recent constitution making processes. As we have already seen, it was Roosevelt or his supporters who had misgivings about constitutionalism during the great depression. It was just a gut reaction to express misgivings in drastic terms like what Minton or Traux stated. But finally constitutionalism prevailed although the US is far behind the other countries in accepting economic and social rights even today.

However, where Franklin Roosevelt failed, in a way his wife, Eleanor Roosevelt, succeeded.

As we all know, Mrs Roosevelt was the first Chair of the UN Human Rights Commission which drafted the Universal Declaration of Human Rights (UDHR) in 1948 which for the first time enshrined the economic, social and cultural rights. Following that example, the UN also promulgated the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966 to which Sri Lanka is a treaty member. There are several other conventions.  

Origins of the emphasis on ‘economic and social rights’ are far deeper. It was the socialist thinkers of the 19th century, Robert Owen, Gracchus Baboeuf, Karl Marx and Charles Fourrier, to name a few, who emphasised the importance of economic and social rights. As Fourrier (‘Selected Writings,’ p. 190) pronounced,

“The first right is the right to sustain life, to eat when one is hungry…This right imposes the duty upon the social body of securing to the people a minimum maintenance…As long as this duty is not recognized, there is no social compact reciprocally agreed to; there is nothing but a league of oppression, a league of the minority which possess, against the majority which does not possess the necessities of life…”             

Now the liberals consider a ‘constitution as a social contract’ or compact. According to the above socialist, however, as long as the duty to secure a minimum maintenance (the right to sustain life) is not guaranteed, ‘there is no social contract reciprocally agreed to.’

A Fourrier today would definitely go beyond. Not just minimum maintenance. But if there is no guarantee for good maintenance (not minimum), the right to work, the right to good health, the right to good housing, the right to good education, there will be no ‘social contract reciprocally agreed to.’ Of course there are duties on the part of the people as well, in respect of all those rights.